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dev | 001-98098 | ENG | RUS | ADMISSIBILITY | 2,010 | BELAYEV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | The applicant, Mr Igor Vasilyevich Belayev, is a Russian national who was born in 1957 and lives in Pyatigorsk, the Stavropol Region. The applicant is a retired military serviceman. “... the military commissioner is to reinstate Belayev in the list of military personnel and to eliminate the violations of the procedure of his discharge from work... and then [again] exclude Belayev from the list of military personnel, after having provided him with all kinds of military provisions, including monetary ones...” On 12 January 2004 the Military Commissioner replied to the applicant stating that in 1990 he had been provided with a flat in Magadan, that in 1997 his wife had privatised the flat and that in 1999 she had sold it. The letter further stated: “... Thus, you have forfeited your entitlement to be provided with housing by the State or by the Ministry of Defence...” On 27 March 2004 the applicant brought proceedings against the Military Commissioner at the Garrison Court. On 2 June 2004 the Garrison Court refused to examine the applicant’s complaint stating that the same complaint had been already examined by the court’s decision of 15 November 2001. The applicant appealed against this decision to the court of the North-Caucasus Military Circuit Court (the Circuit Court). On 13 October 2004 the Circuit Court overruled this decision and returned the case for a fresh examination. On 21 October 2004 the Garrison Court rejected the applicant’s complaint. The court referred to the Military Commissioner’s letter of 12 January 2004 and stated that the applicant had missed the three-month statutory time-limit for the appeal against actions of officials. The text of the court’s decision stated, inter alia, the following: “... During the hearing the applicant stated that he did not miss the three-month time-limit for appeal of actions of officials, as he had received the Military Commissioner’s written refusal ... on 12 January 2004 and that he had lodged his complaint with the court on 27 March 2004... The court finds that the applicant’s reference [to the above dates] is unsubstantiated for the following reasons: ... according to Article 239 of the former Civil Procedure Code and Article 256 of the acting Civil Procedure Code, a citizen must lodge his complaint within three months from the date when he learnt about a violation of his rights [by a State official]. The Court finds that it is obvious that after the sale of his flat in Magadan on 18 February 1999 the applicant was aware of the absence of housing for him and his family. Further, by the Military Commissioner’s order no. 161 issued on 27 December 1999 the applicant was excluded from the list of the military personnel. Being aware of the exclusion from the list, the applicant appealed this order in June 2001 to the Garrison Court. In these circumstances, the court finds that the applicant was aware of the exclusion from the list of military personnel [and of the relevant entitlements] ...and the violation of his rights by the State official in June 2001... ...The applicant’s [current] complaint was received by the Garrison Court on 17 May 2004. In this situation the Court finds that the three-month time limit for appeal against the actions of the Military Commissioner ... was missed by the applicant. As to the applicant’s reference that the time limit started running over again after ... in January 2004 he had received the written refusal of the State official, the court finds it unconvincing as the time limit [for the appeal against actions of officials] should be calculated from the earliest event...” The applicant appealed this decision to the Circuit Court. On 16 February 2005 the Circuit Court upheld the decision of the Garrison Court and it became final. Article 256 of the Code of Civil Procedure, in force as of 1 February 2003 stipulates: “Limitation period for judicial complaints: 1. A citizen has the right to apply to a court within the period of three months starting from the day when he leant about the violation of his rights [by a State official].” | 0 |
dev | 001-83951 | ENG | TUR | CHAMBER | 2,007 | CASE OF ISLAMIC REPUBLIC OF IRAN SHIPPING LINES v. TURKEY | 1 | Preliminary objections dismissed (locus standi - six-month period);Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Isabelle Berro-Lefèvre | 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. By a charter of 12 September 1991, the applicant company chartered a Cypriot-owned vessel called the Cape Maleas (“the vessel”). The charter party was on an amended New York Produce Exchange time-charter form, and was for a time-charter voyage to the south Iranian ports. The duration of the voyage was stated to be fifty days and the purpose to carry general cargo, steels and commercial containers. 7. By agreement between the parties, namely the applicant company and the owner of the vessel, Seabeach Shipping Ltd, on 18 September 1991 the charter party became subject to “Addendum No. 1”. This provided that the applicant charterer could load 2,500 cubic metres of “IMCO 1” cargo. “IMCO 1” denotes cargo which falls within the “Class 1 – Explosives” category of the International Maritime Dangerous Goods Code. 8. The applicant company ordered the vessel to proceed to the port of Burgas in Bulgaria and, on 8 October 1991, further cargo commenced loading. This consisted of general cargo but also arms, ammunition and military spare parts which fell within the “IMCO Class 1” category (“the arms cargo”). 9. The applicant company’s agent in Burgas drew up bills of lading in respect of the cargo, including the arms cargo (“the bills of lading”). These bills of lading described the arms cargo as “special equipment”, followed by a reference to a numbered contract. The port of discharge for the “special equipment” was specified as Tartus in the Syrian Arab Republic. The shipper was stated to be “Socotrade” and the consignee as “to order”. 10. The applicant company’s agent in Burgas also prepared a manifest of cargo. Like the bills of lading, this described the arms cargo as “special equipment”, and gave the port of discharge as Tartus. The applicant company at all times intended that the arms cargo should be discharged at the port of Bandar Abbas in Iran. The vessel sailed from Burgas at 7 p.m. on 21 October 1991 and was ordered to proceed to Setúbal in Portugal in order to load further cargo. In order to reach Setúbal from Burgas, the vessel had to transit through the Bosphorus. 11. On 22 October 1991, at about 3.30 p.m., the vessel was about to commence transit through the Bosphorus. Before entering the Straits the master of the vessel requested the assistance of a pilot for navigation through the Bosphorus. The vessel was flying the international signal flag to indicate that it carried dangerous cargo. 12. As a result of information received by the Turkish customs authorities from a Turkish vessel which had recently arrived from Bulgaria, the Turkish authorities believed that the arms cargo on board the vessel was bound for Cyprus, from where it would be smuggled into Turkey. 13. According to the Turkish authorities, the vessel was first sighted when it was ten miles outside the Straits. After the vessel had entered the Straits, a pilot went on board and invited the master to declare any hazardous materials which were on board. The master duly did so, and the vessel proceeded for a few minutes through the Straits before the pilot instructed the master to stop the engines. 14. The Turkish coastguard and other Turkish authorities boarded and seized the vessel. Since the waters were rough at the point where the vessel was stopped, it was towed by a military boat to the Turkish port of Büyükdere. All parties to the case subsequently proceeded on the basis that the seizure of the vessel had taken place in the Straits, governed by the Montreux Convention of 20 July 1936. 15. At Büyükdere the vessel was searched and the bills of lading and manifest of cargo examined. The Turkish authorities discovered the arms cargo and questioned the master of the vessel. The statement entitled “Protocol of Facts”, in which the Turkish authorities summarised their allegations and the actions which they had taken in respect of the vessel, was prepared and signed by all the officials who were present at the seizure and search of the vessel. The master, the first officer and the radio operator of the vessel were taken into custody by the Turkish authorities. 16. On 24 October 1991 statements were taken from the master and first officer in the form of affidavits. These formed part of the file which was submitted by the public prosecutor to a single judge of the Istanbul State Security Court. 17. On 28 October 1991, having examined the file and citing, inter alia, Articles 5 and 6 of the Montreux Convention, a single judge of the Istanbul State Security Court approved the arrest of the vessel and the detention of its crew, namely the master, the first officer and the radio operator. The judge referred in his decision to “systematic weapon smuggling” and stated that the “evidence confirmed that the above-mentioned smuggled weapons could be used against the security of the Republic of Turkey”. 18. On 30 October 1991 that decision was served on the lawyer instructed on behalf of the vessel and the master. The following day, the lawyer filed an objection against the decision, setting out the relevant provisions of the Montreux Convention and noting that Turkey was not in a state of war with any country within the meaning of the provisions of its Constitution and that there was neither a threat nor a risk of war. 19. On 4 November 1991 the Istanbul State Security Court dismissed that objection. 20. On 5 November the Chief Public Prosecutor at the Istanbul State Security Court indicted the master, the first officer and the radio officer of the vessel, charging them with organised transportation of firearms and ammunition. In the public prosecutor’s view, Turkey was at war with Cyprus. He cited various decrees of the Turkish parliament which had authorised the sending of troops to Cyprus, and stated that: “... notwithstanding the ceasefire achieved through the efforts of the United Nations putting an end to the armed conflict, no treaty having yet been signed, the state of war is ongoing from a legal point of view. Consequently, it has become necessary to enforce Article 5 of the Montreux Convention. ... Pursuant to [Article 5 of the Montreux Convention], the commercial vessels of countries at war with Turkey do not enjoy free passage through the Straits. Therefore, there being no right of unrestricted passage through the Straits of a ship flying the Cypriot flag and laden with weapons, the Turkish Government may exercise, for its own security and based on its sovereign rights and Article 5 of the said Convention, control over that ship and the weapons contained therein.” 21. Since the vessel was registered as a Cypriot ship and flew the Cypriot flag, the Turkish authorities concluded that they had been entitled under Article 5 of the Montreux Convention to seize the vessel and to launch proceedings for arms smuggling. 22. During November and December 1991 the government of the Islamic Republic of Iran sought the release of the vessel and its cargo through high-level diplomatic meetings. The issue was raised at presidential level and, on 11 November 1991, the Iranian ambassador to Turkey visited the Deputy Minister for Foreign Affairs to deliver copies of one of the bills of lading and of the Montreux Convention. This was intended to establish that the arms cargo was in fact being carried on behalf of the Iranian State. 23. On 12 November 1991 the Turkish Minister for Foreign Affairs wrote to the Ministry of Justice, giving an account of the meetings which had taken place, enclosing copies of the bill of lading and the Montreux Convention and offering to obtain further information on the “special equipment” listed on the bill of lading. 24. On 13 November 1991 the lawyer acting on behalf of the owners and the master of the vessel pointed out to the Istanbul State Security Court that the assumption that Turkey and Cyprus were at war with each other was the “crucial point” of the case. He requested the Istanbul State Security Court to enquire immediately of the Ministry of Foreign Affairs whether a state of war existed. He also submitted that the Presidency of the Parliament should be asked whether there had been a declaration of war. 25. On 18 November 1991 the lawyer filed another application with the court reiterating that Turkey was not at war with any country (Cyprus included) and seeking the release of the master on bail. 26. On 25 November 1991 the lawyer submitted a petition to the Istanbul State Security Court asking the court to rephrase the question which it had put to the Turkish Ministry of Foreign Affairs. He objected to the question which had been put, namely “whether the peace operations in Cyprus have ended with a treaty of peace ...”, and submitted that the proper question to be asked was “whether the Republic of Turkey is in a state of war or not with the State of Cyprus”. 27. In another communication, dated 29 November 1991, the applicant company’s lawyer sent the Istanbul State Security Court translations of the charter party and the bills of lading. He explained that the nature of a time charter was similar to a lease, and that charterers had control over the cargo and its documentation. 28. The Turkish Ministry of Foreign Affairs responded to the questions posed by the Istanbul State Security Court in two letters of 13 and 26 December 1991. The letters stated: “... as there is no ‘state of war’ between Turkey and any other country, including the Greek Cypriot Administration, it is obvious that the seizure of the ship cannot be based on Articles 5 and 6 of the Montreux Convention. In fact, ships carrying the flag of the Greek Cypriot Administration have always traversed the Straits freely. 2. In the Note sent to our Ministry by the Iranian embassy in Ankara, it was stated that the arms found on the ship belonged to Iran. This had been certified by the Iranian authorities on several occasions. On the other hand, the Bulgarian authorities stated that the said arms had officially been sold to Iran by an agreement signed between Bulgaria and Iran in 1989 and that the arms had been loaded in Burgas. 3. Except for the limitations set out in Articles 4 and 5 of the Montreux Convention in ‘time of war’, commercial ships flying foreign flags enjoy full freedom of transit passage at times of peace, whatever their flag and cargo may be. As stated above, it is impossible to invoke the ‘time of war’ provisions of the Montreux Convention in this case because no state of war with the Greek Cypriot Administration exists. Moreover, in accordance with customary international and treaty laws, ships have the ‘right of innocent passage’ through the territorial waters of other countries ...” 29. On 16 December 1991 the Istanbul State Security Court issued a decision for the release of the master on bail, but ordered the seizure and confiscation of the vessel and its cargo on suspicion of their being intended for use for the commission or preparation of a crime. 30. On 10 January 1992 the public prosecutor filed his observations on the merits. He maintained his earlier position, relying upon Article 5 of the Montreux Convention, contending that the vessel and the arms cargo should be seized and the master imprisoned. 31. By January 1992 the applicant company had concluded that attempts to secure the release of the vessel and its cargo through diplomatic negotiations were unlikely to succeed. The applicant company applied through its Turkish lawyer, Mr Aydın, to intervene in the proceedings before the Istanbul State Security Court. In its application, the applicant company set out its interest in the case as the owner of the cargo and stressed that the arms cargo was being carried as part of a normal and legal commercial transaction and that Turkey was not at war with any country. It therefore asked for the unconditional release of the vessel and its cargo. The court ordered that the applicant company be joined as an intervening party in the proceedings. 32. On 22 February 1992 the then Prime Minister of Turkey, Mr Süleyman Demirel, issued a certificate which stated: “The Republic of Turkey is not in a state of war with any country, Southern Cyprus included ...” 33. By a judgment of 12 March 1992, the Istanbul State Security Court acquitted the first officer and the radio operator, but convicted the master of the vessel of importing arms into Turkey without official permission and sentenced him to five years’ imprisonment and a fine of 50,000 Turkish liras (TRL). The court ordered that the arms cargo and the vessel be confiscated pursuant to the final paragraph of section 12 of Law no. 6136, that all the cargo other than the arms be returned to the applicant company and that the master bear the costs of the court hearing. With reference to a judgment of the Court of Cassation in a similar case, the Istanbul State Security Court held that in the present case there was bad faith on the part of the applicant company since the bill of lading gave inaccurate information as to the contents of the cargo and the route of the vessel. It noted that there was no justification for not informing the Turkish authorities of Iranian weapons passing through the Straits. The court further considered the following in relation to the Montreux Convention: “The second question is whether the Turkish authorities were entitled to seize the munitions and weapons. Pursuant to the relevant Article of the Montreux Convention, the passage of ships carrying firearms and owned by any State with which Turkey is in a state of war is forbidden. The other important issue is whether Turkey is in a state of war with the Greek Cypriot State, or in other words, whether a peace agreement has been reached after the war. It is known that Turkey has engaged in war with the Greek Cypriot State, as a result of which Cyprus has been divided into two sections, that the Turkish Republic of Northern Cyprus has been established, that the Greek Cypriot State has not recognised the Turkish Republic of Northern Cyprus and until now no agreement has been reached, and that inter-State negotiations are in progress. Therefore, the letter of the Ministry of Foreign Affairs ... and the letter of the Prime Minister ... were disregarded.” 34. The judgment went on to refer to the Vassoula case, concerning another vessel, and concluded that “the existence of a state of war has been confirmed”. 35. Following the judgment of the Istanbul State Security Court, the applicant company paid the hire charge and expenses due to the owner and the charter party in the sum of 1,161,374.50 United States dollars (USD). Although the judgment of the Istanbul State Security Court had ordered the return of the non-arms cargo to the applicant company, it was not returned and, by an order of 29 May 1992, the Istanbul Court of Commerce granted an injunction to the owner of the vessel which imposed a lien of TRL 4,111,168,608 over the cargo to secure the unpaid hire. The owner of the vessel, Seabeach Shipping Ltd, then commenced enforcement proceedings for encashment of the lien over the cargo which belonged to the applicant company. 36. On 13 March 1992 the applicant company appealed against the judgment of the Istanbul State Security Court. The applicant company disputed the court’s conclusion that a state of war existed between Turkey and Cyprus. The ground of appeal also questioned the legitimacy of the court’s reliance on the earlier Vassoula case, and pointed out that the arms cargo had only been in transit through the Straits. 37. By a decision of 3 June 1992, the Court of Cassation quashed the Istanbul State Security Court’s judgment. It held that there was no material evidence in the file indicating that the arms would be discharged from the vessel in Turkey. As regards the applicability of the provisions of the Montreux Convention, the Court of Cassation held: “... that the state of war mentioned in Article 4 of the Convention did not exist as also evidenced by the letters of the Ministry of Foreign Affairs and the Prime Minister which explicitly state that ‘Turkey is not at war with any country, including the Southern Greek Cyprus Administration’ ... and that there is no room for application of Article 6 of the Montreux Convention. ...” 38. The case was remitted to the State Security Court for retrial. 39. In an application of 3 September 1992, pending the retrial of the master of the vessel before the Istanbul State Security Court, the applicant company sought removal of the lien which had been imposed by the Istanbul Court of Commerce over the cargo. 40. On 8 September 1992 the Istanbul Court of Commerce refused the applicant company’s request, so on 18 September 1992 the applicant company agreed to pay the owner some of the hire charges, without prejudice as to liability. In return, the owner agreed to relinquish its lien on the non-arms cargo. Under that agreement the applicant company had to pay 80% of the hire charge in respect of the period from 14 March 1992 to 13 September 1992 inclusive (USD 1,118,074.40). The applicant company also agreed to pay 100% of future charges, as and when the payments fell due. The owner provided the applicant company with a guarantee to repay the sum of USD 1,118,074.40. The applicant company considered that it was obliged to pay the hire charges due, otherwise the Istanbul Court of Commerce and the owner would not have released the vessel and its cargo. 41. On 30 September 1992 the Istanbul State Security Court acquitted the master on retrial. An appeal by the public prosecutor against that judgment was dismissed by the Court of Cassation in a decision of 12 November 1992, which was approved on 13 November 1992. 42. On 18 November 1992 the Istanbul State Security Court ordered the release of the vessel and the arms cargo. The vessel left Turkey on 8 December 1992 and was returned to the owner by the applicant company under the terms of the charter party on 9 March 1993. 43. In a written application of 22 July 1993, the applicant company brought an action before the Istanbul Court of Commerce claiming TRL 38,087,249,964 (equivalent to USD 3,386,598.98) plus interest against the Ministry of Finance and Customs, with reference to the Ministry of the Interior and the Ministry of Defence. The applicant company based its claim on Article 41 of the Code of Obligations and submitted that the seizure and detention of the vessel and its cargo had been unjustified. It argued in this connection that the arms and ammunition had belonged to the Islamic Republic of Iran, that the vessel had been wrongfully impounded for 413 days, 2 hours and 30 minutes and, as a result, it had had to pay USD 3,263,522.92 to the owner, USD 81,978.86 in fuel charges and USD 41,097.20 in harbour fees. 44. The application went on to distinguish this case from the Vassoula case, and to explain the circumstances in which the applicant company had been forced to pay the hire charges and other expenses to the owner of the vessel. 45. On 28 September 1994 a first expert report was submitted to the Court of Commerce following its interlocutory order of 9 March 1994. The experts advised that the applicant company’s claim should be declared inadmissible, principally on the basis that the applicant company had chosen voluntarily and without legal compulsion to pay the hire charges under the charter party. 46. The applicant company objected to the first report and the Court of Commerce ordered the preparation of a second expert report on 11 November 1994. 47. On 3 April 1995 the second expert report was submitted to the court with the conclusion that the applicant company’s claim should be dismissed. This second panel of experts considered that the owner of the vessel, but not the applicant company, might in appropriate circumstances claim compensation from the Turkish State. They expressed the opinion that the applicant company’s claim might succeed in relation to dock and fuel expenses incurred, as well as supplementary losses under Article 105 of the Code of Obligations, but that the claim in respect of hire charges should fail. 48. On 13 June 1995 the applicant company filed an objection against the second report and requested the court to rule on the case without obtaining a further report, or alternatively to order a third expert report. 49. By a decision of 20 September 1995, the Istanbul Court of Commerce dismissed the applicant company’s claim for compensation, holding that the vessel was not a merchant vessel since it was carrying, in part, a cargo of arms. It considered that the security authorities had merely carried out their statutory duty to investigate serious allegations of arms smuggling. The court therefore ruled that there had been no breach of the Montreux Convention or of Turkish law, in particular Article 41 of the Code of Obligations. 50. On 6 November 1995 the applicant company appealed. 51. On 27 December 1996 the Court of Cassation dismissed the appeal and upheld the judgment of the Istanbul Court of Commerce. A request by the applicant company for rectification of that decision was rejected by a new decision of the Court of Cassation of 22 May 1997, served on the applicant company on 22 June 1997. 52. The charter party provided, inter alia, that any dispute arising under it should be referred to arbitration in London. As a result of the seizure and subsequent detention of the vessel and its cargo by the respondent government, a dispute arose between the applicant company and the owner of the vessel concerning the hire charges and other expenses paid by the applicant company. 53. Following arbitration proceedings in London, on 20 September 1995 the arbitration panel decided that the charter party had been frustrated by the Istanbul State Security Court’s decision of 12 March 1992. The applicant company therefore recovered from the owner of the vessel the hire charges and other expenses which had been paid in respect of the period after 12 March 1992, but was unable to recover USD 1,300,403.83 which it had paid or which it thereupon had to pay to the owner in respect of the period between the seizure on 22 October 1991 and 12 March 1992. 54. Meanwhile, the owner of the vessel, Seabeach Shipping Ltd, brought an action in the Beyoğlu Commercial Court in Istanbul seeking a lien on the cargo for the hire charges. In a decision of 29 May 1992 the Beyoğlu Commercial Court accepted the owner’s claim on the ground that it was owed freight charges. 55. The cargo receiver, the Mobarakeh Steel Complex, also brought an action in the Beyoğlu Commercial Court claiming USD 2,236,208 in damages from the Ministry of Finance on behalf of the Ministry of the Interior and the Ministry of Defence. It submitted that it had lost revenue as a result of the detention of its merchandise carried on the vessel and that new commercial goods had been purchased in order to replace the seized merchandise. 56. In a judgment of 17 January 2000, the Beyoğlu Commercial Court dismissed that claim on the grounds that the seizure of the vessel had been lawful since the arms cargo was not clearly indicated on the bill of lading. On appeal by the plaintiff, the Court of Cassation quashed the judgment. Relying on the outcome of the criminal proceedings, the Court of Cassation noted that the goods in question were not contraband or of a kind requiring them to be confiscated. It accordingly held that the defendant must be liable for the damage resulting from the wrongful confiscation of the goods. 57. In a judgment of 15 December 2000, the Beyoğlu Commercial Court confirmed its earlier judgment and held that the plaintiff’s claim must be dismissed on the grounds that the seizure and detention of the vessel had been in compliance with domestic law and the Montreux Convention governing the Straits. Taking into account the fact that the vessel had been sailing under the Cypriot flag, and the inconsistency between the cargo and the documents, the court considered that the seizure of the vessel had been lawful. The court further noted that the State of Turkey had acted with the aim of preventing activities designed to undermine it. The plaintiff again appealed against that judgment. 58. On 21 November 2000 the Court of Cassation sitting as a full civil court upheld the judgment of the Beyoğlu Commercial Court and dismissed the action. It considered that while under the Montreux Convention merchant ships were entitled to innocent passage, this did not outweigh Turkey’s sovereign rights. That being so, any arms trafficking would adversely affect Turkey and would thus mean that the passage was no longer innocent. It further stated the following: “... On the other hand, the bill of lading described the 2,131 boxes opened as containing ‘Special Equipment’. The Turkish Commercial Code specifies in Articles 1098 and 1114 the points to be included in the bill of lading. The cargo received or loaded onto the vessel for transportation must be described on the bill of lading in order for the acknowledgment of receipt and the delivery contract to be complete ... This description, which is an essential element of the bill of lading, must be such as to allow the cargo to be distinguished at all times from the other cargoes on the vessel and must be complete. The carrier is obliged to indicate on the bill of lading the amount, brand and external appearance as well as the characteristics of the cargo ... Clearly, as is apparent from the bills of lading in the case file, these indications, some of which are mandatory, were not included on the bill of lading and invited suspicion. A country may purchase the arms it needs for its defence from another country, or may secure them by means such as aid or donations. In other words, arms trading between States is a normal and lawful procedure. Transportation of these arms is also normal and lawful. Arms purchased and transported must be indicated clearly as such on the bill of lading and other documents, in accordance with international rules. There should be no need to conceal them or make use of other channels. The file did not include a sales contract to the effect that the party sending these arms had purchased them lawfully, nor did it include any evidence to the effect that a letter of credit had been opened by banks. Given the manner in which the arms were loaded onto the vessel, it was essential from the point of view of Turkey’s security to inspect the vessel. In the matter of innocent passage, the coastal State has the right to impose sanctions on the vessel and cargo in accordance with the rule on the prevention of non-innocent passage which stems from customary law and the Montreux Convention. The Montreux Convention, customary law and the principle of ex aequo et bono do not prevent Turkey from exercising this right. For these reasons, the trial court’s decision to dismiss the action must be upheld on the grounds that it is in conformity with the law and with statutory procedure.” 59. The former signatories to the Treaty of Lausanne (1923), together with Yugoslavia and Australia, met at Montreux, Switzerland, in 1936 and abolished the International Straits Commission, returning the Straits zone to Turkish military control. Turkey was authorised to close the Straits to warships of all countries when it was at war or threatened by aggression. Merchant ships were to be allowed free passage during peacetime and, except for countries at war with Turkey, during wartime. The convention was ratified by Turkey, Great Britain, France, the USSR, Bulgaria, Greece, Germany and Yugoslavia, and – with reservations – by Japan. The preamble to the convention stated that the desire of the parties was “to regulate transit and navigation in the Straits of the Dardanelles, the Sea of Marmara and the Bosphorus, comprised under the general term ‘Straits’, in such manner as to safeguard, within the framework of Turkish security and of the security, in the Black Sea, of the riparian States, the principle enshrined in Article 23 of the Treaty of Peace signed at Lausanne on the 24th July, 1923”. The relevant provisions of the convention read as follows: “The High Contracting Parties recognise and affirm the principle of freedom of transit and navigation by sea in the Straits. The exercise of this freedom shall henceforth be regulated by the provisions of the present Convention.” “In time of peace, merchant vessels shall enjoy complete freedom of transit and navigation in the Straits, by day and by night, under any flag and with any kind of cargo, without any formalities, except as provided in Article 3 below. No taxes or charges other than those authorised by Annex I to the present Convention shall be levied by the Turkish authorities on these vessels when passing in transit without calling at a port in the Straits. In order to facilitate the collection of these taxes or charges merchant vessels passing through the Straits shall communicate to the officials at the stations referred to in Article 3 their name, nationality, tonnage, destination and last port of call (provenance). ...” “All ships entering the Straits by the Aegean Sea or by the Black Sea shall stop at a sanitary station near the entrance to the Straits for the purposes of the sanitary control prescribed by Turkish law within the framework of international sanitary regulations. This control, in the case of ships possessing a clean bill of health or presenting a declaration of health testifying that they do not fall within the scope of the provisions of the second paragraph of the present Article, shall be carried out by day and by night with all possible speed, and the vessels in question shall not be required to make any other stop during their passage through the Straits. Vessels which have on board cases of plague, cholera, yellow fever exanthemic typhus or smallpox, or which have had such cases on board during the previous seven days, and vessels which have left an infected port within less than five times twenty-four hours shall stop at the sanitary stations indicated in the preceding paragraph in order to embark such sanitary guards as the Turkish authorities may direct. No tax or charge shall be levied in respect of these sanitary guards and they shall be disembarked at a sanitary station on departure from the Straits.” “In time of war, Turkey not being belligerent, merchant vessels, under any flag or with any kind of cargo, shall enjoy freedom of transit and navigation in the Straits subject to the provisions of Articles 2 and 3. ...” “In time of war, Turkey being belligerent, merchant vessels not belonging to a country at war with Turkey shall enjoy freedom of transit and navigation in the Straits on condition that they do not in any way assist the enemy. ...” “Should Turkey consider herself to be threatened with imminent danger of war, the provisions of Article 2 shall nevertheless continue to be applied except that vessels must enter the Straits by day and their transit must be effected by the route which shall, in each case, be indicated by the Turkish authorities. ...” “The functions of the International Commission set up under the Convention relating to the regime of the Straits of the 24th July 1923, are hereby transferred to the Turkish Government. The Turkish Government undertake to collect statistics and to furnish information concerning the application of Articles 11, 12, 14 and 18 of the present Convention. They will supervise the execution of all the provisions of the present Convention relating to the passage of vessels of war through the Straits. As soon as they have been notified of the intended passage through the Straits of a foreign naval force the Turkish Government shall inform the representatives at Angora of the High Contracting Parties of the composition of that force, its tonnage, the date fixed for its entry into the Straits, and, if necessary, the probable date of its return. The Turkish Government shall address to the Secretary-General of the League of Nations and to the High Contracting Parties an annual report giving details regarding the movements of foreign vessels of war through the Straits and furnishing all information which may be of service to commerce and navigation, both by sea and by air, for which provision is made in the present Convention.” “Nothing in the present Convention shall prejudice the rights and obligations of Turkey, or of any of the other High Contracting Parties members of the League of Nations, arising out of the Covenant of the League of Nations.” 60. The relevant provisions provide as follows: “Nothing in this Part affects: (a) any areas of internal waters within a strait, except where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such; (b) the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas; or (c) the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits.” “This section applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.” “1. In straits referred to in Article 37, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics. 2. Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State. 3. Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention.” “1. Ships and aircraft, while exercising the right of transit passage, shall: (a) proceed without delay through or over the strait; (b) refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (c) refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress; (d) comply with other relevant provisions of this Part. 2. Ships in transit passage shall: (a) comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea; (b) comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships. ...” 61. This provides as relevant: “Any person who causes damage to another in an unjust manner, be it intentionally or negligently, shall afford redress for that damage.” 62. The civil courts are not bound by either the findings or the verdict of the criminal court (Article 53). 63. Section 12 makes it an offence to smuggle, to attempt to smuggle or to assist in smuggling firearms or ammunition into the country. 64. Article 36 of the Turkish Criminal Code which was in force at the relevant time prescribed the seizure and confiscation of objects which were used for the commission or preparation of a crime. 65. The relevant parts of Article 90 § 5 provide: “International agreements duly put into effect bear the force of law ... In the event of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.” | 0 |
dev | 001-102383 | ENG | SVK | ADMISSIBILITY | 2,010 | WENNER v. SLOVAKIA | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Jozef Wenner, is a Slovak national who was born in 1968 and lives in Trnava. Before he changed it in 2007, the applicant’s family name was Sedlák. He was represented before the Court by Mr M. Ficek, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. On 17 August 1999 a single judge of the Trnava District Court (Okresný súd) issued a penal order (trestný rozkaz) finding the applicant guilty of theft and sentencing him to four months in prison. The applicant challenged the order by way of an objection (odpor) which he later withdrew. The order thus became final and binding, on 11 March 2004. Meanwhile, the applicant was charged with embezzlement on two counts (on 17 January 2000 and 16 November 2001, respectively), continuing fraud (on 5 November 2001), breach of the rules on the circulation of goods in foreign trade (on 8 January 2003) and fraud (on 3 December 2003). On 3 December 2003 the applicant was arrested and, on 6 December 2003 a single judge of the Bratislava II District Court remanded him in custody pending trial on the fraud charge of 3 December 2003. The applicant was incarcerated in a detention centre (Ústav na výkon väzby) in Bratislava. On 25 March 2004 the Trnava District Court ordered the enforcement of the penal order of 17 August 1999. The applicant was subsequently transferred from detention and put in prison (Ústav na výkon trestu) in Želiezovce to serve his sentence under that order (for details see section “B” below). On 5 April 2004, while the applicant was detained pending trial on the fraud charge of 3 December 2003, that charge and the remaining charges against him were joined to a single set of proceedings Upon service of his sentence under the penal order of 17 August 1999, the applicant was again remanded in detention pending trial on the fraud charge of 3 December 2003 and the remaining charges (for details see section “C” below). He was incarcerated in the Leopoldov detention centre. On 22 April 2004, sitting in private (neverejné zasadnutie), a single judge of the Trenčín District Court ordered what amounted to an end of the applicant’s detention pending trial (prepúšťa z väzby) and ruled that, immediately thereafter, he be transferred to prison (ihneď dodaný do výkonu trestu) in order to serve his four-month sentence under the penal order of 17 August 1999. The decision was to be implemented on 7 May 2004 and, accordingly, the applicant was due to finish serving that sentence on 7 September 2004. The decision of 22 April 2004 was served on the applicant on 7 May 2004 and a copy of it was sent to the Bratislava detention centre by fax on 13 May 2004. On the latter date the applicant was transferred from the detention centre to prison to serve his sentence under the penal order of 17 August 1999. On 31 August 2004 the prosecution service applied for a new order for detention of the applicant pending trial in view of the approaching end of his four-month prison sentence. On 3 September 2004, sitting in private, a single judge of the Trenčín District Court ordered that, as soon as the four-month sentence under the penal order of 17 August 1999 had been served, on 7 September 2004, the applicant be again detained pending trial in connection with the fraud charge of 3 December 2003 and the remaining charges against him. The District Court judge referred to the order for the applicant’s detention of 6 December 2003 and its contents, including the fact that the applicant was not staying at the place of his registered residence (trvalé bydlisko), that his whereabouts were unknown, that there had been two warrants for his arrest issued and that he had been apprehended while attempting to commit another offence. From 1992 until his arrest the applicant had been involved in various property-related offences in at least three districts, was unemployed and had no source of regular income. It was also observed that the applicant had three previous convictions, mainly for property-related offences. The order of 3 September 2004 was enforced on 7 September 2004 at 4:30 a.m. when the applicant was transferred from the Želiezovce prison to the Leopoldov detention centre. A copy of the decision of 3 September 2004 was served on the applicant’s lawyer on 7 September 2004. He lodged an interlocutory appeal (sťažnosť) on behalf of the applicant on 9 September 2004. He relied on the principle of presumption of innocence, argued that there was no risk that the applicant would reoffend and offered a pledge on the applicant’s behalf that he would live in accordance with the law. A copy of the decision of 3 September 2004 was served on the applicant on 16 September 2004. In addition to the appeal lodged on his behalf by his lawyer, the applicant lodged an interlocutory appeal on his own. In so far as it can be established from the documents submitted to the Court, the applicant argued that the decision of 3 September 2004 had been phrased in general terms, that there had been irregularities in transferring the applicant from the detention centre to prison, that the applicant had not been informed of the reasons for his arrest and had not been heard in person by a judge. On 7 October 2004 the Trenčín Regional Court (Krajský súd) upheld the decision of 3 September 2004. It held that the applicant’s transfer from the detention centre to prison had been in conformity with section 75 of the Code of Criminal procedure, his detention was justified and his pledge could not be accepted as it had not been made directly by him. On 16 September 2004 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). On 10 November 2004 he amended his complaint. Relying on Article 5 §§ 1 (c), 3 and 4 of the Convention and on their constitutional counterparts, the applicant challenged the decisions of the Trenčín District Court of 22 April 2004 and of the Regional Court of 7 October 2004 as being unlawful and arbitrary. In so far as can be established from the documents submitted to the Court, the applicant argued in particular that, in its decision of 7 October 2004, the Regional Court had failed to examine properly his objections against the decision of 3 September 2004. The applicant also asserted that the decision of 22 April 2004 had been taken by a court which had no jurisdiction ratione loci to take it. On 25 December 2004 the Constitutional Court declared the applicant’s complaint inadmissible. It found that, in so far as the complaint related to the decision of the District Court of 22 April 2004, it had been lodged outside the applicable two-month time-limit. As to the remainder of the complaint, the Constitutional Court found no constitutionally relevant error or arbitrariness in the decision of the Regional Court of 7 October 2004. On a number of occasions the applicant sought review by the public prosecution service of the legality of his detention and of the procedure followed in respect of it. The public prosecution service acknowledged in letters of 24 May and 6 June 2005 (the Trenčín Regional Office of Public Prosecution), 14 July 2005 (the Trnava Regional Office of Public Prosecution) and 25 August 2005 (the Office of the Prosecutor General) that the Trenčín District Court had erred in having transmitted its decision of 22 April 2004 to the Bratislava Detention Centre no earlier than 13 May 2004. As the decision was to have taken effect on 7 May 2004, the applicant had been kept in detention six days longer and had started serving his four-month sentence six days late. This, however, had no impact on the lawfulness of the deprivation of the applicant’s liberty as the extra time spent in the detention centre had been deducted from the time spent in prison. | 0 |
dev | 001-23078 | ENG | SWE | ADMISSIBILITY | 2,003 | STRÖMBLAD v. SWEDEN | 4 | Inadmissible | Matti Pellonpää | The applicant, Mr E. Strömblad, is a Swedish national, born in 1950 and living in Kristianstad, Sweden. He is represented before the Court by Mr O. Larsson, a lawyer practising in Hässleholm. The respondent Government are represented by their Agent, Mr Lars Magnuson of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the father of three children born in 1985, 1986 and 1990 respectively. The children live permanently with their mother from whom the applicant is divorced. Since they did not live with both their parents, each of his children were entitled under the Maintenance Support Act (lagen om underhållsstöd, lag 1996:1030 -hereinafter “the 1996 Act”, which entered into force on 1 December 1996) to a monthly maintenance allowance (underhållsbidrag) of SEK 1,173 from the Social Insurance Office. The 1996 Act obliged the parent who under civil law was liable for maintenance to repay, in whole or in part, the community’s costs for the maintenance support provided to the children. The amount to be repaid was determined as a percentage of the income of the person liable for maintenance. If the liable parent had 3 children, as was the applicant’s case, he should repay 5% of his income for each child. On 20 January 1997 the Social Insurance Office (försäkringskassan -hereinafter “the Office”) of the County of Kristianstad decided that the applicant should repay a total sum of SEK 2,247 every month for the community’s costs for the maintenance support with respect to his 3 children. In other words, the applicant should repay SEK 749 per month for each child. In accordance with section 25 of the 1996 Act (as in force at the relevant time), the Office determined the amount of the applicant’s income as specified in the most recent tax assessment decision. By letter of 23 January 1997 the applicant requested the Office to reconsider its decision. He argued that the Office had failed to estimate correctly his ability to pay the amount in question and should have based its calculations on his current income, not that indicated in the most recent tax assessment decision. On 7 March 1997 the Office found that there was no ground for altering its earlier decision. The applicant appealed to the County Administrative Court (länsrätten) of the County of Skåne. He maintained that his income was insufficient for paying the amount fixed by the Office. He pointed out that since the calculations regarding his ability to repay maintenance support were based on his income before the 1996 Act came into force, the decision had a retroactive effect and was thus incompatible with the Swedish Constitution (Regeringsformen). Furthermore, the Office had calculated his income erroneously thereby obtaining a result which did not reflect his real ability to repay the maintenance support. In his appeal the applicant also requested the County Administrative Court to hold an oral hearing in the case. He wished to participate in person at an oral hearing in order to present arguments on the issue of principle in the case and on the great economic impact a judgment could have on him. He underlined that his main argument in the case was the unconstitutional retroactive application of the 1996 Act by the Office. On 8 April 1997 the County Administrative Court informed the applicant as follows: “The proceedings before [the court] consist of a written procedure. They may include an oral hearing with regard to a certain issue, when there is reason to assume that such a measure would be to the benefit of the proceedings or that it promotes a speedy determination of the case. An oral hearing shall be held if requested by an individual party to the proceedings, if such a hearing is not unnecessary and there are no particular reasons against it... ...It appears that you do not wish to submit any new information at the hearing but rather conduct a legal argumentation about the retroactivity of the legislation concerned and on how your deficit from earlier years’ taxation should be taken into account when determining the amount that should be repaid. Having regard to these circumstances [the court] finds that the examination of the case is limited to issues concerning the application of the law. Therefore, [the court] finds an oral hearing unnecessary. [The court] hereby gives you the opportunity to submit, no later than 22 April 1997, your final observations in the case. If no response is submitted to [the court], the case will be determined on the basis of the material available.” The applicant made further submissions in the case and reiterated his request for an oral hearing, claiming that the court had failed to give any special reasons for dispensing with an oral hearing. On 18 June 1997 the County Administrative Court delivered its judgment confirming the Office’s decision. It found that the calculation of the applicant’s income was done in accordance with the rules set out in the 1996 Act. While it was true that the calculation of the applicant’s income was based on the most recent tax assessment decision, the amount that he was obliged to repay concerned future maintenance support. Therefore, the court did not consider the decision as retroactive within the meaning of the Constitution. As regards the applicant’s request for an oral hearing the Court held: “The court cannot omit to hold an oral hearing without having found after careful consideration that this is unnecessary or that there are special reasons against doing so. Considering [the applicant’s] arguments in the case, [the court] finds that its examination is limited to issues concerning the application of the law. In view of this [the court] considers an oral hearing unnecessary.” The applicant appealed against the judgment to the Administrative Court of Appeal (kammarrätten) in Gothenburg, complaining about the lack of an oral hearing before the County Administrative Court and maintaining all his other submissions and requests. By decision of 28 January 1998 the Administrative Court of Appeal refused leave to appeal. The applicant appealed to the Supreme Administrative Court (regeringsrätten) which, on 17 September 1998, also refused leave to appeal. The 1996 Act, which entered into force on 1 December 1996, applied in relation to maintenance support and duty of repayment. The 1996 Act replaced previous legislation in the relevant area. According to the 1996 Act (as in force at the relevant time; January 1997) a child was entitled to maintenance support, at a rate of SEK 1,173 per month, if the parents did not live together. The parent who was liable under civil law for maintenance should repay to the State, in part or in whole, the amount corresponding to the maintenance support. According to its sections 24 and 25, the duty of repayment was determined as a certain percentage of the liable parent’s income according to the most recent tax assessment decision after a deduction of SEK 72,000. If the liable parent had 3 children who received maintenance support, he or she should repay 5% of his income for each child. The duty of repayment should be reviewed when a new decision on annual tax assessment had been taken and when there was a change in the grounds for the applicable percentage. In the event that the liable parent considered that he or she was unable to to repay the amount fixed, he or she could appeal for respite for discharge of the duty. If there were exceptional reasons relating to the liable parent’s economic or personal circumstances, the Social Insurance Office could remit the debt, entirely or partially, upon application from the liable parent. A decision by the Social Insurance Office under the 1996 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 to the two latter courts are subject to leave to appeal proceedings. The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act (förvaltningsprocesslagen, lag 1971:291 -hereinafter “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 |
dev | 001-115005 | ENG | AUT | CHAMBER | 2,012 | CASE OF ROTHE v. AUSTRIA | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 5. At the material time the applicant was the deputy principal of the St Pölten seminary, where future Roman Catholic priests are trained. In addition, he was private secretary to the bishop of the St Pölten diocese, Bishop Krenn. He resigned from his post as deputy principal in July 2004 and is currently living in Munich. 6. In the issue of the weekly news magazine Profil of 5 July 2004 an article was published on searches carried out by police in the St Pölten seminary. According to the article, police had searched the seminary on suspicion of someone having downloaded child pornography from the Internet. The article further stated that, according to rumours, police had also found photographs showing seminarians engaging in homosexual activities, and that there were rumours of unwanted homosexual advances towards seminarians involving abuse of authority. The article was accompanied by a photograph of the principal of the seminary, showing him standing in a garden, and by an interview with him in which he said that he did not believe that there had been any unwanted sexual advances by superiors and that the rumours were part of an intrigue or a revenge plot by a former seminarian. He denied involvement in any such incidents. 7. In its issue of 12 July 2004 Profil published an article entitled “Go on!” (Trau dich doch), with the sub-heading “Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray. First the principal and now the deputy principal have resigned. High-ranking dignitaries expect Kurt Krenn [the bishop of the diocese] to be removed from office.” 8. The article stated that the applicant and the principal of the seminary had had sexual relations with seminarians, but clarified that there was nothing to corroborate the rumours of unwanted homosexual advances which had been reported earlier. The article further reported that some seminarians had downloaded pornography and child pornography onto their computers. According to the article, the existence of homosexual relations was well known within the seminary and was even known to the bishop, who had tried to “hush up” the case at first. The article contained two photographs of the applicant, one on which he was about to embrace a seminarian, Mr K., and another one on which he and Mr K. were about to kiss each other. On this photograph the applicant’s eyes are closed and his mouth is half open. The photographs had been taken by one of the seminarians at a Christmas party in the applicant’s private apartment on 24 December 2003. In the article the applicant was identified by name while the seminarian’s identities were not disclosed. Likewise, on the published photographs, the applicant’s face was visible while that of the seminarian was blurred. The article quoted the applicant as saying that the photographs could be interpreted in different ways and that, at the Christmas party in question, all the participants had embraced each other in a friendly manner. 9. On 6 August 2004, the applicant initiated proceedings under the Media Act (Mediengesetz) against Verlagsgruppe News GmbH, the publisher of Profil, in respect of the article published on 12 July 2004. Relying on sections 6 and 7 of the said Act, he requested compensation for defamation (üble Nachrede) and for the violation of his strictly personal sphere (höchstpersönlicher Lebensbereich) caused by the publication of the photographs and the impugned article, especially the following passages: “Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray.”; “A painful truth: Krenn’s principal engaged in sex with subordinates, also Krenn’s private secretary and legal adviser ...” ; “Photos showing, among others, seminarians from St Pölten in kinky situations, in some cases with their superiors ... and because they were doing it with the boss and his deputy too, it was all quite normal and they felt perfectly safe ...” 10. The publisher of Profil replied that the content of the article was true. The company also argued that in the light of the Roman Catholic Church’s position condemning homosexuality, and the fact that the applicant was responsible for the training of future priests in the seminary, the public had an interest in knowing about the situation at the seminary. Moreover, the applicant was the private secretary of Bishop Krenn, who had repeatedly and publicly condemned homosexuality as being a sin and an aberration. Consequently, there was a connection with public life. The article was thus lawful by virtue of the right to freedom of expression guaranteed by Article 10 of the Convention. 11. On 15 September 2005, after holding several hearings at which evidence was heard from a number of witnesses, the Vienna Regional Criminal Court (Landesgericht, hereinafter “the Regional Court”) dismissed the applicant’s request for compensation. 12. The Regional Court observed that a large percentage of readers of the weekly Profil that had published the impugned article and the photographs would read the news magazine in only a cursory manner and would also consult other media before forming their opinion. Those readers would learn that there had been homosexual contacts between the applicant and seminarians and also among seminarians, and that there existed photographs to support this. The published photographs showed not merely a kiss on the cheek but a French kiss. The sexual nature of the kiss was visible from the fact that the applicant had his eyes closed and his mouth open with his tongue visible. Since the article had also stated that previous rumours about sexual coercion of seminarians by their superiors had not been confirmed, it was made clear that the two men had had a consensual relationship. 13. Giving a detailed assessment of various witness statements, the Regional Court found it established that the applicant had had a homosexual relationship with a seminarian, K., in which he had openly engaged at the priests’ seminary. One witness had stated, for instance, that the two men were wearing rings with each other’s names engraved on them together with the date of the beginning of their relationship. Moreover, one of the published photographs showed the applicant exchanging a French kiss with the seminarian K. The photograph had been taken in the applicant’s apartment, which was placed at his disposal by the diocese, during a Christmas party attended by a number of seminarians. The statement by the applicant quoted in the article, according to which the photographs could be interpreted in different ways, would lead the reader to conclude that the photographs had not been manipulated before publication. The Regional Court thus held that the publisher had succeeded in proving that the facts contained in the article were in essence true. 14. A request by the applicant to obtain the opinion of an expert in photographic analysis was rejected, as expert opinions were only to be taken if the resolution of a question of fact required expert knowledge which the court did not possess. Where the judge was able to assess the evidence on the basis of his or her own knowledge, no expert opinion was required. The Regional Court noted that the applicant had not alleged that the photograph had been manipulated. It could therefore be assessed without the help of an expert. 15. Owing to the considerable importance of the Roman Catholic Church as a role model, the public had a great interest in knowing what was going on within the Church. The public also had an interest in what happened in the seminary, especially since it had become known that pictures containing child pornography had been downloaded from the Internet. The circumstances leading to such incidents were a subject of public interest and had a direct connection with public life. The applicant, as the deputy principal of the seminary, was a public figure in that capacity. Even though the impugned pictures had been taken in his private residence there was a connection to his public life. While accusing a dignitary of the Roman Catholic Church of having homosexual contacts constituted the actus reus of defamation within the meaning of section 6 of the Media Act and exposed his strictly personal sphere within the meaning of section 7 of the said Act, the publisher had proved that the reported facts were essentially true. Thus, the applicant’s claim for compensation had to be dismissed. 16. The applicant lodged an appeal on points of law and fact with the Vienna Court of Appeal (Oberlandesgericht). The Court of Appeal, after holding a hearing, dismissed the appeal in a judgment of 28 June 2006. 17. The Court of Appeal upheld the judgment of the Regional Court, holding that the said court had not erred in fact or in law and had rightly held that the newspaper publisher had managed to prove that the content of the article was true. Regarding the applicant’s complaint that the publisher had not proved that there had been a homosexual relationship between him and a seminarian, the Court of Appeal found that the photographs of the two men hugging and kissing, together with the evidence from a witness who stated that he had seen them repeatedly exchanging French kisses at the Christmas party, was sufficient to prove that such a relationship had existed. As to the complaint that the first-instance court had refused to obtain an opinion from an expert in photographic analysis, the Court of Appeal found that the judge had rightly held that she could interpret the photographs for herself. Furthermore, the finding that the applicant and the seminarian K. had had a homosexual relationship was based not only on the photographs but first and foremost on a witness statement. The court further held that, in reporting on photographic evidence of seminarians in “kinky situations”, the publisher had provided proof that the statements were true. The average reader of the magazine would understand the term “kinky” to mean a deviation from what was considered normal, which would include photographs of priests and seminarians in a sexual pose wearing clerical clothing, especially as the persons concerned belonged to a group who publicly spoke out against homosexuality and denounced homosexual contacts as sinful. The Court of Appeal went on to state as follows: “The appellant argues that the substantive law was also incorrectly applied ... because the court found that the published material was connected with ‘public life’. In his view, the public interest in occurrences within an institution did not warrant a report which identified individuals, particularly when the report dealt with their strictly personal sphere and the individuals concerned had not been in the public eye. He had merely been deputy principal of the St Pölten seminary, a purely internal function within the Church which had no external dimension; accordingly, there had been no grounds for any interference with the intimate sphere of his private life. The court is not convinced by this argument. The Catholic Church, to which the majority of the Austrian population belongs and which, according to Article II of the Concordat (BGBl. II No. 2/1934), has public-law status, has a level of importance in Austria going beyond that of a small association, as is clear from the overall content of the Concordat and the circumstances in which it was ratified. Accordingly, conduct on the part of Church dignitaries which is in flagrant contradiction with Catholic teachings may very well be of public interest, particularly where – as in the present case – homosexual contacts take place and are maintained, albeit on a consensual basis, between staff and students in an educational establishment and between students themselves. The Catholic Church strives for acceptance and credibility among the public at large, and the activities of a principal and a deputy principal, as the persons in charge of a training college for future priests, have a public dimension. The Catholic Church is engaged in public relations work in many spheres and regularly makes its views on (sexual) morality known to the population as a whole, with the result that the general public is also entitled to be informed if individual officials are failing to practise what they preach, condemning homosexuality as a sin in public while practising it in private, even between staff and students. It should also be taken into consideration that the teachings of the Catholic Church on the subject of homosexuality are contrary to the fundamental right to sexual self-determination under Article 8 of the European Convention on Human Rights and to the prohibition on discrimination; hence, on this basis also, there is a public interest in the publication of specific allegations that Church dignitaries are failing to observe their Church’s teachings on sexual morals. This is even more so where the reports concern homosexual contacts between a teacher and his students. Such relationships of dependency call for particular vigilance in order to avoid potential breaches of a fundamental code of conduct designed to protect the physical and psychological integrity of the students. The media have a vital role in publicly exposing misconduct in a democratic society governed by the rule of law. The exposure and public condemnation of such misconduct is thus in any event in the public interest; the same is true of the reports identifying those concerned, without which it would not be possible to express credible criticism of specific inadmissible situations and thus fulfil the role of “public watchdog”. The weighing of interests in the present case should undoubtedly lead to the conclusion that the public right to information prevails. The professional activity of an ordained priest who is active in public life, as a clergyman, as deputy head of a seminary and as a close adviser and secretary to the bishop, does not take place merely within the Church; the Catholic Church has an important and, in some respects even a State role, and the credibility of its officials, who demand moral standards from the population and compliance with the Church’s rules of community life, occupies an important position in that regard. In particular, the fact that the events involved students who, as future officials of the Catholic Church are supposed to be taught these moral precepts by example, lends those events a public-interest dimension extending beyond the Church itself and affects all sections of the population. Furthermore, the applicant was widely involved in public relations work not just through the training of priests but also through his role as secretary and legal adviser to the bishop; this serves as further justification for lending greater weight to the report identifying him than to his interest in preserving his anonymity, and for holding that there was a direct connection with public life. ...” 18. The Court of Appeal concluded that, since the article had reported essentially true facts and there was a public interest in their being reported, the Regional Court had rightly rejected the applicant’s request for compensation. The judgment was served on the applicant’s counsel on 13 July 2006. 19. Section 6 of the Media Act provides for the strict liability of the publisher, inter alia in cases of defamation. The victim can thus claim damages from the publisher. Section 6 provides as follows: “(1) Where a medium publishes statements which constitute the actus reus of disparagement, insult, derision or defamation the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered ...” (2) The right referred to in paragraph 1 above shall not apply ... 2. in the case of defamation (a) [where] the statements published are true or ... (3) Where the publication concerns the strictly personal sphere, a claim under subsection 1 shall be excluded only on the grounds set forth in ...subsection 2(2)(a) ...; the case of subsection 2(2)(a), this shall not apply where the published facts are directly related to public life.” 20. Section 7 of the Media Act provides a claim for damages in cases of interference with the strictly personal sphere of an individual’s life. It reads as follows: “(1) If the strictly personal sphere of an individual’s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned, he or she shall have the right to claim compensation for the damage sustained from the media proprietor (publisher). ... (2) The right referred to in paragraph 1 above shall not apply where (i) ... (ii) the statements published are true and are directly related to public life; (iii) ...” 21. For the purpose of Section 6 of the Media Act “defamation” is to be understood as defined in Article 111 of the Criminal Code (Strafgesetzbuch), which reads as follows: “(1) Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ... (2) Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ... (3) The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.” 22. Section 78 of the Copyright Act, in so far as relevant, reads as follows: “(1) Images of persons shall neither be exhibited publicly nor in any way made accessible to the public where injury would be caused to the legitimate interests of the persons concerned or, if they have died without having authorised or ordered publication, those of a close relative.” 23. Article 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows: “(1) Anybody who, as a result of defamation, suffers real damage or loss of profit may claim compensation. (2) The same shall apply if anyone disseminates allegations which jeopardise a person’s reputation, income or livelihood, the untruth of which was known or should have been known to him or her. In this case there is also a right to claim a retraction and the publication thereof ...” 24. The Court refers to this resolution, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998. Its relevant passages are reproduced in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, § 71, ECHR 2012). | 0 |
dev | 001-23721 | ENG | FIN | ADMISSIBILITY | 2,004 | ESKELINEN v. FINLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Jarmo Eskelinen, a lawyer by profession, is a Finnish national who was born in 1951 and lives in Hämeenlinna. He is not represented before the Court. The respondent Government are represented by their Agent, Mr A. Kosonen, Director in the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was appointed as liquidator in the winding up of a company. He acted with another lawyer who embezzled the company’s and other companies’ funds. In criminal proceedings, eleven companies which were being wound-up claimed compensation for losses caused by the embezzlement. The embezzler was convicted and ordered to pay compensation for the damage he had caused, but was found to be insolvent. The companies commenced actions for compensation against the law office for which the convicted lawyer had worked, against his fellow partners and against those lawyers who had acted as co-liquidators with him as well as against their law offices. On 12 July 1996 the company in respect of which the applicant had been appointed as liquidator, commenced an action against him, among others, before the District Court of Lahti (käräjäoikeus, tingsrätten). The summons was served upon the applicant on 6 August 1996. He filed his submissions on 7 October 1996. Due to the substantial connections between the actions, the District Court decided to deal with them jointly. Negotiations for a friendly settlement between the parties were held. At least as far as the applicant was concerned, they were fruitless. The companies submitted additional written observations on 30 April 1997. At the same time, they commenced an additional action. The District Court held three preparatory hearings, on 5 and 10 November and 8 December 1997. The main hearings were held on 10 to 12 and 15 December 1997. The District Court dismissed the action against the applicant on 6 February 1998. The companies, among others, appealed. At the appellants’ request, the time-limit for submission of the letters of appeal was extended. The time-limit for submission of the observations in reply was accordingly automatically extended until 14 May 1998. On 20 May 1999 the Kouvola Court of Appeal (hovioikeus, hovrätten) upheld without an oral hearing the District Court’s judgment as far as the applicant was concerned. The companies’ applications for leave to appeal were submitted on 16 July 1999. On 11 May 2000 the Supreme Court (korkein oikeus, högsta domstolen) granted leave to appeal and invited the applicant, amongst others, to submit observations in reply by 16 June 2000. The case was examined by the Supreme Court during 7 sessions, on 10 and 11 October 2000, 10 November 2000, 8 and 9 February 2001 and 4 and 30 May 2001. On 9 August 2001 the Supreme Court annulled the Court of Appeal’s judgment and found in favour of the companies, ordering the applicant and others jointly to pay damages, amounting to FIM 1,425,440 (EUR 239,742) with interest as from 6 August 1996, and legal expenses. The applicant’s insurance covered FIM 1,055,170 (EUR 177,467) and he paid FIM 510,749 (EUR 85,902) from his own funds. Under chapter 16, section 4 of the Judicial Procedure Code (oikeudenkäymiskaari, rättegångsbalken), as in force until 1 October 1997, a court was to adjourn criminal proceedings on request, for example if a party wished to adduce further evidence and the court was satisfied there was a good reason for the adjournment. The court could not adjourn criminal proceedings of its own motion save for special reasons. Where the defendant in criminal proceedings was in detention, under a travel-ban or disqualified from holding office, a case could not be adjourned for more than two weeks save for carrying out a mental examination of the defendant. If a party considered that the proceedings had been unjustifiably delayed, a procedural complaint (kantelu, klagan) could be lodged with the court of appeal within 30 days from the date of adjournment. | 0 |
dev | 001-101173 | ENG | UKR | CHAMBER | 2,010 | CASE OF PETUKHOV v. UKRAINE | 3 | Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;No violation of Art. 6-1;Violation of Art. 13;No violation of Art. 13;Non-pecuniary damage - award | Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1973 and is currently serving a life sentence in Sokalska Correctional Colony no. 47 (Сокальська виправна колонія № 47). 6. On 6 June 2001 policemen attached to the Kominternovsky District Police Department of Kharkiv (Комінтернівський РВ ХМУ УМВС України в Харківській обл.), acting on information from an unknown source, arrested and detained the applicant on suspicion of murder and robbery. The applicant stated that he had been arrested the day before, on 5 June 2001. 7. On 8 June 2001 the applicant was questioned. He indicated that he did not need a lawyer. 8. On 9 June 2001 the applicant was transported to Kyiv, where he was placed in the Minsky District Temporary Detention Centre (Мінський районний ізолятор тимчасового тримання). 9. On 12 June 2001 the Prosecutor's Office of the Minsky District of Kyiv (Прокуратура Мінського району м. Києва) remanded the applicant in custody on the grounds that the applicant could escape and obstruct justice. 10. On 21 June 2001 formal charges were brought against the applicant on several counts of murder and attempted murder, attempted murder of police officers on duty, robbery and participation in an organised gang. When questioned on the same day in the presence of his lawyer, the applicant confessed to these charges. 11. On 2 August 2001 the Minsky District Court of Kyiv extended the applicant's pre-trial detention to a maximum of four months since “it was necessary to carry out a large scale investigation”. 12. On 5 October 2001 the Kyiv City Court of Appeal (hereinafter - “the Court of Appeal”) decided to extend the term of his pre-trial detention until 8 December 2001 given “the information on the applicant's personality” and the gravity of charges. 13. On 29 November 2001 the investigator declared the pre-trial investigation complete and granted the applicant and his lawyer access to the case file, which they finished studying on 30 October 2002. 14. On 9 December 2002, in the course of a preparatory hearing attended by the applicant and his lawyer, the Court of Appeal found that the case was not ready for consideration on the merits and decided to remit it to the prosecution for further investigation. It also held that the applicant should remain in pre-trial detention as he could obstruct justice if released. 15. On 24 April 2003, after a hearing attended by the applicant's lawyer, the Supreme Court of Ukraine upheld the decision of 9 December 2002 on the main points and decided that the applicant should remain in pre-trial detention as he could obstruct justice if released. 16. On 19 June 2003 the applicant's case file arrived from the Supreme Court at the Prosecutor's Office of the Obolonsky District of Kyiv (Прокуратура Оболонського району м. Києва). 17. On 18 July 2003 the Court of Appeal examined the prosecution's application to extend the applicant's pre-trial detention. The applicant's lawyer was present at this hearing and lodged an unsuccessful request for the release of her client. The Court of Appeal decided to extend the applicant's pre-trial detention for up to a maximum of nine months (according to the relevant legal provisions, at the material time, the terms of pre-trial detention applied only to the periods when the case was being investigated. The time when the case was in the court, when the accused was studying the case-file etc. were not taken into consideration). In doing so, the court referred to the complexity of the case, the seriousness of the crimes of which the applicant was accused, his personality and the fact that he could obstruct justice if released. 18. On 26 August 2003 the additional investigations were completed and on the following day the applicant and his lawyer were given access to the case file. 19. On 17 September 2003 the Supreme Court of Ukraine, at the request of the Prosecutor's Office of the Obolonsky District of Kyiv, extended the applicant's pre-trial detention to a maximum of twelve months. It based this decision on the seriousness of the charges. 20. On 18 December 2003 the Supreme Court of Ukraine granted the prosecution's request to extend the applicant's pre-trial detention until 19 March 2004. 21. On 16 March 2004 the applicant's pre-trial detention was extended by the Supreme Court of Ukraine until 19 May 2004. It took this decision on the basis of the seriousness of the charges brought against him. In this decision, the Supreme Court did not deal with the request of the applicant's lawyer to release her client on medical grounds. 22. On 18 May 2004 the Supreme Court of Ukraine dismissed the prosecution's application for a further extension of the applicant's pre-trial detention. The Supreme Court held that although the accused had been studying the twelve volumes of case materials since 27 August 2003 and he still had around ten volumes to study, there was no indication that the accused had deliberately delayed a trial. According to the court, the case materials had not been properly filed (in two volumes there were no lists of documents and pages were numbered in pencil). Therefore, the Supreme Court concluded that the investigation authorities had failed to properly present case-file materials and there were no grounds for an extension of the applicant's detention on remand. 23. On 19 May 2004 the Prosecutor General's Office (Генеральна Прокуратура України) asked the Supreme Court to lodge an application for an extraordinary review of this decision, considering, inter alia, that such decision would allow “persons who have committed serious offences to avoid isolation from society”. 24. On the same day the applicant's case file was sent to the Court of Appeal for consideration on the merits. 25. On 20 May 2004 five judges of the Supreme Court lodged an application for extraordinary review (подання в порядку виключного провадження) of the decision of 18 May 2004. 26. In the course of a joint session held on 21 May 2004 which was attended by the prosecutor but not by the applicant or his lawyer, with judge P. acting as judge-rapporteur, the Criminal and Military Boards (Судова палата з кримінальних справ і Військова колегія) of the Supreme Court set aside the decision of 18 May 2004 on the ground that the reasons given for the dismissal of the prosecution's request to extend the applicant's detention were insufficient and irrelevant, and ordered a rehearing. In particular, the court held that the investigating officer could not limit the time for studying the case file. 27. On 24 May 2004 the Supreme Court granted the prosecution's application for an extension of the applicant's pre-trial detention until 19 June 2004, as the applicant still needed time to study the case file. The court found no reason to release the applicant. 28. On an unidentified date the case was transferred to the court for consideration of the charges against the applicant. 29. On 3 December 2004 the Court of Appeal found the applicant guilty as charged and sentenced him to life imprisonment. The applicant's conviction was based on his initial confession statements, an extensive amount of different evidence and statements from eleven witnesses and ten victims. Three of his accomplices were also sentenced to different terms of imprisonment. The applicant appealed. 30. On 24 May 2005 the three Supreme Court judges, including judge P., upheld this judgment. 31. On 30 May 2007 the Supreme Court rejected the applicant's request for review of his case under the extraordinary review procedure. 32. Between 2005 and 2007 the applicant instituted proceedings against the judges of the Court of Appeal complaining of different procedural shortcomings in the course of consideration of his criminal case. All of his complaints and subsequent appeals were rejected since the applicant should have raised these complaints during the examination of his case and not in a separate set of proceedings. 33. Before his arrest the applicant suffered from limited mobility caused by a multiple fracture of his left thigh which was the result of a gunshot wound. He had a metallic plate fitted, but this became dislodged and caused a deformation of the bone. As a consequence the applicant's left leg was 3 cm shorter than his right and he suffered from pains in his left leg. According to a certificate issued by Yalta Town Hospital (Ялтинська міська лікарня) on 10 January 2002, the applicant received in-patient treatment there between 27 November and 12 December 2000 for a left thigh fracture which, according to this certificate, required further surgery and inpatient treatment. 34. On 8 August 2001 the applicant was transferred from the police detention facility, where he had been held since June 2001, to Kyiv PreTrial Detention Centre no. 13 (Київський слідчий ізолятор № 13, (“SIZO no. 13”)). 35. Upon his arrival, the applicant was examined by a doctor. The chest X-ray taken on 7 August 2001 revealed no abnormalities in the applicant's lungs. 36. According to the applicant, from the date of his admission and until 1 April 2003 he was subjected to a high security regime. In particular, he was only allowed outside his cell when handcuffed and accompanied by two guards with a prison dog in attendance. He was also held in a metal cage during his lawyer's visits and interviews by the investigator. 37. On 16 January 2002 the applicant was punished for an unspecified offence with five days' confinement in a punishment cell (карцер). After this punishment he caught a cold, for which, according to the applicant, he received no treatment. 38. On 31 January 2002 the applicant's lawyer requested a surgeon from Polyclinic no. 3 of the Solomyansky District of Kyiv (Поліклініка № 3 Солом'янського району м. Києва) to give his opinion on the applicant's orthopaedic problems. The surgeon, having examined the applicant and his medical case file, found that he had sustained a multiple fracture of the left thigh and was suffering pain related to this fracture. He needed further examination by an orthopaedist and in-patient treatment in a specialist hospital. The applicant also required a crutch, orthopaedic shoes and strong painkillers. 39. In March 2002 the applicant allegedly started to cough. 40. On 21 and 22 August 2002 the applicant was examined by prison doctors and diagnosed as suffering from infiltrative tuberculosis, pleurisy and a compound fracture of the left thigh. On the latter date he was moved to the medical wing of SIZO no. 13. 41. According to the Government, between 28 August and 15 October 2002 the applicant refused to take medication but did not sign any such refusal. 42. In a letter of 26 September 2002 the Head of the State Department for Enforcement of Sentences (Державний департамент виконання покарань) stated that the applicant had been placed to a punishment cell for 5 days and subjected to a high security regime; he was able to walk without a crutch and had refused medical assistance for his health problems. 43. According to a report of 10 October 2002 signed by the medical officer of the State Department for Enforcement of Sentences and by the SIZO doctor, the applicant had not complained about coughing between February and April 2002. The applicant had special orthopaedic shoes but, according to the surgeon's conclusion, needed a crutch and surgery. The applicant's condition had been satisfactory. He had been prescribed various medications but had only taken one of them as he had wanted to receive medications from home. 44. In November 2002 the Kyiv Traumatology Institute (Київський науково-дослідний інститут травматології та ортопедії) issued a certificate according to which the applicant did not need surgery. The certificate was signed by a senior scientist (старший науковий співробітник). 45. According to the applicant, on 10 December 2002 he was again punished with five days' detention in a punishment cell. Since the temperature there was lower and humidity higher than in the medical cell, the applicant's health deteriorated significantly. 46. The Government submitted that between 12 March and 28 April 2003 the applicant again refused to take medication. 47. In October 2003 the applicant was examined by the Head of the Orthopaedic Department of the Kyiv Medical Academy of Postgraduate Studies (Кафедра ортопедії Київської медичної академії післядипломної освіти) who, in his opinion of 10 October 2003, stated that the applicant's compound fracture of the left thigh required in-patient treatment in a specialist hospital. 48. In 18 November 2003 the applicant's state of health declined. He had two X-rays, and medication was administered directly into the pleural cavity. On 18 December 2003 the applicant was examined by P., a professor of phthisiology, who prescribed him further treatment. 49. In January 2004 the applicant's tuberculosis was aggravated by a pyopneumothorax (accumulation of pus in the pleural cavity) on account of which he was transferred to the Institute of Phthisiology and Pulmonology (Інститут фтізіатрії та пульмонології (hereinafter - “the Institute”)) on 4 February 2004. 50. On 5 February 2004 the administration of SIZO no. 13 asked the investigator in charge of the applicant's case to consider the possibility of the releasing the applicant, referring, inter alia, to the fact that his condition required a lengthy period of treatment in a specialist hospital. 51. On 21 February 2004 the Prosecutor of the Obolonskiy District of Kyiv replied that the applicant's detention had been extended by the Supreme Court and that there were no reasons to change this decision. 52. On 9 March 2004 the applicant was transferred from the Institute to SIZO no. 13. According to the applicant, because his treatment at the Institute had not been finished, he had still had tubes in his lungs for draining pus and further antibiotic treatment when he was transferred. He had received no such treatment in the SIZO and since the place where the tubes were inserted had become infected, the applicant had removed them himself. 53. According to a letter, written in reply to a request for information made by the applicant's lawyer on 11 March 2004 and signed by the Institute's head doctor, the head of the relevant department and the treating doctor at the Institute, the applicant's treatment had consisted of pleural drainage and the administration of antibiotics, carried out in parallel with intensive anti-tuberculosis treatment. It was necessary to continue this treatment in future. The doctors were aware of the applicant's orthopaedic problems, which aggravated his general condition, but this had not affected his treatment for tuberculosis. 54. On 24 March 2004 the applicant's lawyer requested that medical evidence be obtained in order to assess the applicant's fitness for detention in SIZO no. 13. 55. In a report of 19 April 2004 a panel of five experts from the Bureau of Forensic Medical Examinations of the Kyiv City State Administration (Бюро судово-медичної експертизи Головного Управління охорони здоров'я та медичного забезпечення Київської міської державної адміністрації) established that the applicant had sustained a compound fracture of the left thigh which had resulted in a substantial deformation of his left leg, causing limited mobility and considerable pain. The continued failure of the prison authorities to address this condition and his consequent reduced immunity may have been the reason why the applicant had contracted tuberculosis. The experts found that the applicant required specialist in-patient treatment, which could not be provided in the medical unit of SIZO no. 13. 56. On 27 July 2004 the doctor of the Traumatology and Orthopaedics Institute of the Academy of Medicine (Інститут травматології та ортопедії Академії медичних наук України) concluded that the applicant “could not have surgery on his left thigh”. 57. Between July 2004 and January 2005 the applicant had two chest Xrays and was twice examined by professor of phthisiology P. 58. On 8 October 2004, following an enquiry from the court, the SIZO administration issued a certificate stating that the applicant was suffering from chronic tuberculosis and other diseases but that his state of health was satisfactory and he could take part in court hearings. 59. On 2 December 2004 the applicant instituted proceedings in the Shevchenkivskyy District Court of Kyiv against the head of SIZO no. 13 and the head of its medical ward seeking his transfer to a specialised hospital and complaining that the information provided in the certificate of 8 October 2004 had not been true. 60. On 11 February 2005 the court rejected the applicant's complaints. In particular, the court found that the certificate in question had been accepted by the Court of Appeal and included in the applicant's criminal case file, therefore, there were no reasons to question its veracity. The court further found that the applicant had received the necessary medical treatment in the SIZO. This decision was not appealed against by the applicant. 61. According to the Government, the applicant refused to undergo medical tests on four occasions between January and July 2005. The relevant refusals were signed by the SIZO doctors but not by the applicant. 62. On 4 July 2005 the applicant was diagnosed with pleuropneumonia cirrhosis of the right lung, having been cured of cirrhotic tuberculosis. 63. On 1 November 2005, after the applicant's conviction had been upheld on appeal by the Supreme Court, he was transferred from SIZO no. 13 to Zamkova Correctional Colony no. 58 (Замкова ВК-58) to serve his prison sentence. 64. On an unspecified date the applicant was further transferred to Sokalska Correctional Colony no. 47 (Сокальська ВК-47). 65. On 9 February 2006 the applicant underwent surgery on his left leg. 66. According to the documents further submitted by the applicant's lawyers (letters from the Ukrainian-American Bureau for the Protection of Human Rights and from Sokalska Correctional Colony no. 47), he is still suffering from fibrocaseous tuberculosis of the right lung. 67. The relevant provisions of the Constitution of Ukraine read as follows: “Human and citizens' rights and freedoms are protected by the courts. Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of State authorities, local authorities, officials and officers. ... Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” 68. In accordance with Article 165-3 of the Code of Criminal Procedure, decisions of the judge of the Supreme Court of Ukraine on detention on remand are not subject to appeal. 69. Other relevant provisions of the Code are summarised in the judgments of Nevmerzhitsky v. Ukraine (no. 54825/00, § 54, ECHR 2005II (extracts)), and Solovey and Zozulya v. Ukraine (nos. 40774/02 and 4048/03, § 43, 27 November 2008)). 70. On 3 April 2003 changes were introduced to Articles 156 and 218 of the Code. According to these new rules, access to the case file should be provided to the detained defendant at least a month before the expiry of the authorised term of detention. If one month proves insufficient for the defendant to familiarise him or herself with the case file, the investigator can lodge an application with the relevant court of appeal, pre-approved by the Prosecutor General, for an extension of the term of the defendant's detention. The time in which the defendant and his or her lawyer familiarise themselves with the case file cannot be limited. 71. In so far as tuberculosis is concerned, the Committee for the Prevention of Torture's report on its visit to Ukraine in 2005 (CPT/Inf (2007) 22) reads as follows: “58. The delegation's observations in relation to tuberculosis are a source of great concern. There were often considerable delays in screening for tuberculosis. [...] Further, it recommends that the Ukrainian authorities ensure: - the early and effective screening for tuberculosis of all persons detained by the Militia; - the provision of uninterrupted treatment for persons already receiving anti-tuberculosis drugs at the time of apprehension.” 72. Other relevant international reports and other materials concerning the treatment of tuberculosis in Ukrainian penitentiary establishments can be found in the judgment of 28 March 2006 in the case of Melnik v. Ukraine, (no. 72286/01, §§ 47-53) and in the judgment of 19 February 2009 in the case of Malenko v. Ukraine (no. 18660/03, § 2830). | 1 |
dev | 001-79407 | ENG | POL | ADMISSIBILITY | 2,007 | PROKOPYSZYN v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Zbigniew Prokopyszyn, is a Polish national who was born in 1964 and lives in Głogów. The applicant informed the Court that on 1 February 2005 he had changed his surname to “Prokopyszyn” and he submitted an official document to that effect. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was born in 1964 and lives in Głogów. On 20 March 2001 the applicant was suspected of having committed aggravated burglary and fraud as a result of which a third person’s property had been disposed of to the detriment of its owner. On 29 May 2001 the applicant was arrested and placed in police custody. On 31 May 2001 the Radomsko District Court ordered that the applicant be detained. The court based its detention order on a reasonable suspicion that the applicant had committed the offences, the severity of the likely penalty, the risk of the applicant’s “avoiding the administration of justice” and his relapse into crime. Subsequent decisions extending the applicant’s pre-trial detention were taken by the Radomsko Regional Court on 16 August 2001, 25 October 2001, 21 December 2001, an unknown subsequent date, 31 May 2002, 27 June 2002, 13 September 2002 and 28 October 2002 and on an unknown subsequent date. The court referred to the need to conduct further investigations, the reasonable suspicion that the applicant had committed the offences, the risk of the applicant’s obstructing the proper course of the proceedings (especially, in view of the fact that he had previously gone into hiding). The applicant appealed against the decisions extending his detention on several occasions. All of his appeals were dismissed. On many occasions the applicant requested that his detention pending trial be lifted. On each occasion his requests were dismissed. The decisions to that effect were given by the Piotrków Trybunalski District Court (a decision of 20 June 2001) and the Radomsko Regional Court (decisions of 27 June 2001, 24 October 2001, 21 December 2001, 27 February 2002, 16 April 2002, 9 May 2002, 21 May 2002 and 8 July 2002). These decisions relied on the fact that the reasons for which the applicant had been initially detained were still valid. Neither the applicant’s family situation nor his state of health had been found as such to justify lifting his pre-trial detention. The applicant appealed unsuccessfully against some of the decisions dismissing his requests for release. On 16 October 2001 a bill of indictment was lodged with the Radomsko Regional Court. The applicant was charged with aggravated burglary and fraud as a result of which a third party’s property had been disposed of to the detriment of its owner. Hearings were held on: 23 November 2001, 9 January 2002, 30 January 2002, 20 February 2002, 20 March 2002, 29 March 2002, 16 April 2002, 24 April 2002, 29 April 2002, 14 June 2002, 17 July 2002, 14 August 2002, 6 September 2002, 11 October 2002, 6 November 2002, 11 December 2002, 15 January 2003, 12 February 2003, 7 March 2003 and 12 March 2003. From 11 June 2001 to 7 February 2002 and from 5 July 2002 to 15 October 2004 the applicant was serving prison sentences in respect of his other convictions. Therefore, for one year and four months of the period of his pre-trial detention, which lasted one year and nine months, the applicant was serving his prison sentences. On 12 March 2003 the Radomsko District Court found the applicant guilty of the offences he had been charged with and sentenced him to four and a half years’ imprisonment. The applicant appealed. On 22 August 2003 the Piotrków Trybunalski Regional Court upheld the judgment. As the applicant did not lodge a cassation appeal, the judgment became final. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. | 0 |
dev | 001-90828 | ENG | TUR | ADMISSIBILITY | 2,008 | DÖGÜŞ AND OTHERS v. TURKEY | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | The applicants, Mr Mehmet Dögüş, Ms Ayşe Dögüş, Mr Veysel Dögüş, Ms Saadet Seyhan (Dögüş) and Ms Safiye Dögüş, are Turkish nationals who were born in 1972, 1966, 1976, 1965 and 1944, respectively, and live in Adana. They were represented before the Court by Mr M. Çinkılıç, a lawyer practising in Adana. On 8 February 2001 the applicants' plot of land of 652 m² located in the Yüreğir district of Adana was expropriated by a decision of the Adana Governor's office for the construction of a school. The applicants were paid 10,000,000 Turkish liras (TRL) per square metre of their land as compensation. On 1 May 2001 the applicants brought an action before the Adana Civil Court for additional compensation. On 20 November 2001 the Adana Civil Court partially granted the applicants' request after having obtained two expert reports on the value of the land. On 29 April 2002 the Court of Cassation quashed the judgment of the Adana Civil Court and remitted the case to that court for a revaluation of the land. On 23 January 2003 the Adana Civil Court partially granted the applicants' request in the light of additional expert reports. On 15 April 2003 the Court of Cassation quashed the judgment of the Adana Civil Court once again due to the lack of clarity of the expert reports and requested the revaluation of the land. On 28 October 2003 the Adana Civil Court awarded the applicants additional compensation of TRL 4,171,940,000 on the basis of additional expert reports, plus interest at the statutory rate, running from 10 April 2001. On 29 March 2004 the Court of Cassation upheld the judgment of the first-instance court. On 2 July 2004 the administration paid the applicants TRL 13,826,638,792 in additional compensation, together with interest. | 0 |
dev | 001-107701 | ENG | RUS | CHAMBER | 2,011 | CASE OF ROZHIN v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 5. The applicant was born in 1963 and lives in Minusinsk. 6. On 28 December 2001 the Tomsk Regional Court found the applicant guilty of membership of an organised criminal group, several counts of attempted aggravated murder, intentional destruction of property and arms possession and sentenced him to fourteen years’ imprisonment, which he was sent to serve in correctional colony no. 2, Tomsk Region. 7. On 11 November 2004 the applicant brought an action with the Asino Town Court, complaining of various violations of his rights by the administration of correctional colony no. 2. In particular, he complained that on a number of occasions in 2003 and 2004 the director of the correctional colony had ordered him to be placed in a punishment cell, which had entailed a serious worsening of the general conditions of his detention and limitation or deprivation of his rights as a detainee. The applicant also argued that the colony authorities had unlawfully seized his writing utensils, and had forbidden him to use the colony library and to purchase newspapers, magazines and books. He further alleged that they had not allowed him to have meetings with counsel and to make paid phone calls to his relatives, counsel and the European Court of Human Rights. His biggest grievance, however, was that the administration had refused to post his complaints to various authorities in Russia and had monitored or even intercepted his correspondence with the Court. The applicant also requested that the Town Court ensure that he could be present at a court hearing during the examination of his complaint. 8. Following a number of refusals by the Town Court to grant the applicant’s request, and the subsequent revocation of those decisions by the Tomsk Regional Court, on 3 October 2006 the Asino Town Court granted leave to bring an action for an examination on the merits, and set a preliminary hearing for 6 October 2006. Subsequent hearings were held on 12 and 30 October 2006. The applicant was not informed of either of those hearings. In fact, on 17 October 2006 he was transferred to another correctional colony in the town of Verkhneuralsk, Chelyabinsk Region, more than 1,500 km from his previous place of detention. 9. On 26 January 2007 the applicant was transferred to detention facility no. 77/2 in Moscow. 10. On 12 February 2007 the Asino Town Court dismissed the applicant’s complaint, having found that either the restrictions on the applicant’s rights had been lifted following an inquiry by prosecution authorities or they had been warranted by the applicant’s placement in the punishment cell, in view of numerous instances of unlawful behaviour on his part, such as refusal to keep his cell tidy, destruction of colony property, and so on. The applicant was not brought to the hearing. Representatives of the colony administration attended the hearings before the Town Court and made oral submissions. 11. By a separate decision issued on 12 February 2007 the Asino Town Court responded to the applicant’s request to be present at the hearings. In particular, the Town Court held as follows: “[The applicant], having been convicted by the judgment of 28 December 2001 of the Tomsk Regional Court, is currently serving his sentence. It appears from the case file materials that he was transferred outside the Tomsk Region. [The applicant] lodged a complaint about the actions of the head of [correctional colony no. 2], Tomsk Region...; accordingly, his complaint is being examined by the Asino Town Court within the civil procedure. The Execution of Sentences Act of the Russian Federation, in force at the material time, does not provide for an opportunity to transfer convicts to [ensure] their participation in court hearings in civil cases; therefore it is impossible for the court to ensure [the applicant’s] presence at the hearings in the present civil case.” 12. The applicant appealed, arguing, inter alia, that the Town Court had unlawfully refused to ensure his presence at the hearings, despite the fact that the majority of the circumstances in dispute were exclusively within his personal knowledge and it was important for the Town Court to hear both parties to the proceedings, the applicant and the administration. 13. At a hearing on 22 May 2007, held in the applicant’s absence, the Tomsk Regional Court upheld the judgment of 12 February 2007, endorsing the Town Court’s reasoning, including that on the subject of the applicant’s attendance. 14. The Code of Civil Procedure of the Russian Federation (CCP) provides that individuals may appear before a court in person or may act through a representative (Article 48 § 1). 15. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77 § 1). The Code does not mention any possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or a defendant. 16. On several occasions the Constitutional Court has dismissed as inadmissible complaints by detainees whose requests for leave to appear were refused by civil courts. It reasoned that the relevant provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict a detainee’s access to court. The Constitutional Court has emphasised nonetheless that an imprisoned person should be able to make submissions to a civil court, either through a representative or in any other way provided by law. If necessary, a hearing should be held at the convict’s place of detention, or the court committed to hear the civil case may instruct the court with territorial jurisdiction over the convict’s place of detention to obtain his/her submissions or to take any other procedural steps (decisions 478-O of 16 October 2003, 335-O of 14 October 2004 and 94-O of 21 February 2008). 17. Under Articles 58 and 184 of the CCP a court may hold a session elsewhere than in a court-house if, for instance, it is necessary to examine evidence which cannot be brought to the court-house. 18. Article 392 of the CCP contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances. By a ruling of 26 February 2010 the Russian Constitutional Court indicated that this Article should be interpreted as, in principle, allowing a procedure to be launched to have a final judgment re-examined on account of newly discovered circumstances, such as the finding of a violation of the European Convention on Human Rights in a given case by the European Court of Human Rights. | 1 |
dev | 001-58078 | ENG | AUT | CHAMBER | 1,996 | CASE OF PRÖTSCH v. AUSTRIA | 3 | No violation of P1-1 | John Freeland;R. Pekkanen | 6. The applicants are Austrian citizens and own a farm at Niederthalheim, Upper Austria. 7. Agricultural land-consolidation proceedings (Zusammenlegungs-verfahren) under the Upper Austria Agricultural Land Planning Act (Flurverfassungs-Landesgesetz - see paragraph 20 below) were instituted by the Gmunden District Agricultural Authority (Agrarbezirksbehörde - "the District Authority") in 1972. They concerned 153 landowners and covered some 606ha. The valuation (Bewertungsplan - see paragraph 23 below) was adopted in December 1978 without opposition from the interested parties. On 7 October 1980 the District Authority ordered the provisional transfer of the compensatory parcels (Grundabfindungen) on the basis of a draft consolidation scheme (Neueinteilungsplan - see paragraph 25 below). An appeal lodged by the applicants against this order was rejected by the Upper Austria Land Reform Board (Landesagrarsenat - "the Upper Austria Board") on 24 April 1981. 8. The consolidation scheme (Zusammenlegungsplan - see paragraph 26 below) was published in October 1983 and, in its essence, confirmed the situation created by the provisional transfer order. 9. On 24 May 1984, following an appeal from the applicants, the Upper Austria Board held that the parcels allotted to the applicants were of approximately the same value as the old ones. The Board pointed out that it did not share the opinion expressed in the private expert opinion submitted by the applicants, according to which the yield of their compensatory parcels was below that of the applicants’ former property. On the contrary, it held that, on the whole, the agricultural performances under the new situation were at least as good as under the old one and dismissed the bulk of the applicants’ arguments. However, with reference to a plot measuring 2.2ha (plot no. 4738), the Board held that while not illegal its configuration could be rendered more functional (zweckmäßiger). It therefore quashed the part of the consolidation scheme concerning that plot and ordered that the District Authority re-examine the issue. The applicants appealed against this decision. 10. On 3 April 1985 the Supreme Land Reform Board (Oberster Agrarsenat - "the Supreme Board") quashed the decision of 24 May 1984 and referred the case back to the Upper Austria Board following the applicants’ argument that the appeal could not be partly dismissed, as the applicants’ claims for compensatory parcels were an indivisible whole. It further held, inter alia, that the question of lawfulness (Gesetzmäßigkeit) also included considerations of functionality. 11. On 11 July 1985, in compliance with the Supreme Board’s decision, the Upper Austria Board set the consolidation scheme aside. The Board again pointed out that it did not share the opinion expressed in the private expert opinion submitted by the applicants. It established that the compensatory parcels attributed to the applicants were, on the whole, more advantageous, but that they also contained some negative aspects. The advantages were (a) the reduction of the splitting up of the plots and the resulting increase in the average size of the plots; (b) the reduction of the length of boundaries and the concomitant abolition of unproductive plots; (c) a better balance between length and width of the plots; and (d) better access. The negative aspects were (e) the diminution of the average comparative values of the parcels (by 2.3%); (f) the increase of average distance from the farm (by 2%); (g) the slight increase of forest border; (h) the inappropriate configuration of plot no. 4733; (i) the hook-like form of plot no. 4738 and the circuit line pylons on this plot part of which was unproductive. 12. The Board concluded that the lawfulness of the compensatory measures was still in question. The file was referred to the District Authority for the adoption of a new scheme. 13. In January 1986 the District Authority published a new consolidation scheme. The applicants also appealed against this scheme. Although they were now in agreement with the new land allocation, they demanded that the boundaries of one of their plots be straightened (Grenzbegradigung) and that their share in the costs of communal measures and facilities - 95,000 Austrian schillings (ATS) - (see paragraph 24 below) - be scrapped or reduced to a minimum. 14. On 18 September 1986, the Upper Austria Board dismissed the applicants’ appeal. It observed that the number of plots in the applicants’ possession had been reduced from seventeen to nine, whilst the difference in value between the new and the old land did not even attain 1%, well below the statutory maximum of 20%. All in all, the consolidation measures had led to an increase in productivity which compensated for certain small disadvantages. The applicants lodged a complaint with the Constitutional Court (Verfassungsgerichtshof), which, in summary proceedings, refused to deal with the complaint and referred the case to the Administrative Court (Verwaltungsgerichtshof) which, in its turn, decided to discontinue the proceedings for procedural reasons in February 1988. 15. On 26 January 1988 Mr and Mrs Prötsch had applied for financial compensation in respect of the damages allegedly caused to them by the fact that they had received insufficient compensatory parcels by the provisional transfer which at that time was still in force. They submitted an expert opinion according to which they had suffered a loss of crops in the amount of approximately ATS 210,000 between 1980 and 1987. 16. On 22 February 1988 the District Authority rejected the applicants’ claim as being inadmissible. It observed that the Agricultural Land Planning Act did not provide for any compensation in respect of damage suffered in the period between the provisional transfer and the assignment of lawful compensatory parcels by the final consolidation scheme (see paragraph 27 below). In addition, the agricultural authorities were only competent to decide on facts concerning the implementation of the consolidation. 17. The applicants’ appeal to the Upper Austria Board was dismissed on 7 July 1988 on the ground that there was neither a legal nor a factual basis for a claim for financial compensation in their case. In the latter respect, the Board pointed out that it had examined and rejected the applicants’ private expert opinion already in its decision of 11 July 1985 (see paragraph 11 above). Although the original consolidation scheme had had to be quashed in consequence of the applicants’ appeal, this did not mean that the applicants had suffered damage. In the instant case, it had been found in the earlier decision that among the total of 17ha of compensatory parcels allotted to the applicants only the configuration of one measuring some 2.2ha (no. 4738) was objectionable. On the other hand, the applicants had also gained certain advantages. Therefore the Board maintained the opinion already expressed in its earlier decisions that the applicants had not suffered any damage as far as yield and exploitation conditions were concerned. 18. The applicants challenged this decision before the Administrative Court alleging that the authorities had the duty to apply the provisions of the civil law. The Administrative Court, however, found that the administrative authorities were not competent to decide on compensation claims of a civil-law nature and dismissed the complaint on 27 September 1988. 19. The applicants lodged a complaint with the Constitutional Court invoking Article 6 of the Convention (art. 6) and Article 1 of Protocol No. 1 (P1-1). The Constitutional Court considered that in the light of its constant case-law the complaint did not have any prospects of success and, on 28 February 1989, refused to deal with it. In summary proceedings it observed, inter alia, that the facts in the applicants’ case were different from those in the case of Erkner and Hofauer v. Austria (judgment of 23 April 1987, Series A no. 117 - see paragraph 38 below) in that the consolidation scheme had already been published and that the applicants had never complained of the unreasonable length of the proceedings. 20. The basic rules applying to the consolidation of agricultural land, as applicable to the present case, are embodied in the Federal Agricultural Land Planning (General Principles) Act (Flurverfassungs-Grundsatzgesetz 1951), as amended in 1977. Each Land has enacted its own agricultural and land planning legislation (Flurverfassungs-Landesgesetze) to regulate the matters of its competence within the federal framework. In the Land of Upper Austria, consolidation is governed by the Agricultural Land Planning Act 1979 ("the 1979 Act"). 21. The purpose of consolidation is to improve the infrastructure and the pattern of agricultural holdings in a given area (section 1 (1) of the 1979 Act). It comprises communal measures and facilities and redistribution of land. The operation takes place in the following stages: - initial proceedings; - ascertainment of the occupiers of the land in question and assessment of its value; - planning of communal measures and facilities; - provisional transfer of land, where appropriate; - adoption of the consolidation scheme. None of these stages may begin until the previous stage has been terminated with a final decision. 22. The initial proceedings, which the authorities institute of their own motion, serve to determine the consolidation area, which, in addition to farmland and forest, may include land voluntarily offered for consolidation and land required for communal facilities (sections 2 and 3). The owners form an association (Zusammenlegungsgemeinschaft), which is a corporate body governed by public law. The institution of proceedings means that land use is restricted until the proceedings are concluded; any change in use must be approved by the appropriate agricultural authority. This authority has exclusive jurisdiction, inter alia, over disputes concerning ownership and tenure of land in the consolidation area (section 102). 23. Once the decision to open proceedings has become final, the agricultural authority ascertains who are the occupiers of the land and assesses its value (sections 11 and 12). Its decision (Besitzstandsausweis und Bewertungsplan) determines the value of the land in accordance with precise statutory criteria (section 13). Each of the landowners involved may challenge the valuation not only of his own land but also of the land of the others. Once the agricultural authority’s decision has become final, however, it is binding on all of them. 24. Communal measures (such as soil improvement, alterations to terrain or landscape) and communal facilities (private roads, bridges, ditches, drainage and irrigation) are ordered, where they are needed, in a specific decision by the relevant authority (Plan der gemeinsamen Maßnahmen und Anlagen), which must also settle the question of costs, these usually being shared by the landowners. 25. Under section 22 of the 1979 Act, land may be provisionally transferred before the adoption of the consolidation scheme, even if some owners object. Decisions by the competent authorities ordering provisional transfers are not appealable; but section 7 of the Federal Agricultural Authorities Act 1950 (Agrarbehördengesetz, as amended in 1974 - "the 1950/1974 Federal Act") provides that the final decision shall lie with the Land Board (Landesagrarsenat), except in cases where an appeal lies to the Supreme Board (Oberster Agrarsenat - see paragraph 30 below). The main purpose of provisional transfer is to ensure that the consolidation area is rationally cultivated during the interim period. The land transferred becomes the property of the transferees subject to a condition subsequent: ownership of it reverts to the original owner if the allocation is not confirmed in the final consolidation scheme (Eigentum unter auflösender Bedingung, section 22 (2)). This provisional, conditional ownership is, as a rule, not entered in the land register since it is possible that the parties concerned may be allotted other parcels once the proceedings are completed. The District Authority has to authorise any entry in the land register (sections 94 et seq.). 26. At the end of the proceedings, the agricultural authority adopts the consolidation scheme (Zusammenlegungsplan, section 21). Since 1977 this has to be published within three years of the final decision provisionally to transfer parcels of land (section 7a (4) of the 1950/1974 Federal Act), failing which the person concerned may request the higher authority to assume jurisdiction. The adoption of the scheme is an administrative act which is supported by maps and other technical data, and whose main function is to determine the compensation due to the landowners who are parties to the proceedings. The 1979 Act includes the following regulations on this matter: - when compensatory parcels are being determined, regard shall be had to the wishes of the parties directly concerned in so far as this can be done without infringing statutory provisions or interfering with important public interests served by the consolidation scheme; - any landowner whose land is included in the consolidation scheme shall be entitled to compensation in the form of other land of equal value included in the same scheme or, if that is not possible, to be reallocated his previous parcels, including building land (section 19); - changes in the value of land which come about in the course of the proceedings, including those occurring after the provisional transfer, must be taken into account in the final allocation under the consolidation scheme (section 14 (1)); - claims for financial compensation have to be submitted within six months from the date on which the consolidation scheme becomes final (section 20 (6)). 27. The legislation of the Länder did not at the material time provide for any financial compensation for damage suffered, before a final consolidation scheme came into force, by landowners who had successfully challenged the lawfulness of compensation received through transfer of land. 28. Following the judgments of the European Court of Human Rights of 23 April 1987 in the cases of Erkner and Hofauer cited above and Poiss v. Austria (Series A no. 117), Austrian legislation has been amended to the effect, inter alia, that, once it is found that compensatory parcels were not lawfully allocated, the concerned parties may apply for financial compensation (section 10 (5) to (7) of the Federal Agricultural Land Planning (General Principles) Act). The new legislation came into force on 1 January 1994. 29. The first-instance authority in Upper Austria is the District Agricultural Authority, which is a purely administrative body. The higher authorities are the Upper Austria Land Reform Board, established at the Office of the Land Government (Amt der Landesregierung), and the Supreme Land Reform Board, set up within the Federal Ministry of Agriculture and Forestry (Bundesministerium für Land- und Forstwirtschaft). These boards include judges and constitute a kind of "specialised administrative tribunal". 30. Decisions of the District Authority can be challenged by way of appeal to the Land Board, whose decision is final except where it varies the decision in question and where the dispute concerns one of the issues listed in section 7 (2) of the 1950/1974 Federal Act, such as the lawfulness of the compensation in the event of land consolidation; in such cases an appeal lies to the Supreme Board. The executive can neither set aside nor vary the decisions of these three bodies, but they can be challenged in the Administrative Court (section 8 of the 1950/1974 Federal Act and Article 12 para. 2 of the Federal Constitution). 31. Procedure before the land-reform boards is governed by the 1950/1974 Federal Act, section 1 of which stipulates that the General Administrative Procedure Act - except for one section of no relevance in the instant case - shall apply, subject to the variations and additional provisions made in the 1950/1974 Federal Act. The boards are responsible for the conduct of the proceedings (section 39 of the General Administrative Procedure Act). By section 9 (1) and (2) of the 1950/1974 Federal Act, the boards take their decisions after a private hearing. Boards must determine cases without undue delay (ohne unnötigen Aufschub) and in any event not later than six months after an application has been made to them (section 73 (1)). If the board’s decision is not notified to the parties concerned within that time, they may apply to the higher authority, which will thereupon acquire jurisdiction to determine the merits (section 73 (2)). If the latter authority fails to give a decision within the statutory time-limit, jurisdiction passes - on an application by the interested party - to the Administrative Court (Article 132 of the Federal Constitution and section 27 of the Administrative Court Act). 32. The decisions of land-reform boards can be challenged in the Constitutional Court which will determine, inter alia, whether there has been any infringement of the applicant’s rights under the Constitution (Article 144 of the Federal Constitution). 33. As an exception to the general rule laid down in Article 133 para. 4 of the Federal Constitution, section 8 of the 1950/1974 Federal Act provides for an appeal to the Administrative Court against the decisions of land-reform boards. Application may be made to the Administrative Court before or after an application to the Constitutional Court. The latter will, if it rules that there has been no infringement of the right relied on in the application to it and if the applicant so requests, refer the case to the Administrative Court (Article 144 para. 3 of the Federal Constitution). Under Article 130 of the Federal Constitution, the Administrative Court determines applications alleging the unlawfulness of an administrative act or a breach by a competent authority of its duty to make a decision. It also hears appeals against decisions of boards whose members include judges - such as the land-reform boards (see paragraph 29 above) - where such jurisdiction is conferred on it by statute. | 0 |
dev | 001-23945 | ENG | SVK | ADMISSIBILITY | 2,004 | FRATRIK v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Peter Frátrik, is a Slovakian national, who was born in 1951 and lives in Trnava, Slovakia. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák in that function. The facts of the case, as submitted by the parties, may be summarised as follows. On 5 November 1992 the applicant was granted a trade licence (živnostenský list) entitling him, inter alia, to run a business in musical instruments. He thus became a selfemployed person. On 5 January 1993 the applicant registered himself with the health insurance fund (nemocenské poistenie) and with the pension fund (dôchodkové zabezpečenie). In 1993, for income tax purposes, the applicant declared to have earned an annual income of 9,550 Slovakian korunas (SKK) from his selfemployment activity. In 1994 he declared an annual income of SKK 7,595, in 1995 SKK 11,050, in 1996 SKK 18,225 and in 1997 SKK 2,850. On 1 January 1995 the Social Security Administration Act no. 274/1994 Coll. (Zákon o Sociálnej poisťovni - “the 274/1994 Act”) entered into force. This Act regulates inter alia the obligation to contribute to the health insurance fund and the pension fund, the calculation of these contributions and the modalities of their payment. Self-employed persons, like the applicant, are required to pay contributions to both funds, the amount of which is calculated on the basis of their average monthly taxable income gained during the previous fiscal year. The Act also defines the minimum and the maximum amount of such contributions (see under “Relevant domestic law” below). On 8 September 1997 the Trnava branch office (pobočka) of the Social Security Administration (Sociálna poisťovňa) ordered the applicant to pay within 15 days a contribution of SKK 24,978 to the health insurance fund and the pension fund for the period between on 1 January 1995 and 30 June 1997. This amount was composed of SKK 9,504 for the fiscal year 1995 (i.e. SKK 792 per month), SKK 10,236 for 1996 (i.e. SKK 793 per month until April 1996 and SKK 873 per month as from April 1996), and SKK 5,238 for 1997 (i.e. SKK 873 per month). The applicant was informed that failure to pay or a late payment entailed the imposition of a fine. The applicant filed an appeal with the Head Office (ústredie) of the Social Security Administration arguing that, given his low income, he could not afford to pay these contributions. On 24 October 1997 the Head Office of the Social Security Administration upheld the decision of its Trnava branch. The applicant filed an administrative law appeal with the Trnava Regional Court (Krajský súd) against the decisions taken by the Social Security Administration. The applicant submitted that his income was below the statutorily defined minimal living standard (životné minimum) and argued that, in these circumstances, he should be exempted from his payment obligations under the 274/1994 Act. In his opinion, the application of this Act in his personal situation was unethical and unconstitutional. In its judgment of 24 September 1998 the Regional Court upheld the challenged decisions. No appeal was available against this judgment. It became final and binding on 30 October 1998 when it was served on the applicant. In 1998 and in 1999 the applicant declared to the income tax authorities that he had earned an annual income of SKK 8,737 and SKK 675 from his selfemployment activity. On 17 May 1999 the Trnava branch office of the Social Security Administration ordered the applicant to pay within 15 days a contribution in the amount of SKK 20,742 to the health insurance fund and the pension fund for the period between 1 July 1997 and 30 April 1999. This amount was composed of SKK 5,238 payable for the fiscal year 1997 (i.e. SKK 873 per month as from July until December 1997), SKK 11,628 for 1998 (i.e. SKK 969 per month) and SKK 3,876 for 1999 (i.e. SKK 969 per month until April 1999). On 25 May 1999 the Trnava branch office of the Social Security Administration ordered the applicant to pay a fine of SKK 2,065 for late payment of his contributions to the health insurance fund and the pension fund for the years 1995 and 1996. On the applicant's request, his trade licence was cancelled on 31 May 1999. The applicant has been unemployed since. On 3 June 1999 the applicant was informed by a judicial enforcement officer that enforcement proceedings had been brought against him in order to obtain payment of the contributions due as well as the fines for late payment. According to the applicant, he was thus forced to contract debts in order to pay the amounts due. On 16 November 1999, after having conducted an audit of the applicant's situation, the Trnava branch office of the Social Security Administration found that the applicant still owed a total amount of SKK 138,221 in fines for late payments of his contributions to the social funds for the years 1993 - 1999. Under Section 4a § 1 (b) persons who hold a trade licence for carrying out a small trade (živnosť) are considered selfemployed persons. Section 6 § 1 (c) provided that selfemployed persons took part in and were entitled to benefit from the pension schemes. These pension schemes comprise, inter alia, the oldage pension, the (partial) invalidity pension, and the widow pension (Section 7). Sections 145a and the following govern the participation of selfemployed persons in the health insurance and the pension insurance schemes. Under Section 145b § 1 selfemployed persons are entitled to health insurance benefits such as sickness benefits (nemocenské), maternity benefits (peňažná pomoc v materstve), and spa treatment benefits (kúpeľná starostlivosť). According to Section 145ba § 1, the sickness benefits for selfemployed persons are paid on a daily basis. Under Section 145ba §§ 2 and 3 the amount of such benefits is calculated as a daily average of the “assessment basis” (see below). Under Section 14 §§ 1 (b) and 2 selfemployed persons are liable to pay contributions to the health insurance fund and the pension fund. According to Section 15 § 1 the level of these contributions are a “percentage” of the “assessment basis” (vymeriavací základ), which is 50% of the average monthly taxable income earned by a self-employed person during the previous fiscal year (Section 16 § 4 in conjunction with Section 17 § 2 of the Act). The “percentages” applicable to selfemployed persons varied in the course of the material period. Until 31 December 1995 it was 4.8 % for the health insurance fund and 27.5 % for the pension fund. Since 1 January until 31 December 1996 the applicable “percentages” were respectively 3.8 % and 28.5 %. Since 1 January 1997 these “percentage” changed again to 4.8 % and 27.5 %, respectively. However, regardless of income actually earned by a selfemployed person during the previous fiscal year, Section 16 § 8 provides that his or her personal “assessment basis” cannot be lower than the statutorily defined “minimal assessment basis” and cannot be higher than the statutorily defined “maximal assessment basis”. The minimal basis is equal to the statutorily defined “minimum wage” (see below) and the maximal basis is this “minimum wage” multiplied by eight. Until 31 March 1996, the “minimum wage” was defined by the governmental Decree no. 53/1992 Coll. on Minimum Wage (Nariadenie vlády o minimálnej mzde), as amended. From 30 October 1993 until 31 March 1996 the “minimum wage” was fixed at SKK 2,450 per month. As from 1 April 1996 the “minimum wage” was regulated by the Act no. 90/1996 Coll. on the Minimum Wage (Zákon o minimálnej mzde), as amended. It was increased to SKK 2,700 per month. | 0 |
dev | 001-60001 | ENG | DEU | CHAMBER | 2,001 | CASE OF JANSSEN v. GERMANY | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings | Françoise Tulkens | 10. The applicants are German citizens. They live respectively in Oberhausen and Mülheim/Ruhr. The application concerns proceedings initiated by Mrs Gretel Janssen, who died on 27 July 1986. After her death, her son Heinz–Jürgen Janssen and her daughter Margit Jakobs, born Janssen, continued the proceedings. Heinz–Jürgen Janssen died on 19 November 1992. His widow Roswitha Janssen and his daughter Melanie Janssen act in his stead in pursuing the case. 11. The husband of the original plaintiff Mrs Gretel Janssen worked between October 1950 and December 1959 as an asbestos fabric cutter in an area where asbestos mattresses were manufactured. During this period, the workers who were exposed to asbestos dust while working had to clean their clothes themselves. This was done by the original plaintiff Mrs Gretel Janssen for her husband. The husband contracted an asbestos dust–related lung disease (asbestosis), which was recognised as an occupational disease by the Düsseldorf Health Insurance Association (Maschinenbau- und Metall-Berufsgenossenschaft). The Health Insurance Association paid the husband a pension until his death on 21 February 1973 and subsequently a widow’s and orphan’s pension to the surviving family members. 12. Having contracted a mesothelioma, an asbestosis related disease, Mrs Gretel Janssen applied on 23 December 1985 to the Düsseldorf Health Insurance Association for compensation payments, claiming that her illness was the consequence of the daily cleaning of her husband’s work clothes. On 28 February 1986 the Health Insurance Association dismissed her request holding that her activity was not covered by the industrial health insurance, since she had acted on a strictly private basis and not as an employee. 13. On 20 March 1986 Mrs Gretel Janssen filed an objection (Widerspruch) against this decision which was rejected on 23 April 1986 by the Appeals Board of the Health Insurance Association. 14. On 26 May 1986 Mrs Gretel Janssen commenced proceedings before the Duisburg Social Court (Sozialgericht). 15. On 27 May 1986 the Social Court invited the defendant Health Insurance Association to comment on the claim and to submit the file. On 9 July 1986 Mrs Janssen’s lawyer telephoned the court and requested that a date be fixed for a hearing as soon as possible. He expressed the fear that the plaintiff would not live to attend a hearing in July or August 1986. On 18 July 1986 the Health Insurance Association sent written observations and the administrative file to the Social Court. Mrs Gretel Janssen died on 27 July 1986. Written observations on her behalf were submitted on 18 August 1986. On 13 October 1987 the court received a power of attorney on behalf of the applicants as heirs of Mrs Gretel Janssen without any further explanation. On 9 November 1987 the parties were summoned to appear at a hearing on 26 November 1987. This hearing was cancelled on 23 November 1987. 16. On 24 November 1987 the plaintiff’s counsel informed the court about Mrs Gretel Janssen’s death. On 17 March 1988 the Social Court requested the plaintiff’s counsel to indicate the successors in title. It sent a reminder on 8 July 1988. The court received the requested information on 25 July 1988. 17. The proceedings were resumed on 28 July 1988. On 22 November 1988 the parties were summoned to appear at a hearing on 8 December 1988. On 28 November 1988 the plaintiff’s counsel requested to anticipate the hour of the hearing. On 5 December 1988 the Social Court cancelled the hearing. On 14 February 1989 the court set the case down for hearing on 2 March 1989. 18. On 2 March 1989 the Duisburg Social Court dismissed the action on the ground that, pursuant to Section 539 §§ 1 and 2 of the Social Security Act (Reichsversicherungsordnung), the plaintiff was not insured against accidents at work. The court found that Mrs Gretel Janssen had not been an employee herself, nor had she acted like an employee. She had cleaned her deceased husband’s clothes on ground of their living together, but not with a view to acting for her husband’s employer. 19. On 10 May 1989 the legal successors of the deceased appealed against the judgment to the Social Court of Appeal (Landessozialgericht) of North Rhine-Westphalia. The appeal was received by the court on 12 May 1989. 20. At a hearing held on 30 October 1989 the Social Court of Appeal summoned the employer to take part in the proceedings and requested him to submit information as to the kind of work carried out by his former employee between 1950 and 1959 and as to the protection requirements to be complied with. The employer supplied information on 7 December 1989. The defendant filed written pleadings on 22 December 1989. On 24 August 1990 the Social Court of Appeal instructed doctors who had treated Mrs Gretel Janssen to submit reports. The court obtained medical reports from a general practitioner, Dr P., on 2 September 1990 and from a hospital doctor, Dr H., on 10 September 1990. On 21 September 1990 the court requested additional information which was submitted on 4 October 1990. 21. On 30 October 1990 the Social Court of Appeal had also instructed a medical expert, Prof. W., to submit a report on the awareness at that time of health risks related to the exposure to asbestos and the existence of any protective measures. On 24 August 1990 the Social Court of Appeal had invited Prof. W. to reply to further detailed questions. Prof. W.’s report dated 29 November 1990 was received by the court on 6 December 1990. 22. On 12 February 1991 the court summoned the Rhineland Communal Accident Insurance Association (Rheinischer Gemeindeunfallversicherungs- verband) as a third party. It further requested Prof. W. to submit an expert opinion on the causes of Mrs Gretel Janssen’s mesothelioma disease. On 17 July 1991 Prof. W. asked the court for certain information. 23. On 4 November 1991 the court applied to the German Meteorological Service and a witness for further information. 24. On 23 December 1991 the court sought supplementary advice from Prof. W. and supplied the information he had requested on 17 July 1991. On 30 January 1992 the court reminded the expert to submit his report. The expert opinion dated 26 June 1992 was received by the court on 13 July 1992. 25. By a judgment of 14 October 1992 the Social Court of Appeal modified the judgment pronounced on 2 March 1989 by the Duisburg Social Court. The Social Court of Appeal considered that Mrs Gretel Janssen’s death was the consequence of an occupational disease. The court granted leave of appeal on points of law holding that the case raised issues of general interest (grundsätzliche Bedeutung). 26. The Düsseldorf Health Insurance Association lodged an appeal on points of law (Revision). 27. On 19 November 1992, Mrs Gretel Janssen’s son died. His widow and his daughter continued the proceedings as his legal successors. 28. By a judgment of 13 October 1993 the Federal Social Court (Bundessozialgericht) set the appellate court’s judgment aside and dismissed the plaintiffs’ appeal. The Federal Social Court considered in particular that Mrs Gretel Janssen’s death was not the consequence of an occupational disease as the cleaning of her husband’s work clothes mainly served the interests of the couple’s household and not the employer’s interests. 29. On 2 December 1993 the applicants lodged a constitutional complaint alleging that the interpretation of Section 539 of the Social Security Act by the social security courts of first and last instance violated the principle of equality before the law and the right to a fair hearing. Invoking Article 6 of the Convention, the applicants further submitted that proceedings relating to professional diseases allegedly caused by asbestos lasted in general too long. 30. On 12 January 1994 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the case for adjudication on the ground that the constitutional appeal was inadmissible for lack of substantiation. The court further pointed out that a constitutional complaint could not be based on an alleged violation of the European Convention on Human Rights. This decision was notified to the applicants’ lawyer on 25 January 1994. | 1 |
dev | 001-69630 | ENG | BGR | GRANDCHAMBER | 2,005 | CASE OF NACHOVA AND OTHERS v. BULGARIA | 1 | Violation of Art. 2 (deaths);Violation of Art. 2 (failure to conduct an effective investigation);No separate issue under Art. 13;No violation of Art. 14+2 (alleged act of racial violence);Violation of Art. 14+2 (failure to investigate possible racist motives);Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Luzius Wildhaber;Nicolas Bratza | 10. The case concerns the killing on 19 July 1996 of Mr Angelov and Mr Petkov by a member of the military police who was attempting to arrest them. 11. All the applicants are Bulgarian nationals of Roma origin. 12. Ms Anelia Kunchova Nachova, who was born in 1995, is Mr Angelov's daughter. Ms Aksiniya Hristova, who was born in 1978, is Ms Nachova's mother. Both live in Dobrolevo, Bulgaria. Ms Todorka Petrova Rangelova and Mr Rangel Petkov Rangelov, who were born in 1955 and 1954 respectively and live in Lom, Bulgaria, are Mr Petkov's parents. 13. In 1996 Mr Angelov and Mr Petkov, who were both 21 years old, were conscripts in the Construction Force (Строителни войски), a division of the army dealing with the construction of apartment blocks and other civilian projects. 14. Early in 1996 Mr Angelov and Mr Petkov were arrested for being repeatedly absent without leave. On 22 May 1996 Mr Angelov was sentenced to nine months' imprisonment and Mr Petkov to five months' imprisonment. Both had previous convictions for theft. 15. On 15 July 1996 they fled from a construction site outside the prison where they had been brought to work and travelled to the home of Mr Angelov's grandmother, Ms Tonkova, in the village of Lesura. Neither man was armed. 16. Their absence was reported the following day and their names put on the military police's wanted list. A warrant for their arrest was received on 16 July 1996 by the Vratsa Military Police Unit. 17. At around twelve noon on 19 July 1996, the officer on duty in the Vratsa Military Police Unit received an anonymous telephone message that Mr Angelov and Mr Petkov were hiding in the village of Lesura. On at least one of the previous occasions when he had been absent without leave, it was there that Mr Angelov had been found and arrested. 18. The commanding officer, Colonel D., decided to dispatch four military police officers, under the command of Major G., to locate and arrest the two men. At least two of the officers knew one or both of them. Major G. apparently knew Lesura because, according to a secretary who worked at the town hall and was heard later as a witness, his mother was from the village. 19. Colonel D. told the officers that “in accordance with the rules” they should carry their handguns and automatic rifles and wear bullet-proof vests. He informed them that Mr Angelov and Mr Petkov were “criminally active” (криминално проявени) – an expression used to denote persons with previous convictions or persons suspected of an offence – and that they had escaped from detention. The officers were instructed to use whatever means were dictated by the circumstances to arrest them. 20. The officers immediately left for Lesura in a jeep. Two officers wore uniforms while the others were in civilian clothes. Only Major G. wore a bullet-proof vest. He was armed with a personal handgun and a 7.62 mm calibre Kalashnikov automatic rifle. The other men carried handguns. Three Kalashnikov automatic rifles remained in the boot of the vehicle throughout the operation. 21. The officers were briefed orally by Major G. on their way to Lesura. Sergeant N. was to cover the east side of the house, Major G. the west side and Sergeant K. was to go into the house. Sergeant S., the driver, was to remain with the vehicle and keep watch over the north side. 22. At around 1 p.m. the officers arrived in Lesura. They asked a secretary at the town hall and one of the villagers, Mr T.M., to join them and show them Mr Angelov's grandmother's house. The vehicle drove into Lesura's Roma district. 23. Sergeant N. recognised the house since he had previously arrested Mr Angelov there for being absent without leave. 24. As soon as the jeep drew up in front of the house, between 1 and 1.30 p.m., Sergeant K. recognised Mr Angelov, who was inside, behind the window. Having noticed the vehicle, the fugitives tried to escape. The officers heard the sound of a window pane being broken. Major G. and Sergeants K. and N. jumped out of the vehicle while it was still moving. Major G. and Sergeant K. went through the garden gate, the former going to the west side of the house, and the latter entering the house. Sergeant N. headed towards the east side of the house. Sergeant S. remained with the car, together with the secretary who worked at the town hall and Mr T.M. 25. Sergeant N. later testified that, having noticed Mr Angelov and Mr Petkov escaping through the window and running towards a neighbour's yard, he had shouted: “Stop, military police!” He had pulled out his gun, but had not fired any shots. The two men had carried on running. Sergeant N. had run out on to the street in an effort to intercept them by cutting past several houses. While running, he had heard Major G. shout: “Freeze, military police, freeze [or] I'll shoot!” It was then that the shooting had started. 26. Major G. stated in his testimony: “... I heard Sergeant N. shouting: 'Freeze, police' ... I saw the conscripts; they were running and then stopped in front of the fence between Ms Tonkova's and the neighbour's yards ... I saw that they were trying to jump over the [chain-link] fence, so I shouted: 'Freeze, or I'll shoot!' I released the safety catch and loaded the automatic gun. Then I fired a shot in the air, holding the automatic rifle upwards with my right hand, almost perpendicular to the ground ... The conscripts climbed over the [chain-link] fence and continued to run, I followed them, then I fired one, two or three more times in the air and shouted: 'Freeze!', but they continued running. I again fired shots in the air with the automatic and shouted: 'Freeze, or I will shoot with live cartridges.' I warned them again, but they continued running without turning back. I fired to the right [of the two men] with the automatic after the warning, aiming at the ground, hoping that this would make them stop running. I again shouted 'Freeze!' when they were at the corner of the other house and then I aimed and fired at them as they were scaling the fence. I aimed at their feet. The ground where I stood was at a lower level ... [B]y jumping over the second fence they would have escaped and I did not have any other means of stopping them. The gradient there was a bit steep, [I] was standing on lower ground ... the second fence was on the highest ground, that is why when I fired the first time I aimed to the side [of the two men], as I considered that nobody from the neighbouring houses would be hurt, and the second time I aimed at the conscripts, but fired at their feet. Under Regulation 45 we can use firearms to arrest members of the military forces who have committed a publicly prosecutable offence and do not surrender after a warning, but in accordance with paragraph 3 of [that regulation] we have to protect the lives of the persons against whom [we use firearms] – for that reason I fired at [the victims'] feet – with the intention of avoiding fatal injury. The last time that I shot at the conscripts' feet, I was twenty metres away from them and they were exactly at the south-east corner of the neighbouring yard. After the shooting they both fell down ...They were both lying on their stomachs, and both gave signs of life, ... moaning ... then Sergeant S. appeared, I called him ... and handed him my automatic rifle ...” 27. According to the statements of the three subordinate officers, Mr Angelov and Mr Petkov were lying on the ground in front of the fence, with their legs pointing in the direction of the house from which they had come. One of them was lying on his back and the other on his stomach. 28. A neighbour, Mr Z., who lived opposite Mr Angelov's grandmother, also gave evidence. At about 1 or 1.30 p.m. he had seen a military jeep pull up in front of Ms Tonkova's house. Then he had heard somebody shout: “Don't run, I am using live cartridges.” He had then heard shots. He had looked into the next yard and seen Mr Angelov, whom he knew, and another man leap over the chain-link fence between Ms Tonkova's and another neighbour's yards. He had not seen the man who had shouted as he was hidden from view behind Ms Tonkova's house. Then he had seen Mr Angelov and Mr Petkov fall to the ground and the man who had shot them emerge, holding an automatic rifle. Mr Z. further stated: “The other men in uniform then started remonstrating with [the man who had shot Mr Angelov and Mr Petkov] telling him that he should not have fired, that he should not have come with them. Of those who came in the jeep, only the senior officer fired ... I know him by sight, he has relatives in Lesura.” 29. Sergeant S. stated that on arriving at the house he had remained with the vehicle and had heard Sergeant N. shouting from the east side of the house: “Freeze, police!” He had also heard Major G. shout “Freeze, police!” several times from the west side of the house. Then Major G. had started shooting with his automatic weapon, while continuing to shout. Sergeant S. had then entered the yard. He had seen Major G. leap over the chain-link fence and heard him shouting. He had gone up to him, had taken his automatic rifle and seen Mr Angelov and Mr Petkov lying on the ground next to the fence. They were still alive. At that moment Sergeant K. had come out of the house. Major G. had gone to get the jeep and had reported the incident over the vehicle radio. When they returned, Sergeant N. had appeared from the neighbouring street and helped them put the wounded men in the vehicle. 30. The head of the Vratsa Military Police Unit and other officers were informed of the incident at around 1.30 p.m. 31. Sergeant K. testified that he had entered the house and had been speaking to Mr Angelov's grandmother and another woman when he heard Major G. shouting at Mr Angelov and Mr Petkov to stop. In the house, he had noticed that a window pane in the room overlooking the yard had been broken. He had been on the verge of leaving the house when he heard shooting coming from behind the house. On his way to the yard he had met Major G., who had told him that the fugitives had been wounded. Sergeant K. had then climbed over the chain-link fence and approached the wounded men, who were still alive and moaning. He had found himself holding the automatic rifle, but could not remember how it had come into his possession. He had opened the magazine and seen no cartridges in it. There was only one cartridge left in the barrel. 32. Immediately after the shooting, a number of people from the vicinity gathered. Sergeant K. and Sergeant S. took the wounded men to Vratsa Hospital, while Major G. and Sergeant N. remained at the scene. 33. Mr Angelov and Mr Petkov died on the way to Vratsa. They were pronounced dead on arrival at the hospital. 34. Mr Angelov's grandmother, Ms Tonkova, gave the following account of the events. Her grandson and Mr Petkov had been in her house when they had noticed a jeep approaching. She had gone outside and seen four men in uniform. They had all entered the yard. One of them had gone round the house and started shooting with an automatic rifle for a very long time. The other three men were also armed but had not fired any shots. She had been in the yard, pleading with the man who had been shooting to stop. However, he had walked towards the back of the house. Then she had heard shooting in the backyard. She had followed and then seen her grandson and Mr Petkov lying in the neighbours' yard with bullet wounds. 35. According to another neighbour, Mr M.M., all three policemen were shooting. Two of them had fired shots in the air and the third officer – who had been on the west side of the house (Major G.) – had been aiming at someone. Mr M.M. had heard some fifteen to twenty shots, perhaps more. Then he had seen the military policemen go to the neighbouring yard, where Mr Angelov and Mr Petkov had fallen. That yard belonged to Mr M.M. and his daughter. On seeing his grandson – a young boy – standing there, Mr M.M. had asked Major G. for permission to approach and to take him away. Major G. had pointed his gun at him in a brutal manner and had insulted him, saying: “You damn Gypsies!” (“мамка ви циганска”). 36. On 19 July 1996 all the officers involved made separate reports on the incident to the Vratsa Military Police Unit. None of them was tested for alcohol. 37. A criminal investigation into the deaths was opened the same day, and between 4 and 4.30 p.m. a military investigator inspected the scene. In his report he described the scene, including the respective positions of Ms Tonkova's house, the first chain-link fence, and the spent cartridges and bloodstains found there. He indicated that the structure of the first chain-link fence was damaged and the fence had been torn down in one place. 38. A sketch map was appended to the report. It showed the yard of Ms Tonkova's house and the neighbouring yard where Mr Angelov and Mr Petkov had fallen. The places where spent cartridges had been found were indicated. The sketch map and the report gave only some of the measurements of the yards. The gradient and other characteristics of the terrain and the surrounding area were not described. 39. Nine spent cartridges were retrieved. One cartridge was found in the street, in front of Ms Tonkova's house (apparently not far from where the jeep had stopped). Four cartridges were discovered in Ms Tonkova's yard, behind the house, close to the first chain-link fence separating her yard from the neighbour's yard. Three cartridges were found in the yard of the neighbour (Mr M.M), close to the place where the bloodstains were found. The exact distance between those cartridges and the bloodstains was not given. A ninth cartridge was found subsequently and handed in to the military police by Mr Angelov's uncle. There is no record of where it was found. 40. The bloodstains were a metre apart. They were marked on the sketch map as being slightly more than nine metres from the first chain-link fence. The distance between the bloodstains and the second fence that Mr Angelov and Mr Petkov had apparently been trying to scale when they were shot was not indicated. Samples of the bloodstains were taken by the investigator. 41. On 21 July 1996, a pathologist carried out an autopsy. According to autopsy report no. 139/96, the cause of Mr Petkov's death was “a wound to the chest”, the direction of the shot having been “from front to back”. The wound was described as follows: “There is an oval-shaped wound of 2.5 cm by 1 cm in the chest, at a distance of 144 cm from the feet, with missing tissues, and jagged and compressed edges in the area of the left shoulder. There is an oval-shaped wound of 3 cm in the back, to the left of the infrascapular line at a distance of 123 cm from the feet with missing tissues, jagged and torn edges turned outwards.” 42. As regards Mr Angelov, the report found that the cause of death had been “a gunshot wound, which [had] damaged a major blood vessel” and that the direction of the shot had been “from back to front”. It was further stated: “There is a round wound on the left of the buttocks at a distance of 90 cm from the feet ... with missing tissue, jagged walls and edges, and a diameter of about 0.8 cm ... There is an oval wound of 2.1 cm with jagged torn edges and walls turned outwards and missing tissues on the border between the lower and middle third [of the abdomen], at a distance of 95 cm from the feet, slightly to the left of the navel.” 43. The report concluded that the injuries had been caused by an automatic rifle fired from a distance. 44. On 22, 23 and 24 July 1996 the four military police officers, two neighbours (M.M. and K.), the secretary who worked at the town hall, and Mr Angelov's uncle were questioned by the investigator. Mr Petkov's mother was also questioned subsequently. 45. On 1 August 1996 Major G.'s automatic rifle, a cartridge that had been found in it and the nine spent cartridges found at the scene were examined by a ballistics expert from the Vratsa Regional Directorate of Internal Affairs. According to his report, the automatic rifle was serviceable, all nine retrieved cartridges had been fired from it and the last cartridge which had not been fired was also serviceable. 46. A report by a forensic expert dated 29 August 1996 found an alcohol content of 0.55 g/l in Mr Petkov's blood and 0.75 g/l in Mr Angelov's blood (under Bulgarian law it is an administrative offence to drive with a blood alcohol content of more than 0.5 g/l). 47. On 20 September 1996 a forensic examination of the bloodstains found at the scene was carried out by an expert from the Vratsa Regional Directorate of Internal Affairs and they were found to match the victims' blood groups. 48. On 20 January and on 13 February 1997 another neighbour (Mr T.M.) and Ms Hristova (one of the applicants) were questioned. On 26 March 1997 Mr Angelov's grandmother and a neighbour, Z., were questioned. 49. On 7 January 1997 the families of Mr Angelov and Mr Petkov were given access to the investigation file. They requested that three more witnesses, T.M., Ms Tonkova and Z.H. be heard. Their request was granted. The witnesses were heard by the investigator on 20 January and 26 March 1997. The applicants did not ask for any other evidence to be obtained. 50. On 31 March 1997 the investigator completed the preliminary investigation and drew up a final report. He noted that Mr Angelov and Mr Petkov had escaped from detention while serving a prison sentence, and had thus committed an offence. Major G. had done everything within his power to save their lives: he had instructed them to stop and surrender and had fired warning shots. He had aimed at them only after seeing that they were continuing to run away and might escape. He had not sought to injure any vital organs. The investigator therefore concluded that Major G. had acted in accordance with Regulation 45 of the Military Police Regulations and made a recommendation to the Pleven regional prosecutor's office that the investigation should be closed as Major G. had not committed an offence. 51. On 8 April 1997 the Pleven military prosecutor accepted the investigator's recommendation and closed the preliminary investigation into the deaths. He concluded that Major G. had proceeded in accordance with Regulation 45 of the Military Police Regulations. He had warned the two men several times and fired shots in the air. He had shot them only because they had not surrendered, as there had been a danger that they might escape. He had sought to avoid inflicting fatal injuries. No one else had been hurt. 52. When describing the victims' personal circumstances, including details of their family, education and previous convictions, the prosecutor stated in the order that both men originated from “minority families”, an expression mainly used to designate people from the Roma minority. 53. By an order of 11 June 1997, the prosecutor of the armed forces prosecutor's office dismissed the applicants' subsequent appeal on the grounds that Mr Angelov and Mr Petkov had provoked the shooting by trying to escape and that Major G. had taken the steps required by law in such situations. Therefore, the use of arms had been lawful under Regulation 45 of the Military Police Regulations. 54. On 19 November 1997 the prosecutor from the investigation review department of the armed forces prosecutor's office dismissed a further appeal on grounds similar to those that had been relied on by the other public prosecutors. 55. In its country reports of the last few years, the Council of Europe's European Commission against Racism and Intolerance (ECRI) has expressed concern regarding racially motivated police violence, particularly against Roma, in a number of European countries including Bulgaria, the Czech Republic, France, Greece, Hungary, Poland, Romania and Slovakia. 56. The report on the situation of fundamental rights in the European Union and its member States in 2002, prepared by the European Union network of independent experts in fundamental rights at the request of the European Commission, stated, inter alia, that police abuse against Roma and similar groups, including physical abuse and excessive use of force, had been reported in a number of European Union member States, such as Austria, France, Greece, Ireland, Italy and Portugal. 57. In its second report on Bulgaria, published in March 2000, ECRI stated, inter alia: “Of particular concern is the incidence of police discrimination and mistreatment of members of the Roma/Gypsy community. ... [T]he Human Rights Project documents in its Annual Report for 1998 numerous ... cases of police misconduct towards ... Roma ... It cites as the most common violations: use of excessive physical force during detention for the purposes of extorting evidence; unjustified use of firearms ... and threats to the personal security of individuals who had complained against the police to the competent authorities. ... The Human Rights Project notes ... that the majority of complaints filed by this non-governmental organisation on behalf of Roma victims of police violence have not been followed up by the authorities. ... [V]ictims seem unwilling to come forward with complaints, particularly when they are awaiting court sentences ... [There is apparently also] some unwillingness on the part of the authorities to admit that problems of police misconduct do exist. ... ECRI [reiterates its recommendation] that an independent body be set up – acting at central and local level – to investigate police, investigative and penitentiary practices for overt and covert racial discrimination and to ensure that any discrimination perpetrated be severely punished. ... ECRI is concerned at the persistence of widespread discrimination against members of the Roma/Gypsy community in Bulgaria. ... It is reported that local authorities are sometimes involved in the illegal administration of justice as regards Roma/Gypsy communities, often with the silent collusion of local police.” 58. In its third report on Bulgaria, published in January 2004, ECRI stated, inter alia: “[Since ECRI's second report,] there have been no changes in the Criminal Code [to ensure that criminal law provisions fully allow any racist motivation to be taken into account]. ... ECRI recommends that the Bulgarian authorities insert a provision in the Criminal Code expressly stating that racist motivation for any ordinary offence constitute[s] an aggravating circumstance. ... ECRI is concerned about allegations of instances of excessive use of firearms by the police, which have sometimes led to the death of Roma. ... ECRI strongly recommends that the Bulgarian authorities take steps to restrict the use of firearms by the law enforcement agencies to cases where their use is really necessary. In particular, it urges the Bulgarian authorities to amend the law to this end and ensure that international standards are conformed to in practice in this field. ECRI is particularly concerned about the findings ... that the proportion of people of Roma origin who state that they have been subjected to physical violence in police stations is three times higher than the proportion of people of Bulgarian origin. ... So far, the Bulgarian authorities have not set up an independent body to investigate illtreatment or acts of discrimination committed by members of the police force. ... ECRI is pleased to learn that a specialised human rights committee was set up in the National Police Department in August 2000 ... Numerous schemes have been launched to provide human rights training for police officers ... ... The Framework Programme for Equal Integration of Roma in Bulgarian Society is unanimously considered, including by Roma representatives, to be well structured and fairly comprehensive ... There is, however, a unanimous feeling within the Roma community and among non-governmental organisations, that, apart from the few initiatives mentioned in this report, the programme has remained a dead letter ... The view in certain quarters is that the government lacks the political resolve to carry through such a programme ... ECRI is very concerned to learn that, four years after the adoption of the Framework Programme, its implementation is still in its early stages. ...” 59. Non-governmental organisations, such as Human Rights Project and Amnesty International have reported in the last several years numerous incidents of alleged racial violence against Roma in Bulgaria, including by law enforcement agents. 60. Section 45 of the Regulations (Regulation 45), as in force at the relevant time, provided as follows: “(1) Military police officers may use firearms ... under the following circumstances: ... 2. to arrest a person serving in the army who has committed or is about to commit a publicly prosecutable offence and who does not surrender after being warned ... (2) The use of force shall be preceded by an oral warning and a shot fired in the air ... (3) When using firearms military police officers shall be under a duty, as far as possible, to protect the life of the person against whom they use force and to assist the wounded ... ... (5) Whenever firearms have been used, a report shall be prepared describing the circumstances which occasioned their use; [the report] shall be transmitted to the superiors of the officer concerned.” 61. In December 2000 Regulation 45 was superseded by Decree no. 7 of 6 December 2000 on the use of force and firearms by military police (published in Official Gazette no. 102/2000 and amended in 2001). According to Article 21 of the decree, firearms may be used, inter alia, for the arrest of any person who has committed an offence of the category of publicly prosecuted offences. The vast majority of offences under the Criminal Code fall within that category, including, for example, petty theft. According to Articles 2, 4 § 1 and 21 of the decree, the nature of the offence committed by the person against whom the force and firearms are used and the character of the offender are factors to be taken into consideration. 62. Article 12 of the Criminal Code regulates the degree of force that may be used in self-defence. It requires essentially that any action in selfdefence or defence of another be proportionate to the nature and intensity of the attack and reasonable in the circumstances. The provision does not regulate cases where force has been used by a police officer or another person in order to effect an arrest without there being an attack on the arresting officer or any third party. Until 1997 there were no other provisions regulating this issue. However, the courts appear to have applied Article 12 in certain cases concerning the use of force to effect an arrest. 63. To fill that vacuum, in its Interpretative Direction no. 12 issued in 1973, the Supreme Court proclaimed, without further clarification, that causing harm in order to effect an arrest should not lead to prosecution if no more force was used than was necessary (12-1973-PPVS). 64. In its Decision no. 15 of 17 March 1995, the Supreme Court, while noting that the use of force in order to effect an arrest was not regulated by law and thus engendered difficulties for the courts, considered that the principles to be applied were those that had been identified by legal commentators. In particular, inflicting harm would be justified only where there was a reasonable suspicion that the person to be arrested had committed an offence, there were no other means to effect the arrest and the harm caused was proportionate to the seriousness of the offence. The Supreme Court also stated: “... [Causing harm to an offender in order to effect an arrest] is an act of last resort. If the offender does not attempt to escape or ... does attempt to escape, but to a known hiding place, causing harm will not be justified ... The harm caused must be proportionate to the seriousness ... of the offence. If the offender has committed an offence representing insignificant danger to the public, his life and health cannot be put at risk. Putting his life or health at risk may be justified, however, where a person is in hiding after committing a serious offence (such as murder, rape or robbery). The means used to effect the arrest (and the harm caused) must be reasonable in the circumstances. This is the most important condition for lawfulness ... Where the harm caused exceeds what was necessary ..., that is to say, where it does not correspond to the seriousness of the offence and the circumstances obtaining during the arrest, ... the person inflicting it will be liable to prosecution ...” 65. In 1997 Parliament decided to fill the legislative vacuum by adding a new Article 12a to the Criminal Code. It provides that causing harm to a person while arresting him or her for an offence shall not be punishable where no other means of effecting the arrest existed and the force used was necessary and lawful. The force used will not be considered “necessary” where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or is in itself excessive and unnecessary. Few judgments interpreting Article 12a have been reported. 66. Article 192 provides that proceedings concerning publicly prosecutable offences may only be initiated by a prosecutor or an investigator acting on a complaint or ex officio. Under Article 237 § 6, as worded until 1 January 2000, the victim had a right of appeal to a higher-ranking prosecutor against a decision not to proceed with pending criminal proceedings. The victim had no other means of challenging a refusal to prosecute. 67. When military courts have jurisdiction to hear a case, as for example when it concerns military police officers, the responsibility for conducting the investigation and prosecution lies with the military investigators and prosecutors, whose decisions are open to appeal before the Chief Public Prosecutor. 68. Article 63 entitles victims of crime to join the criminal proceedings, and in that connection to claim damages, to inspect the case file and take copies of relevant documents. They may also adduce evidence, raise objections, make applications and appeal against decisions of the investigating and prosecuting authorities. 69. The Protection against Discrimination Act was passed in September 2003 and came into force on 1 January 2004. It is a comprehensive piece of legislation designed to create machinery to provide effective protection against unlawful discrimination. It applies mainly in the spheres of labour relations, State administration and the provision of services. 70. Section 9 provides for a shifting burden of proof in discrimination cases. Under that section, where the claimant has proved facts from which an inference that there has been discriminatory treatment might be drawn, it is incumbent on the defendant to prove that there has been no violation of the right to equal treatment. The Act also provides for the creation of a Commission for Protection against Discrimination with jurisdiction, inter alia, to hear individual complaints. 71. 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. 72. Paragraph 9 provides: “Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” 73. According to other provisions of the Principles, law enforcement officials shall “act in proportion to the seriousness of the offence and the legitimate objective to be achieved” (paragraph 5). Also, “Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law” (paragraph 7). National rules and regulations on the use of firearms should “ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm”. 74. Paragraph 23 of the Principles states that victims or their family should have access to an independent process, “including a judicial process”. Further, paragraph 24 provides: “Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.” 75. The United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by the Economic and Social Council in Resolution 1989/65, provide, inter alia, that there shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions and that the investigation should aim at, inter alia, determining “any pattern or practice which may have brought about” the death. Paragraph 11 states: “In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these Principles.” Paragraph 17 states: “A written report shall be made within a reasonable time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures, methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law...” 76. The relevant parts of Article 4 of the International Convention on the Elimination of all forms of Racial Discrimination, ratified by Bulgaria in 1966, in force since 1969 and published in the Official Gazette in 1992, provide: “States Parties ... undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, [racial] discrimination and, to this end ... (a) Shall declare an offence punishable by law ... all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin ...” 77. In its views of 16 March 1993 in Communication no. 4/91, L.K. v. the Netherlands, which concerned racist threats uttered by private individuals against Mr L.K. and the inadequate reaction by the authorities to the victim's complaint, the Committee on the Elimination of All Forms of Racial Discrimination stated, inter alia, that it was incumbent on the State to investigate with due diligence and expedition cases of incitement to racist discrimination and violence. 78. The relevant part of Article 6 of the Council of Europe's Framework Convention for the Protection of National Minorities, in force in Bulgaria since 1999, provides: “The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.” 79. In its decision of 21 November 2002, the United Nations Committee Against Torture (“the CAT”), examining Complaint no. 161/2000 submitted by Hajrizi Dzemajl and others against Yugoslavia, found that a mob action by non-Roma residents of Danilovgrad, Montenegro, who destroyed a Roma settlement on 14 April 1995 in the presence of police officers, was “committed with a significant level of racial motivation”. That fact aggravated the violation of Article 16 § 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment found in the case. In assessing the evidence, the CAT noted that it had not received a written explanation from the State Party concerned and decided to rely on “the detailed submissions made by the complainants”. 80. European Union Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, provide, in Article 8 and Article 10 respectively: “1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. 2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs. 3. Paragraph 1 shall not apply to criminal procedures. ... 5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.” 81. In 2002 the European Commission published a Proposal for a Council Framework Decision on Combating Racism and Xenophobia, Article 8 of which includes, among measures to be implemented by member States in that area, action to ensure that in criminal law racial motivation is taken into consideration as an aggravating circumstance. 82. In April 2005 the European Monitoring Centre on Racism and Xenophobia published a comparative overview of racist violence and responses to it in fifteen of the member States of the European Union. It noted, inter alia, that traditionally the criminal law in most of the jurisdictions surveyed did not specifically refer to “racist violence”, the focus not being on the motivation behind acts of violence. However, that tradition was slowly changing as laws began to recognise that crime could be “racially motivated”. In particular, racist motivation was increasingly being considered as an aggravating factor for sentencing purposes under the legislation of some member States. The relevant legislation in the following countries specifically provided for that possibility: Austria, Belgium, Denmark, Finland, France, Italy, Portugal, Spain, Sweden and the United Kingdom. In particular, Article 132-76 of the French Criminal Code, which was introduced in February 2003, provides in its second paragraph for an “objective” definition of racism as an aggravating circumstance leading to an increase in sentence: “The penalties incurred for a crime or major offence shall be increased where the offence is committed on account of the victim's actual or supposed membership or non-membership of a particular ethnic group, nation, race or religion. The aggravating circumstance defined in the first paragraph is constituted where the offence is preceded, accompanied or followed by written or spoken comments, images, objects or acts of any kind which damage the honour or consideration of the victim or of a group of persons to which the victim belongs on account of their actual or supposed membership or non-membership of a particular ethnic group, nation, race or religion.” | 1 |
dev | 001-98175 | ENG | RUS | CHAMBER | 2,010 | CASE OF MUDAYEVY v. RUSSIA | 4 | Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life) | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 5. The applicants were born in 1950 and 1948 respectively. They live in Raduzhnoye, in the Grozny district, Chechnya. The applicants are the father and aunt of Aslan Mudayev, who was born in 1985, and Mokhmad Mudayev, who was born in 1982. The first applicant had a third son, Mr Akhmad Mudayev, who was killed in July 2003. 6. On 29 January 2003 Russian military servicemen conducted a special operation in the village of Raduzhnoye in the Grozny district of Chechnya. More than twenty persons were apprehended as a result of the operation, including Aslan and Mokhmad Mudayev and another of the applicants' relatives, Mr Islam A. At the material time the village was under the full control of the federal forces. 7. At about 8 a.m. on 29 January 2003 the first applicant and his sons Aslan and Mokhmad Mudayev and other relatives, including Mr Israil M. and Mr Islam A., were in their family home situated in Raduzhnoye. The first applicant heard noise coming from the street and looked out of the window. He saw a group of armed men in camouflage uniforms and masks running into his yard. The men entered the house and ordered everyone to lie face down on the floor. They neither introduced themselves nor produced any documents. 8. The intruders ordered the first applicant to hand over his family members' passports and the family photographs. Upon receiving the documents and the photographs, the men took Aslan Mudayev, Mokhmad Mudayev and the first applicant's nephew Mr Islam A. outside. 9. The first applicant attempted to follow his relatives, but the armed men in the yard threatened to kill him. Meanwhile, the applicant's sons and nephew were put in a grey UAZ car (“таблетка”). 10. Sometime later the first applicant managed to go outside and saw a convoy of ten to twelve vehicles, including a grey UAZ car, two or three khaki coloured UAZ-469 cars and an APC (armoured personnel carrier) driving away in the direction of Grozny. 11. On the following day of 30 January 2003 all persons detained during the special operation, except for Aslan and Mokhmad Mudayev, were released. 12. Immediately after the apprehension of Aslan and Mokhmad Mudayev the applicants and their relatives started searching for them. 13. The applicants' relative, Mr Israil M., who was at the first applicant's house during the abduction, immediately followed the convoy of military vehicles in his VAZ car with two female relatives. On the way to Grozny the abductors' vehicles split into two groups. One of them, comprised of the APC and several UAZ cars, drove in the direction of the nearby village of Znamenskoye in the Nadterechniy district, while the other proceeded in the direction of Grozny. 14. When the group arrived at Znamenskoye, the vehicles drove to the building of the Nadterechniy district department of the Federal Security Service (“the Nadterechniy district department of the FSB”) and the Nadterechniy district department of the interior (“the Nadterechniy ROVD”). Some of the vehicles drove onto the agencies' premises. 15. Mr Israil M. and relatives of other men apprehended during the operation in Raduzhnoye decided to wait at the entrance to the FSB building. Several hours later Mr Israil M. managed to talk to the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh. (also known as Mairbek Kh.; in the documents submitted he was also referred to as Mr M. Kh.) The latter told him that he would not release his relatives until two prosecution officials who had been abducted several days ago had been returned. He told Mr Israil M. that he knew about the involvement of the first applicant's other son, Akhmad Mudayev, in the abduction of the two officials. The officer threatened that if within the next two days Mr Israil M. did not return the two prosecutors or bring Akhmad Mudayev to their office, he would hand over Mr Israil's apprehended relatives to military servicemen in Khankala, the main base of the Russian federal forces in Chechnya. 16. Subsequently the applicants and their relatives spoke with Akhmad Mudayev, who told them that he had not participated in the prosecutors' abduction and refused to go to the district department of the FSB. 17. Within the next five or six months Mr Israil M. had regular meetings with Mr Mayrbek Kh. The latter insisted on his demands. 18. On 3 July 2003 the first applicant's elder son Akhmad Mudayev was killed in a skirmish. After that Mr Mayrbek Kh. told the first applicant that at some point Russian military forces had taken Aslan and Mokhmad Mudayev from his department under false identities and that he did not have any information concerning the brothers' whereabouts. 19. The first applicant's nephew, Mr Islam A., who had been apprehended with Aslan and Mokhmad Mudayev, was released on 30 January 2003. Mr Islam A. told the applicants that he had been put in one cell with Aslan and Mokhmad Mudayev. In the evening of 29 January 2003 he had been questioned by Mr Mayrbek Kh., the head of the Nadterechniy district department of the FSB. 20. In February 2003 Mr Mayrbek Kh. arrived at the mosque of the Raduzhnoye village. He told a number of local residents gathered there that Aslan and Mokhmad Mudayev had been detained in the FSB building. One of the local residents, Mr Arsanuka M., asked him whether any criminal charges had been brought against the brothers. In response the officer told him that he would release Aslan and Mokhmad Mudayev only if their elder brother Akhmad surrendered to the authorities. 21. Mr Aslan A., who had been detained for some time with the Mudayev brothers in the FSB building and released, told the applicants that during the detention, Aslan and Mokhmad Mudayev had been beaten and questioned separately from each other. 22. On 10 May 2003 (in the documents submitted the date 12 May 2003 was also given) an explosion occurred in the building of the Nadterechniy district department of the FSB and partially destroyed it. In the evening of 10 May 2003 Aslan and Mokhmad Mudayev were taken from the building to an unknown destination. There has been no news about the brothers ever since. 23. In support of their statements the applicants submitted: an account by the first applicant (undated); an account by Mr Israil M. dated 12 November 2003; an account by Mr Islam A. dated 14 November 2003; an account by Mr Khavashi K. (undated); an account by Mr Arsanuka M. (undated); an account by Mr Amin K. (undated) and copies of documents received from the authorities. 24. The Government did not challenge most of the facts as presented by the applicants. According to their submission of 25 July 2008 “... on 29 September 2003 an investigator of the Grozny district prosecutor's office initiated an investigation of criminal case no. 42172 opened in connection with the abduction of Aslan and Mokhmad Mudayev under Article 126 § 2 of the Criminal Code ...”. 25. In the same submission, referring to the contents of criminal case no. 42172, the Government further stated: “... on 29 January 2003 in the village of Raduzhnoye in the Nadterechniy district of Chechnya officers of the Nadterechniy district department of the FSB conducted a special operation. The goal of the operation was the identification of persons who had abducted employees of the Chechnya prosecutor's office. In the course of the criminal investigation [of the Mudayev brothers' abduction] the head of the Nadterechniy district department of the FSB, Mr M. Kh., who was in charge of the operation, was questioned by the investigators. [According to his statement] during the operation Aslan and Mokhmad Mudayev had been brought to the Nadterechniy district department of the FSB in connection with the abduction of the officials from the Chechnya prosecutor's office. As a result of the questioning it had been established that Aslan and Mokhmad Mudayev had not been involved in the abduction of the prosecution officials. After that Aslan and Mokhmad Mudayev had been released.” 26. The Government also submitted: “... on 12 May 2003 a terrorist act was committed in the village of Znamenskoye in the Nadterechniy district. As a result, the building of the Nadterechniy district department of the FSB was partially destroyed. Procedural documents, explanations and statements by Aslan and Mokhmad Mudayev were [also] destroyed.” 27. The applicants and their relatives also contacted, both in person and in writing, various official bodies, such as the Chechen administration, military commanders' offices, departments of the interior and prosecutors' offices at different levels, asking for help in establishing the whereabouts of Aslan and Mokhmad Mudayev. The applicants retained copies of a number of those complaints and submitted them to the Court. An official investigation was opened by the local prosecutor's office. The relevant information is summarised below. 28. According to the applicants, from January 2003 to August 2003, on a number of occasions, they complained in person to the Nadterechniy district prosecutor's office about the abduction of their relatives. 29. On 22 September 2003 a local human rights organisation complained on behalf of the applicants and their relatives to the Grozny district prosecutor's office about the abduction of Aslan and Mokhmad Mudayev. 30. On 29 September 2003 the Chechnya prosecutor's office forwarded the applicants' complaint about the abduction of their relatives to the Grozny district prosecutor's office. 31. On 15 January 2004 the applicants' representatives wrote to the Chechnya prosecutor's office. They described in detail the circumstances of the Mudayev brothers' abduction during the special operation conducted by the Nadterechniy district department of the FSB on 29 January 2003. The letter stated that the brothers had been taken to the detention centre of the district department of the FSB; they had been detained there until 10 May 2003, when they had been taken away in an unknown direction. According to the information obtained by the applicants from the persons who had been detained together with Aslan and Mokhmad Mudayev from January to May 2003, the conditions of their detention had been inhuman; the brothers had been beaten, had marks of ill-treatment on their bodies and fallen ill. After May 2003, according to some witnesses, the conditions of their detention in another place had also been inhuman; the brothers had been severely beaten and bound by adhesive tape. According to the letter, the applicants and their relatives had spoken with the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh. who had told them that the release of the two Mudayev brothers would be possible only in exchange for their elder brother Akhmad. The letter further stated that the applicants had complained about the arrest and detention of Aslan and Mokhmad Mudayev to a number of authorities, including the Nadterechniy district prosecutor's office, the Nadterechniy district department of the FSB, the Grozny district prosecutor's office and the Chechnya prosecutor's office. Referring to the European Convention on Human Rights the applicants requested the following information: on what grounds the Mudayev brothers had been arrested; whether any criminal charges had been brought against them and if so, what stage the criminal investigation was at; which authorities had issued the warrant for their arrest and where exactly the brothers had been detained. Finally, the applicants requested the authorities to ensure their safety and the safety of the witnesses to the abduction of Aslan and Mokhmad Mudayev. 32. On 11 February and 16 September 2004 the Chechnya prosecutor's office informed the applicants that on 29 September 2003 the Grozny district prosecutor's office had initiated an investigation into the abduction of Aslan and Mokhmad Mudayev. 33. On 28 April 2004 the Chechnya Department of Human Rights and Freedoms wrote to the Chechnya prosecutor's office. The letter stated that Aslan and Mokhmad Mudayev had been abducted on 29 January 2003 during an identity check. 34. On 22 May 2004 the Grozny district prosecutor's office granted the second applicant victim status in criminal case no. 42172 instituted in connection with the abduction of Aslan and Mokhmad Mudayev. 35. On 10 August and 28 October 2004 the military prosecutor's office of the United Group Alignment (the military prosecutor's office of the UGA) forwarded the applicants' complaints about the abduction to the Chechnya prosecutor's office for examination. 36. On 10 September 2004 the Grozny district prosecutor's office informed the applicants that the investigation in the criminal case had been suspended for failure to establish the identities of the perpetrators. 37. On 25 October 2004 the Grozny district prosecutor's office informed the Chechnya prosecutor's office that on 21 June 2004 the investigation in the criminal case had been suspended and that the investigators had been instructed to take investigating measures and that upon their completion the case would be transferred to the Nadterechniy district prosecutor's office for further investigation. 38. On 18 February 2005 the Grozny prosecutor's office informed the applicants that on that date they had resumed the investigation in the criminal case. 39. On 18 March 2005 the Grozny prosecutor's office informed the applicants that on that date they had suspended the investigation in the criminal case for failure to establish the identities of the perpetrators. 40. On 19 April 2005 the second applicant requested the Grozny district prosecutor's office to inform her about the results of the criminal investigation of the abduction and provide her with access to the investigation file. 41. On 5 May 2005 the first applicant complained to the Chechnya prosecutor's office. He stated that his two sons, Aslan and Mokhmad Mudayev, had been abducted on 29 January 2003 by representatives of the Nadterechniy district department of the FSB under the command of officer Mayrbek Kh., and that the investigation opened by the Grozny prosecutor's office had been ineffective. In particular, the applicant pointed out that the investigators had failed to comply with the court's decision of 30 December 2004 concerning the reopening of the suspended investigation and questioning of all persons involved in the abduction; that the investigation had been suspended several times in spite of the authorities' failure to establish the circumstances of the abduction. The applicant requested the Chechnya prosecutor's office to take over the investigation and to comply with the court's decision of 30 December 2004. 42. On 13 May 2005 the Chechnya prosecutor's office informed the first applicant that the investigation in the criminal case had been resumed. 43. In November 2004 the applicants lodged a complaint with the Grozny district court of Chechnya (the district court). They complained of unlawful suspensions of the investigation in the criminal case and a failure on the part of the authorities to take basic investigative measures. The applicants sought a ruling obliging the prosecutor's office to resume the investigation and question the witnesses of their relatives' abduction. 44. On 30 December 2004 the district court allowed the complaint. The court stated, inter alia, the following: “... the court established that: ... from [the date of the opening of the criminal case] 29 September 2003 up to the present the investigation in criminal case no. 42172 was suspended three times and resumed twice owing to the applicants' numerous complaints. On 30 November 2004 the investigator Zh. U. took the last decision to suspend the investigation for failure to establish the identities of the perpetrators; this decision was taken by him after 25 November 2004, that is, [shortly] after the applicants had lodged their court complaint about his actions. Given the kind of approach the investigator has taken to the execution of his work duties, it is possible that the perpetrators [of the abduction] will not be established any time soon [...]the investigator did not carry out the written orders issued by the deputy district prosecutor on 25 October 2004 ... even though such orders were compulsory ... In the course of the preliminary investigation it had been unequivocally established by whom and when the Mudayev brothers had been arrested and where they had been detained. From this it follows that the investigator and the supervising prosecutor must concentrate their attention on the identification of those who detained the brothers, on the examination of the lawfulness and the grounds for their detention, [and] the establishment of the actual place of their detention, which was carried out without lawful grounds ... The court decided: To recognise as unlawful the actions of the investigator Zh.U. concerning the suspension of the investigation in criminal case no. 42182 under Article 208 § 1 of the Criminal Procedure Code [for failure to establish the identities of the perpetrators]; To oblige the investigator to carry out in full the written orders issued by the [supervising] prosecutor ...; To question all persons involved in the arrest of the Mudayev brothers in violation of Articles 91 and 92 of the Criminal Procedure Code [grounds and procedure for detention]; To examine the lawfulness and the grounds for the Mudayev brothers' detention without a court order, [which took place] in violation of Article 108 of the Criminal Procedure Code [arrest procedure] ...” 45. On 11 May 2005 the second applicant complained to the district court that the investigation into the abduction had been ineffective. She described in detail the circumstances of the abduction and pointed out that Aslan and Mokhmad Mudayev had been unlawfully detained as hostages in the Nadterechniy district department of the FSB. The applicant stated that the investigation into the abduction had been suspended several times and that the last suspension had taken place on 13 May 2005. The applicant sought a ruling obliging the prosecutor's office to resume the investigation and transfer it to the Chechnya prosecutor's office. 46. On 8 June 2005 the district court rejected the applicant's complaint. On 16 August 2005 this decision was upheld on appeal by the Chechnya Supreme Court. 47. The Government submitted that the investigation of the abduction of the applicants' relatives had commenced on 29 September 2003 upon receipt on 22 September 2003 of a complaint by the applicants' relative Mr I.M. about the abduction of Aslan and Mokhmad Mudayev on 29 January 2003. 48. On 27 September 2003 the investigators conducted a crime scene examination at the first applicant's house. Nothing was collected from the scene. 49. On 29 September 2003 the first applicant was granted victim status in the criminal case and questioned. According to a copy of his witness statement submitted to the Court, the applicant stated that at about 8.15 a.m. on 29 January 2003 a group of fifteen masked men in military uniforms armed with automatic weapons had broken into his house. The men had put everyone up against the wall, and then ordered everyone to lie on the floor face down. After that they had demanded everyone's passports and checked them. The men had returned all the documents, expect for the passports of his sons Aslan and Mokhmad Mudayev. Immediately after the men had taken the applicant's two sons outside, put them in a light-coloured UAZ vehicle ('tabletka') and taken them to the settlement of Znamenskoye in the Nadterechniy district of Chechnya. When the applicant had asked the men about the reasons for the arrest of his sons, the men had not explained anything. They had told him and his relatives to stay inside, threatening to shoot if anyone went outside. According to the applicant, the abductors had arrived at his house in a light-coloured UAZ vehicle and two grey GAZ vehicles; the cars did not have registration numbers. At some point later the applicant had asked the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh. about his sons. The latter had told him that Aslan and Mokhmad Mudayev had been detained on the premises of his department. The applicant had not received any other information about his sons' whereabouts. 50. On 22 May 2004 the investigators granted the second applicant victim status in the criminal case. 51. According to the Government, the investigators also questioned a number of witnesses. Without providing any of the relevant witness statements and the dates, the Government summarised their testimonies as follows. 52. On an unspecified date the investigators questioned the applicants' relative, Mr I.B., who stated that on 29 January 2003 he had been in the first applicant's house with his relatives. In the morning a group of armed masked men had broken into the house, checked identity documents and taken him, Aslan and Mokhmad Mudayev in a UAZ car to the village of Znamenskoye in the Nadterechniy district. There they had been placed in one cell. In the evening of the same day the witness had been interrogated twice. The first questioning had been conducted by Mr M.Kh. who had asked him about Akhmed Mudayev. The second interrogation was conducted by a man who had spoken unaccented Russian, in the presence of a Chechen man. In the evening of 30 January 2003 the witness had been released, whereas Aslan and Mokhmad Mudayev remained in detention. 53. On an unspecified date the investigators questioned the second applicant. She stated that on 29 February 2003 a special operation had been conducted in Raduzhnoye by the local FSB office and that Mr Mayrbek Kh. had been in charge of it. As a result of this operation more than twenty young men had been arrested in the settlement, including her nephews Aslan and Mokhmad Mudayev and Mr I.A. Many of the detainees had been released in the evening on the same day. On 30 January 2003 her nephew Mr I.A. had also returned home. He had told her that he had been detained with Aslan and Mokhmad Mudayev in the FSB office. 54. On unspecified dates the investigators also questioned twelve other witnesses, including the first applicant, Mr A.M., Mr I.M., Mr Yu.V., Mr A.D., Mr S.B., Mr Sh.A., Ms A.B., Ms B.O., Mr T.A., Ms T.M., Mr A.K. and Mr S.Z., who provided statements similar to the one given by the second applicant. 55. On an unspecified date the investigators questioned the applicants' neighbour, Ms Kh. D., who stated that at about 9 a.m. on 29 January 2003 three grey UAZ vehicles without registration numbers had arrived at the first applicant's house. A group of armed men in camouflage uniforms and masks had gotten out of the cars. The men had taken the first applicant's two sons and driven them away in the direction of the Nadterechniy district. 56. On an unspecified date the investigators also questioned Mr I.M., who provided a statement similar to the one given by Ms Kh.D. 57. On an unspecified date the investigators questioned Ms T.M. who stated that at about 9 a.m. on 29 January 2003 she had been driving with her relatives through the area situated next to the bridge in the village of Pobedinskoye. There she had seen several UAZ cars and APCs which were driving in the direction of the village of Znamenskoye in the Nadterechniy district. After the witness had arrived at Pobedinskoye, she had learnt from the local residents that earlier in the morning a group of armed men in camouflage uniforms under the command of the head of the Nadterechniy district department of the FSB, Mr M. Kh., had taken Aslan and Mokhmad Mudayev away; that the relatives of the abducted men had followed the abductors in cars and that they had seen that the two brothers had been taken to the premises of the Nadterechniy district department of the FSB. 58. On unspecified dates the investigators also questioned three other witnesses, including Ms M.Yu., Ms. Z.K. and Ms L.A., who provided statements similar to the one given by Ms T.M. 59. On an unspecified date the investigators questioned Mr Z.B., who stated that he had known Aslan and Mokhmad Mudayev since childhood. On 29 January 2003 he had learnt that the two brothers had been arrested as a result of the operation conducted under the command of the head of the Nadterechniy district department of the FSB, Mr M. Kh. According to the witness, the elder brother of the arrested men, Akhmed, had been a member of illegal armed groups but Aslan and Mokhmad had not been involved in illegal activities. At some point Akhmed Mudayev had been killed by the OMON (special task force) police officers during a skirmish in the village of Dolinskoye. 60. On an unspecified date the investigators questioned the applicants' relative Mr E.M., who stated that his nephews Aslan and Mokhmad Mudayev had been arrested on 29 January 2003 by representatives of the Nadterechniy district department of the FSB in the presence of its head, Mr Mayrbek Kh. On the following day many of those who had been detained were released. However, Aslan and Mokhmad Mudayev did not return home. 61. On an unspecified date the investigators questioned a police officer, N.M., who stated that in the spring of 2003 he had worked as the district police officer in the settlement of Podebinskoye in the Grozny district. About two months prior to that, in the winter of 2003, Aslan and Mokhmad Mudayev had been brought to the Nadterechniy district department of the FSB. 62. On unspecified dates the investigators also questioned Mr G.R. and Mr B.S., who had provided statements similar to the above statement by Mr N.M. 63. On an unspecified date the investigators questioned Mr E.A. who stated that about two or three weeks after the apprehension of Aslan and Mokhmad Mudayev he had been detained on the premises of the FSB office in the Nadterechniy district and that at the time he had not seen the applicants' relatives there. 64. On an unspecified date the investigators questioned Mr S.Z., who stated that in January 2003 about twenty of his fellow villagers, including Aslan and Mokhmad Mudayev, had been detained by representatives of the FSB in the villages of Raduzhnoye and Dolinskoye. On 26 April 2003 he had been arrested by representatives of the Nadterechniy district department of the FSB and was released some time later. During his detention at the FSB office he had not seen the applicants' relatives. 65. On an unspecified date the investigators questioned the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh., who stated that after two staff members of the Chechnya prosecutor's office had been kidnapped their department had taken operational search measures aimed at establishing the identity of the perpetrators. As a result, Aslan and Mokhmad Mudayev had been brought over to the FSB office and questioned. After it had been established that the two brothers had not been involved in the abduction, Aslan and Mokhmad Mudayev had been released. The witness did not know why the brothers had not returned home. The officer further stated that Aslan and Mokhmad Mudayev had signed papers to the effect that they had nothing against the officers of the FSB; however, these documents had been later destroyed. Relatives of Aslan and Mokhmad Mudayev had contacted the witness on a number of occasions asking for assistance in establishing the brothers' whereabouts. According to the witness, he had had information concerning the possible absconding of Aslan and Mokhmad Mudayev from Chechnya to Ingushetia, where their brother Akhmed, an active member of illegal armed groups, had been hiding. In the summer of 2003 Akhmed Mudayev had been killed in a shoot-out. The witness had no information concerning the whereabouts of Aslan and Mokhmad Mudayev. 66. The investigators requested information from the Nadterechniy district court concerning arrest orders issued by the court as of 29 January 2003 in respect of Aslan and Mokhmad Mudayev. According to the district court, no such orders had been issued by it. 67. The investigators also requested information from the head of the Nadterechniy district administration concerning the list of persons who had suffered as a result of the terrorist attack committed on 12 May 2003 in Znamenskoye. The list of victims did not contain the names of Aslan and Mokhmad Mudayev. 68. According to the Government, the investigation failed to establish the whereabouts of Aslan and Mokhmad Mudayev; their corpses were not found. No evidence demonstrating the involvement of federal forces in their disappearance was found. 69. According to the documents submitted by the Government, between 29 September 2003 and 25 July 2008 the investigation was suspended and resumed on at least three occasions, that is, on 21 June 2004, 8 June 2005 and 11 February 2008, and it has so far failed to establish the identities of the perpetrators. 70. From the Government's submission it follows that on 16 July 2008 the head of the Investigations Department of the Investigations Committee at the Office of the Russian Prosecutor General decided that the investigation of the abduction of the applicants' relatives should be carried out by a joint group of investigators from the prosecutor's office and the military investigations department. 71. The Government further submitted that all the measures envisaged under the domestic law were being taken by the investigators and that the applicants had been duly informed of all decisions taken during the proceedings. 72. Despite specific requests by the Court the Government did not disclose most of the contents of criminal case file no. 42172, providing only copies of several notifications to the applicants of the suspension and reopening of the proceedings and a copy of the witness statement given by the first applicant on 29 September 2003. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained data concerning the witnesses or other participants in the criminal proceedings. 73. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007). | 1 |
dev | 001-86178 | ENG | GBR | ADMISSIBILITY | 2,008 | MURRAY v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Terence Roy Murray, is a British national who was born in 1967 and lives on the Isle of Wight. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant received a notice of intended prosecution pursuant to section 172 of the Road Traffic Act 1988, requiring him to name the driver of his car on 28 September 2005. He confirmed that he had been driving his car at that time. On 6 October 2005 the police made a conditional offer of a fixed penalty amounting to GBP 60 and a three penalty point endorsement on his licence, which the applicant accepted and paid. The relevant domestic law and practice is set out in O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, §§ 2531, ECHR 2007... | 0 |
dev | 001-68067 | ENG | RUS | CHAMBER | 2,005 | CASE OF MAYZIT v. RUSSIA | 3 | Violation of Art. 3;Violation of Art. 5-4;No violation of Art. 6-3-c;No violation of Art. 6-3-b;Non-pecuniary damage - financial award | Christos Rozakis | 7. The applicant was born in 1953 and lives in Kaliningrad. 8. On 21 July 1998 the investigating authorities of the District Department of Internal Affairs of Kaliningrad opened a criminal investigation based on a complaint by Mr. S who alleged that the applicant had shot at his windows with a hunting rifle in revenge for an unpaid debt. Following Mr. S’s second complaint on 14 August 1998 concerning a similar incident, a second investigation was opened and joined with the first. 9. It appears that these investigations led to the applicant’s arrest on 21 September 1998. Following interrogations, he was detained on 22 September 1998 under suspicion of having committed a crime under Sections 167 § 2 and 213 § 3 of the Criminal Code of the Russian Federation which concerns intentional destruction of, or damage to, property and hooliganism and which carries a sentence of up to seven years’ imprisonment. 10. The following day, 23 September 1998, the applicant was released under his written undertaking not to leave the town as a measure of restraint. 11. On 1 December 1998 the prosecution authorities forwarded the case-file and an indictment to the Moskovskiy District Court of Kaliningrad for examination and trial. However, on 24 March 1999 the court remitted the case for further investigations. During these subsequent investigations the authorities issued, on 7 July 1999, an arrest warrant against the applicant as he had on a number of occasions failed to attend for interrogation. The applicant was arrested on 27 July 1999 and remained in detention until 1 October 1999 when the District Court ordered his release, finding the alleged risk of the applicant absconding unsubstantiated. 12. In the meantime, on 2 August 1999, the resumed investigations had been brought to an end and the case-file sent, once more, to the District Court for adjudication. However, on 30 September 1999 the District Court ordered further investigation to be carried out. In the course of this investigation, on 4 April 2000, the authorities anew ordered the applicant’s arrest and detention on the basis that the applicant had changed his residence, failed to appear for interrogations and hampered the proceedings. On 17 April 2000 an arrest warrant was issued and on 26 July 2000 the applicant was arrested and detained on remand in the Remand Centre IZ39/1 of Kaliningrad. 13. According to the report issued by the Chief Prison Directorate of the Ministry of Justice, submitted by the Government, the applicant stayed at the Remand Centre IZ-39/1 from 26 July 2000 until 7 March 2001 and from 16 May 2001 until 18 July 2001. He was kept in six different cells described as follows: cell no. 67 (21 m² of surface, 10 bunks, the sanitary conditions satisfactory); cell no. 97 (7.8 m² of surface, 6 bunks, the sanitary conditions satisfactory); cell no. 135 (25.1 m² of surface, 10 bunks, the sanitary conditions satisfactory); cell nos. 4/16, 4/8, 4/21 (13.8 m² of surface for each cell, 8 bunks, the sanitary conditions of each of the cells satisfactory). It appears from the report that the sanitary and technical conditions of the cells in which the applicant was held were monitored on a regular basis. 14. In accordance with Section 17 § 1.11 of the Federal Law on detention the applicant was allowed daily walks for not less than one hour. 15. According to a letter from the Head of the Medical Department of the Prison Directorate for the Kaliningrad Region, submitted by the Government, the applicant was on admission to the remand centre examined by the general practitioner, the dermatologist, the venerologist and the psychiatrist who found his health to be satisfactory. In the course of a check-up two days after his arrival, on 28 July 2000, post-tuberculosis changes in the upper lobe of the right lung were detected. During the detention the applicant did not make requests for medical assistance, no diseases were detected in the course of routine examination and his state of health was considered to be satisfactory. 16. Without disputing the size of the cells the applicant submitted that these were dirty and infected with cockroaches, bed-bugs and lice. The weekly inspection did nothing to remedy that. The cells were overcrowded, leaving about 1 square metre of surface per person. The detainees were obliged to sleep in turns and the applicant could wash only every 10 days. The windows were covered with steel shutters and let in very little light. 21. On 21 November 2000 the Criminal Chamber of the Kaliningrad Regional Court dismissed the applicant’s appeal against the ruling of the Moskovskiy District Court of Kaliningrad of 4 September 2000. 22. On 15 December 2000 the Moskovskiy District Court of Kaliningrad rejected the applicant’s application of 30 July 2000 for release pending trial. 23. On 19 August 2002 a Deputy President of the Supreme Court made an application for supervisory review of the decisions of the Moskovskiy District Court of 4 September and 15 December 2000. The Deputy President alleged that these decisions had been unlawful as far as they had effectively deprived the applicant of his right to obtain a judicial review of his detention. 24. On 16 September 2002 the Presidium of the Kaliningrad Regional Court granted the application. It set aside the decisions of the Moskovskiy District Court of 4 September and 15 December 2000 and ordered a fresh examination of the applicant’s application for release. It appears that the applicant did not pursue the case following which the proceedings were terminated. 25. On 21 August 2000, following the completion of the investigation ordered by the District Court on 30 September 1999 (see § 12 above), the public prosecutor prepared the indictment and submitted the case to the District Court for adjudication. The indictment referred to Sections 330 § 2 and 213 § 3 of the Criminal Code. On 4 September 2000 the court decided that the applicant should be given time to study the case-file and set the trial to commence on 9 October 2000. Due to the seriousness of the charges against the applicant the court appointed a defence counsel. It appears that the applicant refused the appointment of eight different defence counsels and eventually the court decided to entrust the applicant’s defence to Mr M. as the applicant had not suggested any other lawyers. During the trial, on 12 October 2000, the applicant requested that he be represented by his mother and his sister. On 13 October 2000 the court rejected the applicant’s request referring in particular to the fact that the case was complex and that therefore special legal knowledge and professional experience, which his mother and sister did not have, were required. A subsequent request of 19 November 2000 to be represented by his relatives was likewise rejected. 26. By judgment of 25 December 2000 the Moskovskiy District Court found the applicant guilty of the charges against him and sentenced him to six years’ imprisonment. The applicant appealed against the judgment, complaining also that he had not been allowed to choose his legal assistance. 27. On 27 February 2001 the Kaliningrad Regional Court upheld the judgment. On 28 February 2002 the Presidium of the Kaliningrad Regional Court lowered the sentence to four years’ imprisonment. 28. On an unspecified date the applicant filed a supervisory complaint in order to review the domestic courts’ judgment in his case. On 6 May 2004 the judicial panel on criminal cases of the Supreme Court rendered its judgment which in part found in the applicant’s favour. The Supreme Court quashed the domestic courts’ judgments in so far as they related to the conviction under Section 213 § 3 of the Criminal Code, whereas the remainder of the conviction was upheld. The applicant has been released from prison having served the sentence related to the remaining conviction. 29. Code of Criminal Procedure of 1960, in force at the material time: “... The accused may ... appeal to court against unlawfulness and groundlessness of detention...” “May be admitted as defenders: an advocate authorised by a bar office; a representative of a trade union or of another public association... Where authorized by a court decision or ruling, close relatives, legal representatives and other persons may be admitted as defenders.” “A defender’s participation is obligatory in proceedings: 1. in which a public or private prosecutor is involved...” “... When a prison administration receives a detainee’s [appeal to a court against pre-trial detention], it must pass the [appeal] to the relevant court immediately, and, at any rate, not later than 24 hours after its receipt, having informed a public prosecutor... If the appeal has been lodged via the prison administration, the prosecutor must send [the documents confirming the lawfulness and validity of the detention as a measure of restraint] to the court within 24 hours after receipt of the prison administration’s notification that the person concerned has lodged the appeal...” “... A judge must review the lawfulness of the detention ... within three days after receipt of documents confirming the lawfulness and validity of the detention as a measure of restraint...” 30. Constitution of the Russian Federation of 1993: “Everyone has the right to professional legal aid. In cases established by law, legal aid is granted free...” | 1 |
dev | 001-76329 | ENG | RUS | CHAMBER | 2,006 | CASE OF KOVALENKO v. RUSSIA | 4 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award | Peer Lorenzen | 4. The applicant was born in 1912 and lives in Novovoronezh. 5. On 19 September 2000 the Novovoronezhskiy Town Court of the Voronezh Region granted the applicant’s claim against the Novovoronezh Social Security Service and awarded her 10,300.86 Russian roubles (RUR) for pension arrears. 6. The judgment was not appealed against and entered into force. On 19 October 2000 a writ of execution was issued. 7. The judgment was executed on 2 March 2005. | 1 |
dev | 001-82083 | ENG | LIE | ADMISSIBILITY | 2,007 | DASSA FOUNDATION AND OTHERS v. LIECHTENSTEIN | 4 | Inadmissible | Peer Lorenzen | The first applicant, the Dassa Foundation, and the second applicant, the Lafleur Foundation, are legal entities incorporated under Liechtenstein law in 1996 which have their registered offices in Vaduz. The third applicant, Mr Attilio Pacifico, is an Italian national who was born in 1933 and lives in Monaco. According to the statutes of the first and the second applicant, the third applicant is the sole beneficiary of their assets. The applicants were represented before the Court by Ms Luca Lentini and Mr Giampiero Placidi of Lentini, Placidi & Partners, a law firm practising in Rome. On 6 June 2001 the Regional Court of the Principality of Liechtenstein (Fürstliches Landgericht) in Vaduz, in investigation proceedings on suspicion of money laundering against Z. and unknown further perpetrators committed in the 1990s (file no. 14 UR 2001.0030), ordered the seizure for a duration of two years of all assets which the first and second applicants had deposited with the Neue Bank company and prohibited the latter to dispose of these assets pursuant to section 97a of the Code of Criminal Procedure (see ‘Relevant domestic and international law’ below). It found that the investigations against Z., the former legal representative of the first and second applicants, had revealed that the third applicant had probably bribed several judges in Rome together with another person. The third applicant was suspected of having transferred the proceeds of these offences to the applicant foundations, which were attributable to him, in order to conceal that the money had originated from criminal acts. Therefore, the accounts of the foundations had to be blocked in order to safeguard the subsequent absorption of the profits (Abschöpfung der Bereicherung) or the forfeiture of the assets in accordance with section 97a of the Code of Criminal Procedure. On 12 May 2003 the Public Prosecutor’s Office of the Principality of Liechtenstein requested the Regional Court to extend the seizure of the foundations’ assets for at least one year. On 15 May 2003 the Regional Court, acting in the course of independent objective forfeiture proceedings (objektives Verfallsverfahren) under section 356 of the Code of Criminal Procedure (see ‘Relevant domestic and international law’ below) against the applicant foundations (file no. 14 UR 2002.384), prolonged the seizure of the foundations’ assets ordered by it on 6 June 2001 for one year pursuant to section 97a § 4 of the Code of Criminal Procedure. The Regional Court noted that the third applicant, being the beneficiary of the foundations, had been sentenced by the Milan Criminal Court to eleven years’ imprisonment on 29 April 2003 with respect to the assets at issue in the present forfeiture proceedings. This judgment was not final yet. As the present proceedings were complex and involved inter-State relations, it had not yet been possible to terminate the investigations. On 20 May 2003 the Court of Appeal of the Principality of Liechtenstein (Fürstliches Obergericht), in the course of the objective forfeiture proceedings concerning the assets of the applicant foundations, endorsed the Regional Court’s decision of 15 May 2003, confirming that court’s reasoning (section 97a § 4 of the Code of Criminal Procedure). On 6 June 2003 the first and the second applicant, represented by counsel, lodged an appeal against the decision of the Regional Court of 15 May 2003 with the Court of Appeal. They argued that the initial seizure of its assets on 6 June 2001 had been ordered by the Regional Court for a period of two years in criminal investigation proceedings on suspicion of money laundering against Z. In its decision of 15 May 2003 the Regional Court had then ordered a prolongation of this seizure. However, this prolongation had been made in different proceedings, namely in the course of objective forfeiture proceedings concerning the foundations’ assets, in which there had never been an initial blocking of accounts. Therefore, the prolongation order was unlawful. The criminal proceedings against Z. were terminated by a final judgment so that a continued blocking of accounts in these proceedings was no longer possible. Moreover, as the Regional Court’s order was made in objective forfeiture proceedings it could only be based on section 20b § 2 of the Criminal Code (see ‘Relevant domestic and international law’ below). However, this provision had entered into force only on 19 December 2000; before that date, there was no legal basis for ordering the forfeiture of the assets in question. The third applicant and others were suspected of having received money for offences committed in the 1990s and of having transferred 18 and 11 million Swiss francs respectively to the account of the applicant foundations in 1996, that is, long before the year 2000. Therefore, applying section 20b § 2 of the Criminal Code in order to prolong the blocking of the foundations’ accounts violated the prohibition of retroactive punishment guaranteed by section 61 read in conjunction with section 1 § 2 of the Criminal Code (see ‘Relevant domestic and international law’ below) and Article 7 of the Convention. The Court of Appeal transmitted the appeal to the Supreme Court of Liechtenstein (Fürstlicher Oberster Gerichtshof). On 4 September 2003 the Supreme Court of Liechtenstein dismissed the applicant foundations’ appeal. Referring to its previous case-law, it found that it had jurisdiction to deal with the appeal. As an exception from the rule laid down in section 238 § 1 of the Code of Criminal Procedure (see ‘Relevant domestic and international law’ below), which was authorised by that provision, no appeal lay to the Court of Appeal against the Regional Court’s decision on the prolongation of the seizure of the assets. Otherwise the Court of Appeal would have to decide twice on the same subject matter following its necessary consent to the prolongation of the seizure. Contrary to the wording of section 97a § 6 of the Code of Criminal Procedure, an appeal lay, however, with the Supreme Court itself instead. The Supreme Court found that measures pursuant to section 97a of the Code of Criminal Procedure were aimed at preventing persons suspected of a criminal offence from frustrating the absorption of the profits or the forfeiture of the assets obtained as a result thereof while the investigations into the offence were pending. As rightly found by the Regional Court and the Court of Appeal, there was a reasonable suspicion of money laundering. The third applicant, being the sole beneficiary of the foundations, had been convicted at first instance by the Milan Criminal Court of having received the money later transferred to the foundations as commissions for criminal acts. There were, therefore, reasonable grounds for the assumption that the assets seized would later be declared forfeited. The Supreme Court conceded that the seizure of the foundations’ assets had initially been ordered in the criminal proceedings against Z. However, it was lawful to prolong the seizure in the present objective forfeiture proceedings as these were the logical continuation of the said criminal proceedings and as the seizure had been made in the criminal proceedings to make the forfeiture possible. A declaration of forfeiture at a later date pursuant to section 20b of the Criminal Code, which authorised the forfeiture of assets and entered into force on 19 December 2000, was not excluded by the prohibition of retroactivity. The forfeiture of assets was not an additional punishment, but an independent pecuniary consequence of the fact that a perpetrator, his legal successor or other beneficiaries, including legal entities, had obtained assets resulting from an unlawful act. It did not require that the perpetrator had acted with criminal responsibility. In case of a refusal of payment, an order of forfeiture was therefore enforced with the ordinary instruments of execution of payment, not by ordering imprisonment for failure to pay a fine. As the forfeiture of assets pursuant to section 20b of the Criminal Code was thus not an (additional) penalty for an offence, such a measure did not have to be examined in the light of the prohibition of retroactive punishment enshrined in sections 1 and 61 of the Criminal Code. The new provisions on forfeiture of assets were applicable to all assets which were found to be in Liechtenstein at the time the provisions entered into force. They had not therefore become effective retroactively and had not changed retroactively the consequences of a perpetrator’s past conduct, but concerned a persistent state of affairs, namely assets being situated within the country. The Supreme Court further found that sections 1 and 61 of the Criminal Code only played a role in so far as the criminal offence as a result of which the assets in question were obtained was concerned. Proceeds of offences which had not been punishable before the entry into force of section 20b of the Criminal Code were not liable to forfeiture. However, in the present case the offences which were suspected to have generated the assets at issue had been punishable both in Italy and in Liechtenstein at the time they had been committed. The seizure of the assets was proportionate because the disadvantages suffered by the applicant foundations as a result of the blocking of their accounts were less important than the damage possibly incurred by the victims of the offences if the seizure was not ordered. On 23 September 2003 the first and second applicants lodged a complaint with the Constitutional Court of the Principality of Liechtenstein (Staatsgerichtshof des Fürstentums Liechtenstein). They claimed that the principle of nulla poena sine lege as guaranteed by Article 33 § 2 of the Constitution of Liechtenstein (see ‘Relevant domestic and international law’ below) and Article 7 of the Convention had been violated. They argued that the forfeiture of assets authorised by section 20b of the Criminal Code had to be qualified as an additional punishment. The courts had applied that new penal provision, which had entered into force on 19 December 2000, to assets purportedly obtained by criminal offences committed in the 1990s, that is, before that date, when the forfeiture of such assets had not yet been authorised by law. Moreover, the applicants claimed that their right to a fair trial and to be heard by the judge having jurisdiction over the case as protected by Article 33 § 1 of the Constitution (see ‘Relevant domestic and international law’ below) and Article 6 of the Convention had been breached. It had been unlawful and indeed arbitrary to order a prolongation of the seizure of its assets in objective forfeiture proceedings, in which there had not been a seizure yet, the initial seizure having been ordered in criminal proceedings against Z. The Regional Court had therefore not had jurisdiction to order the said prolongation in the objective forfeiture proceedings pending before it. Moreover, the decision on the applicants’ appeal against this decision should have been given by the Court of Appeal and not by the Supreme Court. On 29 June 2004 the Constitutional Court of the Principality of Liechtenstein rejected the foundations’ complaint. It found, firstly, that the prohibition of retroactive punishment laid down in Article 33 § 2 of the Liechtenstein Constitution and Article 7 § 1 of the Convention as well as in sections 1 and 61 of the Criminal Code did not apply to a forfeiture pursuant to section 20b § 2 of the Criminal Code. Referring to the criteria laid down by this Court notably in the case of Welch v. the United Kingdom (judgment of 9 February 1995, Series A no. 307, p. 13, § 28) it found that forfeiture pursuant to section 20b § 2 of the Criminal Code was not a “penalty” within the meaning of Article 7 § 1 of the Convention. It was not a precondition for an order of forfeiture pursuant to that section that the person concerned was convicted of a criminal offence or that criminal proceedings had been instituted against him at all. The assets concerned had to stem from an act punishable at the place of its commission to which Liechtenstein criminal law was not applicable. The purpose of the new provision on forfeiture was to comply with the obligations arising notably under the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS no. 141; see ‘Relevant domestic and international law’ below) and to guarantee that crime did not pay off. Forfeiture was not an additional penalty for offences, the penal sanctions for offences, prison sentences and fines, being sufficient. It was only aimed at absorbing the profits made as a result of an offence. It was therefore not necessary that the person concerned acted with criminal responsibility and forfeiture could also be ordered against the legal successors of a perpetrator. Therefore, forfeiture had to be characterised as a civil law consequence of criminal acts. This was confirmed by the fact that in case of a refusal of payment, an order of forfeiture was enforced with the ordinary instruments of execution of payment orders whereas – other than, for example, in the Welch case – it was not authorised to order imprisonment for failure to pay a fine. The objective forfeiture proceedings were separate proceedings to which the procedural rules of the Code of Criminal Procedure applied, but which were independent of the guilt of the person or legal entity owning the assets in question. As to the severity of the measure in question, it had to be noted that the assets forfeited were often only part of the net proceeds of a criminal offence. Secondly, the Constitutional Court found that the applicants’ right to be heard by the judge having jurisdiction over the case under Article 33 § 1 of the Constitution had not been violated. It had been convincing and, in any event, not arbitrary for the Supreme Court to argue that the present objective forfeiture proceedings were the logical continuation of the criminal proceedings against Z. and that it had, therefore, been lawful to order the prolongation of the seizure in the objective forfeiture proceedings. Likewise, having regard to the Supreme Court’s reasoning, it had been reasonable and not arbitrary for that court to conclude that an appeal against the decision of the Regional Court to prolong the seizure of the applicants’ assets did not lie with the Court of Appeal, but with the Supreme Court itself. On 17 May 2004 the Regional Court of the Principality of Liechtenstein, in the course of the objective forfeiture proceedings against the applicant foundations, prolonged the seizure of the foundations’ assets for another year pursuant to section 97a § 4 of the Code of Criminal Procedure (file no. 14 UR 2002.384). Referring to the conviction of the third applicant by the Milan Criminal Court on 29 April 2003, it argued that the assets were suspected of being the pay-back for bribing civil servants. However, the said judgment was not final yet and the investigation proceedings in Liechtenstein depended on the outcome of the proceedings in Italy. On 19 May 2004 the Court of Appeal of the Principality of Liechtenstein, referring to the Regional Court’s reasoning and to that of the Supreme Court of Liechtenstein in its decision of 4 September 2003, consented to the Regional Court’s decision (section 97a § 4 of the Code of Criminal Procedure). On 8 June 2004 the applicant foundations lodged an appeal with the Supreme Court. Disagreeing with the decision given by the Supreme Court of Liechtenstein on 4 September 2003, they reasoned their appeal along the same lines as their appeal of 6 June 2003. On 23 July 2004 the Supreme Court of Liechtenstein dismissed the foundations’ appeal as ill-founded. Referring to its decision given on 4 September 2003, which had meanwhile been confirmed by the Constitutional Court in its decision of 29 June 2004, it found that it had been lawful to order the prolongation of the seizure in the present objective forfeiture proceedings. Moreover, as had been confirmed by the Constitutional Court, the forfeiture of assets pursuant to section 20b of the Criminal Code was not an (additional) penalty for an offence and therefore did not have to be examined in the light of the prohibition of retroactive punishment. The Supreme Court reiterated that it had repeatedly considered it to be disproportionate to freeze assets of Liechtenstein citizens or legal entities for more than three years without the underlying criminal proceedings being terminated. However, the outcome of the criminal proceedings in Italy prejudged the outcome of the present case and it was likely that a final decision would be given shortly. Therefore, the prolongation of the blocking of the foundations’ accounts was still proportionate, even though the objective forfeiture proceedings should be terminated soon. On 12 August 2004 the foundations lodged a complaint with the Constitutional Court. They argued again that the application of section 20b of the Criminal Code had violated the principle of nulla poena sine lege as guaranteed by Article 33 § 2 of the Constitution of Liechtenstein and Article 7 of the Convention. Invoking Article 33 of the Liechtenstein Constitution and Article 6 of the Convention, they claimed that their right to a fair trial and to be heard by the judge having jurisdiction over the case had been breached. Moreover, the applicants complained that the Supreme Court of Liechtenstein had failed to give sufficient reasons for its view that it had been lawful to order the prolongation of the seizure in the present objective forfeiture proceedings. On 30 November 2004 the Constitutional Court dismissed the foundations’ complaint as ill-founded. It referred to the grounds given in its decision of 29 June 2004. As regards the foundations’ claim that the Supreme Court insufficiently reasoned its decision, the court found that the Supreme Court’s reference to the grounds given by the Constitutional Court in its decision of 29 June 2004 did not breach the duty to give sufficient reasons. The latter decision concerned the same questions raised by the same parties so that the reference was clear and comprehensible. On 13 March 2007 the applicants informed the Court that the seizure of their assets persisted, without a final judgment on the underlying offences having been given. Pursuant to Article 33 § 1 of the Constitution of the Principality of Liechtenstein, no one may be removed from the jurisdiction of his lawful judge and extraordinary courts shall not be established. Article 33 § 2 of the Constitution stipulates that the threat or imposition of penalties must be in accordance with the law. Article 34 § 1 of the Constitution guarantees the inviolability of private property. Section 1 of the Criminal Code prohibits punishment without law. Pursuant to section 1 § 1 of the Criminal Code, a penalty or a measure of prevention may only be imposed for an act which was punishable according to law at the time of its commission. Section 1 § 2 of that Code provides that no heavier penalty may be imposed than the one that was applicable at the time the criminal offence was committed. A measure of prevention may only be ordered if, at the time of the commission of the offence, this measure or a comparable penalty or measure of prevention had been provided for by law. Section 61 of the Criminal Code lays down rules on the temporal applicability of criminal provisions. Criminal laws apply to acts committed after the laws’ entry into force. They are applicable to acts committed prior to that date if the laws in force at the time when the offence was committed, having regard to their overall effects, were less favourable to the perpetrator. Sections 18 to 31a of the Criminal Code, according to their heading, cover penalties, the absorption of profits, forfeiture and preventive measures. Section 18 of that Code regulates prison sentences, section 19 of the Code provides for fines and sections 20 and 20a of the Code contain rules on the absorption of profits. Sections 21 et seq. provide, in particular, for preventive measures such as the placement in an institution for mentally disturbed law breakers, in a detoxification facility or in an institution for dangerous recidivist offenders. According to section 20b § 2 of the Criminal Code, assets which were derived from an act liable to punishment shall be declared forfeited if the act from which they originate is punishable according to the laws of the place were it was committed, if Liechtenstein criminal law does not apply to that act and if the act did not constitute a fiscal offence. Pursuant to section 20c § 1 no. 1 of the Criminal Code, forfeiture is excluded in so far as third parties, who did not participate in the offences at issue, have legal claims in relation to the assets in question. Section 20b § 2 of the Criminal Code was introduced into that Code by the Act on Amendments to the Criminal Code of 25 October 2000, which entered into force on 19 December 2000 (see Liechtenstein Federal Gazette (LGBl) 2000, no. 256, issued on 19 December 2000). Money laundering, that is, in particular, hiding assets originating from a criminal offence or concealing the fact that the assets stem from an offence, is punishable pursuant to section 165 § 1 of the Criminal Code. However, a person who has been punished for having participated in the offence which generated such assets is not (also) liable to prosecution for money laundering (section 165 § 5 of the Criminal Code). Section 97a § 1 of the Code of Criminal Procedure provides that if there is a suspicion that assets originate from a punishable act and are likely to be declared forfeited (pursuant to section 20b of the Criminal Code) the court, on a motion of the Public Prosecutor’s Office, shall order measures aimed at safeguarding their forfeiture if the recovery of the assets is endangered or rendered considerably more difficult otherwise. Such safeguarding measures comprise, inter alia, the seizure of assets or a prohibition on their disposal. Section 97a § 4 of that Code stipulates that the court is obliged to fix a time-limit for the safeguarding measure ordered, which may be extended on request. If two years have passed following the first order without an indictment having been laid or a request for forfeiture having been lodged in separate objective proceedings, further extensions of the time-limit for one year respectively are only permitted with the consent of the Court of Appeal. The seizure order shall be quashed, in particular, if it can be assumed that the forfeiture will not be ordered or if the time-limit for the order has expired (section 97a § 5 of the Code of Criminal Procedure). Section 356 of the Code of Criminal Procedure regulates the forfeiture proceedings. If there are sufficient grounds for the assumption that the preconditions for forfeiture (section 20b of the Criminal Code) are met and if this cannot be determined in the course of criminal proceedings, the Public Prosecutor shall lodge a separate request for a declaration of forfeiture (§ 1 of section 356). It is the court which would have jurisdiction to adjudicate on the offence due to which the forfeiture order shall be made which shall decide on the request in separate proceedings by a judgment following a public hearing (§ 2 of section 356). Persons who argue to have a claim on the assets liable to forfeiture have the rights of an accused in the forfeiture proceedings (section 354 of the Code of Criminal Procedure). Pursuant to Section 97a § 6 of the Code of Criminal Procedure, the Public Prosecutor’s Office, the defendant or the persons otherwise affected have the right to lodge an appeal with the Court of Appeal against the order of safeguarding measures or its lifting. According to section 238 § 1 of the Code of Criminal Procedure all judicial decrees, decisions and orders which are not judgments are subject to appeal to the Court of Appeal on grounds of unlawfulness or disproportionality if there are no exceptions provided for by law. The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime signed on 8 November 1990 (ETS no. 141) entered into force for Liechtenstein on 1 March 2001. According to its preamble, the objective of this Convention is to fight effectively against serious crime by depriving criminals of the proceeds from crime and to establish a well-functioning system of international co-operation to attain this aim. Parties undertake in particular to criminalise the laundering of the proceeds from crime and to confiscate such proceeds or property the value of which corresponds to such proceeds. | 0 |
dev | 001-5130 | ENG | CYP | ADMISSIBILITY | 2,000 | NICHOLAS v. CYPRUS | 3 | Inadmissible | Nicolas Bratza | The applicant is a British national, born in 1951 and living in London. He is represented before the Court by Mr N.S. Ahluwalia, a lawyer practising in London. A. The facts of the case, as submitted by the parties, may be summarised as follows. I. Recourse No. 633/95 before the Supreme Court On 12 July 1995 the applicant applied to the Supreme Court of Cyprus for a declaration that Cyprus Airways and the Government, the major shareholder of that company, had breached the Constitution in refusing to employ him and employing others instead (recourse No. 633/95). On 10 April 1997 the applicant asked the Chief Registrar of the Supreme Court whether legal aid was available for actions alleging infringement of constitutional rights, such as recourse No. 633/95. On the same date the Chief Registrar informed the applicant that “legal aid is not available for civil cases”. The applicant represented himself in the proceedings. On 19 September 1997 the Supreme Court rejected the applicant’s recourse as inadmissible. The court found that Cyprus Airways was in every respect a private company. As a result, its decisions did not fall within the ambit of Article 146 of the Constitution. The refusal to employ the applicant was, therefore, wrongly challenged by means of a recourse to the Supreme Court. II. Case No. 5807/95 before the Nicosia District Court In 1993 the applicant instituted proceedings before the Supreme Court seeking the annulment of the Ministry of Labour's decision to issue work permits to six foreign pilots employed by EuroCypria Airlines, a subsidiary of Cyprus Airways (case No. 701/93). On 19 April 1995 the Supreme Court found in favour of the applicant. Relying on the above decision, the applicant instituted proceedings before the Nicosia District Court for damages against the Government (case No. 5807/95). He was represented by counsel who acted on a “no fee” basis. On 26 June 1998 the court rejected the action. The applicant’s counsel lodged an appeal. The proceedings are still pending. III. Case No. 1676/94 before the Larnaca District Court On 29 August 1993 the newspaper Alithia published a letter by EuroCypria Airlines worded as follows: “With reference to your article in connection with Charalambos Nicholas, we confirm once again that our intention is to ‘Cypriotise’ [give priority to Cypriot employees] as soon as possible. Within the bounds of safety and operations of the company, for us to achieve this aim, the recruitment of suitable, qualified pilots is an absolute necessity. … We have offered employment without exception to each and every qualified suitable Cypriot pilot who has applied and today we employ eight such pilots … . The recruitment of ab initio Cypriot pilots has already commenced and we will continue this policy until all the foreigners in our company are replaced. With regard to Mr Nicholas's specific case, the reasons he was not selected are known to both himself and the Government agencies concerned through correspondence dating from 1991. As for the rest it is against our policy to discuss individual cases in the press”. On 11 May 1994 the applicant instituted proceedings for defamation against EuroCypria Airlines before the Larnaca District Court (Case No. 1676/94). He alleged that it transpired from the publication in question that (a) he was an unqualified and inexperienced pilot and not suitable to fly aircrafts, (b) he was so incompetent and/or had such disadvantages as a person and as a professional so as to jeopardise the safety of the flights and the operation of the company, or any other airline company, (c) he was not selected for employment, not because there were other persons more qualified than him, but because he was totally useless and/or incompetent and/or an ignorant professional pilot and (d) he was generally a dangerous and suspicious person and could not be trusted. The applicant applied for damages and an injunction preventing the defendants from continuing to publish defamatory statements. The applicant was represented by counsel. A hearing was fixed for 16 February 1996. On that date the applicant failed to appear and the court dismissed the action. On 21 May 1996 the applicant’s counsel asked for the reinstatement of the action. On 27 June 1996 the action was reinstated. A hearing was fixed for 27 November 1996. It was adjourned on several occasions. On 27 August 1997 the applicant informed his lawyer, Mr K, that he did not exclude the possibility of engaging the services of another lawyer. On 1 September 1997 Mr K informed the applicant that he was no longer able to represent him. The lawyer invited the applicant to collect the file so he could prepare his case himself. He stated that “no fees (were) expected to be paid by (the applicant)”. After Mr K’s withdrawal the applicant sent a number of faxes to the court’s registry asking for the case to be adjourned. On 20 November 1997 Mr E, in whose chambers Mr K used to work, appeared before the court on behalf of the applicant and asked for an adjournment. The court adjourned the hearing of the case until 27 February 1998. On 27 February 1998 none of the parties appeared and the court dismissed the action. On 1 July 1999 Mr E wrote a letter to the applicant’s representatives before the Court to the effect that his firm had agreed to represent the applicant “on a no fee basis”, that Mr K had withdrawn from the case because he had been appointed a judge and that the case “had a very good chance of success if handled properly”. B. Relevant domestic law The law on defamation in Cyprus is found in sections 17 to 24 of the Civil Wrongs Law. The following principles transpire from the case-law: “In accordance with the principles of legal interpretation applied in England, expressions used in (the Civil Wrongs Law) shall be presumed so far as they are consistent with their context and except as may be otherwise expressly provided to be used with the meaning attaching to them in English Law and shall be construed in accordance therewith. … Time and again it was said that the gist of the torts of libel and slander is the publication of words conveying a defamatory imputation. A defamatory imputation is one to a man's discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession or to injure his financial credit. The standard of opinion is that of right-thinking persons generally.” (Supreme Court of Cyprus in Paniccos Agathangelou v. S. Mousoulides and Sons, (1980) 1 CLR pp. 272 and 277) “The meaning of words in a libel case is not a matter of construction as a lawyer construes a contract. It is a matter of the impression an ordinary person gets on a first reading not on a later analysis.” (Lewis v. Daily Telegraph Ltd. (1963) 2 All E.R. p. 151) “An innuendo properly so called which is an allegation that words were used in a defamatory sense other than their ordinary meaning and which provides a separate cause of action must be supported by extrinsic facts or matters and cannot be found only on interpretation, because if the words bear the interpretation imputed to them they are defamatory in their natural and ordinary meaning.” (Grubb v. Bristol United Press Ltd. (1962) 2 All E.R. p. 380) According to a letter addressed to the applicant by the Cyprus High Commission on 9 June 1997, the Law Office of the Republic confirmed that “legal aid (was) not available in civil cases. Despite the fact that Article 30.3(d) of (the) Constitution provides that every person has the right to have free legal assistance where the interests of justice so require and as provided by law, such a law has not as yet been introduced”. | 0 |
dev | 001-72640 | ENG | CYP | CHAMBER | 2,006 | CASE OF PASTELLIS v. CYPRUS | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 4. The applicant was born in 1946 and lives in Larnaca. 5. On 1 November 1985 the applicant lodged a civil action (no. 2891/85) before the District Court of Larnaca concerning the payment of the remainder of the price agreed under the contract of sale of his enterprise in South Africa. The total claim was 60,000 South African Rand (ZAR), which was the equivalent of 30,000 Cypriot pounds (CYP) at the relevant time. 6. Between the above date and 1 January 1989 the Court dealt with the submission of the parties’ pleadings and several applications for their amendment, for the purposes of which a number of adjournments or requests for extensions took place. Approximately five adjournments took place in this period, one at the applicant’s request, two at the defendant’s request and two by the court itself. 7. On 20 February 1989 the case was adjourned until 9 June 1989 on the parties’ request. The hearing of the case commenced on that date and was fixed to continue on 26 June 1989 but following an adjournment requested by the applicant it was fixed for 27 September 1989. On the latter date the defendant raised an objection challenging the jurisdiction of the Larnaca District Court since the contract between the parties had been concluded in South Africa. The court fixed the hearing in respect of the objection for 14 October 1989. Following two adjournments at the defendant’s request the hearing took place on 10 November 1989. 8. On 30 January 1990 the court dismissed the defendant’s objection pertaining to its jurisdiction and fixed the hearing for 6 March 1990. 9. On 13 February 1990 an appeal (no. 8052) was filed against the district court’s ruling of 30 January 1990, concerning its jurisdiction to try the case. Consequently, the case was taken off the trial list pending the result of the appeal. 10. On 21 February 1990 the defendant was served with a notice by the Registrar of the Supreme Court requesting him to pay the due fee for the preparation of the record of the first instance proceedings. The court’s record was sent by the Larnaca District Court to the Supreme Court on 22 March 1990. 11. On 23 November 1992 the parties were notified by the Chief Registrar of the Supreme Court that the appeal was fixed for hearing on 15 December 1992. On that date however the case was adjourned to enable the applicant to file a cross-appeal. 12. On 27 April 1993 the Supreme Court found that the Larnaca District Court had jurisdiction to try the action and dismissed the appeal. 13. On 7 June 1995 the applicant applied for a date of mention concerning the continuation of the proceedings and the case was fixed for this purpose for 7 July 1995. On that date it was fixed to be heard on 5 December 1995. 14. Between the above date and 20 December 1996 the case was adjourned several times. Approximately three of these adjournments were at the applicant’s request, four at the parties’ request and one at the defendant’s. 15. On 20 December 1996 the Larnaca District Court reserved its judgment. This was delivered on 30 January 1997 dismissing the applicant’s action. 16. On 3 March 1997 the applicant filed an appeal (appeal no. 9912) against the first instance judgment. 17. The notice of the appeal was sent by the Registrar of the Larnaca District Court on 13 March 1997 to the Supreme Court indicating that the file of the case had been given for the purposes of typing the record of the proceedings and that this would be available in ten months due to the excessive volume of work. The record was necessary in order for the appeal to be fixed for hearing. On 2 April 1997 the applicant paid the fee due for the court’s record. 18. On 9 February 1998 the Chief Registrar notified the parties that the appeal was fixed for directions for 24 February 1998. On that date the parties were instructed to file their outline addresses. 19. On 9 November 1998 the Chief Registrar sent a notice to the parties informing them that the appeal was fixed for hearing on 17 December 1998. On that date the parties’ addresses were heard and judgment was reserved. 20. On 26 January 1999 the Chief Registrar of the Supreme Court informed the parties that due to the resignation of one of the presiding judges, the appeal had to be retried. Following two adjournments on the basis of the respondent’s request, the parties’ addresses were heard on 21 June 1999 and judgment was reserved. 21. On 30 September 1999 the Supreme Court delivered its judgment setting aside the first instance decision and ordering a retrial. The costs of both the first instance trial and the appeal were awarded in favour of the applicant. The parties were then notified that the case file had been returned to the Larnaca District Court on 6 October 1999 and they were requested to file an application to that court for the case to be fixed. 22. On 4 February 2000 the applicant applied to the Registrar of the Larnaca District Court requesting that the case be fixed for retrial. 23. On 20 June 2002 an application was lodged by the applicant requesting that the case be fixed for directions. In the relevant court records of 4 July 2002, the court stated that the case should be given priority and that the Registrar should inform the court why the case was not put before it on 4 February 2000 when the applicant had applied for the case to be fixed. In the relevant court records of 5 July 2002, the Registrar noted that the file of the case had been returned to the Supreme Court for the assessment of costs which took place on 4 April 2000 and that it was not known why the case had not been put before a judge. However, the Registrar pointed out that the applicant’s lawyers had not pursued the application for two years. 24. The case was then fixed for 14 and 15 November 2002 but following an adjournment at the defendant’s request it was postponed until 11 and 12 December 2002. On 11 December 2002 the case was settled between the parties with a decision in the applicant’s favour for the amount of CYP 2000 plus the costs and expenses that had been awarded by the Supreme Court. | 1 |
dev | 001-101204 | ENG | RUS | COMMITTEE | 2,010 | CASE OF KARASEV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Anatoly Kovler;Khanlar Hajiyev | 4. The applicant was born in 1958 and lives in Ryazan. 5. On 29 March 2000 the applicant and two other individuals were detained on suspicion of having committed an assault and infliction of grave bodily harm resulting in death. The applicant’s challenge of the custodial measure of restraint was rejected on 11 August 2000. 6. On 8 September 2000 the preliminary investigation was completed. The applicant did not study the case materials as his legal counsel were unable to assist him at the time due to illness and involvement in different proceedings. 7. On 29 September 2000 the applicant signed the undertaking not to leave the town and was released. He and his counsel did not appear at the investigator’s summons to study the case materials. 8. From 12 October to 13 November 2000 the applicant stayed in hospital. Following his and his counsel’s repeated failure to familiarise themselves with the case materials, the investigator set the deadline at 25 April 2001. 9. On 3 May 2001 after finalising the bill of indictment the prosecutor decided again to place the applicant in detention, which was subsequently extended by the court on several occasions and upheld by decisions of 27 February 2003, 4 December 2003, 24 February 2004, 10 June 2004 and 12 August 2004 of the Ryazan Regional Court (“the Regional Court”). 10. The Ryazhskiy District Court of the Ryazan Region received the applicant’s case for examination on 8 May 2001. By decision of 22 May 2001 the court adjourned the proceedings due to the applicant’s illness. 11. The next hearing scheduled for 2 July 2001 did not take place due to the counsels’ failure to appear. 12. At the hearing of 17 July 2001 the applicant requested that he be given one month to study the case-file but could not do so as both of his counsel were on vacation. On 28 September 2001 the court limited the time granted to the applicant to study the case-file by 1 November 2001. 13. The next hearing scheduled for 20 November 2001 did not take place due to the judge’s illness. 14. On 8 January 2002 president of the Ryazhskiy District Court requested that president of the Regional Court assign the applicant’s case to a different trial court due to the fact that the judge who was considering it was ill and the other judges had already taken part in the proceedings in some form and could not examine the case. On 22 January 2002 the applicant’s case was transferred to the Ukholovskiy District Court of the Ryazan Region (“the District Court”). 15. At the next hearing scheduled for 27 February 2002 the court granted the defence’s request for an outpatient psychiatric examination and a graphologic examination. 16. On 20 June 2002 the court commissioned an inpatient psychiatric examination which was held on 2 December 2002. The applicant did not object to the composition of the trial court and did not challenge the judges. 17. Between 14 January 2003 and 14 September 2004 twenty two scheduled hearings did not take place due to the counsels’ failure to appear; on twenty occasions it was the default of the applicant’s counsel. Following the applicant’s refusal to continue examination of the case in his counsel’s absence, on several occasions president of the District Court requested replacement of the counsels at the Tambov and Ryazan regional bars as well as the Ryazan Region Lawyers’ Council. It is not clear whether or when this measure became successful. 18. On 21 September 2004, in presence of the applicant’s legal counsel, the District Court convicted the applicant as charged and sentenced him to 13 years’ imprisonment. It also granted the civil suit again him. 19. In his grounds of appeal the applicant challenged the bench which had delivered the conviction alleging defects in the appointment of the lay judges. 20. On 24 February 2005 the Regional Court upheld the judgment on appeal. It also found that the trial court had been composed in accordance with the law and that the applicant had failed to challenge the bench during the trial. 21. Article 50.3 of the Russian Code of Criminal Procedure of 2001 provides that in the event of a counsel’s failure to appear during 5 days after a motion for legal assistance, the court may invite the accused to retain a different counsel or assign a legal-aid lawyer. | 1 |
dev | 001-110805 | ENG | ROU | CHAMBER | 2,012 | CASE OF ALBU AND OTHERS v. ROMANIA | 3 | Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria | 6. The applicants are Romanian nationals. They are all civil servants employed by the Caraş Severin District Employment Agency. 7. On 5 May 2008 the applicants filed a petition with their employer, the Caraş Severin District Employment Agency, a State agency, asking to have their entitlement to certain wage-related rights acknowledged. More specifically, relying on section 31(1) (c) and (d) of Law no. 188/1999 on the status of civil servants, they asked for two allowances to be added to their basic salary, namely a grade supplement and a supplement related to their salary step. The applicants quantified each of these supplements at 25% of the basic salary. The aforesaid allowances were to be paid retroactively, starting from April 2004, but also in the future, until the applicants’ contracts ended. At the same time, the applicants requested that these entitlements be noted in their employment record books. On 19 May 2008 their employer dismissed the petition as ill-founded. 8. On 30 May 2008 the applicants contested that decision before the Caraş Severin County Court. They contended that even though, in accordance with Government Emergency Ordinance no. 92/2004, the application of the provisions granting them the rights in question had been suspended until 31 December 2006, this did not mean that they were not due for payment starting from 1 January 2007, when the suspension had ended, as the suspension of a right was not equivalent to the extinction of that right. In any event, they considered that the suspension was in breach of Articles 41 and 53 of the Constitution, and that the allowances claimed were therefore to be paid retroactively, from 2004 onwards. 9. On 10 September 2008 the County Court dismissed the applicants’ claim. The court acknowledged that, according to the provisions of the Labour Code applicable to the case, the employer was obliged to pay its employees all the allowances derived from the law and from the employment contract. Therefore, the applicants, civil servants, were entitled to receive, in addition to their other salary entitlements, the two supplements in question – the grade allowance and the allowance corresponding to the salary step – as provided for by section 31(1) (c) and (d). The two supplements were first provided for by section 29 of Law no. 161/2003 of 16 April 2003, but without any indication as to the exact amount. In fact, none of the subsequent legal texts on civil servants’ salary rights made any reference to a method or criterion for determining the amount of any of the supplements. Hence, even though Law no. 188/1999 expressly stated that a civil servant’s salary was also composed of the grade supplement and the salary-step supplement, the determination of these rights was left to the executive, which was entitled to set out rules for the application of the law. Consequently, the court held as follows: “In the absence of a legal act issued or adopted by the executive in which the amount of the two allowances claimed is defined, the court does not have jurisdiction to determine by itself the amounts, as this would undermine the separation of powers principle by encroaching on the powers of the administrative authorities. The court therefore holds that in the above-mentioned circumstances, the respondent cannot be ordered to pay the allowances claimed before their amount has been determined.” 10. The applicants appealed against that judgment to the Timişoara Court of Appeal, reiterating the arguments they had submitted before the first-instance court. In addition, they stated that under Article 38 of the Labour Code the acquired rights of employees could not be made subject to any limitations. Furthermore, they contended that it was a basic legal principle that laws were made in order to produce effects, it being inconceivable that a legal text would have only a superficial value and not be applicable. They asserted that their right to the allowances they had requested was protected by Article 1 of Protocol No. 1 to the Convention, in so far as it was a right provided for by law. The applicants alleged that the interpretation of the applicable legal provisions given by the court in refusing to allow their claims rendered those texts completely ineffective and thus devoid of any substance. Moreover, such an interpretation was discriminatory and in breach of Article 14 of the Convention, in so far as there was consistent national case-law granting other claimants (also civil servants) the right to the supplements in question. The discrimination was even more disturbing given that another person, S.S.M., employed by the same institution as them, had obtained the allowances following a decision of 21 March 2008 given by the same first-instance court, the Caraş Severin County Court. That decision had been upheld by the Timişoara Court of Appeal on 2 October 2008, when it became final. 11. On 21 January 2009 the Timişoara Court of Appeal dismissed the applicants’ appeal. The court noted that there was no legal justification for claiming the allowances in an amount of 25% of the basic salary, and consequently for allowing such a claim, as the figure in question was not laid down anywhere in the law. In that connection, in order to be able to determine the exact amount of the allowances in question, additional legislation was needed, either in the form of legal provisions adopted by the legislature designed to regulate the application of section 31, or in the form of instructions issued by the Government in a separate legal text designed to explain how the law should be applied. The Court of Appeal also referred to the Constitutional Court’s case-law to the effect that: “The courts do not have jurisdiction to repeal or to refuse to apply specific normative acts which they consider to be discriminatory, and thus to replace them with norms created by judicial intervention or with provisions contained in other normative acts.” Therefore, the court considered that it could not allow the applicants’ claims, in so far as those claims had not been determined by the competent authorities. Regarding the divergent case-law referred to by the applicants in their arguments, the court held that in the Romanian legal system, legal precedents were not a source of law and therefore could not be taken into consideration. On the applicability of Article 1 of Protocol No. 1 to the Convention, the court mentioned that the applicants had not proved the existence of a “possession”, or at least of a “legitimate expectation”, since the case-law on the matter was not well-established. Furthermore, the court held that the Labour Code was not applicable to civil servants, as they were appointed to their posts on the basis of Law no. 188/1999. The appointments were thus made by means of individual administrative acts which did not make any reference to the allowances in question and, in any event, had not been contested by any of the applicants at the time of their appointment. In conclusion, the applicants’ claims were dismissed as unfounded. 12. The Public Servants’ Statute entered into force on 7 January 2000, once Law no. 188/1999 had been enacted. On 1 January 2004 section 29 of the Statute was amended to provide that, starting from that date, certain allowances were to be included in the salaries of public servants. “1. For discharging their activities public servants shall have the right to a salary composed of the following: (a) the basic salary (b) seniority allowance (c) grade allowance (d) step allowance 2. Public servants shall be granted bonuses and other salary entitlements, in accordance with the law. 3. The remuneration of public servants shall take place in accordance with [the criteria] set forth in the law on the implementation of a uniform remuneration scheme for public servants.” On 19 July 2006, point (d) was amended to read “allowance corresponding to the salary step”. With effect from 1 June 2007, section 29 became section 31, while no amendments were made to the content. The application of these provisions was suspended from 2004 until 2006, first by Law no. 164/2004 of 15 May 2004, then by Government Emergency Ordinance no. 92/2004, enacted as Law no. 76/2005, and then by Government Ordinance no. 2/2006, enacted as Law no. 417/2006. With effect from 1 January 2010 the two allowances, namely the grade supplement and the allowance corresponding to the salary step, were abolished by Law no. 330/2009. 13. The applicants submitted two other judgments given by the Court of Appeal of Timişoara, in which the claimants’ requests had been granted. In one of the judgments, given on 23 January 2008 by the same panel as the one which sat in the applicants’ case, it was stated, inter alia, as follows: “It is irrelevant that the legal text did not lay down the exact amount of the salary entitlements in question, as this cannot constitute a well-founded reason for dismissing the claims; such an interpretation would render ineffective the legal provisions concerned, which are part of the positive law, and this would be inconceivable.” In another judgment submitted by the applicants, the Suceava Court of Appeal held on 5 June 2008 in a similar case that the claimants, employees of the Suceava District Employment Agency, were entitled to the allowances in question, as the corresponding rights were provided for by the law, it being irrelevant whether their amount was determined or not. 14. The Government contended that, of the fifteen courts of appeal across the country, a number had dismissed similar claims relating to salary entitlements even before 21 September 2009, when the High Court of Cassation and Justice had ruled on an appeal in the interests of the law (see paragraph 15 below). These included the Alba Iulia Court of Appeal, the Galaţi Court of Appeal and the Bacău Courts of Appeal, as well as the courts of appeal in Constanţa, Cluj, Ploieşti and Bucharest. The reasons given for dismissing the claims had been identical, resembling those subsequently given in the ruling on the appeal in the interests of the law. 15. On 13 May 2009, noting that since 2008 a divergence of case-law had emerged across the country concerning the granting of certain allowances to public servants, the Prosecutor General applied to the High Court of Cassation and Justice in accordance with the provisions of Article 329 of the Romanian Civil Procedure Code, in order to ensure the uniform interpretation and application of the law. The High Court delivered its judgment on 21 September 2009, confirming the existence of a divergence in the case-law concerning the interpretation of section 31(1) (c) and (d) of Law no. 188/1999, while also setting out guidelines for a uniform interpretation of the text, as follows: “For the uniform interpretation and application of Article 31(1) (c) and (d) of Law no. 188/1999, the High Court holds that, in the absence of a legal determination of their amount, the grade allowance and the allowance relating to the salary step cannot be granted by the judiciary.” The High Court further held that the entitlements claimed by the public servants did not constitute a “possession”, as, in the absence of criteria for their calculation, they were only “virtual rights”. According to Article 329 of the Romanian Civil Code of Procedure, the High Court’s interpretation of the provisions in question is binding on all the domestic courts. A decision delivered on an appeal in the interests of the law cannot alter the outcome of cases already decided. Following the adoption of the above-mentioned judgment, the divergent case-law on the issue ceased and the domestic courts followed the High Court’s guidelines (see also Zelca and Others v. Romania (dec.), no. 65161/10, §15, 6 September 2011). 16. The report states in its relevant parts that, in order for the principle of legal certainty, essential for maintaining confidence in the judicial system and the rule of law, to be achieved, the State must make the law easily accessible and must also apply the laws it has enacted in a foreseeable and consistent manner. As the existence of conflicting decisions within the highest courts may be contrary to this principle, it is therefore necessary for these courts to establish mechanisms to avoid conflicts and ensure the coherence of their case-law. 17. In her preliminary assessment on the independence of the Romanian judiciary following the visit to Romania in May 2011, the Rapporteur stressed that the practice of the domestic courts had been undermined by the absence of a stable legislative framework, resulting in a lack of uniform interpretation and application of the law. The lack of predictability of judicial decisions and the lack of acceptability of judicial decision-making were structural factors that needed to be addressed. 18. In its relevant parts, the Opinion reads as follows: “... 47. While recognising the judges’ power to interpret the law, the obligation of the judges to promote legal certainty has also to be remembered. Indeed legal certainty guarantees the predictability of the content and application of the legal rules, thus contributing in ensuring a high quality judicial system. 48. Judges will apply the interpretative principles applicable in both national and international law with this aim in mind. ... In civil law countries, they will be guided by case law, especially that of the highest courts, whose task includes ensuring the uniformity of case law. 49. Judges should in general apply the law consistently. However when a court decides to depart from previous case law, this should be clearly mentioned in its decision. ....” | 0 |
dev | 001-102337 | ENG | RUS | CHAMBER | 2,010 | CASE OF GLADKIY v. RUSSIA | 3 | Remainder inadmissible;Violations of Art. 3 (substantive aspect);No violation of Art. 6-1;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 6. The applicant was born in 1966 and lived before his arrest in Kaliningrad, Kaliningrad Region. 7. On 13 December 1999 the applicant was arrested and two days later he was placed in detention facility no. IZ-39/1 in Kaliningrad. On his admission to the facility he received a fluorography examination which revealed no signs of tuberculosis. On 20 June 2000 the applicant underwent another fluorography test which also showed no symptoms of the illness. 8. On 16 January 2001 the applicant was once again subjected to a fluorography examination which detected tuberculosis changes in his left lung. On the basis of that examination the applicant was diagnosed with infiltrative tuberculosis (“TB”) of the upper lobe of the left lung and transferred to the pulmonary tuberculosis ward of the medical department of the detention facility, where he remained until 28 January 2002. 9. Despite the Court's request for them to produce the applicant's complete medical record, the Government only submitted medical documents drawn up after 28 January 2002. Relying on a certificate issued by the head of the medical department of the Kaliningrad Regional Department of Execution of Sentences, the Government argued that in facility no. IZ-39/1 the applicant had undergone an intensive course of anti-tuberculosis chemotherapy comprising two unidentified drugs. As follows from that certificate, in May 2001 a positive dynamic in the treatment of the illness was registered. However, on 5 August 2001 the applicant's state of health seriously deteriorated. A medical examination by a tuberculosis specialist on 16 August 2001 led to the applicant being diagnosed with acute viral respiratory infection. He was prescribed “symptomatic treatment”. A fluorography examination performed on 3 September 2001 revealed a negative dynamic of the tuberculosis process showing an increase in the number of disintegration cavities. The doctor's diagnosis was “infiltrative tuberculosis of the upper lobe of the left lung in the disintegration phase, [presence of mycobacterium tuberculosis (“MBT”)], progress of the tuberculosis process and 1-2 stage hypotrophy”. According to the same certificate, the regimen of anti-tuberculosis treatment received by the applicant was amended to take the deterioration of his health into account. The applicant was prescribed “infusion chemotherapy”, including a number of drugs (izoniazid, ethambutol, and rifampicin) and detoxication therapy. 10. An extract from the applicant's medical record drawn up on 26 June 2003 shows that the deterioration of the applicant's health in August 2001 was linked to “irregular medication”. 11. On 28 January 2002 the applicant was discharged from the medical department of the detention facility with a final diagnosis of infiltrative tuberculosis of the upper lobe of the left lung in the disintegration phase, and sent for subsequent treatment to tuberculosis hospital no. 5 in Kaliningrad. On the applicant's admission to the hospital the attending doctor made an entry in his medical record noting that the applicant was calm and collected, exhibiting strong determination to continue anti-tuberculosis treatment. The applicant did not make any complaints about the quality of the treatment provided to him in the tuberculosis hospital. 12. On 11 November 2002, following a series of examinations by a forensic medical commission, the applicant was assigned second degree disability status because of his tuberculosis. In July 2004 he underwent stabilising thoracoplasty followed by an intensive course of anti-tuberculosis chemotherapy. The applicant was recommended further surgery following his release from detention. 13. From 15 December 1999 to 28 January 2002 the applicant was detained in facility no. IZ-39/1. According to the applicant, that detention facility was built in 1929 and no renovation work has been done on the cells since. 14. According to certificates issued on 12 July 2007 by the director of the facility and produced by the Government, the applicant was kept in nine different cells which measured 7.8, 16.7, 17.4, 18.4 and 21 square metres. The smaller cells had two sleeping places, the three larger cells were equipped with four bunks and the largest cell had five sleeping places. The Government submitted that the information on the exact number of inmates detained together with the applicant was not available. They further noted that at all times the applicant had had an individual bunk and bedding. 15. Relying on the information provided by the director of the facility, the Government further argued that the sanitary conditions in the cells were satisfactory. In particular, the Government submitted that the cells received natural light and ventilation through a window measuring 1.2 square metres. The cells had no artificial ventilation. Each cell was equipped with a lavatory pan, a sink, a tap with running water, wooden benches and a table. Inmates were allowed to take a shower once every seven to ten days for no less than fifteen minutes. Clean bedding was also provided once a week. The cells were disinfected. Inmates were afforded an hour of outdoor recreation per day in twelve-square-metre yards equipped with wooden benches and covered by a shed roof against rain and snow. The Government, relying on the information provided by the director of the facility, further stated that the applicant was given food “in accordance with the established norms”. 16. The applicant did not dispute the cell measurements. However, relying on submissions by his former fellow inmates whose complaints about the conditions of detention in facility no. IZ-39/1 had already been examined by the Court (see, among other authorities, Artyomov v. Russia, no. 14146/02, §§ 123-133, 27 May 2010, and Shilbergs v. Russia, no. 20075/03, §§ 89-99, 17 December 2009), he alleged that the cell which measured 21 square metres had had eight sleeping places and had usually housed 24 inmates. The smallest cells, which measured 7.8 square metres, had either four or six sleeping places and accommodated from 8 to 12 detainees. The remaining three cells were equipped with eight sleeping places and housed 16 inmates. Given the lack of beds, inmates had slept in shifts. They were not provided with bedding. 17. The applicant further submitted that the sanitary conditions had been appalling. The cells were infested with insects but the management did not provide any insecticide. The walls in the cells were covered with a thick layer of mould. Pieces of plaster were falling from the walls. The applicant submitted that the windows were covered with metal blinds which blocked access to natural light and air. It was not before 25 November 2002, that is long after his transfer to another detention facility, that the metal blinds were removed in compliance with the recommendations of the Russian Ministry of Justice. It was impossible to take a shower as inmates were given only fifteen minutes and two to three men had to use one shower head at the same time. That situation was further aggravated by the fact that inmates could only take a shower once every two weeks. Inmates had to wash and dry their laundry indoors, creating excessive humidity in the cells. They were also allowed to smoke in the cells. The toilet was a filthy hole in the floor, separated from the living area by a small partition, and spread an unpleasant odour in the cell. At no time did inmates have complete privacy. Anything they happened to be doing – using the toilet, sleeping – was in view of the guard or fellow inmates. No toiletries were provided. The food was of poor quality and in scarce supply. 18. The applicant complained to various Russian authorities, including the Kaliningrad Regional Ombudsman, about the poor conditions of his detention. On 28 June 2001 the applicant received a letter from the Ombudsman which, in so far as relevant, read as follows: “An inspection, performed by the Kaliningrad Regional Ombudsman on 25 April 2001 in the detention facility established that [each inmate] has less than one square metre of personal space while the required norm is 4 square metres for each detainee, thus the constitutional rights of detained individuals are being violated. Other violations of sanitary norms and [norms] related to medical assistance were discovered and the Ombudsman recommended the head of detention facility no. IZ39/1 to eliminate [those violations].” 19. On 12 July 2001 the applicant lodged an action against detention facility no. IZ-39/1 and the Ministry of Finance seeking compensation for damage caused to his health because he had contracted tuberculosis in detention, had been denied access to adequate medical services and had been detained in appalling conditions for almost two years after his arrest. 20. On 19 November 2001 the Tsentralniy District Court of Kaliningrad dismissed the action, reasoning that as the applicant had been medically examined on his admission to facility no. IZ-39/1, had remained under constant medical supervision and had shared cells with healthy inmates, there was no evidence of fault on the part of the facility administration for the damage caused to his health. In addressing the applicant's complaint about the poor conditions of his detention and a possible link between the detention conditions and his having been infected with tuberculosis, the District Court found as follows: “[The applicant's] arguments that sanitary requirements were not complied with in the detention facility are unsubstantiated, as the representative of the detention facility refuted those arguments ... despite the fact that the facility premises need reconstruction, all sanitary measures are taken in the facility; tuberculosis patients take showers separately from healthy inmates, then the premises are disinfected. There are separate premises for outdoor walks for tuberculosis patients. Those premises are also disinfected. It was established in the course of the hearing that [the applicant] had not had tuberculosis before or been registered as a tuberculosis patient, and that his tuberculosis had been detected for the first time in the detention facility. However, that circumstance cannot serve as a ground for upholding the plaintiff's claims, because the cause of the illness was not established and the prison authorities were not at fault; furthermore, there was no action/inaction on the part of the prison administration which could have created the conditions for the development of the plaintiff's illness. The overcrowding in the cells of the detention facility is an objective circumstance which was not caused by the facility administration and, moreover, the court did not establish a direct causal link between the overcrowding in the cells where [the applicant] was detained and his illness.” The applicant participated in the hearings before the District Court. 21. The applicant appealed, and sought leave to attend the appeal hearing. 22. On 27 February 2002, in the absence of the applicant, who had not been notified of the hearing, the Kaliningrad Regional Court upheld the judgment of 19 November 2001. The Regional Court concluded that the fact that the applicant had contracted tuberculosis in the detention facility “could not serve as evidence of the defendant's fault in having caused the illness” because the cause of the tuberculosis had not been and could not be established. 23. On 22 April 2002 the President of the Kaliningrad Regional Court lodged an application for supervisory review of the judgment of 27 February 2002, arguing as follows: “In violation of the requirements of Article 299 of the RSFSR Code of Civil Procedure the [Regional] Court examined the case upon [the applicant's] action although there was no evidence that the plaintiff had been notified of the date and place of the court hearing. [The applicant] is in detention and was not brought to the court, however, he has the right to submit his arguments, [or] participate in the proceedings through his representative ... and, thus, he has to be promptly notified of the day of the examination of the case.” 24. On 16 May 2002 the Presidium of the Kaliningrad Regional Court accepted the application for supervisory review, quashed the judgment of 27 February 2002, having endorsed the arguments of the Regional Court President, and sent the case for fresh examination by the appeal court. 25. In March 2002 the applicant lodged an additional statement of appeal, informing the Regional Court that he had appointed two lawyers to represent him during the appeal proceedings. He also noted that in the event of the lawyers' failure to appear, the Regional Court should issue the judgment in their absence. No request for leave for the applicant to appear before the Regional Court was filed. 26. By a letter of 27 May 2002 the Regional Court informed the applicant's lawyers and the applicant that a hearing had been scheduled for 19 June 2002. 27. On 19 June 2002 the Kaliningrad Regional Court, having examined the case on the basis of the parties' written submissions as the applicant's representatives and the respondent party failed to appear, upheld the judgment of 19 November 2001. The Regional Court confirmed the District Court's findings that the applicant had been healthy before his placement in custody, and that tuberculosis had only been detected more than a year after his admission to the detention facility. It further endorsed the District Court's conclusion that it was impossible to establish the cause of the illness and that there was no fault on the part of the facility administration in the deterioration of the applicant's health. Without providing any details, the Regional Court further stressed that the applicant had been subjected to regular medical check-ups during his detention and that he had received the necessary medical assistance. It also noted that the fact that the cells in the detention facility had housed 1.5 times more detainees than they had been designed to accommodate could not be the cause of the applicant's illness. 28. The applicant was served with a copy of the judgment on 16 August 2002. “1. Provision of anti-tuberculosis aid to individuals suffering from tuberculosis is guaranteed by the State and is performed on the basis of the principles of legality, compliance with the rights of the individual and citizen, [and] general accessibility in the amount determined by the Programme of State guarantees for provision of medical assistance to citizens of the Russian Federation, free of charge. 2. Anti-tuberculosis aid shall be provided to citizens when they voluntarily apply [for such aid] or when they consent [to such aid], save for cases indicated in Sections 9 and 10 of the present Federal law and other federal laws ...” “1. Individuals suffering from tuberculosis who are in need of anti-tuberculosis aid shall receive such aid in medical anti-tuberculosis facilities licensed to provide [it]. 2. Individuals who are or have been in contact with an individual suffering from tuberculosis shall undergo an examination for the detection of tuberculosis in compliance with the laws of the Russian Federation...” 1. Regular medical examinations of persons suffering from tuberculosis shall be performed in compliance with the procedure laid down by a competent federal executive body ... 2. Regular medical examinations of persons suffering from tuberculosis shall be performed irrespective of the patients' or their representatives' consent. 3. A medical commission appointed by the head of a medical anti-tuberculosis facility ... shall take decisions authorising regular medical examinations or terminating them and record such decisions in medical documents ...; an individual in respect of whom such a decision has been issued, shall be informed in writing about the decision taken.” “2. Individuals suffering from contagious forms of tuberculosis who... intentionally avoid medical examinations aimed at detecting tuberculosis, or avoid treating it, shall be admitted, by court decision, to specialised medical anti-tuberculosis establishments for mandatory examinations and treatment.” “2. Individuals admitted to medical anti-tuberculosis facilities for examinations and (or) treatment, shall have a right to: receive information from the administration of the medical anti-tuberculosis facilities on the progress of treatment, examinations... have meetings with lawyers and clergy in private; take part in religious ceremonies, if they do not have a damaging impact on the state of their health; continue their education... 3. Individuals ... suffering from tuberculosis shall have other rights provided for by the laws of the Russian Federation on health care ...” “Individuals ... suffering from tuberculosis shall; submit to medical procedures authorised by medical personnel; comply with the internal regulations of medical anti-tuberculosis facilities when they stay at those facilities; comply with sanitary and hygiene conditions established for public places when persons not suffering from tuberculosis [visit them].” “4. Individuals... suffering from tuberculosis shall be provided with medication free of charge for out-patient treatment of tuberculosis by federal specialised medical facilities in compliance with the procedure established by the Government of the Russian Federation...” 29. Russian law gives detailed guidelines for the provision of medical assistance to detained individuals. These guidelines, found in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice, on Organisation of Medical Assistance to Individuals Serving Sentences or Detained (“the Regulation”), enacted on 17 October 2005, are applicable to all detainees without exception. In particular, section III of the Regulation sets out the procedure for initial steps to be taken by medical personnel of a detention facility on admission of a detainee. On arrival at a temporary detention facility all detainees must be subjected to preliminary medical examination before they are placed in cells shared by other inmates. The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance. Particular attention must be paid to individuals suffering from contagious conditions. No later than three days after the detainee's arrival at the detention facility, he should receive an in-depth medical examination, including fluorography. During the in-depth examination a prison doctor should record the detainee's complaints, study his medical and personal history, record injuries if present, and recent tattoos, and schedule additional medical procedures if necessary. A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses. 30. Subsequent medical examinations of detainees are performed at least twice a year or at detainees' request. If a detainee's state of health has deteriorated, medical examinations and assistance should be provided by medical personnel of the detention facility. In such cases a medical examination should include a general medical check-up and additional methods of testing, if necessary, with the participation of particular medical specialists. The results of the examinations should be recorded in the detainee's medical history. The detainee should be fully informed of the results of the medical examinations. 31. Section III of the Regulation also sets the procedure for cases of refusals by detainees to undergo medical examination or treatment. In each case of refusal, a corresponding entry should be made in the detainees' medical record. A prison doctor should fully explain to the detainee the consequences of his refusal to undergo the medical procedure. 32. Detainees take prescribed medicines in the presence of a doctor. In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a daily dose of medicines to the detainee for unobserved intake. 33. Section X of the Regulation regulates medical examinations, monitoring and treatment of detainees suffering from tuberculosis. It lays down a detailed account of medical procedures to be employed, establishes their frequency, and regulates courses of treatment for new tuberculosis patients and previously treated ones (relapsing or defaulting detainees). In particular, it provides that when a detainee exhibits signs of a relapse of tuberculosis, he or she should immediately be removed to designated premises (infectious unit of the medical department of the facility) and should be sent for treatment to an anti-tuberculosis establishment. The prophylactic and anti-relapse treatment of tuberculosis patients should be performed by a tuberculosis specialist. Rigorous checking of the intake of anti-tuberculosis drugs by the detainee should be put in place. Each dose should be recorded in the detainee's medical history. A refusal to take anti-tuberculosis medicine should also be noted in the medical record. A discussion of the negative effects of the refusal should follow. Detainees suffering from tuberculosis should also be put on a special dietary ration. 34. On 21 March 2003 the Ministry of Health adopted Decree no. 109 on Improvement of Anti-Tuberculosis Measures in the Russian Federation (“the Anti-Tuberculosis Decree” or “Decree”). Having acknowledged a difficult epidemic situation in the Russian Federation in connection with a drastic increase in the number of individuals suffering from tuberculosis, particularly among children and detainees, and a substantial rise in the number of tuberculosis-related deaths, the Decree laid down guidelines and recommendations for country-wide prevention, detection and therapy of tuberculosis which conform to international standards, identifying forms and types of tuberculosis and categories of patients suffering from them, establishing types of necessary medical examinations, analyses and testing to be performed in each case and giving extremely detailed instructions on their performance and assessment; it also laid down rules on vaccination, determined courses and regimens of therapy for particular categories of patients, and so on. 35. In particular, Addendum 6 to the Decree contains an Instruction on chemotherapy for tuberculosis patients. The aims of treatment, essential anti-tuberculosis drugs and their dose combinations, as well as standard regimens of chemotherapy laid down by the Instruction for Russian tuberculosis patients conformed to those recommended by the World Health Organisation in Treatment of Tuberculosis: Guidelines for National Programs (see below). 36. Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ 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 health and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. 37. In 2002, following the inspection in 2001 of penitentiary facilities in the Kaliningrad Region, the Regional Ombudsman published his report which, in so far as relevant, read as follows: “One of the most acute problems continues to be the problem of medical and sanitary assistance [provided to] detainees. The medical [and] sanitary assistance provided in the prison system does not ensure the preservation and improvement of [detainees'] health, and the financial resources available are insufficient to meet the detainees' needs in terms of medical and sanitary assistance. In fact, penitentiary institutions and temporary detention facilities are frequently left without any financial resources to purchase medical equipment or medicines, in serious violation of the right to health and medical assistance guaranteed by the Constitution of the Russian Federation. A particular concern is the contraction of tuberculosis in those institutions ... In 2001 [the Kaliningrad Regional Department of the Russian Ministry of Justice] received 849 complaints (including 32 collective complaints) from detainees, 382 of which concerned medical assistance ... According to information supplied by [the Kaliningrad Regional Department of the Russian Ministry of Justice], 1,386 persons are detained in [facility no. IZ-39/1] ... The Kaliningrad Regional Ombudsman received 75 complaints from persons detained in facility no. IZ-39/1 ... In 2001 the Ombudsman visited the detention facility. During the visit the Ombudsman identified the following violations: overpopulation [of the facility] (more than three instances); shortage of bedding; absence of radio in certain cells; complete absence of TV sets or refrigerators; limitation of the time for outside walks ...; insufficient medical assistance. ... [Facility no. IZ-39/1] was built before the war; it requires complete reconstruction. During the last seven years the detention facility has always been overpopulated, housing three times more inmates than it should; management are therefore unable to comply with the minimum space requirement per inmate. While the rule is 4 square metres of living space per inmate, inmates in the detention facility have less than one square metre each. Persons whose guilt [in having committed crimes] has not yet been established by a court are detained in conditions which diminish their human dignity and frequently cause harm to their health.” 38. Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. Pursuant to Article 1069, State agencies and State officials are liable for damage caused to an individual by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage. 39. The Code of Civil Procedure of the Russian Federation provides that individuals may appear before a court in person or act through a representative (Article 48 § 1). The court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims concerning damage to health (section 26 § 1). 40. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77 § 1). The Code does not mention any possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or a defendant. 41. On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings were refused by the courts. It has consistently declared the complaints inadmissible, finding that the impugned provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person's access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided for by law. If necessary, the hearing may be held at the location where the convicted person is serving his or her sentence, or the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the applicant's submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004 and no. 94-O of 21 February 2008). 42. By virtue of Articles 58 and 184 of the Code of Civil Procedure, a court may hold a session outside the courthouse if, for instance, it is necessary to examine evidence which cannot be brought to the courthouse. 43. The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows: “Health care 39. Prison authorities shall safeguard the health of all prisoners in their care. Organisation of prison health care 40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation. 40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy. 40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation. 40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer. 40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose. Medical and health care personnel 41.1 Every prison shall have the services of at least one qualified general medical practitioner. 41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency. ... 41.4 Every prison shall have personnel suitably trained in health care. Duties of the medical practitioner 42.1 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary. ... 42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to: ...; b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment; ... f. isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment; ... 43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. ... Health care provision 46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison. 46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.” 44. The complexity and importance of health care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4 June 1993). The following are the extracts from the Report: “33. When entering prison, all prisoners should without delay be seen by a member of the establishment's health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources. It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene. 34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ... 35. A prison's health care service should at least be able to provide regular outpatient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds)... Further, prison doctors should be able to call upon the services of specialists. As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification. Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. 36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital... 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). ... 39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient's evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment. Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service. ... ... 54. A prison health care service should ensure that information about transmittable diseases (in particular hepatitis, AIDS, tuberculosis, dermatological infections) is regularly circulated, both to prisoners and to prison staff. Where appropriate, medical control of those with whom a particular prisoner has regular contact (fellow prisoners, prison staff, frequent visitors) should be carried out.” 45. A further elaboration of European expectations towards health care in prisons is found in the appendix to Recommendation no. R (98) 7 of the Committee of Ministers to Member States on the ethical and organisational aspects of health care in prison (adopted on 8 April 1998 at the 627th meeting of the Ministers' Deputies). Primarily restating the European Prison Rules and CPT standards, the Recommendation went beyond reiteration of the principles in some aspects to include more specific discussion of the management of certain common problems including transmissible diseases. In particular, in respect of cases of tuberculosis, the Committee of Ministers stressed that all necessary measures should be applied to prevent the propagation of this infection, in accordance with relevant legislation in this area. Therapeutic intervention should be of a standard equal to that outside prison. The medical services of the local chest physician should be requested in order to obtain the long-term advice that is required for this condition, as is practised in the community, in accordance with relevant legislation (Section 41). 46. The fact that transmissible diseases in European prisons have become an issue of considerable concern prompted a recommendation of the Committee of Ministers to Member States concerning prison and criminological aspects of the control of transmissible diseases and related health problems in prison (adopted on 18 October 1993 at the 500th meeting of the Ministers' Deputies). The relevant extracts from the Recommendation read as follows: “2. The systematic medical examination carried out on entry into prison should include measures to detect intercurrent diseases, including treatable infectious diseases, in particular tuberculosis. The examination also gives the opportunity to provide health education and to give prisoners a greater sense of responsibility for their own health .... 15. Adequate financial and human resources should be made available within the prison health system to meet not only the problems of transmissible diseases and HIV/Aids but also all health problems affecting prisoners.” 47. An expanded coverage of the issue related to transmissible diseases in detention facilities was given by the European Committee for the Prevention of Torture in its 11th General Report (CPT/INF (2001) 16 published on 3 September 2001), a discussion prompted by findings of serious inadequacies in health provision and poor material conditions of detention which were exacerbating the transmission of the diseases. Addressing the issue, the CPT reported as follows: “31. The spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS has become a major public health concern in a number of European countries. Although affecting the population at large, these diseases have emerged as a dramatic problem in certain prison systems. In this connection the CPT has, on a number of occasions, been obliged to express serious concerns about the inadequacy of the measures taken to tackle this problem. Further, material conditions under which prisoners are held have often been found to be such that they can only favour the spread of these diseases. The CPT is aware that in periods of economic difficulties - such as those encountered today in many countries visited by the CPT - sacrifices have to be made, including in penitentiary establishments. However, regardless of the difficulties faced at any given time, the act of depriving a person of his liberty always entails a duty of care which calls for effective methods of prevention, screening, and treatment. Compliance with this duty by public authorities is all the more important when it is a question of care required to treat life-threatening diseases. The use of up-to date methods for screening, the regular supply of medication and related materials, the availability of staff ensuring that prisoners take the prescribed medicines in the right doses and at the right intervals, and the provision when appropriate of special diets, constitute essential elements of an effective strategy to combat the above-mentioned diseases and to provide appropriate care to the prisoners concerned. Similarly, material conditions in accommodation for prisoners with transmissible diseases must be conducive to the improvement of their health; in addition to natural light and good ventilation, there must be satisfactory hygiene as well as an absence of overcrowding. Further, the prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds ... In order to dispel misconceptions on these matters, it is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff. Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures. It must also be stressed that appropriate information and counselling should be provided before and - in the case of a positive result - after any screening test. Further, it is axiomatic that patient-related information should be protected by medical confidentiality. As a matter of principle, any interventions in this area should be based on the informed consent of the persons concerned. Moreover, for control of the above-mentioned diseases to be effective, all the ministries and agencies working in this field in a given country must ensure that they co-ordinate their efforts in the best possible way. In this respect the CPT wishes to stress that the continuation of treatment after release from prison must be guaranteed.” 48. The CPT report on the visit to the Russian Federation carried out from 2 to 17 December 2001 (CPT/INF (2003) 30) provides as follows: “102. The CPT is also seriously concerned by the practice of transferring back from SIZO [temporary detention facility] to IVS [temporary detention ward in police departments] facilities prisoners diagnosed to have BK+ tuberculosis (and hence highly contagious), as well as by the interruption of TB treatment while at the IVS. An interruption of the treatment also appeared to occur during transfers between penitentiary establishments. In the interest of combating the spread of tuberculosis within the law-enforcement and penitentiary system and in society in general, the CPT recommends that immediate measures be taken to put an end to the above-mentioned practice.” 49. On 23 December 2009 the World Bank published the Implementation Completion and Results Report (Report no. ICR00001281, Volume I) on a loan granted to the Russian Federation for its Tuberculosis and Aids Control Project. The relevant part of the Report read as follows: “According to the World Health Organization (WHO), Russia was one of the 22 high-burden countries for TB in the world (WHO, Global Tuberculosis control: Surveillance, Planning, Financing, Geneva, 2002). The incidence of TB increased throughout the 1990s. This was due to a combination of factors, including: (i) increased poverty, (ii) under-funding of TB services and health services in general, (iii) diagnostic and therapeutic approaches that were designed for a centralized command-and-control TB system, but were unable to cope with the social mobility and relative freedom of the post-Soviet era, and (iv) technical inadequacies and outdated equipment. Migration of populations from ex-Soviet republics with high TB burdens also increased the problem. Prevalence rates were many times higher in the prison system than in the general population. Treatment included lengthy hospitalizations, variations among clinicians and patients in the therapeutic regimen, and frequent recourse to surgery. A shrinking health budget resulted in an erratic supply of anti-TB drugs and laboratory supplies, reduced quality control in TB dispensaries and laboratories, and inadequate treatment. The social conditions favouring the spread of TB, combined with inadequate systems for diagnosis, treatment, and surveillance, as well as increased drug resistance, produced a serious public health problem. TB control in the former Union of Soviet Socialist Republics (USSR) and in most of Russia in the 1990s was heavily centralized, with separate hospitals (TB dispensaries), TB sanatoriums, TB research institutes and TB specialists. The system was designed in the 1920s to address the challenges of the TB epidemic. Case detection relied strongly on active mass screening by X-ray (fluorography). Specificity, sensitivity, and cost-effectiveness considerations were not features of this approach. Bacille Calmette-Guerin (BCG) immunization was a key feature of the TB control system... By 2000, there was more than a two-fold increase in TB incidence, and mortality from TB increased 3 times, compared with 1990. The lowered treatment effectiveness of the recent years resulted in an increase in the number of TB chronic patients, creating a permanent 'breeding ground' for the infection. At that moment, the share of pulmonary TB cases confirmed by bacterioscopy did not exceed 25%, and the share of such cases confirmed by culture testing was no more than 41% due to suboptimal effectiveness of laboratory diagnosis, which led to poor detection of smear-positive TB cases. Being a social disease, TB affected the most socially and economically marginalized populations in Russia.” 50. The following are the extracts from Treatment of Tuberculosis: Guidelines for National Programmes, World Health Organisation, 1997, pp. 27, 33 and 41: “Treatment regimens have an initial (intensive) phase lasting 2 months and a continuation phase usually lasting 4-6 months. During the initial phase, consisting usually of 4 drugs, there is rapid killing of tubercle bacilli. Infectious patients become non-infectious within about 2 weeks. Symptoms improve. The vast majority of patients with sputum smear-positive TB become smear-negative within 2 months. In the continuation phase fewer drugs are necessary but for a longer time. The sterilizing effect of the drugs eliminates remaining bacilli and prevents subsequent relapse. In patients with smear positive pulmonary TB, there is a risk of selecting resistant bacilli, since these patients harbour and excrete a large number of bacilli. Short-course chemotherapy regimens consisting of 4 drugs during the initial phase, and 2 drugs during the continuation phase, reduce this risk of selecting resistant bacilli. These regimens are practically as effective in patients with initially resistant organisms as in those with sensitive organisms. In patients with smear negative pulmonary or extra-pulmonary TB there is little risk of selecting resistant bacilli since these patients harbour fewer bacilli in their lesions. Short-course chemotherapy regimens with three drugs during the initial phase, and two drugs in the continuation phase, are of proven efficacy... Patients with sputum smear-positive pulmonary TB should be monitored by sputum smear examination. This is the only group of TB patients for whom bacteriological monitoring is possible. It is unnecessary and wasteful of resources to monitor the patient by chest radiography. For patients with sputum smear-negative pulmonary TB and extra-pulmonary TB, clinical monitoring is the usual way of assessing response to treatment. Under programme conditions in high TB incidence countries, routine monitoring by sputum culture is not feasible or recommended. Where facilities are available, culture surveys can be useful as part of quality control of diagnosis by smear microscopy... Directly observed treatment is one element of the DOTS strategy, i.e. the WHO recommended policy package for TB control. Direct observation of treatment means that a supervisor watches the patient swallowing the tablets. This ensures that a TB patient takes the right drugs, in the right doses, at the right intervals ... Many patients receiving self-administered treatment will not adhere to treatment. It is impossible to predict who will or will not comply, therefore directly observed treatment is necessary at least in the initial phase to ensure adherence. If a TB patient misses one attendance to receive treatment, it is necessary to find that patient and continue treatment.” | 1 |
dev | 001-22273 | ENG | SWE | ADMISSIBILITY | 2,002 | HEMAT KAR v. SWEDEN | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Mohamed Reza Hemat Kar, is an Iranian passport-holder but he also claim to be an Iraqi citizen. He is presently detained in Sweden for deportation to Iran. He was represented before the Court by Ms Nyblom, a lawyer practising in Stockholm. The respondent Government were represented by Mr L. Magnusson, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant came to Sweden on 22 December 1997 and the next day he lodged an asylum application in the name of Mohamed Reza Mirza. He claimed that he was an Iraqi citizen and that he had no passport or other travel documents. The only identification document he was able to produce was an Iraqi military book. In the initial inquiry the applicant stated that he was born in Najaf, Iraq, but before travelling to Sweden he had lived in Baghdad. He had left Iraq when the intelligence service was looking for him. He had been accused of collaboration with the Daawa party and imprisoned in Najaf in 1987. He had fled from Iraq because he did not feel safe due to the unstable political situation. He further stated that he did not know where his wife and children were. On 21 January 1998 the Swedish Embassy in Tehran informed the Swedish Migration Board that some visitors had submitted 3-4 pages of the applicant’s Iranian passport and had stated that the applicant had been an Iranian national for 30 years and that his family lived in Iran. When confronted with this information on 25 March 1998 the applicant gave other reasons for his request for a residence permit. At the outset he answered that he had visited Iran and that if his wife was there she must have moved there recently. He further stated that in addition to Iraqi citizenship he also held Iranian citizenship because his father had been an Iranian national. The applicant claimed that he had lived in Iraq his whole life and that he possessed an Iraqi passport, which would be sent to him. However, he never produced any such document to the Swedish authorities. The applicant subsequently maintained that he could not go to Iran. He also claimed that he had not been politically active or committed any crime in Iran. Then he alleged that he had lived in Iraq until 1981 when he moved to Kuwait with his wife and family. They lived in Kuwait until 1992 when the war between Kuwait and Iraq broke out. His wife and children arrived in Tehran at the end of 1992 or the beginning of 1993 and they are still living there. The applicant, however, “commuted” between Chaklawa in Iraq and Tehran before he left for Sweden. He finally stated that he could not return to Iran because he had committed adultery with his sister-in-law and his brothers-in-law had initiated legal proceedings against him on the grounds of adultery. He claimed that he had left Iran when he was summoned to the court because he feared that he would be sentenced to inhuman punishment. In this respect he asserted that the penalty for adultery in Iran was stoning to death. On 12 June 1998 the Migration Board rejected his request for a residence permit and a working permit because of his lack of general credibility. At the same time the Migration Board ordered his refusal of entry and that the applicant would be sent to Iran unless he showed that he would be received in another country. According to the applicant’s own statements the Migration Board drew attention to the fact that the applicant had departed from Tehran airport holding a valid Iranian passport and that he had not been politically active in Iran. He had thus been allowed to leave the country which indicated that he was not of special interest to the Iranian authorities. Finally, the Migration Board noted that Iranian law placed exacting demands on the testimony of witnesses in order to convict a person of adultery. The applicant had, however, stated that there were no witnesses of the act. In the Migration Board’s opinion, the applicant’s assertion only to the effect that he had committed adultery was not a sufficient ground for granting him residence permit. It found no reasons to trust his assertion that he would be persecuted if returned to Iran. The applicant appealed to the Aliens Appeals Board (hereinafter “the Appeals Board”). In his appeal he stated that the reason why he had first denied being an Iranian national was his fear of being expelled to Iran as he had committed adultery in that country. The applicant further claimed that the eight brothers of the woman in question had reported him and had also declared themselves as witnesses. In support of his claims he invoked a document in Farsi, which he alleged was a summons to appear before a court on 13 July 1998. He further submitted two warrants for his arrest dated 18 July 1998, which he alleged that he had received from a friend in Iran who had visited the applicant’s closest neighbour in Iran. He finally asserted that a friend would send a judgment to him. In observations dated 9 September 1998 the applicant claimed that there had been a misunderstanding regarding the above-mentioned judgment. The document he had now received from his friend, who had bribed an official at the police, was a court request to apprehend him immediately and make him answer to the charges of adultery. Four named persons had reported him for the crime and declared themselves as witnesses. According to the applicant the document proved that a judgment concerning adultery would be rendered. The Appeals Board had the above mentioned documents translated into Swedish and the translations were sent to the applicant on 1 October 1998. On 29 October 1998 the applicant submitted, inter alia, that it was clear that he was wanted by the police in Iran for adultery, that he was accused of immoral behaviour and an improper relationship with his sister-in-law and that it appeared from one of the documents that a judgment existed. The sentence for adultery was, claimed the applicant, stoning to death. By decision of 27 April 2000 the Appeals Board rejected his appeal. The Appeals Board shared the opinion of the Migration Board that the applicant had given contradictory information and found that the explanations provided for this were unconvincing. It also noted that Iranian law placed very exacting demands on testimony of witnesses in order to convict a person of adultery. As regards the documents, which according to the applicant proved that he was summoned to court and would be apprehended and arrested for adultery, the Appeals Board observed the following. The applicant had stated that the summons had been delivered to his neighbours and that a friend of his received it from them. Moreover, he had affirmed that a court had rendered a judgment and that it would be sent to him. Later the applicant had indicated that this was a misunderstanding and that the document he had received was a request from the court to apprehend him and that he had obtained the document from a friend who had bribed the police. He had then claimed that a judgment existed because it was stated in one of the documents that “in order to enforce this judgment according to Islamic criminal laws the accused is to be transported urgently to this court house”. The Appeals Board also found that the applicant had submitted contradictory information regarding the documents and that he had not given an acceptable explanation for this. It appeared from the translation that one of the documents, named “Warrant of arrest” and dated 18 July 1998, was issued by the Imam Khomeini Court and addressed to the Commander of the police within Great-Tehran. It was further observed in the warrant: “in accordance with a report made by the plaintiffs, Mr Adel Karim Salin and Mr Tofegh Khademol-Hossein, against Mohammed Reza Hematkar, accused of immoral behaviour and an improper relationship with his sister-in-law, who are both married and have children. The court finds this proved.” Another document, the Appeals Board noted, also named “Warrant of arrest” and issued on 18 July 1998, was signed by the interrogator/assisting prosecutor at the office of the public prosecutor. The Appeals Board found it remarkable that the applicant had been able to get access to these documents as they seemed to be part of a correspondence between authorities. It further questioned the wording and the contents of the documents and especially noted that in one of the documents, the summons application, the office of the public prosecutor was mentioned, an office that was abolished in Iran in connection with a reform of the court system in 1995. For these reasons the Appeals Board gave no credence to the documents in question. In October 2000, in the course of the proceedings before the Court, the applicant submitted to it two additional documents. The first was a letter from the Association of Iranian Political Prisoners (in exile), according to which an investigation conducted by the association showed that proceedings eventually had been initiated against the applicant on account of adultery, but that no judgment had been delivered. The other document submitted by the applicant was an e-mail from a Swedish law professor of Iranian origin, stating that he had no reason to put in question the authenticity of the arrest warrants, noting that they were issued by an investigating judge carrying out tasks previously done by public prosecutors. However, he could not express any view on the possibility of getting access to such documents. He also assumed that the assessment of the Appeals Board had been based on a non-professional translation of these documents. Following the Court’s indication under Rule 39 of the Rule of Court, the Migration Board decided on 24 October 2000 to stay the enforcement of its decision of 12 June 1998 refusing the applicant entry into Sweden and ordering his expulsion to Iran. The three documents (the alleged summons application and the two warrants of arrest) the applicant has invoked in support of his claim have been examined by legal experts at the request of the Embassy of Sweden in Tehran. They concluded that the documents were not authentic and that the alleged case regarding adultery does not exist. An inquiry to the Iranian court designated in one of the documents revealed that the case in question concerned cheque fraud and not immoral behaviour or adultery. According to the Embassy, the kind of court mentioned did not even handle cases of adultery. | 0 |
dev | 001-67093 | ENG | DEU;ITA | ADMISSIBILITY | 2,002 | CALABRO v. ITALY and GERMANY | 1 | Inadmissible | null | The applicant, Mr Giuseppe Calabrò, is an Italian national, born in 1950 and currently detained in Milan Prison. He was represented before the Court by Mr P. Sciretti, of the Milan Bar. The facts of the case, as presented by the applicant, may be summarised as follows. On 19 July 1993 the applicant was arrested in flagrante delicto by the Brescia police for importing a large quantity (approximately 46 kg) of cocaine. According to the police report, the drugs had been imported into Italy by an “infiltrator” called Jürgen Vervoorst (“Jürgen”) as part of a joint operation by the Italian and German police. On 17 July 1993 Jürgen had stayed at the Euroresidence Hotel in Brescia, which was under close police surveillance. On 18 July 1993 he had telephoned X, a drug trafficker living in Marbella (Spain) who was interested in buying drugs; X said that he had discussed the subject with the applicant. On 19 July 1993 X had informed Jürgen that the applicant was now in Brescia. The applicant had subsequently attended the Euroresidence Hotel, contacted Jürgen and asked him whether he had the “merchandise” (roba, an expression often used in criminal circles to refer to hard drugs). On being told that he had, the applicant had gone up to Jürgen’s room where he was shown a suitcase containing 20 kg of cocaine. He had made a gesture of approval and had immediately been arrested. The scene was recorded with audiovisual devices. Subsequently, X had telephoned the Euroresidence Hotel and pressed for news of the applicant. By an order of 23 July 1993 the Brescia investigating judge ruled that the applicant’s arrest was lawful and ordered his detention pending trial. On 5 July 1994 the applicant was committed for trial by the Milan Criminal Court on charges of international drug trafficking. The trial began on 26 October 1994. Numerous witnesses, including officers from the Italian police and the German federal police (Bundeskriminalamt – “the BKA”) gave evidence. They provided details of the nature of the police operation that had led to the applicant’s arrest and of the procedures used. On 17 July 1995 the Milan Criminal Court, which considered it “absolutely necessary” to hear Jürgen’s version of the events, issued a request for evidence on commission in which it asked the German authorities to take evidence from Jürgen in Germany. The request was transmitted to the German Ministry of Justice in Stuttgart. In a memorandum dated 1 November 1995 the Wiesbaden district judge informed the Milan Criminal Court that, according to information received from the BKA, it had not proved possible to find Jürgen, despite numerous attempts. He had gone on holiday on 6 September 1995 and had not been in touch since. On 4 December 1995, in view of the fact that Jürgen could not be located and that the defence had waived its right to have him examined, the Milan Criminal Court withdrew its request of 17 July 1995 for evidence on commission. At the applicant’s request, it decided to place in the case file certain statements made by Jürgen in connected criminal proceedings pending in Germany. In a judgment of 22 January 1996 the Milan Criminal Court convicted the applicant and sentenced him to fifteen years’ imprisonment and a fine of 300,000,000 Italian lire (ITL) (approximately 154,937 euros (EUR)). It relied in its decision on the circumstances of the applicant’s arrest (which had been confirmed by an audiovisual recording), the transcripts of telephone conversations Jürgen had had with X and other people implicated in drug trafficking, and statements by the Italian police and the BKA. That evidence showed that Latin-American drug traffickers had asked Jürgen, who was well known in drug-trafficking circles, whether he knew anyone who would be interested in buying cocaine. Three Italian nationals, X, Y and the applicant, had contacted Jürgen to express their interest, while X and the applicant had subsequently given him money. The Criminal Court did not consider it necessary to examine whether, as an undercover agent, Jürgen was liable to prosecution under Italian law. His statements had not been made in Italy, but in connection with the proceedings in Germany and, under the laws of that country, he was immune from prosecution. Furthermore, most of his statements concerned his links with the German police and were not relevant to the applicant’s case. The only document that was of relevance was one in which Jürgen had described his dealings with X and the applicant in order to reach an agreement for the sale of the cocaine and to make arrangements for delivery. In view of the fact that the German authorities said that Jürgen could not be found, his statements had henceforth to be regarded as “unrepeatable” (irripetibili) and, consequently, admissible in evidence on the merits of the charges against the applicant. His statements corroborated and confirmed other prosecution evidence against the applicant. In sentencing the applicant, the Criminal Court noted in particular that he had previous convictions (albeit for less serious offences) and that other criminal proceedings were pending against him. It also noted that it was apparent from the nature of the offence that he was active in drug-trafficking circles. Both the prosecution and the applicant appealed. The applicant submitted, inter alia, that the operation mounted by the police for the simulated sale of drugs was illegal. He argued that while the relevant Italian legislation (Articles 97 and 98 of Presidential Decree no. 309 of 1990) authorised operations for the simulated purchase and controlled delivery of drugs in exceptional cases, under no circumstances did it permit the fictitious sale of drugs. In his submission, Jürgen and the other police officers who took part in the case should have been examined as co-defendants, not witnesses. The fact that they had not been examined in that capacity meant that their statements should have been excluded. Furthermore, as the true identity of Jürgen had not been duly disclosed, admitting his statements in evidence infringed the fundamental principles of the Italian legal system. Lastly, the applicant argued that he should have been acquitted under Article 49 § 2 of the Criminal Code (see “Relevant domestic law” below), as, had it not been for the actions of Jürgen and other police officers, the alleged offence would not have been committed. On 4 November 1996 the Milan Court of Appeal, which considered it “absolutely necessary” for Jürgen to give oral testimony, issued a request for evidence on commission in which it asked the German authorities to hear Jürgen and to ensure that he was assisted by a lawyer. The Wiesbaden District Court arranged for a hearing on 24 March 1997 for evidence to be taken from Jürgen in accordance with the relevant provisions of German law. It indicated that the Italian judges, a representative from the public prosecutor’s office and the applicant’s lawyers were entitled to attend. However, on 21 March 1997 the BKA informed the Milan Court of Appeal that Jürgen’s whereabouts remained unknown. The hearing on 24 March 1997 was cancelled. On 17 April 1997 the applicant, finding the BKA uncooperative, applied for an order requiring Jürgen to appear before the Italian judicial authorities. The President of the Milan Court of Appeal granted his application on 8 May 1997, ordering Jürgen to appear on 27 June 1997 and inviting him to instruct a lawyer of his choice. The order was forwarded to the German authorities, who were requested to serve it on Jürgen in accordance with Articles 8 et seq. of the European Convention on Mutual Assistance in Criminal Matters. They were advised that Jürgen could remain anonymous. Jürgen did not attend the hearing on 27 June 1997. By a judgment of 27 June 1997, which was lodged with the registry on 3 February 1999, the Milan Court of Appeal increased the applicant’s sentence to sixteen years and three months’ imprisonment and a fine of ITL 350,000,000 (approximately EUR 180,759). It noted, firstly, that it was possible under the German Code of Criminal Procedure for a witness’s identity not to be disclosed in the record if the witness was in danger. In such cases, the papers certifying the witness’s identity were retained by the public prosecutor’s office. It further found that there could be no doubt as to Jürgen’s identity, as the case file showed that, on being questioned on 15 July 1993 by the Panama public prosecutor’s office, he had produced a passport in the name of Jürgen Vervoorst and stated that he had been working as a secret agent for the BKA and the American police for ten years. Lastly, several witnesses had said that he was the man responsible for the operation for importing cocaine into Europe. The Court of Appeal also said that, although it had made several attempts to obtain oral testimony from Jürgen, this had proved impossible. Accordingly, by virtue of Article 238 § 3 of the Italian Code of Criminal Procedure (“the CCP”), his statements to the German authorities could be placed in the court file and relied on by the court when deciding the case. As to Jürgen’s status in the Italian proceedings, the Court of Appeal observed that undercover agents were only entitled to immunity if their role in the criminal conduct concerned was “indirect and peripheral”, that is to say limited to surveillance and observing the actions of third parties. In the case before it, since Jürgen had played an active role in bringing the cocaine from Latin America to Germany and from there to Italy, he should have been treated as a co-defendant in the Italian proceedings. The fact that he had not been meant that his statements could only be relied on to the extent that they did not disclose matters for which he could be held criminally liable. The admissible part of his statements had shed light on the dynamics of the police operation that had led to the applicant’s arrest. As regards the applicant’s objection under Article 49 § 2 of the Criminal Code, the Court of Appeal noted that that provision precluded the imposition of a penalty on persons whose acts were wholly incapable of producing dangerous or harmful consequences. Moreover, the intervention of an undercover agent had no effect on a defendant’s acts if the defendant already had an intention to commit the offence. The Court of Appeal said that in the case before it the applicant had taken various preparatory steps: he had asked Jürgen to transport hundreds of kilograms of cocaine, paid him sums of money, remained in touch with him and attended the rendezvous for the delivery of the drugs. The applicant appealed to the Court of Cassation. He relied mainly on the same grounds of appeal, but also pointed out that Jürgen’s identity had not been established with certainty, and argued that his statements were therefore inadmissible ab initio. In a judgment of 15 October 1999, the text of which was lodged with the registry on 14 January 2000, the Court of Cassation held that the Court of Appeal had dealt with all the issues logically and correctly and dismissed the applicant’s appeal. As regards the alleged violation of Article 49 § 2 of the Criminal Code, it noted that an agreement over the arrangements for the sale of the cocaine had already been made in Marbella and that the applicant had decided to perform that agreement of his own free will. Article 238 of the CCP sets out the cases in which records of evidence obtained in other criminal proceedings may be placed in the case file (and therefore be used in evidence on the merits of the charges). Paragraph 3 of that provision lays down, inter alia, that “depositions which ... cannot be repeated” may in all cases be placed in the case file. Article 78 § 2 of the provisions on execution of the CCP provides: “depositions which cannot be repeated obtained by a foreign police force may be placed in the court file, either with the parties’ agreement or after the maker of the deposition has been heard ...” Article 49 § 2 of the Criminal Code prohibits punishment being imposed for acts or omissions which, by their nature or owing to the absence of a subject matter, are incapable of producing dangerous or harmful consequences. | 0 |
dev | 001-57571 | ENG | CHE | CHAMBER | 1,986 | CASE OF SANCHEZ-REISSE v. SWITZERLAND | 2 | Violation of Art. 5-4;Costs and expenses award - Convention proceedings | C. Russo | 9. Mr. Leandro Sanchez-Reisse, an Argentine businessman born in Buenos Aires in 1946, had for some years been resident with his wife and their two children in the United States (Florida). He was arrested in Switzerland with a view to being extradited but objected to his extradition and applied for provisional release, as described below. 10. On instructions from the Federal Police Office ("the Office"), the Vaud cantonal police arrested the applicant in Lausanne during the night of 12/13 March 1981 and immediately transferred him to Champ-Dollon prison in Geneva. The authorities of the Argentine Republic had sent radio-telegrams to the authorities of the Swiss Confederation on 10 and 11 March asking for help in identifying the five persons thought to be responsible for kidnapping a Uruguayan banker, K, in Buenos Aires on 19 February. The kidnappers had demanded a ransom and had required K’s wife and sister to go first to Paris, then to Zürich - where the money was placed by them in an account opened in their name with the Crédit Suisse - and then to Geneva. 11. In a radio-telegram dated 13 March 1981, Interpol Buenos Aires requested the provisional arrest of the suspects with a view to extradition. On 16 March, the Office accordingly issued a warrant for Mr. Sanchez-Reisse’s arrest, and this was served on him on 18 March 1981. 12. On 16 and 17 March, the Embassy of the Argentine Republic in Bern confirmed Interpol’s request for the arrest of the five Argentine nationals. In "notes verbales" dated 6 April, 29 April and 4 May, it produced various supporting documents. Together, these notes and documents constituted a formal extradition request. 13. In a letter of 13 May 1981, the Office forwarded the documents received to the Geneva authorities, for consideration at the hearing of the applicant. Copies were sent to the latter’s lawyer and to the Public Prosecutor of the Canton of Geneva ("the Public Prosecutor"). On 18 May, the Public Prosecutor suggested that the Office officially inform the Argentine authorities of offences of receiving stolen goods which Mr. Sanchez-Reisse was charged with having committed in Switzerland, but he pointed out that they had not given rise to any penalties in that country. He refused to institute proceedings in Geneva, and on 6 August the Indictments Chamber of the Canton decided that there were no grounds for opening an investigation there. 14. At the hearing held in the meantime, which was attended by his lawyer, the applicant had indicated his refusal to be extradited. In a letter of 19 June, the Office gave the lawyer until 17 August 1981 to state the reasons for his client’s objections. It extended this time-limit to 17 September and subsequently to 1 October. 15. In the meantime, on 26 May 1981, the Embassy of the Argentine Republic submitted letters rogatory to the Office concerning the kidnapping of an Argentine financier, C, in Buenos Aires on 8 May 1979, for which the same group of persons was thought to have been responsible. The letters rogatory were executed in Geneva on 18 June 1981. By "notes verbales" dated 8, 10 and 13 July, the Embassy formally submitted a second request for the extradition of Mr. Sanchez-Reisse, among others. 16. On 11 August, the Office instructed the Geneva cantonal authorities to hold a second hearing on the applicant’s extradition, this time on the basis of the documents relating to the kidnapping of C. At the hearing the applicant continued to resist extradition. 17. On 25 September 1981, Mr. Sanchez-Reisse’s lawyer sent the Office a memorandum setting out the reasons for the applicant’s objection to being extradited (see paragraph 14 above). The reasons included the following: the documents submitted in support of the extradition request did not satisfy the formal requirements laid down in the Convention on the Extradition of Criminals between Switzerland and the Republic of Argentina (see paragraph 32 below), since they contained no description of the offences with which the applicant was charged; as regards the two kidnappings of which he was accused by the Argentine authorities, which were moreover of a political character, Mr. Sanchez-Reisse was innocent; if extradition was granted, it would be contrary to Articles 3 and 6 (art. 3, art. 6) of the European Convention on Human Rights, as it would expose the applicant to inhuman treatment and he would have no guarantee of a fair trial. 18. On 3 November 1982, the Federal Court (1st Public-Law Division) accepted Mr. Sanchez-Reisse’s objection and accordingly decided not to authorise his extradition. It was of the opinion that "the overall circumstances [gave it] serious reason to fear that the treatment which might be accorded to the objectors by the requesting State, either before judgment or during the enforcement of sentence, would violate the rules governing respect for human rights". The Court further decided that the offences mentioned in the extradition request should, with one exception, be the subject of a prosecution and trial by the appropriate Geneva cantonal authorities, pursuant to Article IX, first paragraph, of the Convention on Extradition. Lastly, it directed that the applicant be kept in detention with a view to extradition until the Geneva authorities had ruled on his detention on remand in the criminal proceedings that were to be instituted. 19. On the following day, the Public Prosecutor ordered that a criminal investigation be opened against Mr. Sanchez-Reisse and the investigating judge preferred charges of, inter alia, attempted extortion against him. As a result, the detention with a view to extradition was transformed into detention on remand. 20. On 9 December 1982, the Indictments Chamber of the Federal Court instructed the Zürich cantonal authorities to prosecute the applicant and bring him to trial. On 25 April 1983, the applicant admitted the charges of attempted extortion and blackmail in the K case (see paragraph 10 above). On 29 November 1983, the Supreme Court of the Canton of Zürich (1st Criminal Chamber) sentenced him on these charges to imprisonment for four years and nine months, subject to deduction of the 393 days he had spent in detention on remand. 21. Having been put under a regime of semi-liberty, the applicant absconded in November 1985. During his detention with a view to extradition, he had on three occasions applied for release. 22. On 9 November 1981, Mr. Sanchez-Reisse and his wife, who had been arrested at the same time and for the same reasons as he had, had requested the Office to order their provisional release. On 25 November, the Office accepted the request submitted by Mrs. Sanchez-Reisse on payment of a surety of 100,000 SF. In order to facilitate his wife’s release, the applicant had withdrawn his own request. 23. On 25 January 1982, Mr. Sanchez-Reisse made a fresh request to the Office, arguing: that for almost a year he had been detained with a view to his extradition, whereas he had objected to the latter measure; that he was not guilty of the offences with which he was charged by the Argentine authorities; that the evidence submitted by them was manifestly inadequate; and that his state of health had seriously worsened as a result of his detention. 24. On 2 February 1982, the Office informed the applicant’s lawyer that it had decided not to grant the request, which would consequently be passed to the Federal Court (see paragraph 34 below). It considered, in the light of information provided by the medical service of Champ-Dollon prison, that the medical supervision and psychiatric treatment being undergone by the applicant were compatible with his remaining in custody. It drafted a 19-page report for the Federal Court on the five Argentinians suspected of the kidnapping of K, together with an aide-mémoire. 25. On 15 February 1982, the Office forwarded the request for release to the Federal Court, together with the two documents referred to above, "so that a decision could be given by a court in accordance with Article 5 para. 4 (art. 5-4) of the European Convention on Human Rights". At the same time it expressed a negative opinion on the request since release did not seem to it to be "required by the circumstances", within the meaning of section 25 of the Federal Act of 22 January 1892 on Extradition to Foreign States (see paragraph 34 below). 26. On 25 February 1982, the Federal Court rejected the request. Mr. Sanchez-Reisse was notified of the operative provisions of the decision on the following day and of the reasons therefor on 3 March. The Federal Court took several factors into consideration: the extradition request submitted by the Argentine authorities concerned not only the kidnapping of the Uruguayan banker K but also that of the Argentine financier C, and the possibility that the applicant had been involved in one of these cases could not be ruled out; there was a real risk that he might abscond since he resided in the United States and not in his country of origin; he had not shown that he was unfit to undergo detention and, furthermore, he could obtain the assistance of a doctor in case of need. 27. In the meantime, on 18 February, Mr. Sanchez-Reisse had written to the Presidents of the Geneva Courts and to the Public Prosecutor requesting immediate release. On 23 February, a President of the Geneva Indictments Chamber said that it was for the Federal Court to give a ruling on requests for release submitted by a person who was detained with a view to extradition. On 9 March 1982, the applicant’s lawyer replied that the proceedings in the Federal Court were entirely in writing and that the Court had taken a month to reach a decision. The requirements of Article 5 para. 4 (art. 5-4) had not been complied with: in particular, the detainee had not appeared in person and a decision had not been rendered speedily. The lawyer therefore confirmed the request for release and asked the Cantonal Court to give an interpretation of the provision in question. In a letter dated 15 March 1982, the three presiding judges of the Geneva Indictments Chamber stated that it was not competent to deal with the applicant’s release as he had been detained with a view to extradition under a Federal arrest warrant. 28. On 21 May 1982, Mr. Sanchez-Reisse submitted a further request for release to the Office; he claimed that release was justified because of his deteriorating health and he supplied two medical certificates. Although the first of these, dated 18 March, stated that he could still be cared for by the prison authorities, the second, dated 18 May, reported progressive deterioration: "The lack of a frame of reference in <the applicant’s> current surroundings is conducive to the development of his paranoid ideas and problems in evaluating reality." 29. The request was received by the Office on Monday, 24 May. It had just finished investigating the extradition request and therefore passed the complete file to the Federal Court on that same day. It did not enclose any opinion, but on 2 June 1982 the Court requested it to submit one within ten days. 30. The President of the 1st Public-Law Division also informed the applicant’s lawyer that the Office had been asked for information about the request for release. 31. On 6 July 1982, the Federal Court rejected the request, as the Office had recommended in an opinion of 9 June: the Court took the view that Mr. Sanchez-Reisse had provided no new material important enough to warrant making a decision different from that of 25 February 1982 (see paragraph 26 above). This decision was notified on 9 July. 32. The procedure for extradition between Switzerland and Argentina is governed in the first instance by a bilateral treaty and, subsidiarily, by municipal law. The Convention on the Extradition of Criminals between Switzerland and the Republic of Argentina, signed on 21 November 1906, has been binding on both countries since 1912. It lays down the formal and substantive conditions applying to extradition between the two countries but does not, either expressly or tacitly, deal with the methods to be used by the courts for supervising detention with a view to extradition. It is therefore Swiss law which applies on this point. At the time of the facts in question and until 31 December 1982, the instrument applicable was an Act of 1892. 33. The Federal Act of 22 January 1892 on Extradition to Foreign States ("the 1892 Act") instituted a sharing of powers in the field in question between the Federal Council (Central Government) (which, for obvious practical reasons, had delegated its powers to the Federal Police Office) and the Federal Court, the only judicial authority in Switzerland with jurisdiction in extradition matters. 34. It was to the Office that requests for provisional arrest with a view to extradition and formal extradition requests were addressed. The Office corresponded directly with the accredited diplomatic missions in Bern - without necessarily going through the Federal Department of Foreign Affairs - and with the Secretariat General and the national central offices of Interpol. It decided whether there was a case for arresting the wanted person and, if so, served on that person a "warrant for arrest with a view to extradition", which was immediately enforceable throughout Swiss territory. Once the person had been arrested, it was the Office which conducted the proceedings. It ordered that he be heard by the appropriate cantonal authorities on the extradition request, appointed counsel to represent him if necessary, corresponded with the lawyers involved and informed them of the time-limits to be observed, checked the detainee’s mail and granted or refused him the right to be visited, authorisation to make telephone calls, and so on. Above all, it was the Office itself which, in most cases, ruled on extradition requests and requests for provisional release. The former power (to rule on extradition requests) was conferred by section 22 of the 1892 Act and was exercisable where "the arrested individual [had] indicated his consent to his being handed over without delay and ... there [was] no legal impediment to his extradition, or ... he [had] opposed it only on grounds not based on [the 1892] Act, on the Treaty or a declaration of reciprocity ...". The second power (to rule on requests for provisional release) was conferred by section 25, second paragraph, and was exercisable in all cases where the matter had not been referred to the Federal Court. The Office could grant release if this appeared to be required by the circumstances (section 25, first paragraph). Furthermore, whenever the Federal Court was to give a ruling, the Office carried out the requisite investigations. If the Court refused to authorise extradition, the Office was bound by that decision. On the other hand, if the Court authorised extradition, the Office could still, for important reasons of political expediency, refuse to extradite the person concerned. Lastly, it was for the Office to give instructions for the handing over of the person extradited, arrange the practical details and inform the foreign State of the action taken on its request. 35. The Federal Court was involved in extradition proceedings in two sets of circumstances. If the arrested person protested against the extradition itself by raising an objection based on the Act, a treaty or a declaration of reciprocity (section 23), the Federal Court was competent to rule on the merits of the extradition (section 24), if necessary after ordering additional investigations (section 23, second paragraph) and the personal appearance of the detainee (section 23, third paragraph). In the latter event - which was very rare -, the hearing took place in public, unless there were serious reasons to the contrary (section 23, third paragraph), and the detainee could be assisted by a lawyer, assigned by the court if need be. Where the case had been referred to it (section 25, second paragraph), i.e. if an objection related to the extradition itself, the Federal Court was also responsible for ruling on any request for provisional release lodged by the person who was detained with a view to extradition. It could authorise his release if it appeared that the circumstances so required (section 25, first paragraph). 36. In a report to the Federal Assembly in 1968, the Swiss Government drew attention to a number of shortcomings in the 1892 Act from the point of view of the European Convention on Human Rights which it was contemplating ratifying: "Persons provisionally arrested on the orders of the Federal Department of Justice and Police, in compliance with the wishes of the requesting State, have no right of appeal to a court against the decision to arrest them. The Federal Act on Extradition to Foreign States is, however, being revised, and it is planned to take this opportunity to provide for an appeal to a court against arrests, in accordance with Article 5 para. 4 (art. 5-4) of the Convention." (Federal Bulletin, 1968, vol. II, pp. 1102-1103) 37. The Confederation ratified the Convention on 28 November 1974. Although declared inadmissible by the Commission on 6 October 1976 (Decisions and Reports no. 6, pp. 141-155), the Lynas v. Switzerland application (no. 7317/75) revealed that the extradition law fell short of the requirements of Article 5 para. 4 (art. 5-4). The Government considered that, pending the entry into force of a new Federal Act on international mutual assistance in criminal matters, it should adopt a solution that would meet any difficulty encountered. Taking as its basis the fact that Article 5 para. 4 (art. 5-4) was directly applicable in Switzerland, the Federal Department of Justice and Police took the initiative of exchanging views with the Federal Court. By an exchange of (unpublished) letters dated 27 December 1976, 28 January 1977, 29 April 1977 and 9 May 1977, the two institutions agreed to interpret sections 22 to 25 of the Act, in particular the second paragraph of section 25, in such a way as to establish the general and exclusive jurisdiction of the Federal Court (1) to rule on any objection lodged against arrest with a view to extradition (from then on this legal remedy was expressly mentioned on the back of the arrest warrant, receipt of which had to be acknowledged in writing by the person concerned), and (2) to rule on any request for provisional release, even when, by reason of the absence of any objection to the request for extradition, the Federal Court had no jurisdiction over the merits of the matter. 38. The transitional arrangements introduced as a result of the exchange of letters were enshrined in the Federal Act of 20 March 1981 on International Mutual Assistance in Criminal Matters ("the 1981 Act"), which came into force on 1 January 1983, that is after the conclusion of the proceedings at issue in the present case. The Indictments Chamber of the Federal Court rules not only on appeals against warrants for arrest with a view to extradition (section 48, second paragraph, taken in conjunction with section 47, first paragraph) but also on appeals against any decision by the Office refusing provisional release (section 50, fourth paragraph; judgment of 8 April 1983, Collection of Judgments of the Swiss Federal Court, vol. 109, part IV, p. 60). As regards extradition itself, the Office is now competent to rule at first instance (section 55, first paragraph). If, however, the person concerned claims that he "is being proceeded against because of a political offence" or if "the investigation gives serious grounds for thinking that the offence is of a political character", the decision rests with the Federal Court (section 55, second paragraph). The Office’s decision can be challenged in the Federal Court by way of an administrative-law appeal (section 55, third paragraph). | 1 |
dev | 001-60911 | ENG | POL | CHAMBER | 2,003 | CASE OF KUBISZYN v. POLAND | 4 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed | Christos Rozakis | 8. On 23 June 1994 the applicant's husband filed a divorce petition with the Wałbrzych Regional Court (Sąd Wojewódzki). 9. On 26 August 1994 the applicant filed a pleading. On 19 October 1994 her husband requested the court to find that the applicant was responsible for the marital breakdown. 10. On 1 September 1995 the court ordered the applicant's husband to pay 170 Polish zlotys (PLN) in family maintenance pending trial. 11. The court held twelve hearings on the following dates: 26 August, 6 December 1994; 31 January, 21 March, 16 May, 1 September, 28 November 1995; 9 January, 13 February, 19 March, 17 April and 26 April 1996. It heard evidence from at least twelve witnesses. 12. On 26 April 1996 the court granted a divorce decree. It considered that both spouses had been at fault in respect of the breakdown of their marriage. The court further vested custody rights over their minor child with the applicant and obliged her husband to pay maintenance for the child. 13. On 28 May 1996 the applicant filed an appeal against the above judgment. She claimed that her husband had been exclusively responsible for the failure of their marriage and that, therefore, divorce was inadmissible in law. 14. On 5 July 1996 the Wrocław Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and remitted the case to the Wałbrzych Regional Court. 15. On 10 October 1996 the applicant filed a request for her maintenance claims to be secured. The court considered that further evidence regarding the financial situation of both parties should be obtained. 16. On 13 November 1996 the court held a hearing. On 9 April 1997 the court amended its decision of 1 September 1995 concerning the family maintenance pending trial, increasing it to PLN 250. It dismissed the remainder of the applicant's maintenance claims. 17. On 6 June 1997 the Wałbrzych Regional Court ordered that evidence be obtained from experts in psychiatry, psychology and pedagogics. On 27 November 1997 experts from the Family Diagnostics Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) prepared their report. 18. Subsequently, the court held hearings on the following dates: 13 February, 16 March, 24 April 1998. 19. On 15 May 1998 the Wałbrzych Regional Court pronounced divorce, finding that both spouses had been at fault in respect of the breakdown of their marriage. 20. On 16 June 1998 the applicant filed an appeal with the Wrocław Court of Appeal. On 5 August 1998 it upheld the contested judgment. On the same day the applicant applied to the court to grant her legal assistance and to exempt her from court fees in cassation proceedings. On 28 September 1998 the Wrocław Court of Appeal dismissed her application. 21. On 12 November 1998 the applicant filed a cassation appeal against the judgment of the Court of Appeal of 5 August 1998. On 5 January 2001 the Supreme Court (Sąd Najwyższy) held a hearing and on the same date it dismissed the applicant's cassation appeal. | 1 |
dev | 001-81197 | ENG | TUR | CHAMBER | 2,007 | CASE OF ÜLGER v. TURKEY | 3 | Preliminary objections dismissed (non-exhaustion of domestic remedies;six month period);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | null | 5. The applicant was born in 1955 and lives in Ankara. 6. He worked in a construction yard in Russia for a Turkish Company, YAPITEK Construction, Industry and Commerce Limited Corporation (hereinafter “the company”), from 14 October 1996 until 9 May 1998. 7. On 28 June 1999, the applicant brought a case against the company before the Ankara Labour Court. He claimed that the company had made him stay and wait for four months in Turkey where he had returned for a holiday. However, he was neither sent back to Russia nor given work in Turkey. He submitted that no payment had been made to him concerning his salary for this period and that he had not been notified of the termination of his contract. He requested the court to rule on his unpaid salary and compensation for the length of his service (kıdem tazminatı) and the lack of any dismissal notice (ihbar tazminatı), together with interest. 8. On 1 July 1999 the court made the first examination on the case file and decided to hold a hearing on 5 October 1999, before which date the company was required to submit its replies, with any evidence. 9. The defendant did not appear at the hearings of 5 October and 18 November 1999 although the summons had been duly served. 10. On 27 January 2000 the court took evidence from two of the witnesses whom the applicant wished to have examined, who were his co-workers at the construction yard. The applicant's lawyer stated that they would ensure that a third witness would be present at the next hearing. 11. On 21 March 2000 the court heard the third witness. At the end of the hearing, the court decided to obtain an expert report and, accordingly, sent the case file to the expert after the necessary fee had been deposited by the applicant. 12. The first expert report dated 12 April 2000 stated that the company was liable to pay the applicant compensation for his length of service, for non-notification of the termination of his contract and for his unpaid salary. The amounts due were also assessed in the report. 13. On 28 April 2000 the applicant's lawyer objected to the report, claiming that the amounts were insufficient and requesting that it be reviewed by another expert. 14. On 4 May 2000, the court decided to obtain an additional expert report from the same expert once an additional fee had been deposited by the applicant. Accordingly, a second report was prepared by the same expert and submitted to the court. This report stated that the claim made by the applicant's representative was valid in respect of the amount of compensation for his length of service. This should have been in the sum of 787.5 US dollars. The applicant's lawyer challenged that report and requested a further assessment, to be made by another expert. 15. The applicant's representative did not attend the hearing on 20 June 2000. The court decided to discontinue the proceedings unless a request for resumption was put before it. Upon the request by the applicant's lawyer, the case was reinstated on 26 June 2000 and a hearing was scheduled for 13 July 2000. 16. On 13 July 2000 the court decided that, if the necessary fees were deposited by the applicant within three days, an order would be sent to the defendant requesting payslips showing that the applicant had been paid a salary for five months after he had returned to Turkey. The company would be warned that, unless these payslips were provided, it would be assumed that no salary had been paid. The hearing was postponed to 5 October 2000. The defendant company did not respond to the order despite the formal warning. 17. On 5 October 2000 the court decided to obtain another expert report, the cost of which was to be paid by the applicant. The report, in which the abovementioned five-month period had been taken into account, was submitted to the court on 27 November 2000. 18. On 18 January 2001 the applicant's lawyer requested that another case pending before the court, which was grounded on the same facts and in which additional compensation had been claimed, be joined to the present case. The court decided to join the proceedings as requested and postponed the hearing to 13 March 2001. 19. On 13 March 2001 the Ankara Labour Court awarded the applicant 9,424.50 US dollars in total in compensation for the length of his service, the lack of dismissal notice and his unpaid salary. In the judgment, it was stated that the proportionate court fee for the judgment was 524,190,700 Turkish liras. This fee, less the amount paid by the applicant at the beginning of the proceedings, was to be borne by the defendant company. 20. On 22 May 2001 the court ordered the bailiffs' tax office to levy the court fee from the company. 21. On 10 December 2001 the applicant's lawyer submitted a petition to the court, in which she requested that the judgment be served on her to enable the commencement of enforcement proceedings. She stated that the applicant had won his case whilst the defendant company, in addition to the payment of compensation, had been held liable for the legal costs and charges. She pointed out the risk that the company, which had a known address at the time of the judgment, would attempt to evade its obligations by moving elsewhere, on account of its financial crisis. She further maintained that the applicant would be willing to pay the court costs in order to obtain the judgment, but did not have sufficient means to do so. 22. On the same day the court rejected this request on the ground that it was impossible under Article 28 (a) of the Law on Charges (Law no. 492) to serve a copy of the judgment unless the court costs had been discharged. 23. The applicant was therefore unable to bring enforcement proceedings in order to have the abovementioned judgment executed. In the meantime, the company has apparently relocated. 24. The relevant Articles of the Law on Charges (Law no. 492 of 2 July 1964) read as follows: “The proportional charges set out in scale no.1 shall be paid within the following periods: (a) One quarter of the charges for the judgment and the writ shall be paid beforehand and the rest shall be paid within two months of the judgment's delivery. The writ shall not be served on the party concerned unless the [court] charges for the judgment and a writ of execution are paid....” “As long as the relevant charges for the judicial processes are not paid, the subsequent processes shall not be executed. If the charges which were not paid by the party concerned are paid by the other party, the process shall be continued and the amount shall be taken into consideration in the judgment without the need for any request to this effect.” “Charges not paid within the periods foreseen in this Law shall be notified by the court or legal office to the relevant tax office within fifteen days from the expiry of the abovementioned time-limit, and the charges shall be recuperated by the tax office. This order shall include the nature and amount of the charge and the tax-payer's details, including the address.” | 1 |
dev | 001-57612 | ENG | ITA | CHAMBER | 1,989 | CASE OF BROZICEK v. ITALY | 2 | Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Violation of Art. 6-3-a;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | C. Russo;J.A. Carrillo Salcedo;N. Valticos | 14. Mr Georg Brozicek was born in Czechoslovakia and now resides at Steinalben in the Federal Republic of Germany, of which country he is a national. 15. On 13 August 1975 the municipal police of Pietra Ligure (Savona) detained him on the public highway shortly after he had torn down some small ornamental flags erected in connection with a fête organised by a political party. The police, who had intervened at the request of one of the organisers, took him to the police station because he did not have any identity papers with him and, according to their version of events, because he had to be protected against the hostility of the participants. On this occasion he wounded one of the police officers. On 14 August the carabinieri, who had also intervened on the previous day, submitted a report on the incident to the Savona Public Prosecutor's Office. On the same day Mr Brozicek sent a letter, in French, to the Police Chief (questore) of Savona, which was subsequently transmitted to the Public Prosecutor, who ordered its translation into Italian on 31 January 1976. 16. The Public Prosecutor's Office opened an investigation and on 23 February 1976 sent to the applicant - by registered letter requiring acknowledgment of receipt and bearing the address of the applicant's then residence in Nuremberg - a "judicial notification" (comunicazione giudiziaria; see paragraphs 24-25 below). It informed him that proceedings had been instituted against him for the offences of resisting the police and assault and wounding (Articles 337 and 582 of the Criminal Code). In addition, it invited him to appoint a defence lawyer of his choice and informed him that if he failed to do so Mr T. S., avvocato, would be appointed by the authorities. On 1 March 1976 Mr Brozicek returned the document to the Public Prosecutor's Office with the following note (translation from the German): "I return the enclosed document to the sender as I find it difficult to understand. In lodging my detailed complaint of 14 August - on which no action has yet been taken even though the facts complained of could have far-reaching consequences - and in all correspondence to date with the Italian authorities, I have always expressly requested that either the mother tongue of the persons concerned or one of the international official languages of the United Nations be used, in order to avoid from the outset any risk of misunderstanding." The Public Prosecutor's Office received this letter on 3 March 1976. It did not send any reply and did not have the letter translated. 17. On 17 November 1978 the Public Prosecutor's Office sent to the applicant by registered letter requiring acknowledgment of receipt a second "judicial notification". In addition to the information contained in the first notification, it asked the applicant to provide an address for service in Italy (Article 177 bis of the Code of Criminal Procedure). On 5 December 1978 the German postal authorities returned the letter to the sender marked "unclaimed". The acknowledgment of receipt bore the name "Brozicek", in a different space to that provided for the addressee's signature. The Government maintained that it was the applicant's signature but he has always denied this; he claimed that he had not received the communication because he had just moved house. The expert opinion ordered by the Court (see paragraphs 5 and 8 above) did not resolve this question. 18. By an order (decreto) of 13 December 1978 the Public Prosecutor stated that it had not been possible to notify the applicant and that "further enquiries at the place of birth and place of last residence" had not produced any result. He appointed a defence lawyer and directed that all the documents for notification to the accused during the investigation should thereafter be lodged at the secretariat of the Public Prosecutor's Office. At the hearing before the European Court on 22 May 1989, the Government affirmed that the reference to further enquiries was probably an oversight. They maintained that the provision applied to the applicant was the second part of the second paragraph of Article 177 bis of the Code of Criminal Procedure (concerning an accused who has given no address for service, see paragraph 26 below), which does not require such enquiries. The Public Prosecutor summonsed Mr Brozicek to appear for examination on 30 December 1978, but to no avail, and, on that day, he asked the President of the Savona Regional Court to commit the applicant for trial. 19. The trial was set down for 3 November 1980 but when the time came the proceedings had to be adjourned because the date of the hearing had not been notified to the accused. On 11 March 1981 the President of the Savona Court decided that any notification would be lodged with the court registry because the accused had not provided an address for service in Italy (Articles 170 and 177 bis of the Code of Criminal Procedure, see paragraph 26 below). He also appointed a lawyer to represent the accused. After an adjournment for reasons extraneous to the proceedings, the trial took place on 1 July 1981. On that date the applicant was convicted in absentia, sentenced to five months' imprisonment and ordered to pay the costs. The sentence was, however, suspended and no reference to the conviction was to be included in criminal-record certificates issued at the request of private individuals. 20. This decision too was notified to the applicant by being lodged at the court registry because, still pursuant to Article 177 bis of the Code of Criminal Procedure, the president of the court had again noted, on 2 July, that Mr Brozicek had not provided an address for service in Italy. As there was no appeal, the judgment became final on 7 July 1981. 21. On 5 May 1984 the applicant received a letter from the Principal Public Prosecutor at the German Federal Court of Justice (Bundesgerichtshof). The letter informed him of his conviction by judgment of the Savona court of 1 July 1981, which had become final on 7 July 1981, and that the conviction had been entered in the German criminal records (Article 52 of the Criminal Records Act, Bundeszentralregistergesetz). 22. On 7 May Mr Brozicek lodged an application with the Commission, stating, inter alia, that "the possibilities for appealing [were] manifestly time-barred under Italian law ...". On the same day he also wrote to the German Ministry of Foreign Affairs and the Italian Ministry of Justice. In his letter to the German Ministry he requested its assistance in securing, as soon as possible, the rectification or the annulment of the Savona judgment. In his letter to the Italian Ministry he claimed that he had not received any information in his own language on the trial and had been unable to defend himself because neither the indictment nor the judgment had been notified to him. He asked what possibilities of appealing against the decision were open to him. On 5 October the Italian Ministry replied that he could lodge an appeal against the judgment outside the normal time-limits (hereinafter referred to as a "late appeal"; see paragraph 26 below), if the notification to him had not been lawfully made, and seek a retrial. The applicant did not avail himself of either of these possibilities. 23. The German Ministry of Foreign Affairs instructed the Consulate General of the Federal Republic of Germany at Genoa to determine whether there was any possibility of appealing against the judgment of 1 July 1981. As the first result of its communications with the Savona court, the Consulate forwarded to the applicant, on 10 July 1989, a photocopy of the Italian text of the judgment, which was for the most part handwritten. Mr Brozicek acknowledged receipt of this text by a letter dated 18 July 1984. 24. A judicial notification is the document by which the judicial authorities inform the person suspected of having committed an offence that an investigation has been opened and invite him to appoint a defence lawyer of his choice and to provide an address for service. It must specify the legal provisions infringed and the date of the alleged offence. 25. The investigating judge, in the event of a "formal" investigation, or the public prosecutor, where the investigation is "summary", must send the notification at the very beginning of their investigation (Articles 304 and 390 of the Code of Criminal Procedure). The notification must be sent by registered letter requiring acknowledgment of receipt. If the letter is not delivered because the addressee is untraceable (irreperibile), a bailiff must serve the notification in accordance with the normal procedure (Articles 168-175 of the Code of Criminal Procedure). 26. In its Foti and Others judgment of 10 December 1982 and its Colozza judgment of 12 February 1985 (Series A no. 56, p. 12, §§ 33-36, and Series A no. 89, p. 11, §§ 18-19, and pp. 12-13, §§ 21-23) the Court gave a brief description of the Italian legislation then in force as regards the notification to a person or an accused who is "untraceable", trial in absentia (contumacia) and "late appeal" (appello apparentemente tardivo). In this regard Article 177 bis of the Code of Criminal Procedure provides as follows (translation from the Italian): "Where there is precise information in the documents in the proceedings as to the place where the accused resides abroad, the Public Prosecutor or trial judge (pretore) shall send him by registered letter notification of the proceedings against him with an invitation to declare or otherwise give notice of an address for service in the place where the proceedings are conducted. This formality shall neither suspend nor delay the proceedings. Where the accused's address abroad is unknown or where he has not declared or otherwise given notice of an address for service or if the information provided by him is insufficient or inadequate, the judge or the public prosecutor shall make the order (decreto) provided for in Article 170. The above provisions shall not apply where the issue of an arrest warrant is mandatory." The second sub-paragraph of Article 170 states that (translation from the Italian): "The judge or the public prosecutor ... shall take a decision appointing a defence lawyer to act for the accused where he does not yet have one in the place where the proceedings are conducted and ordering that notification which has proved or proves impossible to carry out be effected by means of lodging the relevant documents at the registry of the judicial organ before which the proceedings are pending. The defence lawyer shall be informed without delay of any such notification." The possibility of lodging a "late appeal" was at the time derived from judicial interpretation of Articles 500 and 199 of the Code of Criminal Procedure, according to which (translation from the Italian): "In the case of in absentia proceedings, an extract of the decision or judgment shall be notified to the accused who may lodge against it any appeal that would have been open to him in respect of a judgment delivered in adversarial proceedings, subject to the provisions of the third paragraph of Article 199." "... For the decisions or judgments referred to in Article 500, the period within which the accused may appeal shall begin to run from the notification of the decision or judgment. ..." On the basis of these provisions the courts had consistently held that if the notification of an extract of a decision or judgment delivered in absentia was not lawful because it had been wrongly assumed that the accused did not intend to participate in the proceedings, the person concerned could, within three days, contest such notification and challenge the finality of the decision in question. If he was successful in so doing, he was accorded a new time-limit within which to appeal against the said decision. The new Code of Criminal Procedure, which came into force on 24 October 1989, now makes express provision for this possibility of "re-establishing the time-limit". | 1 |
dev | 001-103359 | ENG | UKR | COMMITTEE | 2,011 | CASE OF RUDYCH v. UKRAINE | 4 | Violation of Art. 6-1 | Julia Laffranque;Mirjana Lazarova Trajkovska;Zdravka Kalaydjieva | 4. The applicant was born in 1932 and lives in Byshiv. 5. On an unspecified date in April 1998 he lodged an action against a collective farm B., seeking damages for a discrepancy in the calculation of compensation for his professional illness that had been paid since 1982. On 9 April 1998 the Makariv District Court (“the District Court”) opened proceedings. 6. In a judgment of 28 December 1998 it dismissed the applicant's action. On 6 April 1999 the Kyiv Regional Court of Appeal (“the Court of Appeal”) quashed that judgment and ordered a fresh hearing. 7. On 20 April 2000 the District Court ordered an accounting expert examination. It held the next hearing on 2 June 2003. 8. On 4 July 2003 the Makariv Department of State Insurance Fund for Industrial Accidents and Diseases (“the Fund”) joined the proceedings as a second respondent and B. was replaced by its legal successor, private company L. 9. On 21 October 2003 the District Court dismissed the applicant's claim for damages that after a modification amounted to UAH 16,018 (EUR 2,563). On 9 January 2004 the Court of Appeal upheld that judgment. On 9 February 2004 the applicant appealed in cassation. 10. On 17 May 2006 the Supreme Court rejected his appeal in cassation. 11. According to the Government, in the course of the proceedings, the applicant filed one procedural request and three appeals, one of which did not meet procedural requirements. Out of the sixteen hearings scheduled between April 1998 and May 2006, six were adjourned for unknown reasons, two were adjourned either at the applicant's request or due to his failure to attend, one was adjourned due to one of the respondents' failure to attend, one was adjourned for the parties to reach a friendly settlement, and two were adjourned for other reasons beyond parties' control. | 1 |
dev | 001-91802 | ENG | SVK | CHAMBER | 2,009 | CASE OF BERKOVA v. SLOVAKIA | 3 | Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13+6-1;Damage - claim dismissed | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 4. The applicant was born in 1955 and lives in Poprad. 5. On 14 April 1993 the District Court in Poprad restricted the applicant’s legal capacity in that she was not allowed to act on her own before public authorities. The court relied on the opinion of several experts concluding that the applicant suffered from a mental disorder as a result of paranoid development of her personality. The applicant suffered from the delusion that she was being persecuted and on that ground she had made a considerable number of complaints and other submissions. The applicant’s mother was appointed guardian for the purpose of the proceedings concerning the limitation of the applicant’s legal capacity. 6. On 18 April 1994 the Regional Court in Košice upheld the first-instance judgment, which became final on 26 July 1994. 7. On 1 August 1994 the District Court in Poprad brought proceedings on its own initiative with a view to appointing a guardian for the applicant, whose legal capacity had been restricted by the above decisions. On 12 September 1994 the file was transmitted to the Regional Court in Košice for decision on an objection to the judges of the District Court. 8. On 30 December 1994 the Regional Court excluded the judges of the District Court in Poprad and transferred the case to the District Court in Prešov. The file was returned to the District Court in Poprad on 9 March 1995. The decision was served on the applicant on 20 March 1995. On 6 April 1995 the file was sent to the District Court in Prešov where the case was registered under number P 81/95. 9. On 12 July 1995 and 30 August 1995 the District Court asked the applicant’s husband to inform it about persons who could act as the applicant’s guardian. The mail was returned to the court with the explanation that the addressee was in hospital. On 19 September 1995 the Town Office in Poprad submitted information at the District Court’s request of 30 August 1995. 10. On 29 September 1995 the District Court asked the applicant’s mother whether she was willing to act as her daughter’s guardian. The mother replied in the negative. 11. On 5 October 1995 the court appointed a judicial secretary to act as the applicant’s guardian in the proceedings in issue. 12. On 18 October 1995 the applicant’s brother refused to act as guardian. 13. On 31 October 1995 the Town Office in Poprad informed the District Court that its employees were unable to identify a person willing to act as the applicant’s guardian. On 14 and 16 November 1995 the applicant’s sisters refused to assume that duty. 14. At a hearing held on 4 December 1995 the Poprad Municipality proposed that its employee Mrs Ch. be appointed as the applicant’s guardian. That person stated that the applicant had no confidence in her. The case was adjourned and the court asked the municipality to indicate an employee of the Town Office who would act as the applicant’s guardian. On 18 December 1995 the Poprad Municipality again proposed that Mrs Ch. should be charged with that responsibility. In a letter of 15 January 1996 the applicant replied that she disagreed. 15. On 29 January 1996 Mrs Ch. informed the court that she had been unable to find any person willing to assume the duty in question. The District Court decided that Mrs K., a person who had represented the town of Poprad at the previous hearing, should act as the guardian. Both Mrs K. and the applicant appealed in March 1996. On 1 April 1996 Mrs K.’s appeal was sent to the District Prosecutor’s Office. 16. On 20 June 1996 the Regional Court in Košice quashed the District Court’s decision of 29 January 1996. 17. On 16 July 1996 the first-instance court made five inquiries with a view to finding a suitable person. Those inquiries were unsuccessful. 18. On 5 September 1996 the District Court decided that the Town Office in Poprad should act as the applicant’s guardian. The decision was served on the applicant, after several unsuccessful attempts, on 3 December 1996. On 11 December 1996 the applicant appealed. 19. The file was sent to the Regional Court in Košice on 20 January 1997. On 13 March 1997 it was transmitted to the Regional Court in Prešov, due to a change in the jurisdiction of the courts of appeal. 20. On 21 March 1997 the Regional Court in Prešov quashed the first-instance decision on the ground that the Town Office lacked legal capacity and therefore could not act as the applicant’s guardian. 21. On 6 May 1997 the District Court appointed the Poprad Municipality as the applicant’s guardian in respect of all actions involving the applicant’s relations with public authorities. 22. On 10 July 1997 the applicant appealed. She also challenged the District Court judges. 23. Between 17 July 1997 and 28 August 1997 the file was submitted to the Regional Court in Košice for consultation. 24. On 24 September 1997 the file was submitted to the Regional Court in Prešov for a decision on the applicant’s appeal. The Regional Court returned the file to the first-instance court with the instruction that the District Court judge should first comment on the request for her exclusion and that a mistake in the decision of 6 May 1997 should be rectified. 25. The District Court delivered a rectified decision on 24 October 1997. The court had difficulties in serving the rectified decision on the applicant, who received it on 8 December 1997. 26. On 26 January 1998 the Regional Court in Prešov upheld the decision on the appointment of a guardian and dismissed the applicant’s request for the withdrawal of the first-instance court judge. The decision became final on 14 April 1998. 27. On 21 October 1998 the Poprad Municipality proposed to the Prešov District Court that legal capacity should be restored to the applicant. 28. On 18 January 1999 the District Court appointed an expert with a view to assessing the applicant’s health. On 22 January 1999 it asked a local authority to submit a report on the applicant. 29. On 2 February 1999 the applicant challenged the expert, alleging that drugs had been forcibly administered to her in the hospital department where the expert worked. On 28 April 1999 the District Court appointed a different expert, who was requested to submit an opinion within sixty days. 30. On 16 July 1999 the expert appointed by the court proposed that an expert in psychology should assist him. He also asked for an extension of the time-limit within which the opinion was to be submitted. 31. After they had examined the applicant as an outpatient on 7 and 10 August 1999 the experts submitted an opinion to the District Court on 29 August 1999. It comprised twenty-three pages. According to the opinion, the applicant had been suffering from a chronic disorder resulting in a querulous type of paranoia for many years. She had no critical approach to the disorder and she remained persuaded that her actions were correct. The applicant understood judicial proceedings only within the frame of her mental disorder, in that she remained convinced that courts and other authorities were doing harm to her. The illness was of a lasting character and had developed in a slow and latent manner. It had advanced as compared with 1993, when the applicant’s legal capacity had first been restricted. The experts did not recommend that the applicant be heard in person by a court or that judgments should be served on her, as she was unable to understand the scope of the proceedings and the judicial decisions correctly. 32. On 9 November 1999 the Prešov District Court heard the expert appointed and the representative of the authority acting as the applicant’s guardian. The latter stated that the proposal to restore full legal capacity to the applicant had been submitted as she had appeared well balanced at that time. However, officials of the Poprad Municipality had encountered serious difficulties with the applicant during the subsequent period. The representative confirmed that the applicant had reacted in an inappropriate manner whenever authorities had failed to act in accordance with her wishes. 33. The District Court also heard a guardian whom it had appointed to represent the applicant in the proceedings. The guardian did not propose restoring full legal capacity to the applicant as her health had not improved. 34. Relying on the expert opinion the District Court decided not to hear the applicant. Reference was made to Article 187 § 2 of the Code of Civil Procedure. 35. In its judgment of 9 November 1999 the District Court referred in detail to the applicant’s situation and behaviour. With reference to the experts’ conclusion it held that numerous abusive complaints, submissions and appeals which the applicant had made proved that her personality disorder persisted, resulting in her querulous behaviour. The court therefore decided not to restore full legal capacity to the applicant. 36. As the applicant’s mental disorder was chronic and since it could not be expected that her health would improve, the court decided that the applicant was not to be allowed to make a fresh request for full legal capacity to be restored to her for three years from the date of the judgment. Reference was made to Article 186 § 3 of the Code of Civil Procedure. 37. Following the explicit recommendation of the experts, the District Court decided not to serve the judgment on the applicant. It became final on 11 December 1999. 38. On 5 December 2000 the General Prosecutor lodged an extraordinary appeal on points of law on the applicant’s behalf, in which he contested the decision that the applicant was not entitled to make a fresh claim concerning her legal capacity for three years. The General Prosecutor objected that the District Court had decided exclusively at the request of the applicant’s guardian and that it had failed to decide on the applicant’s requests seeking restoration of full legal capacity, which were included in the file. 39. The Supreme Court dismissed the appeal on points of law on 19 December 2000. It held that the first-instance court had considered all relevant facts, including the applicant’s submissions. 40. The applicant married Mr B. on 22 January 1977. Two children were born to the couple, in 1979 and 1981 respectively. The spouses were divorced at the applicant’s petition on 1 July 1991. 41. On 30 November 1991 the applicant and Mr B. remarried. 42. On 21 March 1994 the applicant applied for a divorce before the Poprad District Court. 43. On 23 March 1994 the judge instructed the Poprad District Court’s Registry to wait for the outcome of the proceedings concerning the applicant’s legal capacity. 44. On 4 May 1994 the applicant’s husband informed the court that he had agreed to a divorce. 45. On 26 May 1994 the file was submitted to the Regional Court in Košice as the judges of the District Court in Poprad considered themselves biased. On 9 June 1994 the Regional Court decided that the case was to be dealt with by the District Court in Prešov. The file was transmitted to the latter court on 10 August 1994. 46. On 6 June 1995 the proceedings were stayed pending the outcome of the above proceedings no. P 81/95 concerning the appointment of a guardian. A guardian was appointed to represent the applicant in the divorce proceedings. The decision to stay the proceedings was served on that guardian on 21 June 1995. 47. On 6 July 1995 the applicant appealed against the decision to stay the divorce proceedings. The file was transmitted to the Regional Court of Košice on 25 July 1995. On 22 December 1995 the Regional Court dismissed the appeal on the ground that the applicant lacked the standing to file it, as her legal capacity had been restricted on 14 April 1993. 48. The judge made inquiries as regards the progress of proceedings no. P 81/95 on 3 May 1995, 5 June 1997, 3 March 1998 and 27 April 1998. 49. On 15 May 1998 the District Court asked the Poprad Municipality to inform it, as the applicant’s guardian, whether it was seeking determination of the applicant’s petition for divorce. The court reiterated that request on 19 August 1998 and 17 November 1998. On 7 December 1998 the Poprad Municipality replied in the affirmative. On 19 January 1999 the Poprad Municipality submitted further documents and information at the court’s request of 22 December 1998. 50. On 25 January 1999 the Poprad Municipality proposed that the divorce proceedings should be stayed pending the determination of its proposal that full legal capacity be restored to the applicant, which had been made in October 1998. On 17 March 1999 the Poprad Municipality submitted further copies of the petition for divorce, in compliance with the District Court’s request. 51. On 18 May 1999 the District Court asked the municipality to pay the court fee. 52. On 20 May 1999 the court sent the applicant’s claim to her husband. The latter submitted his comments on 14 June 1999. 53. On 8 June 1999 the Poprad Municipality asked for an exemption from the obligation to pay the court fee. 54. On 6 September 1999 the case was assigned to a different judge. 55. On 27 January 2000 the District Court exempted the applicant from the obligation to pay the court fee. 56. A hearing was held on 28 February 2000, at which the Prešov District Court granted the applicant and her husband a divorce. The judgment was sent to the parties on 20 April 2000 and it became final on 16 June 2000. 57. On 14 February 1994 the applicant claimed before the Poprad District Court that property she and her husband jointly owned as spouses should be divided. The judge decided to wait for the outcome of the proceedings on the applicant’s legal capacity, which were then pending before the court of appeal. 58. As the Poprad District Court judges considered themselves biased, due to the applicant’s past statements about them, the file was submitted to the Regional Court in Košice. On 30 June 1994 the Regional Court excluded the judges of the District Court in Poprad and transferred the case to the District Court in Prešov. The file was transmitted to that court on 10 August 1994. 59. On 6 June 1995 the proceedings were stayed pending the outcome of proceedings no. P 81/95, relating to the appointment of a guardian for the applicant. On the same day a guardian was appointed to represent the applicant in the proceedings for division of matrimonial property. 60. On 6 July 1995 the applicant appealed. The case was submitted to the Regional Court in Košice on 1 February 1996. On 12 February 1997, 4 April 1997 and 14 May 1997 the Regional Court asked the District Courts in Poprad and Prešov for files concerning the applicant’s legal capacity. The Regional Court dismissed the applicant’s appeal against the decision to stay the proceedings on 28 August 1997. The file was returned to the District Court in Prešov on 16 September 1997. 61. On 16 November 2000 the District Court asked the Poprad Municipality to inform it, as the applicant’s guardian, whether it maintained the action. The District Court reiterated that request on 12 February 2001. It warned the municipality that a fine would be imposed on it in the absence of a reply. 62. On 19 February 2001 the Poprad Municipality withdrew the applicant’s action on the ground that the applicant and her husband had divorced in the meantime. The applicant’s claim had concerned division of property which the applicant and her husband had jointly owned during their marriage. The reason for the applicant’s action no longer existed. 63. The District Court discontinued the proceedings on 21 February 2001. The decision became final on 24 May 2001. 64. On 10 February 1994 the applicant claimed before the Poprad District Court that her husband should be obliged to contribute to her maintenance. 65. On 17 February 1994 the judge decided to wait for the outcome of the proceedings relating to the applicant’s legal capacity, which were then pending before the court of appeal. 66. On 26 May 1994 the file was submitted to the Regional Court in Košice as the judges of the District Court in Poprad considered themselves biased. On 30 June 1994 the Regional Court decided that the case was to be dealt with by the District Court in Prešov. The file was transmitted to the latter court on 11 August 1994. 67. On 30 August 1994 the District Court in Prešov asked the applicant’s husband for comments on the action. It also asked the applicant to specify her claim. 68. On 30 August, 13 October and 10 November 1994 and 16 January and 6 March 1995 the District Court in Prešov asked for information concerning the proceedings relating to the restriction of the applicant’s legal capacity and for the relevant file. 69. On 6 June 1995 the District Court in Prešov stayed the proceedings pending the outcome of proceedings no. P 81/95 relating to the appointment of a guardian. It also appointed a guardian to represent the applicant in the proceedings concerning her claim for maintenance. 70. On 6 July 1995 the applicant appealed against the decision to stay the proceedings. On 28 June 1996 the court of appeal discontinued the proceedings on the appeal as the applicant lacked standing to lodge it. The file was returned to the first-instance court on 8 July 1996. 71. The District Court in Prešov asked for the file in proceedings no. P 81/95 on 22 August 1996, 7 February and 5 June 1997 and 16 February 1998. It did not obtain that file, as the relevant case had been dealt with by different courts. 72. On 22 April 1998 the case concerning the applicant’s claim for maintenance was allocated to a different judge of the Prešov District Court. On 27 April 1998 the judge was informed that file no. P 81/95 could still not be submitted, as that case had been dealt with. 73. On 15 May 1998 the District Court asked the applicant’s guardian, the Poprad Municipality, for comments on the applicant’s claim. In the absence of any reply the District Court reiterated the request on 19 August 1998 and on 17 November 1998. On 7 December 1998 the Poprad Municipality replied that it was maintaining the applicant’s claim for maintenance. On 19 January 1999 the municipality submitted further information at the request of the District Court. 74. On 9 February 1999 the District Court asked three different authorities for information about the situation of the applicant and her husband. It received replies during March 1999. 75. On 6 September 1999 the case was allocated to a different judge. 76. On 1 February 2000 the District Court asked the Poprad Municipality for information about the applicant’s income in 1994 and 1995. 77. A hearing was held on 28 February 2000. The applicant’s husband did not appear. On 3 April 2000 the defendant informed the court that he had been in hospital since the beginning of February 2000 and that he would be undergoing surgery. The hearing scheduled for 17 April 2000 was therefore cancelled. 78. On 28 April 2000 the case was allocated to a different judge. 79. On 17 May 2000 the court asked the defendant’s employer for information about the income of the applicant’s husband. On 20 June 2000 it made an inquiry as regards the applicant’s legal capacity. 80. The District Court heard a representative of the Poprad Municipality on 12 July 2000. The case was adjourned as the defendant was absent. 81. On 6 September 2000 the District Court heard the parties. It dismissed the action with reference to the situation of the applicant and that of her husband. It noted in particular that the defendant had covered all household expenses and the maintenance of their two children at the material time. The judgment was served on the parties on 23 October 2000 and 6 December 2000 respectively. 82. On 5 November 1987 the applicant brought an action with the District Court in Poprad. She challenged her employer’s conclusion that she had been absent from work without authorisation for five days and claimed compensation for lost income totalling 1,141 Czechoslovak korunas. 83. On 17 June 1988 the District Court in Poprad found that the employer had proceeded erroneously. It granted the claim for compensation in part. Both the applicant and the defendant appealed. On 25 January 1989 the Regional Court in Košice upheld the first-instance judgment. On 27 June 1991 the Supreme Court quashed the lower courts’ decision to dismiss a part of the applicant’s claim and returned the case to the Poprad District Court. The outstanding part of the proceedings concerned a claim for payment of the equivalent of approximately 12 euros (EUR). 84. The District Court did not proceed with the case as it was established that, in the meantime, proceedings concerning the applicant’s legal capacity had been brought. 85. On 14 March 1994 the applicant requested that the Poprad District Court judges should be excluded from all her cases. 86. In 1999 and in 2001 the Poprad District Court requested the file concerning the applicant’s legal capacity. The Prešov District Court replied on 21 February 2001 that the file had been sent to the Regional Prosecutor’s Office in Prešov. 87. On 30 April 2001 the applicant’s guardian informed the District Court in Poprad that the applicant was maintaining her request for exclusion of the judges. 88. In October and December 2003 the District Court again requested that the file concerning the applicant’s legal capacity should be submitted to it. 89. On 23 June 2004 the case was assigned to a different judge. 90. The District Court received the requested files concerning different cases of the applicant on 6 July 2004. 91. On 17 February 2005 the Poprad District Court judges were invited to comment on the applicant’s request for their exclusion. Later the Regional Court in Prešov excluded the judge of the District Court who had dealt with the case. The case was transferred to a different chamber of the District Court on 18 May 2006. 92. On 7 March 2007 the Poprad District Court noted that the parties had concluded a friendly settlement under which the defendant undertook to pay the equivalent of EUR 5 plus default interest to the applicant. The court discontinued the proceedings in respect of that part of the action. The applicant withdrew the remaining part of her claim (payment of the equivalent of EUR 7) as that sum had already been paid to her. 93. In 1991 the applicant brought an action with the Poprad District Court which concerned the right to use a flat (Poprad District Court file no. 15 C 692/91). On 17 June 2002 she informed the Court that the District Court had failed to proceed with the action. 94. On 25 April 1994 the applicant and several other members of her family sued the applicant’s husband on the ground that he had made vulgar statements in respect of the applicant and her relatives. The Prešov District Court decided on the action on 24 June 1999 (file no. 15 C 76/96). 95. In 1996 the applicant sued her husband, claiming compensation for non-pecuniary damage on the ground that the defendant had ill-treated her. On 24 June 1999 the Prešov District Court dismissed the action. 96. On 30 May 1996 the applicant claimed before the Poprad District Court that she should be granted custody of her children and that their father should be ordered to pay maintenance. On 4 July 1996 the applicant claimed compensation for movable property before the Poprad District Court. The District Court did not proceed with those claims as the applicant had not made them through the intermediary of her guardian. 97. In 1996 the Spišská Nová Ves District Court approved of an examination of the applicant’s health in a mental hospital without her consent. The relevant decision became final on 17 November 1997 (file no. Ncú 8/96). 98. On 3 March 1999 the applicant and several other persons claimed damages from a couple who had sold livestock to them. The applicant submitted the relevant documents to the Court on 13 August 2002 stating that the proceedings concerning that claim were still pending (Stará Ľubovňa District Court file no. 5 C 771/98). 99. On 22 November 2000 the cooperative which owned the flat in which the applicant and her husband lived claimed that the tenants should be ordered to move out as they had failed to pay the rent. On 28 November 2001 the Poprad District Court granted the claim (file no. 14 C 1156/00). The judgment became final on 29 December 2001. 100. On 10 September 2001 the cooperative sued the applicant and her husband for a sum of money. On 27 March 2002 the District Court in Poprad discontinued the proceedings as the plaintiff had withdrawn the action (file no. 11 C 942/02). On 26 April 2002 the applicant appealed. No further information has been submitted. 101. The applicant unsuccessfully made a number of criminal complaints against different persons including her husband and one of the judges dealing with her cases. 102. On 6 May 2003 the applicant complained to the Constitutional Court about a violation of her rights in the proceedings concerning her cases. On 12 February 2004 the Constitutional Court appointed an advocate to represent the applicant. The advocate submitted a complaint in due form on 24 September 2004. 103. On 11 January 2005 the Constitutional Court declared admissible the complaint about a violation of the applicant’s right to a hearing by an independent tribunal and without unjustified delays in the proceedings concerning a labour dispute which had been pending since 1987. It rejected the remaining complaints for the following reasons. 104. The Constitutional Court rejected as having been lodged outside the statutory two-month time-limit complaints relating to (i) the claim for division of matrimonial property of 14 February 1994, (ii) the applicant’s claim for maintenance of 10 February 1994 and (iii) the proceedings concerning the placement of the applicant in a mental hospital for the purpose of examination of her health, in which the final decision had been given in 1996. 105. The Constitutional Court noted that the District Court in Poprad had failed to proceed with the applicant’s claims for compensation for movable property of 4 July 1996 and for custody of her children and their maintenance, lodged on 30 May 1996. It found no violation of her constitutional rights in that context, as the applicant’s legal capacity had been restricted and she had not been entitled to bring judicial proceedings herself. After examination of the relevant files, the Constitutional Court held that the authority appointed to act as her guardian had not failed to comply with any of its duties. In particular, the applicant’s guardian had acted with due care in the divorce proceedings in 1994 in the context of which both the custody and maintenance of the children and the division of marital property had been determined. 106. On 20 April 2005 the Constitutional Court gave a decision on the merits of the admissible part of the case. It found that the Poprad District Court had violated the applicant’s right to a hearing without unjustified delay. It noted that the proceedings had been pending for over seventeen years and that during the period falling within its jurisdiction (from 17 March 1993) there had been delays imputable to the District Court totalling 135 months. The Constitutional Court granted the applicant 90,000 Slovakian korunas (SKK) as just satisfaction. It ordered the District Court to proceed with the case without delay and to reimburse the costs of the applicant’s representation in the constitutional proceedings. 107. Article 10 §§ 2 and 3 entitles courts to restrict the legal capacity of individuals who, inter alia, are suffering from a lasting mental disorder and who are therefore capable of taking only certain legal actions. A restriction on a person’s legal capacity or his or her deprivation thereof has to be cancelled or its scope modified when the underlying grounds change or fall away. 108. Article 58 § 1 entitles courts to exempt a party from the obligation to respect a time-limit which that party has failed to respect for a justifiable reason. A request to that effect has to be made within fifteen days from the date the obstacle preventing the party from taking the relevant legal action has fallen away. 109. Under Article 186 § 3, as in force at the relevant time, a person who was deprived of legal capacity could claim that it should be restored to him or her. However, where a court dismissed such a request and where it could not be expected that the condition of the person concerned would improve, courts were entitled to prevent that person from making a similar request for an appropriate period, the length of which could not exceed three years. 110. With effect from 1 October 2004 Article 186 § 3 has been amended in that the period during which a person can be prevented from claiming restoration of his or her legal capacity was reduced to a maximum of one year. 111. In a commentary on the above amendment the view was expressed that the original three-year period had been excessively long and capable of seriously affecting a person’s human rights. In view of the progress of medical science, reduction of that period to a maximum of one year was considered appropriate (see Občiansky súdny poriadok, Nová práca, spol. s r.o., 2006, p. 265). 112. Article 187 § 2 provides that a court can refrain from hearing a person whose legal capacity is to be restricted where it is not possible to hear such a person at all or where a hearing would impair that person’s health. 113. Under Article 189 § 2, courts can refrain from serving a decision concerning a person’s legal capacity where its service can have a negative impact on that person because of his or her mental disorder or where the person concerned is not capable of understanding the meaning of the decision. | 1 |
dev | 001-93856 | ENG | RUS | CHAMBER | 2,009 | CASE OF LAMAZHYK v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security;No violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial | Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1974 and lived until his arrest in the town of Kyzyl in the Tyva Republic of the Russian Federation. 7. On 21 January 2000 criminal proceedings were instituted against the applicant on suspicion of several counts of aggravated robbery. On the following day he was arrested. Three days later, however, his release was authorised on condition that he did not leave his town of residence. 8. On 3 March 2000 the head of the investigative unit of the Ministry of Internal Affairs of the Tyva Republic authorised the applicant’s arrest in a decision which, in so far as relevant, read: “On the night of 20-21 January 2000, at approximately midnight, [the applicant], who is unemployed, acting with mercenary intent for the purpose of stealing another’s property, in collusion with Mr O. and unidentified persons, arrived by car... at the village of Khalbus-Dash... [and], having unlawfully entered a house and used weapons, attacked Mr Kh. and Mr D. After beating the victims Mr Kh. and Mr D. and having tied their hands, [the applicant], Mr O. and unidentified individuals, issuing threats of murder, killed 14 [cows], placed their bodies in the cars and stole property, thus causing the victims Mr O., Mr Or. and Mr D. pecuniary damage in the amount of 78,430 roubles, and fled the crime scene. Having regard to the threat which the committed criminal offence poses to society and taking into account that [the applicant], if at liberty, may obstruct the establishment of the truth in the criminal case and may also abscond from the investigation and the court... [I] ORDER: 1. That a measure of restraint in the form of arrest should be applied to [the applicant], who is to be informed of this, against his signature on a copy of the present decision...” The decision bore the applicant’s signature under the last printed paragraph, confirming that the decision had been served on him on 17 May 2000. 9. On 4 March 2000 the head of the investigative unit placed the applicant on the wanted persons list. The relevant part of the decision read: “On 3 March 2000 a decision charging [the applicant] with having committed a crime proscribed by Article 162 § 3 (b) of the Russian Criminal Code and a warrant for his arrest were issued, given the particular gravity and dangerous nature of the crime committed by him. On the same day [police officers] were authorised to bring [the applicant] to the pre-trial investigating authorities for the reading out of the charges and his questioning as an accused. However, the accused, [the applicant], was not found at his place of residence... [It] was established that he left for the Barun-Khemchinskiy District in the Tyva Republic. His exact location was not discovered.” 10. On 6 March 2000 the applicant was arrested. On the following day the Kyzyl District Prosecutor authorised his detention on remand. 11. On 9 June 2000 the acting Prosecutor of the Tyva Republic, by the same decision, extended the applicant’s and his co-defendant’s detention until 21 July 2000, relying on the particular gravity of the charges against them and the likelihood that they would pervert the course of justice and abscond if released. 12. The applicant’s and his co-defendants’ detention was further extended on 13 July, 10 and 23 October 2000 until 21 October and 6 November 2000 and 21 January 2001 respectively, with reference to the same grounds as in the decision of 9 June 2000. 13. On 20 January 2001 the applicant was committed for trial before the Supreme Court of the Tyva Republic. According to the Government, the applicant’s detention from 21 January to 20 March 2001 was not covered by any legal order as the domestic authorities were not required to issue one under the legislation governing criminal procedure. 14. On 15 February 2001 the Supreme Court of the Tyva Republic adjourned the examination of the criminal case because one of the applicant’s co-defendants had violated the conditions of his release on bail and had absconded. The case file was sent to the Prosecutor of the Tyva Republic. The Supreme Court also noted that the prosecution authorities were to “determine the issue of the application of a measure of restraint [in respect of the applicant and his co-defendants]”. 15. The Supreme Court of the Tyva Republic resumed proceedings on 5 March 2001 and fixed a hearing for 12 March 2001. That hearing was adjourned because the victims and a lawyer failed to appear. 16. On 20 March 2001 the Supreme Court of the Tyva Republic returned the case file to the prosecution authorities with an order to correct certain serious procedural defects, noting that the defence rights had been violated. In the same decision the Supreme Court held that the measure of restraint applied to the co-defendants, including the applicant, should “remain unchanged” due to the gravity of the charges against them. 17. On 13 June 2001 the Supreme Court of the Russian Federation, acting on appeals from the applicant’s co-defendants, upheld the decision of 20 March 2001, endorsing the reasons given by the lower court. 18. On 20 July 2001 the acting Prosecutor of the Tyva Republic, relying on the gravity of the charges and the defendants’ liability to abscond, pervert the course of justice and re-offend, in a single decision, extended the applicant’s and his co-defendants’ detention until 20 August 2001. A further extension until 20 September 2001 was ordered by a deputy Prosecutor General of the Russian Federation, with reference to the same grounds. 19. On 14 September 2001 the prosecution authorities returned the case file to the Supreme Court of the Tyva Republic, which on 2 October 2001 remitted the case again for additional investigation, noting serious violations of the defence rights, which had not been remedied during the previous referral of the case file to the prosecution authorities. The Supreme Court also noted that the defendants should remain in custody, given the gravity of the charges against them. 20. Having received the case file, on 11 October 2001 the first deputy prosecutor of the Tyva Republic extended the applicant’s and co-defendants’ detention until 11 November 2001, relying on the previously used grounds, namely the gravity of the charges and the defendants’ liability to abscond, reoffend and pervert the course of justice. 21. On 8 November 2001 the additional investigation ended and the Supreme Court of the Tyva Republic received the case file. It fixed the first hearing for 6 December 2001. As follows from copies of court minutes presented by the Government, the hearing of 6 December 2001, and the following hearings scheduled for 10 January and 12 March 2002, were adjourned because the presiding judge was involved in other unrelated proceedings. 22. In the meantime, the composition of the bench changed: a new presiding judge and lay assessor were assigned to the case. Between 12 March and 13 June 2002 the Supreme Court of the Tyva Republic fixed five hearings, of which three were adjourned because the co-defendants’ lawyers failed to appear, one hearing was rescheduled because the victims did not attend and one hearing was adjourned because it was necessary to serve a co-defendant with a copy of the indictment bill in a language he understood. 23. On 13 June 2002 the Supreme Court of the Tyva Republic, having found that the prosecution authorities had committed serious procedural violations at the indictment stage, referred the case back for additional investigation with an order to respect the rights of the defendants, including their right to the services of an interpreter, etc. The Supreme Court also stressed that the defendants should remain in detention. 24. On 15 November 2002 the Supreme Court of the Russian Federation quashed the decision of 13 June 2002 in the part concerning the referral of the case for additional investigation and sent the case for examination on the merits by the Supreme Court of the Tyva Republic. At the same time the Supreme Court of the Russian Federation held that there were no grounds to change the measure of restraint applied to the defendants and that they should therefore remain in custody. 25. After having received the case file on 4 February 2003, the Supreme Court of the Tyva Republic fixed the first hearing for 12 February 2003. That hearing was adjourned because the co-defendants’ counsel failed to appear. The subsequent two hearings, listed for 3 and 19 March 2003, were postponed for the same reason. 26. On 24 March 2003 the Supreme Court of the Tyva Republic authorised an extension of the defendants’ detention for an additional three months, until 24 June 2003, holding as follows: “Taking into account the prosecutor’s arguments that [the defendants] are charged with a criminal offence which belongs to the category of particularly serious [offences], punishable by a maximum of 10 years’ imprisonment, [and] having regard to the particular complexity of the criminal case and [the fact] that the release from custody of the defendants, who pose an increased danger to society, may impede considerably a 27. Of the three hearings scheduled between 26 March and 24 June 2003 by the Supreme Court of the Tyva Republic, two were adjourned because the co-defendants’ lawyers and the victims failed to appear and one hearing was postponed to provide counsel with additional time to study the materials of the case file. 28. On 24 June 2003 the Supreme Court of the Tyva Republic, using identical wording as that in the decision of 24 March 2003, extended the defendants’ detention until 24 September 2003. 29. Between 24 June and 25 September 2003 the Supreme Court of the Tyva Republic fixed four hearings, of which two were adjourned because the defence counsel failed to appear or were on annual leave, one hearing was postponed because a co-defendant was ill and one was rescheduled due to a victim’s failure to attend. 30. On 25 September 2003 the Supreme Court of the Tyva Republic once again extended the defendants’ detention for an additional three months, until 24 December 2003, invoking the same grounds as in the previous two detention orders of 24 March and 24 June 2003. 31. The applicant’s lawyer appealed against the detention order of 25 September 2003, arguing that the applicant’s detention from 24 to 25 September 2003 had not been covered by any legal order, in violation of the requirements of the Russian Code of Criminal Procedure and that the detention in general was excessively long. 32. On 4 December 2003 the Supreme Court of the Russian Federation upheld the detention order of 25 September 2003, noting that the applicant’s and his co-defendants’ detention had been regularly extended in compliance with the requirements of the Russian legislation on criminal procedure. It further stressed that in extending the defendants’ detention the Supreme Court of the Tyva Republic had correctly relied on the gravity of the charges. As regards the detention from 24 to 25 September 2003, the Supreme Court of the Russian Federation held that the detention had been lawful, since the prosecution authorities had submitted the application for the extension before 24 September 2003 and the Supreme Court of the Tyva Republic had merely scheduled the hearing for 25 September 2003. 33. In the meantime, the Supreme Court of the Tyva Republic listed nine hearings between 25 September and 4 December 2003. Of those hearings, two were adjourned because the victims failed to appear, three hearings were rescheduled because the co-defendants’ counsel were either involved in other proceedings or failed to appear, one hearing was postponed because the presiding judge was ill, one was postponed on the applicant’s lawyer’s request and two were cancelled because it was necessary to determine the issue of the defendants’ representation. 34. On 18 December 2003 the Supreme Court of the Tyva Republic, relying on the same grounds as in the detention orders issued in 2003, issued a collective decision in respect of all the defendants, extending their detention until 24 March 2004. Subsequent identically-worded detention orders were issued by the Supreme Court of the Tyva Republic on 19 March and 18 June 2004, extending the defendants’ detention until 24 June and 24 September 2004 respectively. The detention orders of 18 December 2003, 19 March and 18 June 2004 were amenable to appeal. Neither the applicant nor his lawyer made use of the appeal procedure. 35. Of the sixteen hearings scheduled between January and 25 August 2004, nine hearings were adjourned because either witnesses or co-defendants’ and victims’ counsel failed to appear, two were postponed because the applicant’s lawyer did not attend, two were rescheduled because the co-defendants’ counsel were involved in other proceedings and one was cancelled following a co-defendant’s request to consult a lawyer. 36. On 25 August 2004 the Supreme Court of the Tyva Republic found the applicant guilty of aggravated robbery and aggravated theft of weapons and sentenced him to eight years’ and two months’ imprisonment. The applicant decided not to lodge an appeal. 37. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (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”). 38. “Preventive measures” or “measures of restraint” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 89 of the old CCrP, Article 98 of the new CCrP). 39. The Russian Constitution of 12 December 1993 provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). 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, 3-6). 40. 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). 41. Before 14 March 2001, remand in custody 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, if they had previously defaulted, 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 allegedly 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. 42. The Codes make a distinction between two types of remand in custody: the first being “during investigation”, that is, while a competent agency – the police or a prosecutor’s office – is investigating the case, and the second being “before the court” (or “during judicial proceedings”), at the judicial stage. Although there is no difference in practice between them (the detainee is held in the same detention facility), the calculation of the time-limits is different. 43. After arrest the suspect is placed in custody “during investigation”. The maximum permitted period of detention “during investigation” is two months but this can be extended for up to eighteen months in “exceptional circumstances”. Under the old CCrP, extensions were authorised by prosecutors of ascending hierarchical levels but they must now be authorised by judicial decisions, taken by courts of ascending levels (under the new CCrP). No extension of detention “during investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP). 44. The period of detention “during investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP). 45. Access to the materials in the file 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, on a request by a prosecutor, may grant an extension of the 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. 46. Under the old CCrP, the trial court was entitled to refer the case back for “additional investigation” if it found procedural defects that could not be remedied at the trial. In such cases the defendant’s detention was again classified as “during investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for additional investigation but the investigators had already used up all the time authorised for detention “during investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month, starting from the date on which he or she received the case. Subsequent extensions could only be granted if the detention “during investigation” had not exceeded eighteen months (Article 97). 47. From the date the prosecutor refers the case to the trial court, the defendant’s detention is classified as “before the court” (or “during judicial proceedings”). 48. Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” could not generally 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 a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences. 49. The new CCrP provides that the term of detention “during judicial proceedings” is calculated from the date the court received the file up to the date on which judgment is given. The period of detention “during judicial proceedings” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). 50. Under the old CCrP, the detainee or his or her counsel or representative could challenge the 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 was to be conducted in camera in the presence of a prosecutor and the detainee’s counsel or representative. The detainee was 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). 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 (see paragraph 96 below) (Article 331 in fine). 51. Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must rule on 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 be held in custody or released pending the trial hearings (Article 222 § 5 and Article 230 of the old CCrP, Article 228 (3) and Article 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). 53. At any time during the judicial proceedings the court may order, vary or revoke any preventive measure, including remand in custody (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberation room and signed by all the judges on the bench (Article 261 of the old CCrP, Article 256 of the new CCrP). 54. An appeal against such a decision lies to a higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP – see paragraph 96 below). 55. Under the old CCrP, within fourteen days after receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to refer the case back for further investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court having 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; or (3) to fix a trial date (Article 227). In the latter case, the trial proceedings 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 entire trial proceedings is not limited in time. 57. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days after it was lodged. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this period could be extended by up to two months (Article 333). No further extensions were possible. The new CCrP provides that the appeal court must start the examination of the appeal no later than one month after it is lodged (Article 374). | 1 |
dev | 001-122239 | ENG | BGR | ADMISSIBILITY | 2,013 | VALCHEVA AND ABRASHEV v. BULGARIA | 3 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicant in the first application (no. 6194/11), Ms Polyana Ivanova Valcheva, is a Bulgarian national who was born in 1945 and lives in Lovech. She is not legally represented. 2. The applicant in the second application (no. 34887/11), Mr Enyo Nikolov Abrashev, is a Bulgarian national who was born in 1957 and lives in Stara Zagora. He is represented before the Court by Mr M. Ekimdzhiev and Ms S. Stefanova, lawyers practising in Plovdiv. 3. The respondent Government (“the Government”) were represented by their Agent, Ms I. StanchevaChinova, of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 11 February 2004 the Lovech District Prosecutor’s Office, having been tipped off by Ms Valcheva, a member of the Lovech Bar, that her former de facto spouse had committed documentary fraud, asked the Lovech police to inquire into the matter. On 1 March 2004 the police proposed that criminal proceedings be brought against Ms Valcheva’s de facto spouse. 6. On 30 March 2004 the Lovech District Prosecutor’s Office opened criminal proceedings against him. In the following days it gathered evidence, heard eleven witnesses, including Ms Valcheva, and obtained a graphological expert report. 7. As the evidence led the investigator in charge of the case to believe that Ms Valcheva had forged an employment certificate to enable her de facto spouse to obtain a retirement pension, on 30 June 2004 he brought charges of documentary fraud against her. 8. On 7 July 2004 Ms Valcheva was allowed to inspect the case file, and on 15 July 2004 the investigator proposed that she be brought to trial. 9. On 22 July 2004 the Lovech District Prosecutor’s Office indicted Ms Valcheva and her de facto spouse, alleging that he had committed documentary fraud by using the employment certificate to obtain a retirement pension, and that she had consciously enabled him to commit that fraud by forging that certificate. 10. The Lovech District Court held a hearing on 20 October 2004. Noting that the alleged victim of the offence – the social security authorities – had not appeared, it decided to adjourn the case. 11. The next hearing took place on 15 December 2004. The social security authorities brought a civil claim against Ms Valcheva and her de facto spouse, seeking repayment, plus interest, of the amounts that the latter had obtained by way of a retirement pension. The president of the panel hearing the case recused himself, citing the fact that Ms Valcheva was a member of the Lovech Bar. On 21, 27, 29 and 30 December 2004 all other judges of the Lovech District Court also declined to sit in the case, citing the same reason. Accordingly, on 4 January 2005 the court’s president sent the case to the Supreme Court of Cassation for a decision to which other district court the case was to be transferred, and on 2 February 2005 the Supreme Court of Cassation chose the Pleven District Court. 12. The trial before the Pleven District Court was due to start on 14 June 2005. However, on that date the court found that it could not proceed with the case because the prosecution had not appeared, and decided to adjourn it. On 28 November 2005 the case was again adjourned because Ms Valcheva’s de facto spouse was ill and could not attend. 13. The trial started on 3 April 2006. The Pleven District Court heard eight witnesses and an expert and admitted an expert report. 14. On an unspecified date in 2006 the social security authorities withdrew their civil claim against Ms Valcheva’s de facto spouse because he had repaid the amounts that he had obtained by way of a retirement pension. At the next hearing, held on 26 September 2005, he entered into a plea agreement with the prosecution. After approving the agreement, the panel hearing the case recused themselves by reference to a rule of criminal procedure barring judges and lay judges from sitting in a case in which they had approved a plea agreement. 15. The case was then assigned to another panel, which held hearings on 12 January, 26 March, 16 May, 21 September and 5 December 2007. 16. A hearing listed for 29 February 2008 had to be postponed because it coincided with the annual plenary meeting of the Pleven District Court, and took place on 31 March 2008. The Pleven District Prosecutor’s Office asked the court to discontinue the trial and refer the case back to the Lovech District Prosecutor’s Office with a view to clarifying the charges against Ms Valcheva. The court, observing that the indictment did not clearly spell out the time, the place or the manner of commission of the offence alleged against her, acceded to the request. 17. On 7 May 2008 the Lovech District Prosecutor’s Office lodged an amended indictment against Ms Valcheva with the Lovech District Court. On 21 May 2008 the judge to whom the case had been assigned again withdrew, citing his earlier decision to withdraw from the case in 2005. Noting that the Supreme Court of Cassation had already determined which court should deal with the case, on 17 November 2008 the president of the Lovech District Court sent it to the Pleven District Court. 18. On 12 January 2009 the Pleven District Court set the case down for trial. It was due to take place on 23 April 2009 but was adjourned due to Ms Valcheva’s failure to appear without showing cause. The court fined her for that failure. She appealed the fine. 19. The trial was held on 30 November 2009 and 12 February 2010. On the lastmentioned date the Pleven District Court acquitted Ms Valcheva, finding that the charges against her had not been made out to the required criminal standard of proof. 20. The prosecution appealed. The Pleven Regional Court heard the appeal on 1 and 29 June 2010. In a final judgment of 7 July 2010, it fully upheld Ms Valcheva’s acquittal. 21. On 6 March 2002 the Stara Zagora Regional Prosecutor’s Office opened criminal proceedings against Mr Abrashev on suspicion that he had committed aggravated documentary fraud. 22. On 10 May 2002 Mr Abrashev was charged with attempting, with the help of an accomplice, to obtain a large sum of money by using a false promissory note. Mr Abrashev’s alleged accomplice was likewise charged the same day. 23. Having interviewed the two accused and a number of witnesses, and having obtained other evidence, including a graphological expert report, on 15 October 2002 the investigator in charge of the case proposed that Mr Abrashev and his alleged accomplice be brought to trial. 24. On 29 October 2002 the Stara Zagora Regional Prosecutor’s Office referred the case back to the investigator, citing a number of omissions in the investigation. The investigator objected to the referral, but on 21 November 2002 the Stara Zagora Regional Prosecutor’s Office dismissed his objections. 25. On 27 January 2003 the investigator ordered a financial expert report. The report was ready on 6 February 2003. On 24 March 2003 the investigator again proposed that Mr Abrashev be brought to trial. By contrast, this time he proposed that the charges against Mr Abrashev’s alleged accomplice be dropped for lack of sufficient evidence. 26. On 18 April 2003 the Stara Zagora Regional Prosecutor’s Office decided that the charges against Mr Abrashev’s alleged accomplice should be dropped and that Mr Abrashev should not be prosecuted for documentary fraud but simple fraud. It went on to note that the prosecution of simple frauds fell within the competence of the Stara Zagora District Prosecutor’s Office, and referred the case to that office. 27. On 13 May 2003 the investigator laid the amended charges against Mr Abrashev, accusing him of aggravated simple fraud, and on 4 June 2003 proposed that he be brought to trial. 28. On 13 June 2003 the Stara Zagora District Prosecutor’s Office decided to discontinue the proceedings, considering that the charges against Mr Abrashev had not been made out and that the facts alleged against him did not constitute an offence. On an application by the victim of the alleged offence, on 11 July 2003 the Stara Zagora District Court set the discontinuance aside. 29. On 6 August 2003 the Stara Zagora District Prosecutor’s Office again discontinued the proceedings. The victim of the alleged offence again sought judicial review. On 24 October 2003 the Stara Zagora District Court found that it could not examine the application, because the lawyer who had lodged it had not enclosed with it a power of attorney. The victim then asked the Stara Zagora District Prosecutor’s Office to vary its decision to discontinue the proceedings – as possible when it had not been reviewed by a court on the merits –, and on 18 November 2003 that office acceded to her request. Mr Abrashev appealed to the Stara Zagora Regional Prosecutor’s Office, but on 23 January 2004 that office upheld the lower office’s decision. Mr Abrashev appealed further, but on 17 February 2004 the Plovdiv Appellate Prosecutor’s Office also upheld the lower offices’ decisions. 30. On 15 June 2004 the Stara Zagora District Prosecutor’s Office indicted Mr Abrashev, but on 9 November 2004 the Stara Zagora District Court referred the case back to it, citing defects in the indictment. 31. On 13 December 2004 the Stara Zagora District Prosecutor’s Office again indicted Mr Abrashev. 32. This time the case proceeded to trial, which took place on 7 June, 6 July and 8 November 2005, and on 20 February, 13 April and 25 May 2006. The Stara Zagora District Court heard a number of witnesses and obtained an expert report. One trial sitting was adjourned because Mr Abrashev was ill and could not attend, and another was adjourned due to the absence of witnesses. On 25 May 2006 the Stara Zagora District Court acquitted Mr Abrashev. 33. On 31 May 2006 the victim of the alleged offence, who had taken part in the trial as a private prosecutor, appealed. The public prosecutor likewise appealed on 9 June 2006. Having heard the appeals on 8 November 2006, on 8 December 2006 the Stara Zagora Regional Court decided to quash the lower court’s judgment and to remit the case. 34. On 17 January 2007 the Stara Zagora District Court in turn decided to refer the case back to the prosecuting authorities, citing, inter alia, defects in the indictment. 35. On 26 March 2007 the Stara Zagora District Prosecutor’s Office presented the amended charges to Mr Abrashev. On 30 May 2007 it indicted him. 36. On 31 July 2007 the Stara Zagora District Court, considering that the facts of which Mr Abrashev stood accused did not constitute an offence, decided to discontinue the proceedings against him. The public prosecutor and the private prosecutor both appealed. On 12 December 2007 the Stara Zagora Regional Court quashed the discontinuance, holding that it had been improper for the lower court to proceed in that manner, and remitted the case to a different formation. 37. On 4 March 2008 the Stara Zagora District Court once more referred the case back to the prosecution, citing defects in the indictment. 38. On 29 April 2008 the Stara Zagora District Prosecutor’s Office again indicted Mr Abrashev. 39. The case proceeded to trial, which took place on 26 September, 12 November and 11 December 2008, and on 18 February, 19 March and 23 April 2009. One trial sitting was adjourned because Mr Abrashev’s counsel was busy elsewhere and could not attend. On 23 April 2009 the Stara Zagora District Court acquitted Mr Abrashev. 40. The public prosecutor and the private prosecutor both appealed. The first hearing before the Stara Zagora Regional Court, initially fixed for 14 October 2009, had to be postponed because counsel for Mr Abrashev was busy elsewhere. It took place on 28 October 2009. The second hearing was held on 2 December 2009. On 7 January 2010 the Stara Zagora Regional Court quashed the lower court’s judgment and referred the case back to the prosecuting authorities, citing their failure to specify the charges against Mr Abrashev. 41. In February 2010 the Stara Zagora District Prosecutor’s Office again indicted Mr Abrashev. 42. On 11 August 2010 the Stara Zagora District Court, considering that the facts of which Mr Abrashev stood accused did not constitute an offence, decided to discontinue the proceedings against him. The public prosecutor and the private prosecutor both appealed. Having heard the appeals on 20 October 2010, in a final decision of 6 January 2011 the Stara Zagora Regional Court upheld the lower court’s decision. 43. On 16 February 2011 the victim of the alleged offence asked the Chief Prosecutor to seek reopening of the proceedings. On 18 April 2011 the Chief Prosecutor requested the Supreme Court of Cassation to reopen the proceedings, citing flagrant breaches of the rules of procedure and the substantive law in the making of the Stara Zagora District Court’s ruling of 11 August 2010 and the Stara Zagora Regional Court’s ruling of 6 January 2011. The Supreme Court of Cassation heard the request on 18 May 2011. On 28 June 2011 it decided to reopen the case and refer it back to the Stara Zagora District Court for trial. 44. The Stara Zagora District Court held five hearings: on 17 October and 15 December 2011, and on 13 February, 2 April and 21 May 2012. At the last of those hearings it found Mr Abrashev not guilty. 45. The public prosecutor and the private prosecutor both appealed. A number of judges at the Stara Zagora Regional Court withdrew from sitting in the case because they had previously sat in it. The court heard the appeal on 14 November 2012 and, in a judgment of the same date, quashed Mr Abrashev’s acquittal, convicted him and sentenced him to nine months’ imprisonment, suspended. 46. Both Mr Abrashev and the private prosecutor appealed on points of law. The hearing before the Supreme Court of Cassation was initially listed for 28 January 2013, but was adjourned at the request of counsel for Mr Abrashev, and took place on 22 February 2013. In a final judgment of 4 March 2013, the Supreme Court of Cassation quashed the lower court’s judgment and acquitted Mr Abrashev. 47. A 2007 amendment to the 1991 Constitution added a new Article 132a, which envisaged the creation of an Inspectorate attached to the Supreme Judicial Council. The Inspectorate, which consists of a Chief Inspector and ten inspectors, is tasked with checking the work of the judiciary without infringing the independence of judges, prosecutors or investigators (Article 132a § 6). It can act either of its own motion or pursuant to reports by private individuals, legal persons or State authorities (Article 132a § 7). It has the power to refer matters to the appropriate authorities, or make suggestions or reports to them (Article 132a § 9). Both the Chief Inspector and the inspectors are elected by Parliament by a majority of two thirds; the term of office of the Chief Inspector is five years and that of the inspectors is four years (Article 132a §§ 2 and 3). 48. The manner of election and dismissal of the inspectors is laid down in sections 4253 of the Judiciary Act 2007 (“the 2007 Act”). They must be lawyers having high professional and moral qualities (section 42(1)). The Chief Inspector must have at least fifteen years of professional experience, and the inspectors at least twelve years of professional experience (section 42(2) and (3)). They cannot engage in a number of activities – such as business or being member of a political party – that might prejudice their independence (section 43 read in conjunction with section 18(1)). They may be dismissed before the expiry of their term of office only if they resign, are finally convicted of a criminal offence, are unable to carry out their duties for more than one year, are deprived of the right to exercise as a lawyer, heavily or systematically breach their duties or commit acts which tarnish the prestige of the judiciary, or do not cease activities that they are prohibited from pursuing while in office (section 48(1)). The proposal for dismissal must be made by at least onefifth of the members of Parliament (section 48(2)). The remuneration of the Chief Inspector is equal to that of a section president of the Supreme Court of Cassation, and the remuneration of the inspectors is equal to that of a judge of that court (section 51). 49. On 6 April 2012 the Government laid before Parliament a bill for the amendment of the 2007 Act. The explanatory notes to the bill said the following: “Slow judicial proceedings lead to an enormous amount of judgments of the European Court of Human Rights against Bulgaria. In its judgments concerning the right to a fair trial within a reasonable time the European Court of Human Rights (‘the ECtHR’) emphasises the need for the introduction of an effective domestic remedy in respect of such breaches. With a view to securing the effective exercise of the right to a fair trial within a reasonable time, in its case-law the ECtHR points to the need to introduce a remedy capable of providing compensation for damage resulting from delays in proceedings (compensatory remedy). The systemic problem found by the ECtHR in relation to the excessive duration of criminal and civil cases in the Republic of Bulgaria calls for urgent legislative measures to introduce the remedies suggested by the European Court. With a view to the effective use of the available resources, it is expedient to give the power to find a breach and set compensation to an existing authority with similar competences. In view of the constitutional function of the Inspectorate attached to the Supreme Judicial Council to check the work of the judiciary (Article 132a § 6 of the Constitution) and more specifically its power under section 54(1)(2) of the Judiciary Act [2007] to check the processing of court, prosecutors’ and investigation cases and their completion within the prescribed time-limits, the bill envisages the creation of a special unit attached to the Inspectorate. That special unit will examine and decide complaints relating to breaches concerning the unreasonable length of completed civil, administrative and criminal cases, as well as discontinued pre-trial proceedings. An important premise for laying down the procedure in such a way is the Inspectorate’s constitutional obligation to carry out checks pursuant to reports by private individuals and legal persons (Article 132a § 7 of the Constitution). The right to complain is open to all persons who may suffer damage as a result of delays in proceedings: parties to judicial proceedings (civil, administrative and criminal) or persons subjected to the pre-trial phase of criminal proceedings (accused, victims and wronged legal persons). The envisaged procedure will be a light (simple) way of obtaining redress. The complainant will not have to produce evidence – it will be gathered by the checking panel of their own motion; no fees will be due; the proceedings will finish in six months with a settlement, which will ensure fast payment of the compensation. Since the proposed procedure envisages a light and fast mode of redress, there is a cap on the maximum amount of compensation. This cap conforms with the ECtHR’s case-law on the amount of compensation awarded in past cases. The transitional and concluding provisions allow the procedure to be applied in respect of complaints already lodged through the ECtHR. The compensatory remedy has to have retrospective effect, so as to be available to persons who have become victim of excessive length of proceedings even before the coming of the Act into force, including those who have lodged applications with the ECtHR, if that court has not yet ruled on the admissibility of those applications. The creation of an effective domestic remedy will ensure a drastic reduction of the number of applications to the ECtHR and will thus lead to less judgments finding a breach of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.” 50. The bill underwent its first reading on 10 May 2012, and its second reading on 7 June 2012, when it was adopted. The Act was published in the State Gazette on 3 July 2012. It inserted a new Chapter 3a in the 2007 Act. The Chapter is entitled “Examination of applications against breaches of the right to examination and determination of the case within a reasonable time” and consists of twelve sections. The newly introduced provisions, the bulk of which came into force on 1 October 2012, read as follows: 60a. (1) This chapter applies to applications by individuals and legal persons against decisions, actions or omissions of judicial authorities which infringe their right to have their cases examined and decided within a reasonable time. (2) Applications under subsection 1 shall be lodged by individuals and legal persons who are: 1. parties to finished civil, administrative or criminal proceedings; 2. accused, victims or wronged legal persons in discontinued pretrial proceedings; (3) This chapter set out the manner of determining and paying compensation in line with the case-law of the European Court of Human Rights not amounting to more than 10,000 levs. (4) Applications under subsection 1 shall be lodged within six months after the conclusion of the proceedings at issue with a final decision, though the Inspectorate attached to the Supreme Judicial Council to the Minister of Justice. (5) A special register shall be created for the applications, and it shall be published on the internet site of the Inspectorate attached to the Supreme Judicial Council. (6) No fees shall be due for the examination of applications under this chapter. 60b. (1) The application must be written in Bulgarian and set out: 1. for Bulgarian nationals – their names as featuring in the identification documents; uniform citizen number and address; telephone, fax and electronic address, if any; 2. for foreigners – their names as featuring in the identification documents; uniform foreigner number and address; telephone, fax and electronic address, if any; 3. the commercial firm of the trader or the name of the legal person, written in Bulgarian; the seat and the latest registered address and electronic address; 4. the decision, action or omission alleged to amount to a breach by the respective authority; 5. the authority to which the application is addressed; 6. the request for relief; 7. the applicant’s signature. (2) Applicants shall submit a declaration that they have not sought or obtained compensation in respect of the same breach in other proceedings. 60c. (1) Applications under section 60a(1) shall be examined by the Inspectorate attached to the Supreme Judicial Council, which shall set up a special unit for this purpose. (2) The experts staffing the unit shall be lawyers who have at least five years of professional experience. Their remuneration shall be equal to that of a district court judge. (3) The chief inspector shall allocate incoming applications to panels consisting of one inspector and two experts, randomly selected, and one of the experts shall be appointed as rapporteur. (4) If the application does not meet the requirements of section 60b(1) or (2), the applicant shall be given notice to rectify the deficiencies within seven days of receiving the notice. (5) If the applicant does not rectify the deficiencies, the application and the supporting documents shall be returned. 60d. (1) The results of the examination shall be noted down in a record of findings. (2) That record shall be signed by the members of the panel and shall contain information about: 1. the time and place where and when it has been drawn up; 2. the applicant; 3. the panel which has examined the application; 4. the case in respect of which it is being drawn up; 5. the overall duration of the proceedings; the period of delay attributable to the competent authority; the period of delay attributable to actions or omissions of the complainant or his legal or procedural representative; (3) The record of findings shall also set out the view of the panel as to whether the time-limit under section 60a(4) has been met. 60e. The record of findings under section 60d shall be drawn up within four months of receipt of the application or the rectification of its deficiencies, as the case may be. The record, along with the application and all supporting documents, shall be sent immediately to the Minister of Justice. 60f. (1) Based on the findings of the panel, the Minister of Justice or a person authorised by him or her shall reject the application as unfounded if 1. the length of the proceedings has not exceeded a reasonable time; 2. the delay is due to actions or omissions of the applicant or his legal or procedural representative. (2) If the right of the applicant to have his or her case examined and decided within a reasonable time has been breached, the Minister of Justice or a person authorised by him or her shall fix the amount of compensation in line with the caselaw of the European Court of Human Rights and shall propose the conclusion of a settlement with the applicant. 60g. The underlying circumstances shall be examined and the application shall be determined within six months of the application’s receipt. 60h. Compensation shall be paid on the basis of the concluded settlement. 60i. The funds required for the payment of sums under concluded settlements shall be covered by the republican budget. 60j. (1) Compensation due under this chapter shall be paid out of the budget of the Ministry of Justice. (2) Each quarter the Minister of Finance shall make available to the budget of the Ministry of Justice funds matching the compensations actually paid under subsection 1 during that quarter through a modification of the budgetary arrangements with the central State budget. 60k. Persons who have received compensation under this chapter may not seek compensation in respect of the same matter by way of civil proceedings. 60l. (1) Every quarter the chief inspector shall send to the Supreme Judicial Council information about breaches found, and Minister of Justice – about compensations paid out. (2) Every six months the Supreme Judicial Council shall analyse the reasons for the breaches and shall take measures to eliminate them. (3) The Supreme Judicial Council shall publish on its internet site the information under subsections 1 and 2. 51. Paragraphs 34 and 35 of the transitional and concluding provisions of the amending Act provide as follows: 34. (1) Within six months of the entry into force of Chapter 3a or of notification by the Registry of the European Court of Human Rights, persons who have lodged with the European Court of Human Rights applications concerning breaches of their right to have their cases examined and decided within a reasonable time may submit applications under Chapter 3a, except in cases where the Court has already given judgment on the merits of the application or has rejected the application as inadmissible. (2) Applications under subparagraph 1 shall be examined within eighteen months of their receipt. 35. To ensure the application of Chapter 3a in 2012 the Council of Ministers shall make available additional funds in the budgets of the Judiciary and the Ministry of Justice. 52. In a decision of 11 September 2012 that came into effect on 18 September 2012 (Постановление № 209 от 11 септември 2012 г. за одобряване на допълнителни бюджетни кредити по бюджета на съдебната власт и по бюджета на Министерството на правосъдието за 2012 г.), the Council of Ministers increased the budget of the judiciary with 300,000 Bulgarian levs earmarked for the creation, in the Inspectorate attached to the Supreme Judicial Council, of the special unit dealing with applications under Chapter 3a of the 2007 Act (point 1(1) of the decision). 53. In September 2012 the Inspectorate appointed a number of officials and assigned them to the special unit dealing with applications under Chapter 3a of the 2007 Act. On 1 October 2012 the Inspectorate published on its website an application form and a sample declaration under section 60b(2) of the 2007 Act (see paragraph 50 above). It later put on its website software allowing applicants to lodge applications electronically and track their progress online. 54. On 23 July 2012 the Government laid before Parliament a bill for the amendment of the State and Municipalities Liability for Damage Act 1988 (“the 1988 Act”). The explanatory notes to the bill said the following: “An analysis of the judgments in which the European Court of Human Rights has found violations in respect of Bulgaria shows that there are repetitive violations due to the lack of an effective domestic remedy allowing those concerned to obtain redress. More specifically, there is a need to create a domestic remedy allowing those concerned to obtain compensation for damage resulting from a breach of the [Convention] made by the State or its authorities or officials. The Court’s finding that the law of the Republic of Bulgaria does not make provision for such a remedy calls for its creation through an expansion of the ambit of the State and Municipalities Responsibility for Damage Act [1988]. This will overcome the prior approach – to provide for liability only in specific circumstances – which has led to many violation judgments of [the Court] against Bulgaria. For that purpose, it is proposed to make the following amendments and additions to the Act: ... 2. The proposal to insert a new section 2b seeks to broaden the ambit of the Act, so that it embrace also cases of ‘delayed justice’. Under the pilot judgments of the European Court of Human Rights in the case of Finger [cited above] (which concerns civil cases) and the joined cases of Dimitrov and Hamanov [cited above] (which concern criminal cases), which find breaches of Article 6 § 1 of the Convention, the Bulgarian authorities must, within twelve months (until 10 August 2012) put in place a mechanism to resolve the systemic problem concerning the ‘reasonable time’ of proceedings. The envisaged amendments create a mechanism for the compensation of damage. Individuals and legal persons whose right to have their cases examined and decided within a reasonable time been breached may bring claims under section 2b only if they have exhausted the administrative procedure for obtaining compensation under Chapter 3a of the Judiciary Act [2007] but have not reached a settlement. At the same time, in cases of separate breaches occurring in one and the same proceedings, the fact that a person has brought a claim in respect of one breach does not prevent him or her from seeking compensation in respect of a breach of the right to a trial within a reasonable time in cases where the overall length of the proceedings has been excessive. 3. ... As regards claims for compensation in respect of breaches of the right to have one’s case examined and decided within a reasonable time, [the amendments] envisage that such claims, in view of their character and subject matter, shall be examined by the court having local jurisdiction in the place where the aggrieved person has his or her current address or its seat. 4. It is proposed to insert transitional provisions under which, within six months of the entry into force of the Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to [that Court] have been rejected due to failure to exhaust the newly created domestic remedies, and whose proceedings are still pending before the national courts, may also bring claims for compensation under section 2b. In respect of proceedings which have already ended at the national level, within six months of the entry into force of the Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to [that Court] have been rejected due to failure to exhaust the newly created domestic remedies may lodge applications for compensation under Chapter 3a of the Judiciary Act [2007]. Persons whose national pretrial or judicial proceedings have ended at the time when the Act comes into force, and less than six months have elapsed since the final decision, shall also have the right to lodge applications for compensation under Chapter 3a of the Judiciary Act [2007] within six months of the Act’s entry into force. The bill reflects the proposals of nongovernmental organisations, the European Court of Human Rights’ caselaw, and the recommendations of the Council of Europe’s Committee of Ministers, and with it the Republic of Bulgaria shall fulfil its duties of State Party to the [Convention].” 55. The bill underwent its first reading on 26 September 2012 and its second reading on 28 November 2012, when it was adopted. The amending Act was published in the State Gazette on 11 December 2012 and came into force on 15 December 2012. It amended a number of provisions of the 1988 Act. In particular, it inserted a new section 2b, which is entitled “Liability of the judicial authorities for breaches of the right to have one’s case examined and decided within a reasonable time” and reads as follows: “1. The State shall be liable for damage caused to individuals or legal persons by breaches of the right to have one’s case examined and decided within a reasonable time, in accordance with Article 6 § 1 of the Convention. 2. Claims under subsection 1 shall be examined in the manner provided by the Code of Civil Procedure [2007], and the court shall take into account the overall duration and the subject matter of the proceedings, their factual and legal complexity, the conduct of the parties and their procedural or legal representatives, the conduct of the other participants in the proceedings and of the competent authorities, as well as other facts which have a bearing on the proper determination of the dispute. 3. The bringing of a claim for damages in respect of pending proceedings shall not preclude the bringing of a fresh claim after the proceedings have come to end.” 56. A new section 7(2) provides that claims for compensation under section 2b are to be brought in the court in whose region the aggrieved person has his or her current address or seat. 57. A new section 8(2) provides that individuals or legal persons may bring claims under section 2b(1) in respect of proceedings which have ended only if they have already exhausted the administrative procedure under Chapter 3a of the 2007 Act (see paragraph 50 above) but that procedure has not resulted in a settlement. 58. Paragraphs 8 and 9 of the transitional and concluding provisions of the amending Act provide as follows: “8. (1) Within six months of the entry into force of this Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to the European Court of Human Rights have been rejected due to failure to exhaust the newly created domestic remedies, and whose proceedings are still pending before the national courts, may also bring claims for compensation under section 2b. (2) Within six months of the entry into force of this Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to the European Court of Human Rights have been rejected due to failure to exhaust the newly created domestic remedies, and whose proceedings at national level have already ended, may lodge applications for compensation under Chapter 3a of the [2007 Act]. 9. Persons whose national pretrial or judicial proceedings have ended at the time when this Act comes into force, and less than six months have elapsed since the final decision, shall also have the right to lodge applications for compensation under Chapter 3a of the [2007 Act] within six months of this Act’s entry into force.” 59. Section 4 of the 1988 Act provides that the State is liable for all pecuniary and nonpecuniary damage which is a direct and proximate result of the impugned act, action or omission. However, the Supreme Court of Cassation and the Supreme Administrative Court have held that legal persons, such as commercial companies, cannot suffer nonpecuniary damage and are not entitled to compensation for such damage (see опр. № 271 от 19 март 2010 г. по гр. д. № 8/2010 г., ВКС, III г. о., and реш. № 7861 от 6 юни 2011 г. по адм. д. № 3689/2011 г., ВАС, III о.). 60. Section 9a(1) of the Act, which was inserted in April 2008 and came into force in May 2008, provides that the fee due in respect of cases under the Act is flat and is to be fixed in a tariff adopted by the Government. Under the Tariff of fees collected by the courts under the Code of Civil Procedure, as currently in force, the fee is BGN 10 in respect of firstinstance proceedings, BGN 5 in respect of appellate proceedings, and BGN 5 in respect of cassation proceedings. The fee is payable upfront (see опр. № 12420 от 4 октомври 2011 г. по адм. д. № 12302/2011 г., ВАС, III о.). 61. Section 10(2) of the Act, as worded after May 2008, provides that if the claim is rejected in full, the court must order the claimant to pay the costs of the proceedings. The claimant must also pay those costs if he or she withdraws the claim in its entirety. 62. Section 10(3) of the Act, which was also inserted in April 2008 and came into force in May 2008, provides that if a claim under the Act is allowed fully or in part, the court is to order the defendant to pay the costs of the proceedings and to reimburse the court fee paid by the claimant. The defendant must also pay the claimant the fee of one counsel, if the claimant had retained counsel, pro rata the allowed part of the claim. 63. In their caselaw under section 10(2) and (3), the Supreme Court of Cassation and the Supreme Administrative Court have held that it is a lex specialis in relation to the general rules on costs in the Code of Civil Procedure, and that in the case of a partly rejected claim the defendant authority is not entitled to costs (see опр. № 12023 от 18 октомври 2010 г. по адм. д. № 11620/2010 г., ВАС, I о.; реш. № 785 от 2 март 2011 г. по гр. д. № 556/2010 г. ВКС, III г. о.; and опр. № 525 от 13 октомври 2011 г. по ч. гр. д. № 531/2011 г., ВКС, III г. о.). 64. Article 172 § 2 of the Code of Civil Procedure 1952, superseded on 1 March 2008 by Article 216 § 2 of the Code of Civil Procedure 2007, which is couched in identical terms, provided that when on account of the character of the right in dispute the court’s ruling had to be the same in relation to all coclaimants or codefendants, they were regarded as mandatory coclaimants or codefendants (необходими другари) and the procedural steps taken by one of them produced effects in respect of all of them. 65. Article 519 of the Code of Civil Procedure 2007 provides as follows: “1. The enforcement of money claims against State bodies and municipalities is not allowed. 2. Money claims against State bodies and municipalities shall be paid out of funds allotted for that purpose in their budgets. For this purpose, the writ of execution shall be presented to the financial department of the [State] body in issue. If no funds have been allocated, the higher [State] body shall take the necessary measures to provide such funds at the latest in the next budget.” 66. In March 2010 the Ombudsman of the Republic challenged that provision before the Constitutional Court. He argued, inter alia, that it fell foul of several Articles of the 1991 Constitution, Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. On 22 April 2010 the Constitutional Court, noting that under Article 150 § 3 of the 1991 Constitution the Ombudsman was not entitled to seek from the Constitutional Court declarations that statutes are contrary to international treaties to which Bulgaria is party, declared the request admissible in so far as the allegations of unconstitutionality were concerned and inadmissible in so far as the allegations of lack of compliance with the Convention and its Protocol were concerned. In a judgment of 21 December 2010 (реш. № 15 от 21 декември 2010 г. по к. д. № 9/2010 г., обн. ДВ, бр. 5/2011 г.), the Constitutional Court refused to declare Article 519 unconstitutional in so far as it concerns State bodies, but declared it unconstitutional in so far as it concerns municipalities. 67. The Committee of Ministers examined the amendments to the 2007 and the 1988 Acts at its 1150th meeting, held on 2426 September 2012. Based on an information document drawn up by the Department for the Execution of Judgments of the European Court of Human Rights (CM/Inf/DH(2012)27), the Committee adopted the following decision: “The Deputies 1. took note with interest of the revised action report submitted by the authorities on 30/07/2012 presenting the introduction of an administrative compensatory remedy in the field of excessive length of proceedings, as well as of a draft bill for the introduction of a judicial compensatory remedy in this field; 2. approved the assessment of the administrative remedy and of the draft judicial remedy contained in information document CM/Inf/DH(2012)27 and invited the Bulgarian authorities to provide clarifications as concerns outstanding questions identified in this information document; 3. invited the Bulgarian authorities to adopt rapidly the proposed judicial remedy and to amend the provision governing the retrospective effect of the administrative remedy in order to take into account the requirements of the Court in this respect; 4. decided to declassify information document CM/Inf/DH(2012)27; 5. decided to resume consideration of these cases, including the question of the measures aimed at reducing the length of the judicial proceedings, during one of their next Human Rights meetings and invited the authorities to provide additional information also on this question.” 68. The Committee of Ministers again examined the amendments at its 1157th meeting, held on 46 December 2012. Based on an information document drawn up by the Department for the Execution of Judgments of the European Court of Human Rights (CM/Inf/DH(2012)36), the Committee adopted the following decision: “The Deputies As regards the effective remedies required in this field: 1. recalled their decision adopted during their 1150th meeting (DH) (September 2012) according to which the administrative compensatory remedy recently adopted by the authorities and the judicial compensatory remedy proposed in the field of length of proceedings, taken together, seem capable of meeting the main requirements of the caselaw of the Court; 2. noted with satisfaction the adoption by the Bulgarian Parliament, on 28 November 2012, of the legislative amendments aimed at introducing the abovementioned judicial remedy; noted in this respect that according to the information submitted, the adopted provisions are identical to those already assessed by the Committee, except for those relating to the competent courts; invited the authorities to keep the Committee informed about the entry into force of the adopted provisions and to provide it with their translation; 3. noted with interest the explanations provided by the Bulgarian authorities in relation to some outstanding questions identified in Information document CM/Inf/DH(2012)27, in particular their intention to modify the provision governing the retrospective effect of the administrative remedy in order to ensure its compliance with the requirements of the Court in this respect; invited them to reply to the other outstanding questions contained in Information document CM/Inf/DH(2012)36, namely as concerns the functioning of the administrative compensatory remedy; ... 7. invited the authorities to reply to the other outstanding questions identified in Information document CM/Inf/DH(2012)36 and decided to declassify it.” 69. The information document forming the base for this decision (CM/Inf/DH(2012)36) was drawn up on 27 November 2012 and reads as follows: “... I. Compensatory remedies elaborated in response to the pilot judgments A. Presentation of the adopted administrative compensatory remedy 1. Positive aspects of the administrative compensatory remedy 1. The [2007] Act provides that applications for compensation in respect of excessive length of proceedings are to be addressed to the Minister of Justice through the Supreme Judicial Council’s Inspectorate. When examining these claims, the Minister (or a person authorised by him or her) is assisted by a panel made up of an Inspector and two experts working in a special unit of that Inspectorate. The timelimit for the examination of applications is six months. The procedure is free of charge for the claimants. 2. The applications are to be directed ‘against acts, actions or omissions of judicial authorities’, breaching the right to have a case heard and decided within a reasonable time. The authorities have indicated that this wording would not preclude the examination of applications concerning delays that do not stem from omissions by individual judges or judicial officers but, for instance, from an overburdening of the judicial system as a whole. 3. The criteria which must be taken into account when examining applications are the overall length of the proceedings, the delays attributable to the authorities, as well as the delays attributable to the applicant and his representative ([s]ection 60d(2)(5)). The merits of the application and the amount of compensation are to be determined in light of the Court’s caselaw. 4. The compensation is to be paid out of the budget of the Ministry of Justice. The Ministry of Finance must then restore to the budget of the Ministry of Justice the funds paid as compensation each quarter. Assessment: 5. The law governing the administrative remedy imposes on the authority competent to examine applications for compensation the obligation to take into account the overall length of the proceedings and the conduct of the parties and of the competent authorities, in line with the Court’s caselaw. The legal or factual complexity of the case and the stakes involved in the dispute are not mentioned explicitly, but the general reference to the Court’s case-law should be enough to cause them to be taken into account as well. The new provisions also seem to take into account the caselaw of the Court as to, inter alia, the promptness of the examination, the absence of charges for the introduction of a claim and the existence of specific budgetary provisions. In conclusion, this administrative remedy takes into account, to a very large extent, the criteria used by the Court for the assessment of the excessive length of proceedings. 2. Questions raised by the administrative compensatory remedy 6. The administrative remedy put in place raises a number of questions, namely: (a) the fact that it does not apply to proceedings which are pending, (b) the wording of the provision governing the retrospective effect of the remedy and (c) the compliance of the remedy with the institutional requirements of Article 13 of the Convention, (d) the compensation ceiling and (e) the payment of compensation. In this respect, it should be recalled that the Court has constantly indicated in its caselaw that even if a particular remedy does not fully satisfy the requirements of Article 13, the aggregate of remedies under domestic law may satisfy these requirements. Therefore, the questions raised by this remedy and its weaknesses may be examined also in the light of the judicial compensatory remedy adopted at first reading by the Bulgarian Parliament (for a detailed presentation of the judicial remedy, see paragraphs 2237 below). (a) Inapplicability of the administrative remedy to proceedings which are still pending 7. The administrative remedy provides that only parties to completed judicial and pre-trial proceedings are entitled to introduce applications for compensation within six months of the end of the proceedings in question. If the proceedings are still pending, the parties have to wait for them to end in order to submit a claim to the Minister of Justice, whatever the delays already accumulated. In contrast, it appears from the information presented by the Bulgarian authorities that the proposed judicial remedy for length of proceedings would also be applicable to proceedings which are still pending. Assessment: 8. It should be recalled that the Court has already held that the impossibility to use a remedy against the excessive length of proceedings which are still pending may render such a remedy ineffective. It should also be recalled that the pilot judgments require the introduction, within the timelimit set in the operative part of the judgments, of a remedy that fully complies with the Court’s caselaw. It thus appears that the introduction of just an administrative remedy with limited scope is not sufficient to ensure the full execution of the pilot judgments. This lacuna could, however, be overcome by the introduction, without delay, of a judicial remedy which fully complies with the requirements of the Court’s caselaw, as the Bulgarian authorities seem to have foreseen. (b) Wording of the provision governing the retrospective effect of the remedy 9. Paragraph 34(1) of the transitional provisions of the [2007 Act], which concerns the retrospective effect of the new remedy, is worded as follows (emphasis added): ‘Within six months of the entry into force of Chapter 3a or notification by the Registry of the European Court of Human Rights, persons who have lodged with the European Court of Human Rights applications concerning breaches of their right to have their cases examined and decided within a reasonable time may submit applications under Chapter 3a, except in cases where the Court has already given judgment on the merits of the application or has rejected the application as inadmissible.’ Assessment: 10. The current wording of paragraph 34 suggests that the new remedy will not be available to applicants whose applications are declared inadmissible by the Court, and this without making the distinction between the different grounds of inadmissibility. This provision should therefore be amended in order to indicate clearly that it will be available to persons whose applications, introduced before its adoption, are declared inadmissible for nonexhaustion of the domestic remedies. Thus, if the Court confirms the effectiveness of the new remedy or of the aggregate of new remedies, it will be able to declare inadmissible the applications pending before it for non-exhaustion of this remedy/these remedies and the applicants concerned will be able to introduce their applications for compensation at the domestic level. The authorities have indicated that this provision will be amended in the near future in order to ensure that applicants whose applications have been declared inadmissible for nonexhaustion of the domestic remedies will be able to use effectively this new remedy at the domestic level. Information is awaited on the timetable for the adoption of this amendment. (c) Compliance of the remedy with the institutional requirements of Article 13 of the Convention 11. The new provisions of the [2007] Act describe in considerable detail the procedure for the examination of applications for compensation for excessive length of proceedings. The relevant facts for the examination of a complaint concerning excessive length of proceedings are to be established by a panel of one Inspector from the Supreme Judicial Council’s Inspectorate and two experts working in a special unit of this Inspectorate. This panel communicates its findings to the Minister or to the person whom he or she has authorised to act on his or her behalf. 12. If the Minister of Justice or the person designated by him or her finds that the reasonable-time requirement has not been breached, he or she has to reject the application. If the Minister or the person designated by him or her finds, on the contrary, that the reasonable-time requirement has been breached, he or she has to fix the amount of compensation in line with the Court’s case-law and propose a settlement to the claimant. Claimants who have accepted the settlement and have obtained compensation under that procedure cannot claim compensation in judicial proceedings. 13. The [2007] Act does not contain specific provisions concerning a possible judicial review of the decisions rejecting applications or proposing a settlement. Assessment: 14. It should be recalled that the authority to which Article 13 refers does not need to be a judicial one for a remedy to be considered effective under the Court’s caselaw. However, the effectiveness of the remedy before that authority is assessed by reference to the guarantees that it affords (see, among other authorities, Leander [v.] Sweden, 26 March 1987, § 77, Series A No. 116). In particular, the decisionmaking body needs to have a ‘sufficiently independent standpoint’ (see, among other authorities, Silver and [O]thers [v.] the United Kingdom, 25 March 1983, § 116, Series A No. 61). It should also be noted that the Court requires in principle that the authority in charge of the implementation of a domestic remedy be able to come up with a ‘legally binding decision’, some element of enforceability being generally required (see, among other authorities, Leander, cited above, § 82). As said above, the caselaw also indicates that even if a single remedy does not fully satisfy the requirements of Article 13, the aggregate of remedies under domestic law may do so (see, among other authorities, Leander, cited above, § 77). 15. In the light of the information currently available, it is not clearly established whether the new administrative procedure under the [2007] Act can be regarded as providing alone the required ‘element of enforceability’ and sufficient ‘independence’. However, for the reasons set out below, if an effective judicial remedy is introduced without delay, the aggregate of remedies could in principle meet the institutional requirements of Article 13. 16. According to the authorities, the settlements proposed by the Minister of Justice should be considered as legally binding decisions, because under the [2007]Act, as amended, the Minister of Finance has to guarantee to the Ministry of Justice funds up to the amounts paid in compensation to claimants. However, a question remains whether the decision of the Minister of Justice taken on applications for compensation, whether positive or negative, can be considered to have itself a legally binding effect in cases in which no settlement has been concluded. In any event, according to the draft bill for the amendment of the [1988 Act] (aiming at the introduction of a judicial remedy), unsuccessful claimants in the procedure before the Minister of Justice and claimants who have refused to conclude a settlement, will have the right to request compensation in the context of judicial proceedings (see paragraphs 29 and 30 below).Thus, it seems that – if the foreseen judicial remedy is adopted – in the absence of a settlement the claim could be resolved by a final and legally binding decision in the context of judicial proceedings. 17. As to the issue of independence of the decisionmaking body, it should be recalled that, in a case against the Czech Republic, the Court accepted that an administrative remedy was effective because the persons who were not satisfied with the decision of the Ministry of Justice on their applications for compensation could seek compensation in the context of judicial proceedings (see Vokurka [v.] the Czech Republic (dec.), No. 40552/02, § 60, 16 October 2007). Thus, if only an administrative remedy is introduced, the availability of judicial review of the decisions of the Minister of Justice may prove crucial for the remedy to meet the institutional requirements of the Court’s caselaw. By contrast, if an effective judicial remedy is introduced without delay as foreseen by the Bulgarian authorities, the aggregate of the two remedies could in principle meet the institutional requirements of Article 13, even in the absence of judicial review of the minister’s decisions. (d) Compensation ceiling 18. The [2007 Act] provides that compensation cannot exceed 10,000 Bulgarian levs (BGN) (5,112.92 euros (EUR)). Assessment: 19. As concerns the abovementioned compensation ceiling, there may be situations in which that sum will fall short of the amounts awarded in compensation by the Court. That said sums of up to EUR 5 112.92 appear sufficient, in the light of the Court’s judgments against Bulgaria concerning length of proceedings, to compensate adequately the nonpecuniary damage arising in the majority of cases concerning excessive length of proceedings in Bulgaria. Moreover, if an effective judicial remedy is introduced without delay as foreseen by the Bulgarian authorities, the aggregate of newly introduced remedies would normally be sufficient to provide an adequate level of compensation in all situations, as the draft law concerning the introduction of judicial remedy does not provide for a compensation ceiling. (e) Timelimit and procedure for payment of compensation 20. The [2007] Act makes provision for a specific funding mechanism for the payment of compensations for excessive length of procedure (see paragraph 4 above). It does not seem to contain any specific provisions concerning the procedure for payment of compensation. In their reply to the questions identified in the memorandum CM/Inf/DH(2012)27 (see DHDD(2012)977), the authorities indicated that budgetary funds and other measures have been foreseen in order to avoid delays in the payment of compensation. Assessment: 21. The Court’s caselaw requires that payment should normally be made not later than six months after a judgment or a decision in that respect has become enforceable. Given the importance attached by the Court to this requirement, it seems useful to provide the Committee with detailed information on the payment procedure and on the timelimits in which the payments are made in practice. B. Presentation of the proposed judicial remedy 22. The following presentation is based on the translation of the draft bill for the amendment of the 1988 Act presented by the Bulgarian authorities on 30/07/2012 (see DHDD(2012)732). The judicial remedy adopted at first reading by the Bulgarian Parliament seems to comply in principle with the main requirements of the Court’s case-law in the field of compensatory remedies for excessive length of proceedings. However, some clarifications still seem necessary. (a) Scope of the remedy 23. Section 2b of the draft bill for the amendment of the [1988 Act] provides that the State is responsible for damages caused to persons and legal entities through breaches, by the judicial authorities, of the right enshrined in Article 6 § 1 of the Convention to have their cases examined and resolved within a reasonable time. The claims have to be examined under the rules of the Code of Civil Procedure. The court have to take into account the legal and factual complexity of the case, the conduct of the claimant, the conduct of the other parties and participants in the proceedings and the conduct of the competent authorities, the stakes involved in the dispute, as well as the overall length of the proceedings. The introduction of a claim for damages while the proceedings are still pending is not an obstacle to introducing a claim for damages after the end of these proceedings. The authorities have confirmed that the scope of the judicial remedy comprises the actions of the prosecutors and the investigating magistrates, as well as the actions of the police investigators (to which makes reference paragraph 9 of the transitional and final provisions of the draft bill for the amendment of the [1988 Act]). 24. As concerns the question of the applicability of the judicial remedy to the procedures concerning execution of court decisions, it should be noted that the majority of the execution proceedings in Bulgaria are conducted by private bailiffs whose civil responsibility can be engaged in a case of damage caused by their activity. As far as the public bailiffs are concerned, although their status is governed by the [2007] Act, they are not magistrates. Therefore, it is not clear whether their actions are covered or not by the scope of the proposed judicial remedy. Assessment: 25. The scope of the proposed judicial remedy seems to comply with the relevant requirements of the Court’s caselaw. The draft Section 2b refers to breaches of the reasonable time requirement attributable to the judicial authorities. Although this provision does not mention explicitly the delays caused by the police investigators, the Bulgarian authorities have indicated that the delays which have occurred at the stage of the preliminary investigation and are attributable to the police investigators will fall within the scope of the judicial remedy. It would be useful to clarify whether this is so also in respect of the actions of the public bailiffs responsible for the execution of a court decision. (b) Procedure according to which a claim should be examined: length and applicable court fees 26. The draft bill for the amendment of the [1988 Act] provides that claims will be examined under the rules of the Code of Civil Procedure [2007]. Under Bulgarian law, a civil dispute can be examined by three levels of jurisdiction. 27. Under the provisions of [s]ection 10 of the [1988 Act], a flatrate court fee is due to file a claim under the Act which is either BGN 10 for physical persons or BGN 25 for legal persons (EUR 5.12 or EUR 12.82). The claimants must pay all the costs incurred in the proceedings only if their claim has been entirely rejected or if they withdraw or waive their claim entirely. If the court decides in favour of the claim, in whole or in part, the defendant should be ordered to pay the costs relating to the proceedings, as well as the claimant’s court fees. If a claim is granted only in part, the claimant receives only partial reimbursement of the lawyer’s fees. The authorities have specified that according to domestic caselaw, if a claim is partially rejected, the claimant should not be required to pay the part of the lawyer’s fees incurred by the defendant. Assessment: 28. One of the principles set out in the pilot judgments is that a claim for compensation must be examined within a reasonable time. The Court suggested in this respect that ‘consideration may be given to subjecting the examination of such claims to special rules that differ from those governing ordinary claims for damages, to avert the risk that, if examined under the general rules of civil procedure, the remedy may not be sufficiently swift’. However, the introduction of such special rules was not set out as a requirement for the effectiveness of the future remedy or aggregate of remedies. Therefore, the absence of such special rules does not per se put into question the efficiency of the proposed judicial remedy. Moreover, the adopted administrative remedy, if correctly implemented, could provide swift redress to many potential claimants. 29. As concerns the requirement set out in the pilot judgments that the rules governing costs must not place an excessive burden on litigants where their claim is justified, it seems that, even if a claim has been partly rejected, successful claimants could not be required to pay costs relating to the proceedings and the part of the lawyer’s fees incurred by the defendant and that their court fees are to be reimbursed. (c) Need to exhaust the administrative remedy in some situations 30. Parties to completed judicial proceedings will need to exhaust the administrative remedy before introducing a judicial claim. According to [s]ection 8(2) of the draft bill for the amendment of the 1988 Act, the judicial remedy is not available to claimants who have concluded a settlement in the administrative procedure. Assessment: 31. As said above, one of the principles set out in the pilot judgments is that a claim for compensation must be examined within a reasonable time. It seems that the requirement for a certain category of claimants to exhaust the administrative remedy before introducing a judicial remedy will not have a considerable impact on the promptness of the compensation process as a whole, because it seems that the administrative phase could be very short (cf. the sixmonth’ timelimit for the examination of applications, paragraph 1 above). (d) Retrospective effect 32. Paragraph 8(2) of the transitional and final provisions of the draft bill for the amendment of the [1988 Act] provides that persons whose applications have been rejected by the Court on the ground of nonexhaustion of the newly introduced domestic remedies and who have been parties in completed judicial proceedings will be able to introduce administrative applications for compensation within six months of the entry into force of the amendments or within six months of the notification by the Registry of the Court. Under the same conditions, applicants to the Court who have seen their application rejected for nonexhaustion of the domestic remedies and who are parties in pending proceedings at the domestic level will be able to introduce judicial claims for compensation. 33. According to paragraph 9 of the transitional and final provisions of the draft bill for the amendment of the [1988 Act], parties to proceedings which have been completed less than six months before the entry into force of the draft bill will also have access to the judicial remedy. Assessment: 34. The provisions concerning the scope of the retrospective effect of the proposed judicial remedy seem to comply with the recommendations given by the Court under Article 46 in the pilot judgments. (e) Timelimit and procedure for payment of compensation 35. Unlike the [2007] Act, the draft bill for the amendment of the [1988 Act] does not seem to provide for specific budgetary provisions concerning the payment of compensations for excessive length of proceedings. In their response to the questions identified in the memorandum CM/Inf/DH(2012)27 (see DHDD(2012)977), the authorities indicated that it is foreseen that the amendments to the [1988 Act] will be accompanied by the provision of budgetary funds to the institutions concerned. 36. It seems that according to the relevant budgetary rules, the payment of compensation granted in the event of successful claim against a court/the prosecution should be made out of the budget of the court in question/of the prosecution. Likewise, Article 250 of the Code of Civil Procedure provides that persons who have financial claims against public institutions have to submit the writ of execution to the institution’s financial department in order to receive payment. Payments are made out of the funds earmarked for that purpose in the institution’s budget. If there are no funds available, a budgetary provision for this purpose should be made available the following year. Assessment: 37. As said above in paragraph 21, the Court’s caselaw requires that payment should normally be made not later than six months after a judgment or a decision in that respect has become enforceable. Given the importance attached by the Court to this requirement, it seems useful to provide the Committee, in due time, with information on the exact content of the budgetary provisions taken by the authorities in order to ensure the funding of compensations for excessive length of proceedings and on any other measure aimed at avoiding late payment of compensation. ... Conclusion 65. In the light of the information available, it seems that the administrative remedy which entered into force on [1 October 2012] represents a very positive step forward towards the execution of the pilot judgments of the Court. This remedy does not in itself comply with all the requirements of the Convention, but most of the outstanding questions could be addressed by the proposed judicial remedy in the field of excessive length of proceedings, if the latter is adopted without delay. Thus, it seems that the aggregate of these two remedies could in principle comply with the main requirements of the Court’s caselaw. Therefore, it seems useful to invite the Bulgarian authorities to adopt without delay the judicial remedy proposed and to encourage them to take the necessary measures in order to ensure for themselves that the new remedies will be applied in compliance with this case-law. Likewise, it seems useful to encourage the authorities to continue with their works regarding the introduction of a remedy which allows requesting the acceleration of the criminal proceedings. ...” | 0 |
dev | 001-22196 | ENG | GBR | ADMISSIBILITY | 2,002 | DE PONTE NASCIMENTO v. THE UNITED KINGDOM | 3 | Inadmissible | Georg Ress;Nicolas Bratza | The applicant, Jose Manuel de Ponte Nascimento, is a Portuguese national, who was born in 1966, and lives in Madeira. He is represented before the Court by Mr Andrew Christodoulou, a solicitor, and Mr David Williams, counsel, both practising in London. The respondent Government are represented by their agent, Ms J Foakes of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. On 4 June 1994, the applicant was knocked off his bicycle by a car. He started proceedings against the driver of the car on 3 June 1997. The applicant returned to live in Madeira. On 22 October 1997, the Clerkenwell County Court ordered the applicant to file further medical evidence in support of his claim within 28 days, failing which any particulars of injury not substantiated by a medical report would be struck out. Further medical evidence was filed on behalf of the applicant, some within 28 days and some later. The defendant to the proceedings made an application that the particulars of injury be struck out for failure to comply with the order of 22 October 1997. The application was heard on 29 January 1998 by District Judge Southcombe, who struck out the particulars of injury. The practical effect of striking out the particulars of injury was that the applicant could no longer claim general damages or damages for loss of earnings, which represented by far the major part of his claim. The applicant appealed against the decision of District Judge Southcombe. On 19 June 1998, the appeal was heard by Recorder Knowles. She dismissed the appeal. The applicant applied to the Court of Appeal for leave to appeal. The hearing began on 15 April 1999 and continued on 22 April 1999. The Court of Appeal reserved its judgment. On 15 June 1999, the Court of Appeal handed down a judgment refusing permission to appeal. Each of the three Lord Justices of Appeal gave a separate judgment. Sir Iain Glidewell considered that the Recorder had applied the proper test and exercised her discretion correctly, and that permission to appeal should accordingly be refused. Lord Justice Clarke considered that the District Judge and the Recorder had failed to apply the relevant legal principles correctly, and that permission to appeal should be granted, because otherwise no court would have considered the exercise of its discretion on correct principles. Lord Justice Chadwick considered that the Recorder had identified the applicable principles but failed to apply them, but that this failure did not raise any question of principle within the terms of either paragraph 20 of the practice direction of 17 November 1998 or paragraph 2.19.1 of the consolidated practice direction of 26 April 1999 (see below). He further considered that the case was not one which for some other reason (practice direction of 17 November 1998), or some other compelling reason (consolidated practice direction of 26 April 1999), should be considered by the Court of Appeal. Lord Justice Chadwick stated at pp. 39-40: “Personal injury litigation should not be conducted on the basis that the rules peculiar to it can be treated as of no importance. To do so is to put at risk one of the objects which those rules are intended to promote; that is to say, that the medical evidence on which the plaintiff relies can be properly assessed by the defendant at as early a stage as possible. Failure to make early disclosure of the plaintiff’s medical condition puts a fair trial at risk. I can see no basis upon which to hold that justice demands that the defendant should suffer the risk that any trial which could now be held would be less than fair. On the contrary, it seems to me that the balance of justice lies in upholding the orders which have been made.” Lord Justice Chadwick concluded that permission to appeal should be refused. He declined to take a view on the merits which he regarded as finely balanced. On 17 November 1998, Lord Woolf, Master of the Rolls, issued a practice direction relating, inter alia, to leave to appeal to the Court of Appeal (reported at [1999] 1 Weekly Law Reports 2). Practice Directions do not have formal legal effect but are followed by the judiciary, representing as they do the collective view of senior judges and, in time, the terms of Practice Directions become embodied in decisions of the higher courts, which do have binding effect. Paragraph 10 of the practice direction provided, under the heading “The General Test for Leave”: “The general rule applied by the Court of Appeal, and thus the relevant basis for first instance courts deciding whether to grant leave, is that leave will be given unless an appeal would have no realistic prospect of success.” Paragraph 20 of the practice direction contained new guidance, in the following terms (so far as material): “Where there has already been one unsuccessful appeal to a court ... against the decision being challenged, for example from a District Judge to a Circuit Judge or from a Master to a High Court Judge, and the application is for permission for a further appeal to the Court of Appeal, a more restrictive approach to the test for permission to appeal should be adopted. Permission should be granted only if the case raises an important point of principle or practice or the case is one which for some other compelling reason should be considered by the Court of Appeal.” On 26 April 1999, the Court of Appeal issued a practice direction consolidating, with some amendments, all of the principal practice directions which applied to proceedings in the Court of Appeal (Civil Division). Paragraphs 10 and 20 of the practice direction of 17 November 1998 were reproduced in similar terms in the consolidated practice direction, with one significant change: in paragraph 20 (new paragraph 2.19.1), the word “important” was omitted from the final sentence. | 0 |
dev | 001-4618 | ENG | POL | ADMISSIBILITY | 1,999 | M.P. v. POLAND | 4 | Inadmissible | Matti Pellonpää | The applicant is a Polish national born in 1952. He is a milling machinist and is currently detained in Włodawa prison. Between 1977 and 1991 the applicant served a prison sentence. In 1986 he informed the medical service of Strzelce Opolskie prison that he had pain in his testicles. The applicant submits that after his problems with the testicles had started in 1986, until his release on probation in 1991 he was treated only by a dermatologist and a surgeon while his condition had called for a treatment by an urologist. In August 1992 the applicant underwent a surgery in the Ostrowiec Świętokrzyski Hospital. It resulted in the removal of his left testicle on which a cyst had been found. On 4 April 1994 the applicant was detained after he had attempted to commit a murder. On 15 April 1994 the applicant was examined by a physician but did not complain about any significant medical problems. Between 14 July 1994 and 28 September 1994 the applicant was detained in the psychiatric ward of the Cracow Detention Centre Hospital where he underwent observation. During his stay in that facility the applicant was also examined by a surgeon who diagnosed an infection of the testicle. The surgeon prescribed antibiotics and decided that the applicant qualified for a surgery. However, the applicant informed the Director of the Cracow Detention Centre Hospital that he would agree to the surgery only after the surgeon who was to perform it confirmed in writing that it would not cause any damage to the testicle and that there would be no further metastasis of the cyst. That statement was considered by the prison health service as a refusal to undergo the surgery. In the meantime, the applicant sent letters to the Governor of Załęże prison, the Director of the Cracow Detention Centre Hospital and the Opatów District Prosecutor, in which he requested that he be examined by an urologist and an oncologist. On 24 August 1994 the Opatów District Prosecutor informed the applicant that, according to the information he had received from the Cracow Detention Centre Hospital, the applicant’s condition did not call for an examination by an oncologist and that he would be offered surgery as soon as he agreed to it. On 29 September 1994 the applicant was transferred from the Cracow Detention Centre Hospital to Rzeszów prison. On 4 October 1994 the applicant was admitted to the urology clinic of the Rzeszów Regional Hospital. On 10 October 1994 he was examined by an urologist who recommended that the applicant undergo surgery. In a letter of 14 October 1994, the Deputy Director of the Cracow Detention Centre Hospital informed the Governor of Rzeszów prison that the applicant could undergo a surgical treatment in that facility after having agreed to it. Between 15 and 22 November 1994 the applicant remained in the Cracow Detention Centre Hospital. On 19 December 1994 the Penitentiary Judge replied to the applicant’s letter of 2 November 1994 in which he had claimed that his state of health had called for his release from the prison. The judge pointed out that after the applicant’s brother had raised a complaint in that regard, the Central Prison Board together with the Chief Medical Officer of the prison service had conducted an investigation which had showed that the complaint was ill-founded. Moreover, the applicant had not reported any significant problems during his first medical examination on 15 April 1994. The judge also considered that, after the applicant had complained about his state of health, he had received proper medical treatment. He further observed that the applicant himself had made surgery impossible since he had refused to undergo it without a written guarantee that it would be successful, a statement which could not be made by any health service. On 28 December 1994 the applicant had an ultrasound scan of the testicle administered in the surgical ward of the Łódz Prison Hospital. It showed a presence of a cyst. In a letter of 21 January 1995 the Penitentiary Judge informed the applicant that his requests for oncological treatment were unfounded as his medical record showed that his condition was not due to cancer. On 20 June 1995 the applicant was examined by an urologist and agreed to the surgery. On 22 June 1995 the Director of the Rzeszów Prison Surgery issued a health certificate stating that the applicant’s testicle should be removed in the urological ward of the Łódz Prison Hospital. On 4 September 1995 the Director of the Central Prison Board informed the applicant that his complaint about inadequate medical treatment in the Rzeszów Prison Surgery was ill-founded. On 5 December 1995 the applicant was examined in the urological ward of the Łódz Prison Hospital. On 29 January 1996 the applicant filed with the Rzeszów Regional Court an action against the State Treasury in which he claimed compensation for inadequate medical treatment provided by the prison health service. In particular, he claimed that his medical problems with his testicles had started in 1986 while he had been detained and had worked in unhealthy conditions. The applicant further contended that he had been treated by doctors with inappropriate specialisations and had been refused surgical treatment. On 7 February 1996 the Regional Court exempted the applicant from the court fees. On an unspecified later date he was granted legal aid. On 21 March 1996 an urological surgeon issued an expert opinion on the applicant’s state of health, as requested by the Regional Court. He stated that the applicant had received adequate medical treatment during his detention. The opinion referred to an ultrasound examination of the applicant’s testicle administered in April 1995 in the urological ward of the Rzeszów Regional Hospital and to an examination on 5 December 1995 in the urological ward of the Łódz Prison Hospital. It pointed out that those examinations had showed that the applicant’s testicle was in a good condition, which proved the adequacy of the pharmaceutical treatment received by the applicant. On 14 April 1996 the applicant submitted to the Regional Court written pleadings in which he challenged the conclusion of the expert opinion and requested that he be again examined by doctors. On an unspecified date the court ordered that the applicant be re- examined by another court-appointed expert. The examination took place on 26 June 1996 in the urological ward of the Rzeszów Regional Hospital. It consisted of two physical examinations of the applicant’s testicle and prostate gland and an ultrasound of the testicle. The expert opinion issued on the basis of those examinations concluded that the applicant had received proper medical treatment during his detention and that his condition did not call for either surgical or further pharmaceutical treatment. On 17 May 1996, the Penitentiary Judge informed the applicant that he considered his complaint about inadequate medical care, which the applicant had lodged during an interview with the judge held on 30 April 1996, to be ill-founded. On 15 July 1996 the Rzeszów Regional Court dismissed the applicant’s action, considering that the evidence before it had proved the applicant’s claim to be unfounded. On 14 November 1996 the Rzeszów Court of Appeal dismissed the applicant’s appeal against the judgment of the Regional Court. On 19 March 1997 the Penitentiary Judge informed the applicant that he would not grant his request to be examined by a medical panel since the medical opinion issued on 17 March 1997 by the Rzeszów Prison Surgery had stated that the applicant could be treated in that facility. Since 1 April 1997 the applicant has complained about his state of health to numerous institutions including, inter alia, the President of Poland, the Ombudsman, a member of parliament and the prison administration. | 0 |
dev | 001-76457 | ENG | UKR | CHAMBER | 2,006 | CASE OF PRONINA v. UKRAINE | 2 | Violation of Art. 6-1;Non-pecuniary damage - financial award | null | 8. The applicant was born in 1944 and lives in the city of Yalta, Ukraine. 9. In March 2000 the applicant lodged a claim with the Yalta City Court against the local social welfare department, challenging the refusal of the latter to award her a higher pension. In her claim, the applicant maintained that, under Article 46 of the Constitution and Article 19 of the Law on Pensions, her pension should not be lower than the minimum living standard. Therefore, given that her pension was fixed at UAH 74.70 per month and the minimum living standard was established at UAH 118.30 per month, the applicant claimed a corresponding increase in her pension. 10. On 4 April 2000 the court decided against the applicant. The court established in particular that, although Article 19 of the Law on Pensions provided the possibility for a higher pension, it also limited the amount to a maximum sum which the applicant in fact received. The court did not consider the applicant’s argument about the inconsistency of the amount of her pension with the minimum living standard guaranteed by Article 46 of the Constitution. 11. The applicant appealed against the judgment of the Yalta City Court to the Supreme Court of the Autonomous Republic of Crimea. In her cassation appeal the applicant repeatedly claimed that her pension should not be lower than the minimum living standard, as defined in Article 46 of the Constitution, and that the constitutional provisions have supremacy over the provisions of normal laws. 12. On 3 July 2000 the Supreme Court of the Autonomous Republic of Crimea upheld the decision of the first instance court. The court did not consider the applicant’s appeal from the viewpoint of Article 46 of the Constitution. 13. The relevant provisions read as follows: “... The norms of the Constitution of Ukraine are norms of direct effect. Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of the Constitution of Ukraine are guaranteed.” “... Pensions and other types of social payments and assistance that are the principal sources of subsistence, shall ensure a standard of living not lower than the minimum living standard (прожитковий мінімум) established by law.” “The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine. The Constitutional Court of Ukraine decides on issues of conformity of laws and other legal acts with the Constitution of Ukraine, and provides the official interpretation of the Constitution of Ukraine and the laws of Ukraine.” “The jurisdiction of the Constitutional Court of Ukraine encompasses: 1) deciding on issues of conformity with the Constitution of Ukraine (the constitutionality) of the following: - laws and other legal acts of the Verkhovna Rada of Ukraine; - acts of the President of Ukraine; - acts of the Cabinet of Ministers of Ukraine; - legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea. These issues are considered on the appeals of: the President of Ukraine; at least forty-five National Deputies of Ukraine; the Supreme Court of Ukraine; the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine; the Verkhovna Rada of the Autonomous Republic of Crimea; 2) the official interpretation of the Constitution of Ukraine and the laws of Ukraine; On issues envisaged by this Article, the Constitutional Court of Ukraine adopts decisions that are mandatory for execution throughout the territory of Ukraine, that are final and shall not be appealed.” 14. Article 11 of the Code provided that courts should decide a case on the basis of the Constitution, other legislative acts or the international treaties of Ukraine, under the procedure provided for in the Code. Article 202 of the Code foresaw that a court decision should mention the facts of the case established by the court, evidence on which the court’s conclusion was based, and reasons for admitting or rejecting this or that argument, as well as the laws applied by the court. 15. The relevant provisions read as follows: “When, in the proceedings before the courts of general jurisdiction, a dispute arises over the constitutionality of norms applied by a court, the examination of the case shall be suspended. In such circumstances, constitutional proceedings shall be initiated and the case shall be considered by the Constitutional Court of Ukraine immediately.” “The ground for a constitutional appeal in order to obtain an official interpretation of the Constitution of Ukraine and laws of Ukraine is a lack of uniform application of provisions of the Constitution or laws by the courts of Ukraine, or other organs of State authorities, if the subject of the right to a constitutional appeal considers that it may lead or has led to a violation of his or her constitutional rights and freedoms.” 16. Article 19 of this Law provides as relevant: “Old age pensions shall be established in the amount of 55% of the salary, but not less then the minimum amount of pensions (мінімальний розмір пенсії)... The minimum amount of an old age pension shall be established in relation to the minimum consumer budget (мінімальний споживчий бюджет). In case of economic crisis and a fall in production, the minimum amount of pensions shall be established in an amount which is not lower than the basic standard of income (межа малозабезпеченості). ... The maximum amount of an old age pension shall not exceed ... three times the minimum amount of pensions ...” 17. The Law set the basic monthly standard of income (межа малозабезпеченості) at UAH 90.7 for the first half of 1999, and UAH 118.3 for the second half. 18. This Law set the minimum amount of pensions (мінімальний розмір пенсії) at UAH 24.9. 19. The relevant parts of the Resolution read as follows: “2. Since the Constitution of Ukraine, as stipulated in its Article 8, has the highest legal force, and its norms are norms of direct effect, the courts, in consideration of concrete cases, shall assess the content of any law or any other legal act for its compliance with the Constitution of Ukraine and, where necessary, shall apply the Constitution as an act of direct effect. The court decisions shall be based on the Constitution and the current legislation which does not contradict it. In case of doubt as to the compliance with the Constitution of Ukraine of a particular law, as applied or applicable in a case, the court, upon the motion of the parties to the proceedings or of its own motion, shall suspend consideration of the case and apply, by way of a reasoned decision (ruling), to the Supreme Court of Ukraine which, under Article 150 of the Constitution, may raise before the Constitutional Court the issue of compliance of laws and other legal acts with the Constitution. Such decisions can be taken by the first instance court, court of cassation or the court which considers a supervisory review...” | 1 |
dev | 001-118334 | ENG | SRB | CHAMBER | 2,013 | CASE OF ANĐELKOVIĆ v. SERBIA | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Just satisfaction dismissed (out of time) | András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen | 5. The applicant was born in 1958 and lives in Bor. 6. On 26 October 2004 the applicant filed a civil claim against his employer, company Z, seeking the payment of outstanding holiday pay (regres za korišćenje godišnjeg odmora) due for 2002 and 2003, the difference between the salary he had received and the minimum salary payable under collective agreements in force at the company for the period from October 2001 to May 2004, statutory interest and legal costs. 7. Following a remittal in 2005, on 15 March 2006 the Bor Municipal Court (Opštinski sud) ruled in favour of the applicant. As regards the outstanding holiday pay, the court observed that company Z had not paid the holiday pay due for 2002 and 2003 to any of its employees, as its alleged parent company had been encountering financial difficulties. The court, however, found these facts to be irrelevant to the outcome of the applicant’s claim, as according to the Labour Act and enterprise bargaining agreements in force at the company he had been entitled to holiday pay regardless of the level of his employer’s profits. 8. On 3 September 2007 the Zaječar District Court (Okružni sud) reversed the part of the Municipal Court’s judgment which concerned holiday pay and legal costs, while upholding the remainder. The District Court based its refusal on the finding, disregarding applicable employment law, that company Z had not paid outstanding holiday pay to any of its employees and therefore that “to accept the applicant’s claim would mean that the applicant would be treated more favourably than his colleagues, who had not received payment of outstanding holiday pay from their employer either”. No further recourse against this judgment was available to the applicant. 9. It would appear that between 2004 and 2009 a number of the applicant’s colleagues lodged the same or similar claims to those of the applicant with the Municipal Court. 10. On 28 April and 2 June 2009 the Municipal Court rejected the claims of the applicant’s colleagues for the same reasons as the District Court had in the applicant’s case. However, the Belgrade Court of Appeal, which, following reforms to the judicial system had become the competent appeal court, overturned both judgments on 29 April and 30 June 2010, respectively. In so doing, the appeal court found that the claimants had been entitled to their outstanding holiday pay by applicable domestic law (see paragraphs 10-13 below), finding that the reasons for judgment given by the Municipal Court in their cases were irrelevant and that it had erred in law in rendering the judgments. 11. Article 90 paragraph 3 stipulated that collective bargaining agreements, labour regulations or employment contracts may provide for pay or benefits to employees over and above the rights set out in the Act. 12. Pursuant to clause 30a(1.2), an employee shall be entitled to additional pay, including to holiday pay, which shall amount to a monthly average wage in the relevant industrial sector. Holiday pay shall be paid in full to employees who are entitled to 18 days of annual leave, and shall be reduced proportionally if the employee is entitled to fewer days of annual leave. 13. The text of clause 4(2) of this agreement corresponds to clause 30 of the 2001 Agreement. 14. The text of clause 116(1) of this agreement corresponds to clause 30 of the 2001 Agreement. Additionally, clause 116(4) provides that in case of its financial inability to pay holiday pay as a lump sum, the employer may pay it in several instalments. | 1 |
dev | 001-79800 | ENG | RUS | CHAMBER | 2,007 | CASE OF STANISLAV VOLKOV v. RUSSIA | 4 | Violation of Art. 6;Violation of P1-1 | Christos Rozakis | 4. The applicant was born in 1968 and lives in the town of Cherkessk of the Karachayevo-Cherkessiya Republic. 5. According to the applicant, on 13 July 1997 the police instituted administrative proceedings against him for having disobeyed a lawful order of a police officer and arrested him. On the following day the Elista Town Court of the Kalmykiya Republic discontinued the proceedings because there was no indication of an administrative offence. The decision of the Town Court did not contain any reference to the applicant's alleged deprivation of liberty. 6. The applicant submitted that after the hearing the policemen brought him back to a police station. They handcuffed him to a heating device, put a plastic bag on his head and severely beat him up. 7. On 16 July 1997 an investigator of the Department of Internal Affairs of the Karachayevo-Cherkessiya Republic instituted criminal proceedings against the applicant and three other persons on suspicion of participation in a criminal enterprise and ordered their arrest. As it follows from a record of 16 July 1997, the applicant was arrested on the same day at 11.50 p.m. He was also charged with unlawful possession of a weapon. 8. On 30 December 1998 the Cherkessk Town Court acquitted the applicant and ordered his immediate release. The judgment became final on 2 February 1999 when it was upheld by the Supreme Court of the Karachayevo-Cherkessiya Republic. 9. In August 2000 the applicant lodged an action against the Treasury and the Ministry of Internal Affairs of the Russian Federation for compensation for non-pecuniary damage incurred through unlawful detention. 10. On 11 March 2001 the Cherkessk Town Court accepted the applicant's action and ordered that the Ministry of Internal Affairs should pay the applicant 190,000 Russian roubles (RUR, 7,095 euros) at the expense of the Treasury. The Town Court held as follows: “Mr Volkov was unlawfully detained from 16 July 1997 to 30 December 1998, that is for a total of 535 days. It was proven at the court hearing that Mr Volkov sustained non-pecuniary damage and it should be compensated because he was acquitted by a final judgment. According to paragraph 8 of the Decree of the Plenary Supreme Court of the Russian Federation no. 10 of 20 December 1994 'On certain questions concerning application of the domestic law on compensation for non-pecuniary damage'... the amount of compensation depends on the character and extent of moral and physical suffering caused to the plaintiff, fault of the defendant in each particular case, and other circumstances which merit attention... The court ... takes into account that the amount and extent of moral and physical suffering of a person depend on his subjective perception of the existing situation and considers that, having regard to the arguments and evidence submitted by the parties, it is possible to award the plaintiff 190,000 roubles in compensation for non-pecuniary damage. Assessing the moral sufferings caused to the plaintiff, possible consequences of the plaintiff's conviction, and having examined the materials of the criminal case-file, the court considers that the awarded amount is reasonable and fair.” The judgment of 11 March 2001 was not appealed against and became final. 11. On an unspecified date the President of the Supreme Court of the Karachayevo-Cherkessiya Republic lodged before the Presidium of the Supreme Court an application for a supervisory review of the judgment of 11 March 2001 because the Town Court should have issued the judgment directly against the Treasury and should have excluded the Ministry of Internal Affairs from the proceedings. 12. On 8 August 2001 the Presidium of the Supreme Court of the Karachaevo-Cherkessiya Republic, by way of supervisory-review proceedings, quashed the judgment of 11 March 2001 and remitted the case for a fresh examination. The Presidium noted that the Town Court had incorrectly assessed the amount of compensation and that it should have joined the Treasury as defendant to the proceedings. 13. On 27 September 2001 the Cherkessk Town Court found that the applicant's detention had been unlawful but reduced compensation to RUR 5,000 (EUR 184). The reasoning in the judgment of 27 September 2001 repeated word by word that of the judgment of 11 March 2001, save for the amount in the penultimate paragraph where 190,000 was replaced with 5,000. The judgment of 27 September 2001 was upheld on appeal on 16 October 2001. | 1 |
dev | 001-69908 | ENG | FIN | CHAMBER | 2,005 | CASE OF N. v. FINLAND | 3 | Violation of Art. 3 (if expelled);No separate issue under Art. 8;Non-pecuniary damage - finding of violation sufficient | Elisabet Fura;Lech Garlicki;Nicolas Bratza | 12. The applicant, born in 1972, originates from the former Zaire (currently the DRC). He arrived in Finland on 20 July 1998 and immediately applied for asylum. 13. On his arrival in Finland the applicant filed an asylum request written in French, stating that he had left the DRC 13 months ago; that he had been trained to join the presidential guards and had been working as an informant in Office D of the special force responsible for protecting the then President Mobutu (Division Spéciale Présidentielle; “the DSP”); that he had belonged to the President’s and the DSP Commander-in-Chief’s inner circle; that he had been arrested in Angola while in the possession of a DSP badge and a photograph of Mobutu; that his life was in danger on account of his position and his Ngbandi origin; and that Laurent-Désiré Kabila’s regime (who had seized the power in the DRC in May 1997) had put out a warrant of arrest on former DSP agents. The applicant named three high-ranking officers within the DSP whose grades he also indicated. 14. According to the record of the asylum interview with the applicant on 22 July 1998, it was conducted with the assistance of a French interpreter. The applicant stated that he had been born on 2 December 1972 in Gbadolite in former Zaire; that he was a Christian of the Ngbandi tribe; that he had been a DSP agent by profession; that he had resided at Pavillon no. 22 at the presidential compound Camp Tshatshi in Kinshasa; that he was single; that his mother tongue was Lingala and that he also knew French, Kigongo and Swahili. He indicated the names of his parents and sister. He had gone to elementary and high school for a total of 12 years and had undergone a one-year training programme to become a garde civile. He had performed his military service in 1989-90, receiving the grade GT 2 (regional guard, class II). He also indicated his salary while working in the DSP. 15. The applicant further stated that he had been an asylum seeker in the Netherlands from 9 August 1993 to 26 October 1995, when he had been deported. On his return he had been living at Camp Tshatshi together with the President’s nephew, a named general. He had had at his disposal two rooms, a living room, a shower and parking spaces for his two cars. He had also had a considerable amount of money at his disposal. 16. Asked why he did not carry a passport on arriving in Finland, he had stated that it had remained with a (named) Commander in the President’s administration when the applicant had left the DRC. 17. Asked to describe his departure from the DRC, the applicant stated that he had left Kinshasa by boat to go to the airport in Brazzaville (the Republic of Congo) on 17 May 1997. At the end of June 1997 he had continued by train to Point Noir and from there by boat to Cabinda in Angola. There he had been staying for three months in order to acquire an Angolan identity card; he had been living in a house owned by a local. He had then travelled to Luanda by plane; he had run into some difficulties as he had not been speaking Portuguese; he had been arrested but had been allowed to continue his journey after he had paid some money. He had stayed in Luanda in the Petragol neighbourhood for one month, following which he had been detained in the Viana prison for three months (in October 1997), the authorities having taken him for a soldier in Mobutu’s forces as he had been unable to speak Portuguese. During his detention a rifle had been used to hit him in the shoulder and he had been forced to dig graves. In 1998 he had been transferred to an army prison in Bengela, where he had spent a further five months. Prisoners had been forced to take part in armed fighting but the applicant had managed to avoid this due to his injured and infected shoulder. The fighting had occurred at the diamond mines where Angolan rebels (the Savimbi guerrilla) had been fighting President José Eduardo do Santos’s troops. 18. After a fellow detainee, Antonio, had promised to help him out of prison the applicant had arrived in the Namibian border town Santa Clare on 14-15 July 1998. With the assistance of a “merchant” he had left for South Africa through Namibia on 16-17 July, travelling under a cover on a truck. From Johannesburg he had departed for Amsterdam on a KLM flight on 19 July. The airport staff had helped him embark on the plane even though he had possessed no documents. From Amsterdam he had continued on a KLM flight to Helsinki on 20 July. Antonio had arranged for someone to explain to the applicant how to get to Helsinki. In Amsterdam the applicant had been able to transfer to the plane for Helsinki simply by showing his boarding pass. 19. As for his reasons for leaving the DRC in 1997, the applicant stated that when President Mobutu had fled and had been replaced by Laurent-Désiré Kabila, the latter’s regime had started killing all who had been working under Mobutu. Were the applicant to return to the DRC he too would be killed as a former DSP agent. In addition, he was of the Ngbandi tribe to which Mobutu also belonged. 20. Asked how he had organised his trip the applicant stated that Antonio had paid USD 15,000 for the whole “package”. The applicant had possessed some money of his own as well as diamonds. Before leaving the DRC he had stolen diamonds from “the office of the Lebanese”; actually, it had not been a theft but “a question of saving a life”. The diamonds had belonged to Mobutu’s son; the applicant had sold them in Angola for USD 20,000, aided by a friend named Roberto. The applicant had not seen which country’s passport Antonio had organised for him to use. 21. Asked about his political activities the applicant stated having worked as a secret agent for Mobutu’s army from 1990 (in the office of the DSP and Office D of the Bureau d’Intelligence). Under the cover of a civilian in the street he had been listening in on the opposition’s criticism of Mobutu and had denounced various individuals critical of the regime. In 1993 the (named) Commander of Office D had sent him to the Netherlands to denounce individuals criticising Mobutu. After he had reported their names to the Commander their families in Zaire had been apprehended. The applicant had travelled to the Netherlands on an Angolan passport under the name of Alexandre. 22. Asked whether he had ever been convicted and sentenced, formally wanted by the authorities or tortured or threatened, the applicant answered in the negative. 23. Responding to a request for assistance from the Finnish authorities, the Dutch Ministry of Justice, in December 1998 confirmed – after having matched the applicant’s fingerprints – that he had applied for asylum in the Netherlands in 1993, that his request had been refused in December that year and that his objection to the refusal had been declared unfounded in April 1994. 24. It emerges from the material forwarded by the Dutch authorities that when seeking asylum in 1993 the applicant had referred to his father as a military official; that from 1991 the two had been leaking information about the DSP to the opposition group UDSP and had eventually been arrested; that the applicant had been playing on the same football team as President Mobutu’s son; that on 27 July 1993 he had been granted leave to play a match after which he had managed to escape during a meal with the team; and that afterwards he had travelled to the Netherlands via Bandundu, Ilebo, Lumubashi, Lusaka, Namibia and South Africa. 25. The Dutch authorities had concluded that the applicant’s account in 1993 had not been credible. 26. On 6 March 2001 the Directorate of Immigration (ulkomaalais-virasto, utlänningsverket) ordered the applicant’s expulsion to the DRC and prohibited him from re-entering Finland, or from entering Sweden, Norway, Denmark or Iceland for two years. The Directorate found the applicant’s account of his having belonged to President Mobutu’s and the DSP Commander’s inner circle not credible. The applicant had also failed to prove his identity. If returned, the applicant would not face any real risk of treatment contrary to Article 3 merely on account of belonging to the same tribe as the former President or having worked as a lower-ranking official in his administration. As far as the Directorate was aware, only higher-ranking officials who had been abusing their office risked prosecution by the Kabila regime. That regime had actually been quite accepting of officials having worked for Mobutu and many such officials of senior rank had already returned to the country. The regime in the DRC had changed again in 2001, following which the general situation in the country had improved. 27. The Directorate of Immigration further noted that the applicant had been found guilty on two counts of shoplifting in August 1999. 28. The applicant appealed to the Administrative Court of Helsinki on 26 April 2001. 29. At the hearing before the Administrative Court on 17 May 2002 the applicant – assisted by counsel and an interpreter – stated that he was the son of an officer in the DSP and had been sent to military service at the age of fourteen. He had passed his school examination in 1990. His first missions for the DSP had involved infiltrating dissident student associations at universities. About 15 secret agents had been operating at different faculties. During a mission to Lumumbashi he had been investigating cobalt smuggling to South Africa. He had travelled to Johannesburg as a “student” and had denounced someone who had eventually been arrested. He had sworn two oaths of loyalty, one for the FAZ (Forces Armées Zairoises) and a further one for President Mobutu and the DSP. The latter had been responsible for the President’s security and had been led by a general and his deputy, both of whom the applicant named. The President’s son Kongulu, a captain by rank had been N.’s friend; they had slept in the same pavillon (no. 22 in the first zone of Camp Tshatshi), with the President’s uncle Zimanga Mobutu and his children. The first zone of the compound had comprised altogether 35 pavillons, intended only for the President’s family. The compound had also comprised a second, less protected outer zone. N. drew a map of the compound to show where pavillon no. 22 had been located in relation to the presidential quarters. He also drew a map of the presidential offices as well as of those of the DSP and FAZ. He indicated on the map the location of the President’s special entrance and exit as well as the football field on the compound. 30. After the applicant had returned from South Africa the DSP commander had assigned him for a mission to the Netherlands. After he had disposed of his Zairean passport in Johannesburg “people smugglers” had handed him a different one. The aim of this mission had been to denounce people who were falsifying Mobutu’s signature to collect money. Moreover, as President’s Mobutu’s son had not been allowed to enter Belgium to trade in cobalt and diamonds the applicant and other DSP agents were assigned to organise his illegal entry into Belgium on a regular basis so he could do his business. A further aim of this mission had been to denounce dissidents in the Netherlands so that reprisals could be taken on their families in Zaire. 31. The applicant had been escorted out of the Netherlands by police towards the end of 1995. During a further DSP mission to the region of Goma, where troubles had begun with Rwandan refugees entering Zaire, he had found out that Laurent-Désiré Kabila’s rebel troops had been infiltrating and poisoning Zairean soldiers. 32. Around the end of 1995 it had been discovered that information on President Mobutu’s health was being leaked to Kabila’s troops, involving a suspected traitor within DSP. The main suspect – the head of the postal and telecommunications services who had masterminded the tapping of mobile phones – had eventually fled to USA but had returned when Kabila had taken over power. 33. As for the events surrounding the overthrow of President Mobutu, the applicant had been woken up by DSP agents during the night 16-17 May 1997 as the DSP could no longer protect the President against Kabila’s troops. The President had told his security staff he would leave for Gbadolite the next morning and that a general within FAZ/DSP “had to die” as he had asked the soldiers to lay down their guns and surrender to Kabila’s troops. A general had been appointed Prime Minister during the emergency state. President Mobutu had told his son Kongulu that he should leave the country as the last member of their family. The applicant had been with Kongulu in the presidential Palais des Marbres when word came that the general in question had been killed. In the morning of 17 May the rebels had entered Kinshasa. The DSP commander had already left for Brazzaville after dispatching the President by plane to Gbadolite. The applicant and others (some 600 persons in total) had crossed the river to escape from Kinshasa to Brazzaville in canoës rapides. From Brazzaville they had planned to fly to Gbadolite. From the Brazzaville airport (“Maya-Maya”) Kongulu had telephoned to ask for a plane to pick them up. The pilot had refused to fly the plane out of Brazzaville as it had been the property of the Republic of Congo. The group had then decided to split up and to take different routes. The applicant and two or three others had gone by train to Pointe Noire and from there by boat to Cabinda in Angola. As he had spoken no local language, he had found a Lingala-speaker and had been able to procure an Angolan identity document paper. The group had nonetheless been arrested at the Cabinda airport as they spoke no Portuguese. Immigration officials had detained them in a room but after the group had bribed a commander they had been able to leave by plane to Luanda. It had been quite common for Zaireans to enter Angola by bribing border officials. 34. In Luanda N. had failed to obey a police officer in the street since he had not understood Portuguese. He had been detained at the Viam police station, where he had been assaulted. Marks of this were still visible on his body. He had been transferred to the Bengela prison where he been forced to dig graves. Some prisoners had been “recruited” to fight in the army of the Angolan leader Eduardo against the rebel leader Savimbi. N. had avoided this, as he had been injured in the shoulder and could not carry a fire arm. 35. The applicant had eventually been able to bribe a Lingala-speaking captain to let him “escape”. His friends had brought the necessary money and the captain had accompanied him to Santa Clara at the Angolan-Namibian border. In Santa Clara, Angolan shop owners had organised “people smuggling” to Johannesburg via Windhoek. 36. The DSP agents had not intended to leave Zaire for good. When President Mobutu had been forced to escape to Morocco to avoid being taken hostage by pro-Kabila agents, N. had decided to go to Johannesburg to join the DSP commander and another DSP general, following which they had repeatedly re-entered Zaire to lead troops in the fighting against Kabila’s army. The two generals had eventually been arrested on the orders of President Mandela following a request by Kabila. 37. Replying to questions from his counsel, the applicant further explained that President Mobutu had left for Morocco in a Russian cargo plane used for smuggling weapons to the rebel leader Savimbi in Angola. A Mercedes-Benz car had been driven onto the plane so the President could sit properly. While in Brazzaville the applicant and others in his group had watched on CNN how civilians in Kinshasa had been showing the houses of Mobutu’s supporters to the rebels. The applicant would have been killed instantly had he returned then. Mobutu supporters who had been denounced had either been shot, burned alive by being placed in a car tyre set on fire or burned inside cars, as CNN had shown. If the applicant were to be returned to the DRC, those in power and even civilians would recognise him and he would be “attacked” since he had been close to Mobutu. If returned to DRC, a soldier such as himself could even be killed by DSP soldiers currently protecting President Kabila. 38. Replying to questions from the lawyer for the Immigration Board, the applicant reiterated the name of President Mobutu’s son: Kongulu (a.k.a. “Saddam Hussein”). The applicant further contended that he had sought asylum in the Netherlands for infiltration purposes. 39. When asked by a judge whether he had had “his” passport on him when leaving Johannesburg for Amsterdam, the applicant answered in the negative. He had paid one of the “people smugglers” who had been working with airport staff to let him go through to the gate only with a boarding pass. 40. N. had originally wished to go to Australia but this had not been possible to organise due to the number of transits and the need to show a passport. He had not wished to go to France, where many Zaireans were living and he could have been recognised as someone who had been close to Mobutu. The “agent” organising his trip had suggested Finland and the applicant had accepted. As the itinerary had been Johannesburg-Amsterdam-Helsinki he had received two boarding passes already in Johannesburg. The name on his boarding pass had been Joao or something to that effect. There had been no need for him to show a passport. He had financed the ticket by having sold diamonds in Angola. The President’s son had given him diamonds before they had parted. In Amsterdam a person had showed the applicant to the gate for the plane for Finland. 41. The applicant had not been in touch with his mother, father or sibling as the phone numbers had changed with the new Government. 42. Questioned further by another judge the applicant stated that the President’s son had authorised DSP agents to take diamonds from the mines. He had been able to cross the border to Angola without any verification taking place. When he had been detained, the diamonds had been in his briefcase which had been locked with a code. He had carried it personally to Luanda and had left it in a house there. When he had been arrested the other members of his party had taken care of his belongings, including the briefcase. The diamonds had been unpolished. As he had had to bribe persons and help various friends out he had sold the last ones in Johannesburg. Their total value had been at least USD 45,000. He had had “a little bit” of money left when he arrived in Finland. 43. Questioned further by the third judge the applicant explained that his military service had lasted nine months in total; he had been trained as a commando in DSP. After this he had returned to school. His training to become a garde civile had occurred at the age of 17-18. After nine months of training he had returned to DSP and had been expecting to be promoted to lieutenant. He had grown up with the President’s son Kongulu from the age of three, when he had arrived in Kinshasa. Kongulu, two years older, had died in 1999. The applicant had not sought to contact Kongulu’s family and did not know their whereabouts. Kongulu had had three brothers, one of whom had died in AIDS. The applicant had been sent to undergo military service as a punishment for being stubborn. 44. Questioned about his work and life in Finland the applicant stated that while he was volunteering in the Helsinki refugee reception centre, he was afraid of making friends with other Congolese as they might find out that he had been in DSP and take revenge on him. Two other nationals of the DRC had received residence permits in Finland. 45. In its final pleadings to the Administrative Court the Immigration Directorate considered the applicant’s account not credible. There were significant contradictions in his account of his military service as well as discrepancies between the asylum record and his oral statements. While he had recounted many facts, he was not generally credible. 46. Counsel for the applicant underscored that the asylum record from the interview on 22 July 1998 had been very meagre. In his oral statement the applicant had given a detailed and coherent account and his credibility was beyond doubt. The Immigration Board was claiming on very weak grounds that he was not credible. If there was any hesitation as to his credibility, the scales should tip in his favour. He risked persecution in DRC due to his nationality, ethnicity and political opinion. He not only feared ill-treatment emanating from the current regime but also from individual civilians seeking revenge. As he had no home to return to in the DRC he would be easily recognisable as a stranger and risk being questioned. The general human rights situation in the DRC was poor: security forces were carrying out killings and torture was wide-spread. 47. Counsel noted that all four interpreters had experienced difficulties following N’s vivid account. The asylum record indicated wrongly that the applicant had been living in the presidential palace whereas he had been living within the presidential compound. 48. On 20 June 2002 the Administrative Court refused the applicant’s appeal by two votes to one. The majority noted that he had been appearing under different names. As an asylum seeker in the Netherlands he had stated that he had been a player on the DRC national football team led by President Mobutu’s son. The applicant’s father was said to have been working in the DSP. When seeking asylum in Finland the applicant had stated that he had worked in the DSP; that he had formed part of Mobutu’s inner circle; that he had been the childhood friend of Mobutu’s son; that he had been sent to the Netherlands to denounce asylum seekers from the DRC; and that he had assisted Mobutu’s son in entering Belgium from France. At the oral hearing the applicant had provided a fairly extensive and detailed account of his activities in the DRC following his removal from the Netherlands as well as of his escape via Brazzaville to Angola during Kabila’s coming to power. The account of his escape via Namibia and Johannesburg in 1998 had resembled significantly the account he had provided to the Dutch authorities when entering that country in 1993. The Administrative Court did not find credible the account of his itinerary in 1998, including his having been able to embark on the plane from Johannesburg without a valid ticket and passport. In those circumstances and considering that it had not been possible to verify his true identity the Administrative Court was not convinced of his general credibility. Moreover, the information he had presented regarding the DSP, Mobutu’s son’s family life and the presidential compound did not in itself show that the applicant had been in the DRC in such a position as to be of particular interest to the current regime. Hence he was not likely to have any justified fear of being persecuted or subjected to inhuman or degrading treatment or to any other serious violation of his rights, if returned to his country. 49. The dissenting judge found the applicant’s account inconsistent despite its richness in detail. It did not therefore permit the drawing of any reliable conclusion as to his relationship with President Mobutu’s administration or as to whether he had worked in the DSP and, if so, in what position. Considering his detailed account the applicant could, on the one hand, have belonged to Mobutu’s and his relatives’ inner circle without having had any direct contact with the President himself. On the other hand, the applicant could also have received the information regarding Mobutu’s administration from other sources. As his identity and background had not been convincingly established it could not be assessed whether the reason for his departure from the DRC had been persecution within the meaning of section 30 (1) of the Aliens Act. He could therefore not be granted asylum. Despite the lack of clarity of his account it could not be excluded however that he had been one of Mobutu’s personal guards. This lack of clarity should be interpreted to the applicant’s benefit. According to the UNHCR Instructions of January 1998, soldiers of the DSP were assessed as being at a particularly significant risk of being subjected to inhuman or degrading treatment or other serious violations of their rights. The applicant therefore remained in need of protection within the meaning of section 31 of the Aliens Act and should have been granted a residence permit to that effect. 50. The dissenting référendaire, relying on essentially the same reasons as the dissenting judge, concluded that the applicant should have been granted asylum as being in need of protection from persecution within the meaning of section 30 (1) of the Aliens Act. 51. The applicant applied to the Supreme Administrative Court for leave to appeal asked for stay of enforcement. 52. On 30 October 2002 the applicant was detained by the police and informed that he would be deported on 5 November 2002. His counsel was informed that the Supreme Administrative Court would not grant or rule on his request for a suspension of the deportation order. He was later informed that the applicant would be removed from the country on 6 November 2002. 53. On 5 November 2002 the Government of Finland decided not to deport the applicant to the DRC until the Court had examined the applicant’s application, following the Court’s interim measure under Rule 39 of the Rules of Court (see § 5 above). 54. The applicant and his common-law wife E. met each other in 1999 in Helsinki while they were both asylum seekers. They lived together in a reception centre for nine months until her deportation on 22 February 2000, her first asylum request having been refused. 55. In April 2002 E. visited the applicant for five days after her prohibition on re-entry had expired. As a result of this visit E. became pregnant. After this they kept up the contact by phone and mail. 56. On 28 October 2002 E. arrived in Finland and filed a fresh request for asylum the same day. She moved in with the applicant in the reception centre in Helsinki. On 31 October 2002 the Directorate of Immigration refused the request as being manifestly ill-founded. 57. In January 2003 a child was born to the applicant and E. The applicant’s acknowledgement of paternity was confirmed by the Helsinki District Court in February 2003. 58. On 4 March 2003 the Supreme Administrative Court granted the applicant leave to appeal but went on to refuse his appeal without an oral hearing. It found it established that on 10 August 1993 N. had applied for asylum in the Netherlands, claiming to be a football player and alleging that his brother and father had been working in the DSP. On his arrival in Finland on 20 July 1998 he had filed a hand-written statement in French to the effect that he had left the DRC 13 months earlier (i.e. in June 1997) as President Mobutu and his close entourage had been chased out of the country. In Angola he had been detained because he had been in possession of a badge issued by the DSP and a photograph of President Mobutu. In his asylum interview on 22 July 1998 the applicant had claimed to have been a secret agent in the DSP and an infiltrator, whose actions in the Netherlands had led to the arrest of asylum seekers’ family members in the DRC. Following his deportation from the Netherlands he had allegedly been living with the nephew of the former President. 59. The applicant had claimed to have been detained for eight months in Angola, whereas in Zaire he had not been arrested, tortured, threatened. Neither had any warrant of arrest been put out in respect of him. 60. When arriving in the Netherlands the applicant had presented a identity document issued in former Zaire on 25 October 1984, indicating as his date and place of birth 2 December 1972 in Kinshasa. He had claimed to have gone to school in Kinshasa in 1978-1991. In Finland he had presented no identity document but had claimed to have been born in Gbadolite. He had allegedly gone to school for twelve years and had performed his military service in Kinshasa in 1989-90. 61. According to the records, the applicant had appeared under four different names. In his appeal to the Administrative Court he had explained the reasons for using those different names. The Supreme Administrative Court nevertheless considered that his identity and ethnic origin had remained unclear, which weakened the credibility of his account. 62. The Supreme Administrative Court further noted that his statements about the reasons for his arrests in Angola had differed. In particular, his allegation that he had, on that occasion, been carrying a DSP membership card and a picture of President Mobutu was not credible. Neither did the Supreme Administrative Court find credible all aspects of his account of his journey to Finland. 63. In sum, the applicant had not shown in a credible manner that he had remained in the DRC until 17 May 1997. Neither had it been established where he had been residing between his expulsion from the Netherlands in October 1995 and his arrival in Finland in July 1998. Even assuming that he had been sent to the Netherlands to infiltrate other asylum-seekers from his country, the Supreme Administrative Court did not find it credible that he would have gone there as an infiltrator in the manner recounted by him had he really belonged to Mobutu’s close entourage. Taking all the elements into account, it was justified to suspect that his various accounts were not based on facts which had actually occurred. This also weakened his overall credibility. His account as presented to the Finnish authorities could not therefore be used as the sole basis for the court’s decision. 64. The five judges on the Supreme Administrative Court unanimously concluded as follows: “Taking into account the recent developments in the DRC which have taken place since the applicant has allegedly left the country, the period of time which has passed since his departure, the significant lack of credibility in respect of his allegations concerning the risks he will be facing on his return to the DRC, the fact that he has not even claimed that he has had any contact with the local authorities who have been in office since the change of the regime on 17 May 1997 or that he would have come to their knowledge, the Supreme Administrative Court cannot consider that the applicant is facing a real risk of becoming a subject of interest to the present rulers. Therefore, [the applicant] does not have a well-founded fear of persecution for reasons of his ethnic origin, membership of a particular social group or political opinion within the meaning of Section 30, subsection 1, of the Aliens’ Act. Thus, he cannot be granted asylum. Even though the general security situation in Kinshasa, the capital of the DRC, is still very delicate, there is no well-founded reason to assume that [the applicant] would face a risk of being subjected to serious human rights’ violations or to inhuman or degrading treatment in his country of origin. Thus, he cannot be issued a residence permit on the basis of his need of protection either.” 65. The Supreme Administrative Court furthermore found that the applicant’s family life as established in Finland was not such as to attract protection under Article 8 of the Convention, given that neither parent had a valid residence permit or any other connection with Finland. 66. K.K. arrived in Finland on 14 February 2002 and filed for asylum or a residence permit on humanitarian grounds on account of her background in the DRC. She claimed to have been a soldier in the DSP. She had been arrested following the murder of President Laurent-Désiré Kabila in January 2001. She had been detained for some nine months during which she had allegedly been raped repeatedly by guards. Her request was refused by the Directorate of Immigration on 21 November 2002. She then appealed to the Helsinki Administrative Court which held an oral hearing on 30 January 2004. 67. On 8 March 2004 the Administrative Court, by two votes to one (with the référendaire also dissenting), upheld the refusal of asylum but referred the question of a residence permit back to the Directorate, instructing it to issue K.K. with such a permit. The Administrative Court reasoned as follows: “The appellant is no longer likely to be arrested in her country of origin on account of the investigations into the murder of (President) Kabila. The appellant’s personal prison experiences do not result from (her) belonging to a (specific) group in society or from her political views. Hence she cannot be granted asylum. Following the change of President in (the DRC) in January 2001 the general security and human rights situation in the country has improved. The appellant has stated having resided in Kinshasa prior to leaving the country. The Kinshasa area is relatively calm. The fact that armed confrontations are still occurring, particularly in the Eastern parts, and that the country’s human rights situation is not yet stable, is not as such a sufficient ground for granting (the appellant) international protection. When, however, account is taken of the entirety of the circumstances as recounted by the appellant as well as of the information available from international news sources regarding the treatment of soldiers serving the Mobutu regime, it is justified to find that the applicant might, on account of her military background and her past experiences, risk being subjected to inhuman or degrading treatment in her country of origin. (She) is therefore in need of protection within the meaning of section 31 of the Aliens Act and shall, for this reason, be issued with a residence permit.” 68. The dissenters found, even assuming K.K.’s account to be truthful, that there was no reason for supposing that she would still risk ill-treatment or other serious violations of her rights if returned to the DRC. The dissenters relied on the progress which had taken place in the country as well as on the fact that she had been of no particular interest to the authorities following the coup d’états in 1997 and 2001. She was therefore not in need of protection. 69. In a letter of 16 April 2003 submitted to the Court in support of the applicant’s case Ms. K.K. stated that she had formed part of the DSP as first sergeant-major based at Camp Tshatshi in Kinshasa. She had been working in the reconnaissance unit of the Camp Commander (au service des renseignements pour la sécurité des militaires). She had been arrested on 20 March 2001, a few days after the then President Laurent-Désiré Kabila had died together with all soldiers of the (former) FAZ who had been on duty during the coup d’état on 15-16 January 2001 (when President Kabila had been assassinated). After several former military officials had been killed in prison the applicant and her family had decided to seek asylum abroad. 70. K.K. confirmed having worked with the applicant, whom she had recognised as having been a military official dealing with security matters in the General Staff of the DSP (militaire évoluant à la sécurité d’état major de la DSP). 71. At the hearing before the Court’s Delegates in Helsinki (see below) K.K. handed in a copy of her military passport (carte d’identité de service pour les forces armées zairoises) indicating her grade as first sergeant-major. She also handed in some photographs depicting herself and other soldiers in a uniform specific to the DSP. 72. On 17 June 2003 the Helsinki Administrative Court refused E.’s appeal against the refusal of asylum or a residence permit on humanitarian grounds. It quashed the decision of to expel E. and returned the matter to the Directorate of Immigration as the child born to E. in Finland had not been covered by the initial decision. 73. In a further decision of 16 July 2003 the Directorate of Immigration refused E. and her new-born child a residence permit and ordered their expulsion to Russia. 74. Following E.’s appeal the Administrative Court, on 10 October 2003, stayed enforcement of the expulsion order. 75. On 10 August 2004 the Administrative Court refused E.’s appeal. It found, inter alia, that in the circumstances at hand E. and her family could, in the first place, be expected to settle and lead their family life in Russia, that being the country of origin of E., her child with the applicant and her two other children in Russia. 76. E.’s further appeal remains pending with the Supreme Administrative Court. 1. The applicant 77. Before the Court’s Delegates the applicant maintained that he had been working for the DSP which had sent him to be trained in the garde civile. He stated the names and ranks of the commander of the garde civile and the Headquarters of the FAZ, of which the DSP had formed part. Officials in the DSP had been better paid than ordinary soldiers in the FAZ. The applicant’s father had been one of Mobutu’s body guards. 78. The applicant had been gathering information used for protecting President Mobutu. He had formed part of the bataillon de sécurité which had been responsible for that protection. Some DSP members had been responsible for guarding the President physically, whereas others had been assigned to information-gathering. The applicant had been working in the DSP headquarters. He had been infiltrating students at different universities and gatherings of Mobutu opponents. On each occasion there had been either six or twelve DSP members attending, in civilian clothes but armed. They had interfered with the gatherings and had identified the leaders who needed to be killed. After the applicant had denounced the persons in question other agents, specialised in torture, had taken over. His reports to his superiors, which had always been oral, had been forwarded to the President. 79. The first (inner) zone at Camp Tshatshi had accommodated the presidential office as well as the headquarters of the Defence Department and the DSP. The applicant had been living with the children of the President’s older brother. The residential premises within the first zone had served as hotels previously. The applicant had had three service vehicles at his disposal. 80. The applicant had met K.K. for the first time around 1989. He had taken the initiative to address her as she had been obliged to respect him as the son of an officer. He had not been working closely with K.K. as she had formed part of the garde républicaine d’honneur which had been in charge of the security of the Camp Tshatshi, its soldiers and families and had been led by a different commander. As he had been working in the DSP headquarters he had effectively occupied a higher position than K.K. Unlike the applicant, she had been living in the second zone of the compound. He had not had any social contact with K.K. Even though she had been of higher rank, she and other officers had been required to show respect for the applicant and others forming part of the Mobutu family. 81. The applicant confirmed having filed for asylum in the Netherlands in 1993 in order to carry out his mission for the DSP which had been to infiltrate DRC asylum-seekers critical of Mobutu in order to denounce them to the Mobutu administration. He had denounced more than ten persons in this way. He had not been the only agent involved in such activities in the Netherlands. 82. At the time of seeking asylum in the Netherlands the applicant had stated being a member of the Basaït tribe “for camouflage purposes”. For the same purposes his whole account to the Dutch authorities had been untruthful. 83. The applicant confirmed being able to speak French, English, Swahili and some Kikongo. 84. The applicant had been issued with an identity card by the FAZ, indicating that he had been working in the DSP. Given his urgent departure from Kinshasa in 1997 he had not taken along that card or any other personal documents. He had only taken the diamonds. At any rate, as at the time passports were being handed out only for travel to specific locations he had not had a passport at hand. 85. In Angola he had “purchased” an Angola identity card. Later, in connection with “paying” for being released from prison he had been able to “purchase” an Angolan passport. The Angolans were suspecting all individuals originating from former Zaire of supporting the rebel leader Savimbi in the fight against the Angolan President Eduardo. Even with his Angolan identity papers he could not avoid being arrested as he had addressed the police officers in Lingala and they immediately suspected his papers had been falsified. 86. As to the certificate of his degree (brevet) which he had brought with him to Finland by hiding it in his shoe, the applicant claimed it had been seized by the Finnish border police never to be seen again. 87. As far as the applicant was aware, no warrant of arrest had been issued in his regard in the DRC. 88. The applicant’s uncle, a general, had been the commander of the DSP. They had been in contact both professionally and within the family circle. The applicant’s father had been commander of the information service. 89. As the Supreme Administrative Court’s refusal of his appeal had been reported in newspapers and on the Internet the whole Congolese community in Finland had learnt of the reasons underlying the applicant’s asylum claim. 90. The applicant had not had any contact with his family (parents, sister or other relatives) since the day when he had left Kinshasa for Brazzaville in 1997. The new regime had changed all telephone numbers and the applicant had not been able to make contact. 91. When the applicant and E. had met in 1999, E. had asked about his background in the DRC. He had told her he had been a friend of the President’s son but had declined to elaborate, telling her such information was secret. If they were to go to Africa one day, he would tell her more. 92. The applicant stated that the interpreter assigned to him had found it difficult to translate the applicant’s account during his asylum interview on 21 July 1998. This had become obvious to the interviewing police officer but the applicant had not raised the point at the time. 93. When the applicant and K.K. had met again in Finland he had asked K.K. to send a letter to the Court after their respective asylum claims had been refused. He had not assisted her; someone else had helped her write the letter in French. 94. E. confirmed being a Russian citizen. She had known the applicant for some five years. She had one child by the applicant and two by her ex-husband. After having been removed from Finland she had remained in contact with the applicant by telephone and correspondence. The applicant had never disclosed anything to her about his life or family in the DRC. When she had asked him about his work there, he had declined to reveal anything, saying the information was secret. For the same reason, he had also declined to enter into any details regarding his mission to the Netherlands. Some time before her removal from Finland in 2000 he had told her he could not return to the DRC as the threatening situation there could lead to both of them being killed. They had never discussed his work or his country further. 95. E. further stated that while living in Russia her two older children had been subjected to constant verbal abuse due to the colour of their skin. They had been unable to attend school for this reason. The family had also experienced harassment by the authorities (arbitrary fines, etc.). Her two older children were being cared for by her mother in Russia. E. had divorced in 2000 and her older children had no contact with their father. 96. E. considered that if she, the applicant and their mutual child had to settle in Russia they would have no means of survival as the applicant would never be able to find employment. 97. E. had never considered joining the applicant were he to return to the DRC as their predicament would be similar to the one they would be facing in Russia; the applicant had no relatives, residence or means in the DRC. Should the applicant be threatened on their return on account of his secret work before leaving his country, she too would fear for her life. 3. Mr Matti Heinonen 98. Mr Heinonen has been the head of the Africa section in the Directorate of Immigration since 1999. From 1995 to 1999 he was working as an adviser in charge of preparing decisions on asylum claims by Congolese and others persons of African origin. He was responsible for refusing the applicant’s claim for asylum. 99. Mr Heinonen found it striking that the asylum interview with the applicant had been extremely short. Even though the processing of his claim had lasted around two years in view of the application of “the Dublin Convention”, the applicant had never wished to elaborate on the brief information he had given at the outset and had never referred to any sort of persecution. During this period of time the applicant could, for example, have submitted photographs showing him with Mobutu family members. On the evidence before it, the Directorate of Immigration had had to assume that he had not been part of Mobutu’s close family or of the DSP. Even assuming he had formed part of the DSP, it had to be assumed that he had been a low-ranking informant. 100. Mr Heinonen also found it remarkable that the applicant had not been able to provide any identity card, travel document, certificate of education or the like. Neither did the asylum file contain any indication of such a document having been presented at the applicant’s arrival in Finland. Apart from his oral statements the only information relating to his background which the Directorate of Immigration had at its disposal was the material forwarded by the Dutch authorities. 101. Mr Heinonen did not share counsel’s assessment that the applicant’s account had been consistent and precise. It had contained many controversial points: for example, while he had claimed to originate from the Ngbandi tribe in Equateur, he did not speak Ngbandi but Lingala, Kikongo and Swahili. Kikongo is being spoken in the Bas-Zaire where he had claimed to originate from when seeking asylum in the Netherlands. Other elements had also suggested that he originated from Bas-Zaire. Moreover, while claiming that he had been arrested in Angola as he had not mastered Portuguese, the most common language spoken there is actually Kikongo. By way of further example, although he had claimed to have “purchased” an Angolan passport he had stated, on arriving in Finland, that he knew neither the country nor the name of the passport he had been travelling on. Moreover, if as he claimed, he had brought diamonds along to Brazzaville, why would he have ventured into Angola, at the time a very dangerous country? 102. Mr Heinonen confirmed that on arriving in Finland the applicant had volunteered the information that he had been an asylum seeker in the Netherlands under a different name. It should be borne in mind, however, that the applicant was not a first-time asylum seeker and had provided many details to the Dutch authorities in support of his first asylum claim. 103. Even assuming that the applicant had been a member of the DSP, he would not face any danger if returned to that country at present. As had emerged in the case of K.K., she had been able, as a lower-ranking DSP member, to continue as a soldier in the army of Mobutu’s successor Laurent-Désiré Kabila. A former DSP member maintaining connections with rebel or foreign forces in the pursuit of seeking to overthrow the current DRC government would certainly be of interest to that government and could be given international protection in Finland. N., however, had not put forward any such elements. 104. Mr Heinonen had taken part in a fact-finding mission to Kinshasa in 2000. Since that year the situation in the DRC had improved drastically. Already that year, however, the applicant could have been returned to the DRC without facing any problems other than economic ones. 105. The Directorate of Immigration was dealing with dozens of cases a year involving DRC citizens. In a few of those cases asylum or a residence permit had been granted, either in view of the person’s need for protection or on humanitarian grounds. 106. In the mid-1990s the Finnish Central Criminal Police had concluded that 70-80 % of some 100 documents relied on by asylum seekers from former Zaire had been falsified. Some of the asylum-seekers had also been in the possession of blank documents (such as birth certificates) as well as official stamps. 107. As for the conclusion reached by the Supreme Administrative Court in the case of K.K., Mr Heinonen suggested it might have been motivated by her gender and the allegations of sexual abuse she had made. 108. Mr Heinonen was not aware of any DSP member having suffered ill-treatment on his or her return to the DRC from a European country. Some countries had been sending back up to 100 persons a year. In a few cases the Finnish authorities had monitored the person’s return closely to ensure that it had been safe. 109. As for the applicant’s prospects of settling with E. and their child in Russia, Mr Heinonen indicated that in accordance with current practice even a common-law spouse of foreign origin could be granted a three-month visa before being able to seek a one-year residence permit and eventually Russian citizenship. 4. Ms K. K. 110. K.K. had completed her military training in 1972, following which she had been sent to work in the DSP, being part of the female platoon. She had first seen the applicant around 1989 but had never been close to him. She knew he had been working in the “bataillon special” but his rank had been unknown to her. They had been greeting one another in passing at Camp Tshatshi. She had also seen the applicant during parades on the compound. She had understood that he had been part of Mobutu’s entourage as he had been speaking the President’s language Ngbandi and had occupied a good position at Camp Tshatshi. Ngbandi-speakers had been in a privileged position during Mobutu. 111. After President Mobutu had been removed from power in 1997 the DSP had been discontinued and former members had been tortured, subjected to forced labour and malnourished. Those who had remained in the country had eventually been offered re-training in President Kabila’s army. Eventually K.K. and other colleagues had been offered to assume essentially the same duties as before, namely to guard the entrance to Camp Tshatshi and to verify the identity of anyone accessing or leaving the compound. She had not seen the applicant after the soldiers on the compound had been told to vacate it in the aftermath of the coup in 1997. 112. K.K. confirmed having been questioned following the coup d’état on 15-16 January 2001, together with other members of the former DSP and FAZ who had been on duty on 15 January. She had been detained from March until 31 December 2001, when she had been released after her family had bribed a person in charge. She had been told by that person to leave the country immediately, which she had done. 113. K.K. was not aware of any case involving ill-treatment of a former DSP member having been returned to the DRC. 114. All members of the DSP were also soldiers of the FAZ. Those detached to the DSP received an emolument in addition to their salary from FAZ. K.K. stated the same salary as that indicated by the applicant in his testimony. 115. When they had been in charge of protecting Mobutu the DSP members’ uniform had been distinct from the one worn by ordinary soldiers of the FAZ. When they had been protecting Kabila they had been wearing civilian clothes. 116. After both K.K.’s and the applicant’s asylum claims had initially been refused K.K. had sent a facsimile to the Court at the applicant’s urging. He had not written it for her; someone else had helped her write it in French. 117. In guidelines issued by the United Nations High Commissioner for Refugees (“UNHCR”) in January 1998 regarding refugees and asylum seekers from the DRC, soldiers of the DSP were generally assessed as a category risking persecution on account of association with the former (Mobutu) regime. UNHCR noted that these soldiers were mainly from Mobutu’s tribe (Ngbandi) or region (Equateur). Members of the Ngbandi tribe were not however assessed to be at risk purely on account of their ethnic origin. 118. Among the other categories assessed to be at risk were high-ranking officers of the FAZ; members of the garde civile (with the exception of its commander-in-chief to whom an exclusion clause in the Refugee Convention might be applicable); leading and active members of pro-Mobutu parties and other political allies, except for current sympathisers or members of the opposition who were not playing a substantial role within those parties; and Mobutu family members and close collaborators, especially those from the Ngbandi tribe or the Equateur region. 119. A UNHCR position paper of June 2002 urged States to exercise very serious caution in cases of involuntary return of individuals with a military profile or background. Security agencies and immigration authorities systematically arrested former militaries, in some cases even those returning voluntarily, where previous negotiations with the Ministry of Defence had not taken place. 120. A country report prepared for the Eighth European Country of Origin Information Seminar in June 2002 stated the following of particular relevance to the present case (pp. 99-100): ”Former members of the Forces armées zairoises (FAZ) Not all, but many of the former Mobutu soldiers have been persecuted since President Kabila came to power in May 1997. Some were taken to Kitona military base, ostensibly for ideological and military training. Many of them were caught up in that base at the time of the resumption of the war in August 1998. Many are feared to have lost their lives there or have been accused of being in alliance with Rwanda or with the armed opposition, and indeed many of them have been targeted. There are some who have joined the new army, so it cannot be said that all of them are targeted by the government, but indeed some have been. Another element that creates a potential problem for members of MPR and former Mobutu soldiers is the aforementioned perception that some former members of the Mobutu government are plotting to launch an attack on Kinshasa from Brazzaville. Some of the FAZ soldiers, particularly the members of the Division spéciale présidentielle (DSP), which was the bodyguard corps of President Mobutu, also fought in the wars in Brazzaville and joined the Congo-Brazzaville army. Many of them still remain there. Since about 1999 there have been reports and fears on the part of the DRC government that some of these people are organising and regrouping with an intention of returning by force to Kinshasa and recapturing state power. So these people will still remain at risk, whether or not they may be directly or not at all involved in plots against the DRC government. Indeed some of them are currently in custody. There have been attempts by the two governments to create an understanding by actual agreements not to attack each other, but there still seems to remain a kind of mistrust between them. As a result, at least the Kinshasa regime fears that there could be an attack from Brazzaville. Another significant factor is that many of these ex-FAZ joined the MLC armed political group and as a result were also evidently fighting against the Kinshasa government. Now that some form of power-sharing agreement has been signed, if it is implemented, one would assume that these former soldiers will end up in the national army. This may happen, but again this agreement has yet to be actually implemented. By and large the risk of persecution will depend on the specific circumstances of the particular individual. As regards the question of how important the military rank of a former Mobutu soldier is in this context, it has to be borne in mind that in some of these armies a rank may not always mean what it does in better established armies. Particularly in the DRC, a low-ranking soldier may politically have more power than a top general. There have been cases where a sergeant would beat up a major. Yet, the major, coming from an ethnic group that is not closely allied to the president, would not hit back or get the sergeant, corporal or even private who attacked him punished. He would not dare to touch him, although he is e.g. only a private, because he comes from Katanga. Without connections to influential persons at the top, being a general does not really mean much under such circumstances. In the case e.g. of Rwanda a Tutsi private may be able to challenge the power of a Hutu senior officer, not because he has been ordered to do so by the president or by someone else, but because he feels that he can do anything with impunity, that nobody will touch him because he happens to come from the ethnic group that is supposedly or really in power. Family members of Mobutu officials It would be possible that the children of such a soldier, be it a high-ranking officer or a private, would be targeted by the new authorities due to the fact that their father held the respective position during the Mobutu regime. Sometimes people are abused without any justification at all. On the other hand, even a civilian, linked to someone who was in a powerful position, may have been responsible for abuses for which he may be held liable or be subjected to reprisals. To cite an example, when a general’s or minister’s son drives an expensive foreign car or a military Land Cruiser, misuses power - or others only think he misuses power - or makes a lot of money, people would assume that he would not have that power and/or money if he was not related to the minister. Hence, when that minister leaves power, that individual, too, could be at risk. While this does not happen on a regular basis, it is however a real possibility. ...” 121. According to a further UNHCR assessment of October 2003, certain individuals who had either been deported or had returned voluntarily to the DRC could face serious problems if interrogated by security forces upon arrival in Kinshasa. Should the authorities discover that a deportee had a political or military profile, or had sought asylum abroad owing to such a background, he or she could be at risk of arbitrary detention and ill-treatment (“International Protection Considerations Regarding Asylum Seekers and Refugees from the Democratic Republic of the Congo”, p. 100, § 393). Country-of-origin assessments by the British Home Office 122. The Immigration and Nationality Directorate of the Home Office has been issuing annual and even more frequent assessments of the situation in the DRC. The country report of October 2004 – which also relies on sources going back to 2002 – made the following assessment of the current situation inter alia with regard to the groups mentioned below: “ Persons Associated with the Mobutu Regime 6.107 An information response by the Canadian Immigration and Refugee Board (IRB) dated 3 April 2003 about the treatment of former diplomats and other individuals perceived as sympathisers with the former President stated that: ‘According to Le Potentiel, many exiled high officials have returned to the country (1 Nov. 2002). The same Congolese newspaper added that ‘Mobutists’ are now present everywhere, including in government positions (Le Potentiel 28 Mar. 2003). Referring to ‘people who were linked to former President Mobutu and the MPR [Mouvement Populaire de la Revolution - Mobutist political party],’ a November 2002 report stated that ‘persecution may result from either having held a very senior visible position in the party, the government or the security forces, or from overt opposition to the current government.’ (ACCORD/UNHCR 28 Nov. 2002).’ 6.108 Two further IRB reports dated 2 March 2004 and 26 March 2004 indicated that there was no particular adverse treatment of members of the Ngbandi tribe, or the Mbunza ethnic group, or persons from the Equateur province [associated with the former President Mobutu], based on interviews with the president of the Congolese human rights group ASADHO, and a journalist specialising in the Great Lakes region. The sources explained that the transition institutions (government, parliament, senate, army and others) comprise individuals from various ethnic groups including the Ngbandi and Mbunza, like those of other tribes in Equateur. 6.109 Another IRB response dated 10 April 2003 reported that the Congolese human rights group Journaliste en Danger was not aware of any ordinary Congolese citizen who had been prevented by the Congolese authorities from renewing a passport issued during the Mobutu regime. On the contrary the authorities had encouraged people to replace their old Zairian passports for the new Congolese ones. 6.110 A country fact finding report of 2002 by the Belgian General Commission for Refugees and Stateless Persons (CEDOCA) reported that after Laurent Kabila ousted Mobutu in May 1997 many high-ranking officials of the former Mobutu regime were arrested and imprisoned in the CPRK Prison in Kinshasa. Others managed to avoid being arrested by leaving the country. The report stated that the security situation improved for persons closely associated with the Mobutu regime when Joseph Kabila came to power in January 2001, and even more so, after the Sun City Peace Accord was signed in April 2002. A large number of persons closely associated with the Mobutu regime had now returned to the DRC. 6.111 The CEDOCA Report also stated that distant relatives of Mobutu living in Kinshasa had not encountered any problems through being associated with Mobutu, and also that negotiations took place in 2002 between Kinshasa and Rabat to repatriate the remains of Mobutu. According to the report, persons who were closely associated with the MPR during the Mobutu regime were not at risk of persecution by the security forces and could therefore return to the country if they were abroad. The report concluded that ‘If Mobutu’s followers are not suspected of collaboration with the rebels, they are no longer persecuted. Affiliation to Mobutu’s former MPR [political party] does not involve the risk of political persecution.’ 6.112 According to a CNN Online news report dated 23 November 2003, close relatives of Mobutu returned to the DRC from exile in 2003. Manda Mobutu, the son of the former president, returned to the DRC in November 2003 from exile in France, with his sister, Yanga, to prepare his political party for the elections due to take place in 2005. Manda’s half-brother, Nzanga Mobutu, returned to the DRC from exile in August 2003. According to a news report by ‘The Independent’ (UK newspaper) dated 28 November 2003, the Mobutu sons returned to the DRC with President Joseph Kabila’s blessing, and Leon Kengo wa Dondo, a former prime minister under the Mobutu regime and other persons associated with the Mobutu regime had also returned to the DRC. Former Soldiers of Mobutu Regime including FAZ 6.113 An information response dated 26 March 2004 by the IRB about the treatment of a person whose family members had served in the army under former President Mobutu stated that: ‘The President of the African Association for the Defence of Human Rights (Association africaine de défense des droits de l’homme, ASADHO) said during a 25 March 2004 telephone interview that his organization is not aware of any particular treatment that would be imposed on a person merely because members of his or her family had served in the former army, under the Mobutu regime. He added that most members of the Zairean Armed Forces (Forces armées zaïroises, formerly FAZ) are currently serving in the Congolese Armed Forces (Forces armées congolaises, FAC) (ASADHO 25 Mar. 2004).’ 6.114 According to a country fact finding report of 2002 by the Belgian general Commission for Refugees and Stateless Persons (CEDOCA) the security situation in the DRC for former soldiers of the FAZ has improved since Joseph Kabila became president in January 2001. According to the CEDOCA report, in 2002, many former FAZ soldiers were serving in the current Congolese army. In 2002, all the key positions in the Forces armées congolaises (FAC) high command were occupied by former FAZ soldiers and an estimated 20,000 to 25,000 former FAZ soldiers were living in Kinshasa. The same report concluded ‘When ex-FAZ members are not suspected of collaboration with the rebels, they are no longer persecuted.’ 6.115 During the course of a country of origin information seminar in June 2002, sponsored by UNHCR and the Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), which was addressed by representatives from Amnesty International and UNHCR, it was stated that the rank of a soldier might not always mean what it did in better established armies. It was stated that a low- ranking soldier may politically have more power than a top general, by virtue of his ethnic group and connections to influential persons. 6. 116 According to a report dated 4 May 2004 from the United Nations (UN) Integrated Regional Information Networks (IRIN) an agreement had just been reached between the DRC and the neighbouring Republic of Congo to repatriate former combatants in both countries. IRIN stated that: ‘Similarly, the RoC [Republic of Congo] has, since 1997, been home to some 4,000 soldiers of the defunct Special Presidential Division of the late DRC president, Mobutu Sese Seko, and of his Zairean Armed Forces, or FAZ. The presence of these former soldiers has caused both Congos to trade mutual accusations of supporting coup makers, despite the existence of a non-aggression pact. In March, authorities in Kinshasa accused Brazzaville, and the ex-FAZ, of taking part in the 28 March [2004] attack on military targets in the DRC capital, Kinshasa. . . . In 2002, both Congos signed an agreement with the International Organisation for Migration for the repatriation of the ex-FAZ and former soldiers seeking refuge in RoC but nothing concrete has been achieved.’ ” 123. Section 18 b of the Aliens Act 1991 (ulkomaalaislaki, utlänningslagen; 378/1991), as amended by Act 537/1999, provided – before the whole Act was replaced by the new Aliens Act 2004 (301/2004) – that the spouse of a person residing in Finland and any unmarried child under 18 whose guardian was a person residing in Finland, had to be regarded as family members of that person. 124. If the person residing in Finland was a minor child, his guardian was to be deemed a family member. People who were continuously sharing a household and cohabiting in a relationship resembling marriage had to be deemed to be in a situation comparable to that of spouses proper. A requirement for this comparison was that they had been cohabiting for a minimum of two years, except if a child had been born to them in which case this time-limit did not apply. 125. Amongst others, the family member of a foreigner residing in Finland on the strength of a permit issued on the basis that he or she was a refugee or otherwise in need of protection, equally had to be issued a residence permit unless reasons relating to public order or safety or other weighty reasons militated against issuing such a permit. The overall consideration also had to take into account the possibility for a lawfully resident foreigner in Finland to move back to his or her home country or to a third state, if the family ties as a whole could be deemed to be strongest to such a country, in order to lead a family life there. 126. According to section 20, subsection 1 (537/1999) an alien who entered Finland without a residence permit could be issued with a fixed-term residence permit: 1) if he or she had held Finnish citizenship or had at least one parent who was or had been a Finnish citizen, 2) if prior to entering Finland he or she had lived with a spouse resident in Finland or continuously had shared a household and cohabited without being married with a person resident in Finland; or 3) if refusing a residence permit would be clearly unreasonable. 127. According to section 30 (537/1999), as in force from 1999 to 2004, an alien was to be granted asylum and issued a residence permit if, owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, he or she was living outside his country of origin or habitual residence and if, owing to such fear, he or she was unwilling to avail himself of the protection of the said country. The following constituted special grounds for not granting asylum: 1) particular reasons relating to Finland’s national security; 2) he or she had committed a crime against peace, a war crime or a crime against humanity according to the terms of international agreements or had committed another serious crime other than a political offence; 3) he or she had previously stayed in a country which had acceded to the Convention Relating to the Status of Refugees or had stayed in another safe country and applied for asylum there or had had the opportunity to do so; 4) according to the Convention between Denmark, Finland, Iceland, Norway and Sweden concerning the Waiver of Passport Control at the Intra-Nordic Frontiers (Finnish Treaty Series 10/1958), another signatory to the Convention was obliged to readmit the alien in question; 5) in compliance with the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities that was concluded in Dublin on 15 June 1990 (later the Dublin Convention), another contracting State was obliged to take responsibility for an asylum seeker (1183/1997). 128. According to section 31, an alien residing in Finland could be issued with a residence permit as being in need of protection if he or she, in the country of origin or habitual residence, was threatened by capital punishment, torture or other inhuman or degrading treatment or could not return there because of an armed conflict or environmental catastrophe. 129. According to section 37 (2) (537/1999), an alien whose continued residence in Finland required a residence permit, but to whom it had not been issued, could also be refused entry. 130. According to section 38 (537/1999), an alien was to be refused entry as soon as it had been possible to ascertain that his entry into or residence in Finland could not be permitted. All the relevant matters and circumstances had to be taken into account when considering a refusal of entry. These included at least the duration of his or her stay in Finland, the relationship between a child and a parent, family ties and other ties to Finland. No one could be returned to an area where he or she could be subjected to treatment within the meaning of section 30 or 31 or to an area from which he or she could be sent onwards to such an area. 131. According to section 43 (154/1995), an alien could be prohibited from entry to Finland for a maximum of five years or until further notice in a decision concerning deportation or in a decision concerning refusal of entry made by Directorate of Immigration. The entry prohibition order could be revoked by the Directorate of Immigration, either entirely or for a limited period, owing to changed circumstances or for an important personal reason. 132. According to section 57(4) (537/1999), a decision of an administrative court in response to an appeal against a decision of the Directorate of Immigration could be appealed against only if the Supreme Administrative Court had granted leave to appeal. Leave could be granted only if it was important to have the issue decided by the Supreme Administrative Court for the application of the law in other similar cases or for reasons of uniform judicial practice or if other weighty grounds militated in favour of granting such leave. 133. According to the Government Bill for the Amendment of the Aliens Act (Government Bill 50/1998), in cases of doubt, the case should be decided in the asylum seeker’s favour, provided that all the information available had been verified and the authorities were generally convinced of the reliability of the information provided by the asylum seeker. 134. The current conditions and procedure for granting asylum or a residence permit on grounds of protection are stipulated in chapter 6 of the Aliens Act 2004. | 1 |
dev | 001-61686 | ENG | FRA | CHAMBER | 2,004 | CASE OF RADIO FRANCE AND OTHERS v. FRANCE | 1 | No violation of Art. 7;No violation of Art. 6-2;No violation of Art. 10 | null | 6. The applicant company has its registered office in Paris. The other two applicants were born in 1946 and 1957 respectively and live in Paris and Saint-Cloud. 7. In its issue no. 1272, dated 1 February 1997, the weekly magazine Le Point published an “investigation” headlined “Vichy: Around the Papon Case”. Several pages focused on Mr Michel Junot, under the headline “1942-1943 Revelations: Michel Junot, deputy to mayor Jacques Chirac on the Paris City Council from 1977 to 1995, was Deputy Prefect at Pithiviers in 1942 and 1943. In that capacity, he was responsible for maintaining order in the two internment camps in his district, Pithiviers and Beaune-la-Rolande”. The article included the following passages: “'It has to be said that, all political consideration set aside, Vichy's civil servants gave a remarkable example of efficient, skilful and honest administration.' That good-conduct citation, awarded in 1981, does not come from Maurice Papon, who has now been committed to stand trial in the Bordeaux Assize Court for 'complicity in crimes against humanity'. Those are the exact words used in L'illusion du bonheur, a book published ... by Michel Junot, a deputy mayor when Jacques Chirac ran Paris City Council between 1977 and 1995, who knows his subject, since he was Deputy Prefect in Pithiviers, in the département of Loiret, in 1942 and 1943. In that capacity he supervised the maintenance of order in the camp of that town, where thousands of Jews were interned before being deported to Auschwitz. Unlike Maurice Papon – and this is a significant difference between the two cases – he did not order anyone to be arrested, interned or transferred to Drancy. After the war Michel Junot enjoyed a brilliant career in France's highest administrative spheres before turning to politics. He was to become a member of parliament for Paris from 1958 to 1962, giving his allegiance to the CNI, which he never left. But it was on Paris City Council, where he served as mediator from 1977 to 1989 that he spent the longest part of his career. He is a former MEP and since 1978 has been the president of the Maison de l'Europe in Paris. Until now, he has always maintained that the internment camps in his district, Pithiviers, and Beaune-la-Rolande some twenty kilometres away, were not under his control. His main duties were to inspect the local districts and to compile 'general and confidential information' files on local dignitaries. The Pithiviers camp? 'it was not under my jurisdiction. I never set foot in it' he told L' Express magazine in 1990. An outright denial which is, however, inconsistent with several documents not previously published which Le Point has managed to obtain. Documents which clarify his field of activity. ... when he was appointed Deputy Prefect at Pithiviers on 9 June 1942 ... the camps at Pithiviers and Beaune-la-Rolande, originally intended for German prisoners of war, were already being used as internment camps prior to their inmates being deported, the first having left on 8 May 1942. Michel Junot, who was to remain in office for exactly a year to the day, took up his post in Pithiviers on 24 August 1942, that is, less than a month before the departure, on 20 September 1942, of a fresh transport of Jewish deportees. On that day a thousand detainees arrested during house-to-house searches in the Paris region, including 163 children under 18, were put on transport no. 35 and shipped off to Auschwitz via Drancy, the camp to the north of Paris. On the eve of their departure, Michel Junot informed the Prefect of his concerns about maintaining order. 'I hereby inform you that I have just been notified of the entrainment of a thousand Jews from the Pithiviers camp tomorrow from 5 p.m. onwards at Pithiviers railway station, and that all the gendarmes in my district apart from one officer per squad are therefore required to assist with the entrainment ... .' ... Two days later, on 22 September, Junot did not hide his satisfaction when sending the Prefect the following report: 'The day of 20 September 1942 went very smoothly throughout my district. The limited police presence planned for the afternoon of 20 September could not be deployed ... because all the gendarmes in the area, except for one officer per squad, were required for the entrainment of the Jewish detainees of the Pithiviers camp, whose departure I was suddenly notified of on 19 September at 3 p.m. The entrainment was to take place between 4 and 7 p.m. at Pithiviers station at the far end of the avenue de la République where the communists had called on ... the inhabitants of Pithiviers to demonstrate at 6.30 p.m., and I was concerned that some incidents might occur which could disrupt an orderly departure. But nothing of the sort happened and the town remained perfectly calm.' ... Then, in a 'monthly report' drafted eight days later for his superiors, he scrupulously went over the events again. On 30 September 1942 he reported in detail on the situation in the two 'internment camps', as he headed the third paragraph of his report. 'The Beaune-la-Rolande camp, which has been empty since the end of August, has been cleaned', Junot stated. 'The conditions there are now excellent. Two transports of Jews passed through and spent twenty-four hours there before leaving for Drancy. There are only about twenty detainees left at the camp, doing maintenance work.' Michel Junot went on: 'The Pithiviers camp had been occupied since the end of August by 1,800 Jewish internees of all categories, French and foreign, men, women and children, some arrested during the August and December 1941 round-ups, others for having infringed the regulations of the occupying forces (demarcation line, wearing the star of David, etc.). All of them, except those married to Aryans and a few mothers of young children, were placed on trains bound for Germany on 20 September. Finally the last internees left Pithiviers in the evening of the 24th for Beaune-la-Rolande so as to clear the camp, which was due to receive communist internees. In fact this last Jewish transport spent only twenty-four hours in Beaune before being sent on to Drancy on the orders of the occupying forces.' Drancy was the last stop in France before they were deported to Germany and the final solution: their physical destruction. ... On reading this dry civil servant's prose, the Acting Prefect of Loiret, Jacques Marti-Sane, expressed his satisfaction in writing. He was pleased with the orderliness which had prevailed during the entrainment of the deportees, who until then had been crammed into huts surrounded by barbed wire and picked out by searchlight beams from the watchtowers. In an internal memorandum dated 1 October 1942 – another document not previously published – the Acting Prefect informed the head of the first division of the prefecture, who was responsible for organisation and surveillance: 'The Pithiviers Deputy Prefect may be called upon to intervene in the matter of the camps in an emergency and on my express instructions. In any event, in his capacity as the government representative in Pithiviers, he has the right to monitor the proper functioning of the camps. Accordingly, it seems to me essential that all instructions sent to the camp commandant should be copied to the Pithiviers Deputy Prefect, so that he is not bypassed.' ... No fewer than seven transports left from camps in Loiret between June and September 1942, the last one under Junot's responsibility. In his October report, the Deputy Prefect expressed his concerns over the difficulty in maintaining order in Beaune-la-Rolande, which was full of 'French and foreign Jews who have contravened the regulations of the occupying forces (in particular, attempts to cross the demarcation line) and whom the German police have sent to the Beaune camp'. As a conscientious official, Michel Junot went so far as to suggest: 'If there is a further rise in the number of internees, we should make plans to strengthen the security arrangements.' In the same report, he pointed out that communists were gradually replacing the Jews in Pithiviers, though there were still 1,574 of the latter on 30 October 1942 compared with 1,798 on 26 September. 'The presence of this camp inside my district means that the sub-prefecture is receiving a number of letters asking for leave to visit and even for people to be released. I have had some standard-form replies drafted explaining that I have no power to take such measures and that only the Prefect who took the internment decision has any authority in that respect. There is nothing to report from the camp, which is guarded most efficiently by a detachment of gendarmes', he wrote. ... On the day of the liberation of Orléans, 16 August 1944, Michel Junot was present. He waved the tricolour from the balcony of Loiret's prefecture. And he stood at the head of the prefecture steps to welcome André Mars, the commissaire de la République sent by General de Gaulle. But that did not stop him being swept away in the subsequent purge. On 14 December 1945, ten months after awarding Junot a 'certificate of participation in the Resistance', de Gaulle signed a decree removing him from office. The hero of Free France was acting in response to a decision of the National Purification Commission based on a report from the Loiret departmental liberation committee stating that Junot was 'a typical careerist, devoid of all moral scruples, not to be allowed to hold any kind of public office'. However, like many servants of the French State, Junot claimed to have been playing a double game. He explained that he had worked for a 'network' of the Central Intelligence and Action Bureau ... citing his activity on behalf of General de Gaulle's intelligence service in London under the Occupation and the medals he had received as a result. He must have been persuasive, because when peace returned he was to be found once more as permanent secretary to various Ministers, before becoming a deputy prefect again in 1956 and then prefect in 1957. ...” 8. An interview with Mr Junot was also published as part of the investigation. It included the following statement by him: “... It was only when I reported to the Prefect of Loiret that I discovered the existence of the camps. At that time I did not know who was interned there. There had been communists, at the time of the breaking of the Germano-Soviet pact. And there were foreign Jews. We did not know their ultimate destination. We only knew that they were going to Drancy. Rumour had it that they were being sent to work in salt mines in Poland. We obviously knew that they were not going off on a pleasant holiday. But I did not learn of the existence of the extermination camps until April 1945 when the first deportees returned. When I took up office, on 24 August 1942, all the transports except one had already left.” When the interviewer asked Mr Junot if he thought this “renewed interest in those dark years” was “necessary for the young generations” he replied: “If Frenchmen in those days made mistakes, or sometimes committed war crimes, I think there is the discreet veil of history...” 9. At 5 p.m. on 31 January 1997 the third applicant, who is a journalist with France Info (a radio station controlled by the applicant company), broadcast the following report: “According to the weekly magazine Le Point, a former deputy mayor of Paris supervised the deportation of a thousand French and foreign Jews in 1942. Michel Junot, now aged 80, was Deputy Prefect of Pithiviers at the time. He admits that he organised the departure of a transport of deportees to Drancy. Michel Junot, whom General de Gaulle removed from office at the end of the war, claims to have been in the Resistance and subsequently rose through the ranks of the civil service. In his defence, the former deputy mayor of Paris between 1977 and 1995 maintains, like Maurice Papon, that he knew nothing of the fate of the deported Jews and says that the discreet veil of history should be drawn over the crimes of those days.” The way in which France Info operates is for the presenter to broadcast live, with two news bulletins and two news flashes per half-hour. He then breaks for an hour to update his information before going on air again. The above-mentioned broadcast was accordingly repeated by the third applicant and by other journalists sixty-two times between 6 p.m. on 31 January and 11.04 a.m. on 1 February, in either the same or a slightly different form. However, the broadcasts systematically specified that the report was based on an article published in Le Point. After 11 p.m., a number of news bulletins and flashes mentioned the fact that, “unlike Maurice Papon”, Michel Junot had never issued any orders for anyone to be arrested, interned or transferred to Drancy, sometimes adding that he was “responsible only for keeping order”. On 1 February 1997, from 5.45 a.m. onwards, several news bulletins and flashes (broadcast at 6.45, 7, 7.15, 8, 8.15, 8.23, 8.30, 8.45 and 9.33 a.m.) mentioned that Mr Junot denied the allegations published in Le Point. According to the applicants, this point was made systematically after 11.04 a.m. 10. Mr Junot brought proceedings in the Paris Criminal Court against the second applicant, who is publishing director of the applicant company (the publisher), the third applicant and the applicant company as principal, accessory and civilly liable respectively for the offence of public defamation of a civil servant, contrary to sections 29, first paragraph, and 31, first paragraph, of the Freedom of the Press Act of 29 July 1881 (“the 1881 Act”). In their defence, the applicants argued that the case under section 31 of the 1881 Act was inadmissible, because Mr Junot had been retrospectively stripped of his status as a civil servant at the time of the Liberation. They also contended that the prosecution's case against the second applicant was inadmissible: the disputed statement had been broadcast live and its content could not therefore be construed as having been “fixed prior to being communicated to the public” within the meaning of section 93-3 of the Audiovisual Communication Act of 29 July 1982 (“the 1982 Act”). Moreover, they submitted that the third applicant had acted in good faith. In that connection, they argued that public interest in the period of the Occupation had been revived by the news of the Papon trial; that the third applicant had been in possession of the article published in Le Point on the previous day along with three agency dispatches; that it had been reasonable to link the cases of Mr Junot and Mr Papon because both men had held high public office during the Occupation and had subsequently enjoyed brilliant political careers; that the use of the conditional tense and the absence of any personal comment about Mr Junot demonstrated the journalist's caution; and that France Info had reported Mr Junot's denials from 6 a.m. on 1 February onwards. 11. By a judgment of 25 November 1997, the Paris Criminal Court (Seventeenth Division) found the second and third applicants guilty as principal and accessory respectively of the offence of public defamation of a civil servant. It fined them 20,000 French francs (FRF) each and ordered them jointly to pay FRF 50,000 in damages. It also found the applicant company civilly liable and ordered by way of civil remedy that an announcement informing the public of the content of its judgment be broadcast on France Info every thirty minutes during a twenty-four hour period in the month following the date on which the judgment became final. With regard to the defamatory nature of the disputed allegations, the judgment reads as follows: “Mr Junot is alleged ... to have personally played an active role in the deportation of Jews in his capacity as Deputy Prefect of Pithiviers. This allegation, which undoubtedly damages the honour of the civil party, is moreover aggravated by the connection made between the case of Mr Papon – who has been committed for trial before the Gironde Assize Court to answer charges that he participated in crimes against humanity – and that of Mr Junot, with the suggestion that the latter was seeking to evade responsibility for the crimes committed during that period, over which he believes that 'the discreet veil of history should be drawn'. The fact that it was specified that, 'unlike Maurice Papon', Michel Junot 'did not issue any orders for anyone to be arrested, interned or transferred to Drancy' in no way detracts from the seriousness of the charge levelled at the civil party; the same can be said of the use of the conditional tense throughout the broadcasts. The allegations in question also cast doubt on Mr Junot's membership of the Resistance, which was reported as a mere 'claim' on his part, and suggested that he had been stripped of his status by General de Gaulle at the end of the war. These words also damage the civil party's honour and reputation.” The court found that Mr Junot had never lost the rank of Deputy Prefect, and that he should be considered as having been acting in that capacity in Pithiviers at the time of the facts alleged against him and accordingly to have been exercising public authority. It found that section 31 of the 1881 Act was therefore applicable. With regard to the good faith of the third applicant, the court found as follows: “There being a presumption that defamatory statements are made in bad faith, it is for the defendants to prove their good faith. It should first be noted that the repetition of defamatory statements already published in another medium does not in any way provide the person who repeats them with a defence; such journalistic practice is particularly to be deprecated, because it means that a statement that has not been verified by anyone subsequently reporting it acquires the appearance of an absolute certainty. This is what happened with Mr Junot: having assumed that the enquiries made by his fellow journalists at Le Point were reliable, Bertrand Gallicher simply repeated the magazine's allegations against the civil party without checking them. As evidence that he had carried out a serious investigation, Bertrand Gallicher told the Court that he had been in possession of the article published in Le Point on the previous day, and of three agency dispatches; however these dispatches, which simply quoted large sections of the magazine article, could not, without more, provide the journalist with a legal defence. The journalist also produced the documents mentioned in Le Point: the Prefect's memorandum of 1 October 1942, Michel Junot's notes of 19 and 22 September 1942 and the monthly reports for September and October 1942; however, these documents did not give him grounds for asserting that Michel Junot, Pithiviers Deputy Prefect, had supervised the deportation of a thousand Jews or that he had admitted having organised the departure of a transport of Jewish deportees. Neither the memorandum from the Prefect of Loiret dated 1 October 1942 specifying that the Pithiviers Deputy Prefect must be copied in on all the instructions given to the camp commandant, nor the memorandum of 19 September 1942 to the Prefect signed by Michel Junot and expressing his concerns about keeping order on 20 September 1942 in the event of communist demonstrations because all the gendarmes in the district had been drafted in to help with the 'entrainment of a thousand Jews', nor the report drawn up by Michel Junot on 22 September 1942 on the events of the day, which had been 'perfectly calm', prove that Michel Junot, Deputy Prefect, had played a personal part in the organisation and departure of that transport for Drancy. In fact, what these documents show is that he complained of having been notified only belatedly of the 'entrainment of a thousand Jews', that he did not receive copies of all the instructions sent to the camp commandant, a memorandum from the Prefect having been required to ensure that he was not 'bypassed' and that his concern was to maintain order outside the camps. Michel Junot's monthly reports for September and October 1942 do not carry any more evidential weight in this respect; while the first mentions that most of the Jews in the Pithiviers camp had been 'entrained' on transports bound for Germany on 20 September 1942; while both report on the occupancy rate of the two internment camps situated in his district and thus establish his 'responsibility in principle' for the camps (using Mr Serge Klarsfeld's formula); while they keep the Prefect informed of relations with the German forces and the circumstances in which the anti-Jewish laws were being applied and certainly show that Mr Junot was performing his functions of Deputy Prefect under the Occupation with zeal and determination, and without being troubled by too many scruples, they nonetheless do not prove that he played a personal part in the deportation of Jews or that he organised the departure of a transport of Jewish deportees. Turning to the other documents cited by the defence, namely a letter dated 19 September 1942 from the secretary-general for the police on the Conseil d'Etat to the Orléans Regional Prefect and the latter's reply dated 21 September 1942, and a memorandum dated 19 September 1942 from the Pithiviers Deputy Prefect to the captain of the gendarmerie and police superintendent, they cannot be regarded by the Court as having any evidential weight, since they are merely summarised on a plain sheet of paper. In short, the documents in Bertrand Gallicher's possession did not give him grounds for alleging that Mr Junot was guilty of having participated in crimes against humanity. Nor did these documents entitle the presenters who came on air after 0.33 a.m. on 1 February to repeat the allegation that the plaintiff had supervised the Jewish internment camps of Pithiviers and Beaune-la-Rolande and the maintenance of order in both camps. Lastly, the testimony of Mrs Mouchard-Zay recounting the dramatic circumstances of the various round-ups of Jewish men, women and children, the conditions in which they were transferred to and arrived in the two camps of Pithiviers and Beaune-la-Rolande, and the dramatic change in public opinion which coincided with these events, does not prove that Mr Junot played any part in the organisation of these deportations. While being aware of the professional constraints imposed by the need to break news rapidly, which is inherent in the very nature of radio, the Court notes that the journalists, far from merely reporting raw news objectively, endorsed the interpretation adopted by some of their fellow journalists, while going further by making a connection with the 'Papon case', no doubt with the intention of making the story more sensational. The disputed broadcasts were therefore particularly careless and contributed to the spread of rumour by repeating defamatory allegations. In relation to the allegation that Mr Junot was not a genuine member of the Resistance, the Court finds that the evidence produced by the defence is insufficient to cast doubt on his Resistance activities, which in any event have been vouched for by Jean-Claude Aaron, the leader of the Masséna network, by Colonel Rémy and by several people of Jewish descent who described the help he had given them during the Occupation. For all of the above reasons, the Court is unable to accept that [the third applicant] acted in good faith.” The court found the second applicant, in his capacity as publishing director, not liable for the first broadcast, which had been made live by the third applicant on 31 January at 6 p.m. It found, however, that the same statement had been repeated either in full or in condensed form by the various presenters who subsequently went on air, and considered that such “systematic repetition of the disputed statements” should be construed as “rolling broadcasting” within the meaning of section 93-3 of the 1982 Act. The court concluded as follows: “[The second applicant], as publishing director, whose duty it is to control what is broadcast on the channel for which he is responsible, is therefore liable in law as principal for the offence of defamation.” 12. On appeal by the applicants, the Paris Court of Appeal (Eleventh Criminal Appeal Division) upheld the judgment of 25 November 1997 by a decision of 17 June 1998. On the question of the defamatory nature of the offending bulletin's content, it ruled as follows: “Words may be defamatory as the result of an insinuation, a question or an assertion. In addition, words must be assessed both in terms of their intrinsic meaning and in the light of their context. Attributing to Mr Junot responsibility for supervising the deportation of a thousand Jews and organising their despatch to Drancy was plainly an attack on his honour and dignity. The defence arguments ... tending towards proving the truth of the facts is not relevant here, quite apart from the fact that no evidence to that effect has been adduced. Moreover, comparing Mr Junot's position to that of Mr Papon, who had indeed just been committed for trial in the Bordeaux Assize Court, also necessarily had a defamatory resonance. The same defamatory classification must also be given to the passage '[Mr Junot] ... claims to have been in the Resistance'. Coming as it does between the reference to his being sacked by General de Gaulle and the comparison to Mr Papon, this can only insinuate that Mr Junot's assertion was false.” On the question of good faith, the judgment said: “Calumnious imputations are deemed to be in bad faith unless it can be established that they were made in pursuit of a legitimate aim, without any personal animosity, after a serious investigation and in temperate language. There is no doubt that providing information about the attitude of administrative officials during the period of the Occupation, particularly as regards one of the main dramas of that time, the deportation and extermination of Jews, is perfectly legitimate. Nothing in the file reveals any particular animosity on the journalist's part towards the civil party. On the other hand, the preliminary investigation was singularly lacking in rigour. The civil party has rightly observed that Mr Gallicher began to broadcast his remarks at 6 p.m. on 31 January, in other words when the issue of Le Point dated 1 and 2 February had just come out. In seeking to establish their good faith the defence cite three dispatches (AFP, AP and Reuters) which mentioned the article in Le Point and the content of a television programme in which Mr Junot had taken part. But the use of agency dispatches as one's main source, especially when they are purely repetitive and reproduce an article that has already been published does not constitute evidence that an attempt has been made, if not to conduct an investigation, then at least to check the information. In addition, the wholly gratuitous assertion that Mr Junot admitted his culpability is particularly reprehensible from both the criminal and the ethical points of view. As regards the debate about whether Mr Junot had been a member of the Resistance, the Criminal Court rightly noted that the documents produced by the defence were not sufficient evidence to the contrary, whereas his participation has been attested to by the leader of the Masséna network, Jean-Claude Aaron, by Colonel Rémy and by a number of persons of Jewish origin who have drawn attention to Mr Junot's courageous attitude. Moreover, the imputations contained in the message sent out were disproportionate in relation to the objective material that the accused maintained they had at their disposal, and here it should be noted, as clarification of this point may be helpful, that neither the use of the conditional tense pleaded in defence, nor the mention – very late in the day – of Mr Junot's denials, affect the gravity of the allegations made in dispatches broadcast several dozen times. The content of the documents which the defendants learned of in Le Point is not convincing in terms of the construction that has been placed upon them if they are to be considered to reflect Deputy Prefect Junot's attitude at the time of the departure of the last transport of Jewish deportees on 20 September 1942. The memo of 19 September from the deputy prefect to his prefect ... said: 'I have just been notified of the entrainment of a thousand Jews ... tomorrow', and he complained that he would therefore not have sufficient manpower to control a communist demonstration. The same deputy prefect sent a memo, dated 22 September, informing the prefect that there had been no incidents on account of the demonstration and that the departure of the transport had been orderly. The memo of 1 October 1942 from the Prefect of Loiret seems to echo his subordinate's concerns about being informed in stipulating that the deputy prefect 'in his capacity as the government representative ..., has the right to monitor the proper functioning of the camps'. The reports sent by Michel Junot to his prefect in September and October 1942 describe the situation in the camps but do not reveal that he had any power over them or initiative regarding them. The witness evidence heard in court did not provide any additional information about Mr Junot's duties. As to the other documents produced in court, the Criminal Court rightly found, for reasons which the Court of Appeal endorses, that they did not appear to have been in the defendants' possession at the time when the statement was broadcast. Moreover, they do not necessarily weaken Mr Junot's argument, since they include one memo he wrote on 15 April 1943 to the Prefect of Orléans about improving the food and bedding in the camps. It ends with the following sentence: 'Although the management and administration of the camps does not form any part of my duties, I wish to bring this state of affairs to your attention ...' All these texts portray an official dedicated to fulfilling his functions of maintaining public order and defending the political interests of the government. They do not support, without overstating the case, an assertion that Mr Junot supervised the camps or played a role in the deportation of the Jews. The plea of good faith is accordingly rejected.” The Court of Appeal noted the following in relation to the liability of the second applicant under section 93-3 of the 1982 Act: “... This section is intended to absolve the publishing director of an audiovisual operator of liability for live broadcasts whose contents he is unable effectively to monitor and control. But this cannot be said of a rolling news bulletin whose content may be monitored and controlled by making the necessary arrangements to that effect. It is significant in this respect that such steps were taken from the morning of 1 February onwards, when the content of the offending statement was amended. Moreover, it would be stretching the concept of prior fixing to contend that it must involve mechanical recording. Content may also be fixed by a communication method based on repetition which effectively requires it to be fixed but not necessarily by mechanical means. Therein lies the difference from 'live' broadcasting involving no repetition.” Moreover, by way of civil remedy, the court ordered the following announcement to be read out on France Info every two hours during a twenty-four hour period in the month following the date when the judgment became final: “By a judgment of the Paris Court of Appeal (Eleventh Division – Section A), Mr Bertrand Gallicher, journalist, and Mr Michel Boyon, publishing director of Radio France, were each fined FRF 20,000 and ordered to pay damages for having defamed Mr Michel Junot, former Deputy Prefect of Pithiviers. This judgment follows the broadcasting, on 31 January and 1 February 1997, of news bulletins falsely alleging that Mr Michel Junot had played a part in the deportation of a thousand Jews and wrongly casting doubt on his membership of the Resistance.” On the subject of the broadcasting of the above announcement, the judgment reads as follows: “The Court is minded to uphold the order for the broadcasting of an announcement by France Info, which seems to be a remedy proportionate to the damage suffered but which the defence considers to be contrary to the provisions of Articles 6 and 10 of [the Convention] ... The Court does not agree, because freedom of expression under Article 10 of [the Convention] may be subject to such restrictions as may be necessary ... for the protection of the reputation of others, which is the case here. It is true that the effect of this order, as indicated by the defence, will be to reduce the 'editorial space' available to France Info, but the written press are already in the same position and it is difficult to find a justification for discriminating between the various media in that respect. Lastly, it would be wrong to deny the claimant, whose rights are equally important, the concrete remedy of broadcasting an announcement purely on the ground that the audiovisual medium is different from the traditional medium of the written press. Further, nothing in the order to broadcast an announcement may be construed as infringing the right to a fair trial within the meaning of Article 6 of the Convention ...” 13. The applicants appealed on points of law. They submitted that the Court of Appeal had failed to apply the principle whereby the criminal law must be strictly interpreted, in that it had extended the scope of the presumption raised by section 93-3 of the 1982 Act (whereby the publishing director is liable as principal where “the content of the offending statement has been fixed prior to being communicated to the public”) to cover a “communication method based on repetition”. Relying in particular on Articles 6 and 10 of the Convention , they also complained of the order in the disputed ruling to broadcast the above announcement on France Info, the essence of their argument being that “there [was] no basis in legislation for the publication of a judicial announcement, which [was] nothing less than punishment for a civil wrong”. By a judgment of 8 June 1999, the Court of Cassation (Criminal Division) dismissed the appeal for the following reasons, inter alia: “... In finding the publishing director liable as principal for the offence created by section 93-3 of the Audiovisual Communication Act of 29 July 1982, the Court of Appeal both for its own and for adopted reasons ruled that the broadcasts containing the offending remarks had been, with the exception of the first bulletin, systematically broadcast on a rolling basis in exactly the same or in condensed form over a twenty-four hour period. It further found that this type of broadcasting allowed the publishing director to exercise control over the content before it was broadcast to the public. The court applied the law correctly in so ruling. The content of an announcement which is broadcast on a rolling basis must properly be construed as having been fixed prior to being communicated to the public within the meaning of section 93-3 [cited above]. ... ... although the criminal courts may order the publication of their judgments by way of penalty only if they are expressly authorised to do so by law, they may issue such an order by way of a remedy at the request of the civil party. Such a remedy, when ordered in a form achievable under the technical constraints of the medium in which publication is ordered, [does not breach] the Convention provisions cited in the appeal.” 14. The announcement referred to in paragraph 12 above was broadcast on France Info between 31 July and 1 August 1999. 15. The relevant provisions of Chapter IV of the Freedom of the Press Act of 29 July 1881 (as amended) are as follows: Section 29 “It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches, shouts, threats, written or printed matter, placards or posters. It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact.” Section 31 “Defamation by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, a representative or officer of the law, a minister of religion in receipt of a State salary, a citizen temporarily or permanently responsible for a public service or discharging a public mandate, a member of a jury or a witness on the basis of his witness statement [in speeches, shouts or threats made or uttered in public places or meetings, or in written or printed matter, drawings, engravings, paintings, emblems, images or any other written, spoken or pictorial medium sold or distributed, offered for sale or exhibited in public places or meetings, or on placards or posters on public display, or in any audiovisual medium] shall be punishable [by a fine of 45,000 euros]. Defamatory statements about the private lives of the above persons shall be punishable under section 32 below.” Section 41 “The following persons shall be liable, as principals, in the following order, to penalties for offences committed via the press: 1. Publishing directors and publishers, irrespective of their occupation or title ...” 16. Section 93-3 of the Audiovisual Communication Act of 29 July 1982 states: “In the event of one of the offences provided for in Chapter IV of the Freedom of the Press Act of 29 July 1881 being committed by an audiovisual operator, the publishing director ...shall be prosecuted as the principal offender provided that the content of the offending statement has been fixed prior to being communicated to the public. ... When the ... publishing director is prosecuted, the maker of the statement shall be prosecuted as an accessory. ...” | 0 |
dev | 001-117127 | ENG | RUS | CHAMBER | 2,013 | CASE OF KASYMAKHUNOV AND SAYBATALOV v. RUSSIA | 3 | Remainder inadmissible (Article 35-3 - Ratione materiae);Violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Nullum crimen sine lege);No violation of Article 7 - No punishment without law (Article 7-1 - Nullum crimen sine lege) | Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicants were born in 1964 and 1972 respectively. The first applicant’s whereabouts are unknown. The second applicant lives in Tyumen. 6. The applicants are members of Hizb ut-Tahrir al-Islami. 7. Hizb ut-Tahrir al-Islami (The Party of Islamic Liberation – hereinafter “Hizb ut-Tahrir”) is an international Islamic organisation with branches in many parts of the world, including the Middle East and Europe. It advocates the overthrow of governments and their replacement by an Islamic State in the form of a recreated Caliphate. Hizb ut-Tahrir first emerged among Palestinians in Jordan in the early 1950s. It has achieved a small, but highly committed following in a number of Middle Eastern states and has also gained in popularity among Muslims in western Europe and Indonesia. It began working in Central Asia in the mid-1990s and has developed a committed following inside Uzbekistan, and to a lesser extent in neighbouring Kyrgyzstan, Tajikistan and Kazakhstan. 8. On 14 February 2003 the Supreme Court of the Russian Federation found fifteen organisations, including Hizb ut-Tahrir, to be terrorist organisations and prohibited their activity in the territory of Russia. It held a hearing in camera which was attended by a representative of the Prosecutor General’s office, but not the organisations’ representatives. The part concerning Hizb ut-Tahrir reads in its entirety as follows: “The Party of Islamic Liberation (‘Hizb ut-Tahrir al-Islami’) is an organisation that pursues the aims of overthrowing non-Islamic governments and of establishing Islamic rule on an international scale by reviving a ‘Worldwide Islamic Caliphate’, in the first place in the regions with a predominantly Muslim population, including Russia and other members of the Commonwealth of Independent States. Its main methods and activities include Islamic militant propaganda, combined with intolerance towards other religions, active recruitment of supporters, and activities aimed at promoting schism and disunity in society (primarily proselytism with massive financial support). It is banned in several Middle East and Commonwealth of Independent States countries (Uzbekistan).” 9. On 18 June 2003 the Supreme Court rejected as out of time the appeal submitted by one of the banned organisations. It found it established, on the basis of the evidence submitted by the Prosecutor General’s office, that the information about the decision of 14 February 2003 had been published in the mass media in February 2003. The fact that the organisation had not learned about that decision until 28 April 2003 was irrelevant. There had therefore been no reason to extend the time-limit for appealing. 10. On 28 July 2006 a list of organisations declared to be terrorist organisations by the Russian courts was for the first time published in the official periodical Rossiyskaya Gazeta. The list included, among others, the organisations declared to be terrorist organisations by the Supreme Court’s decision of 14 February 2003, such as Hizb ut-Tahrir. 11. On 13 February 2004 the first applicant was arrested. On 25 March 2004 criminal proceedings were instituted against him and his partner Ms D. They were accused of being members of Hizb ut-Tahrir and were charged with aiding and abetting terrorism, founding a criminal organisation and using forged documents, offences under Article 205.1 § 1, Article 210 § 1 and Article 327 § 3 of the Criminal Code. 12. When questioned by the investigator, the first applicant admitted to being a member of Hizb ut-Tahrir and living in Russia under a false name and with forged identity documents. According to him, Hizb ut-Tahrir was a political organisation with a strict hierarchical structure and the aim of establishing the Caliphate through “velvet revolutions”, first in Muslim lands and then in other traditionally non-Muslim countries. It did not resort to, or call for, violence. Its members viewed Islam as a political ideology rather than a religious belief. The first applicant’s main activity consisted in talking to people in an attempt to persuade them to join Hizb ut-Tahrir. He distributed Hizb ut-Tahrir’s literature and explained its ideology. He had succeeded in recruiting five or six people who formed the Moscow section of Hizb ut-Tahrir under his leadership. He gave instructions to the members of his section and was also responsible for maintaining contacts with other local sections of Hizb ut-Tahrir. He knew that the organisation had been banned in Russia and therefore the members of his section had pseudonyms. 13. His partner Ms D. gave similar evidence. She affirmed that Hizb utTahrir was not a terrorist organisation. 14. The investigator also obtained statements from several witnesses. The witnesses stated that the first applicant and Ms D. had attempted to persuade them to become members of Hizb ut-Tahrir and had supplied them with Hizb ut-Tahrir’s literature. They gave the leaflets and brochures received from the first applicant to the investigator. Some of the witnesses testified that the first applicant had urged them to fight the unfaithful, including with weapons, and they had the impression that he had called for assistance to Chechen guerrillas. One witness also stated that the first applicant had advocated the establishment of sharia on the territory of Russia. 15. The first applicant’s flat was searched and guidelines on the use of weapons, explosives and poisons were found there. 16. In September 2004 the case was sent for trial before the Moscow City Court. 17. The first applicant pleaded not guilty. He admitted his membership of Hizb ut-Tahrir al-Islami and confirmed his previous description of its activities and ideology. He insisted that it was not a terrorist organisation and that it condemned any use of violence. He repudiated in part his previous statement, stating that it had been given under pressure, and denied any attempts to persuade people to join Hizb ut-Tahrir. He further stated that the guidelines found in his flat had been planted by the police. 18. The first applicant’s partner Ms D. denied being a member of Hizb ut-Tahrir and stated that she had not known about its being banned in Russia. 19. The trial court then questioned witnesses called by the prosecution, who confirmed the statements they had given during the investigation. 20. Finally, the trial court examined the leaflets and brochures distributed by the first applicant. 21. On 11 November 2004 the Moscow City Court found the first applicant guilty of aiding and abetting terrorism, founding a criminal organisation and using forged documents (Article 205.1 § 1, Article 210 § 1 and Article 327 § 3 of the Criminal Code). Referring to the witness testimony, the first applicant’s statements to the investigator and documentary evidence, the court found it established that the first applicant, being a member of Hizb ut-Tahrir, had founded a local section of that organisation and, in the period from 1999 to February 2004, had recruited new members and distributed the organisation’s literature. The court analysed the contents of the leaflets and brochures distributed by the first applicant and found that they proclaimed the superiority of Islam over other religions and political ideologies, such as communism and capitalism, and advocated intolerance towards non-Muslims. They also rejected democratic principles as incompatible with the rules of sharia. They declared war on governments which were not based on Islam and called for their overthrow, including by violent methods. They urged members of Hizb ut-Tahrir to take part in the sacred war (jihad). By stating that jihad was not a defensive war but a struggle to expand the Islamic State, which had to be carried out even if the “unfaithful” did not attack Muslims, the documents in question openly advocated and glorified warfare in the name of Allah. They also stated that such countries as the United States of America, the United Kingdom, France and Russia were enemy States and that war had to be declared against any State that occupied Muslim lands. Citizens of the above enemy States should not be allowed to enter Muslim states and it should be permitted to kill them and take their property if they were not Muslims. Referring to the contents of the above-mentioned leaflets and brochures, the contents of the guidelines on the use of weapons, explosives and poisons found in the first applicant’s flat and the Supreme Court’s decision of 14 February 2003, the court concluded that the local section of Hizb ut-Tahrir founded by the first applicant was a terrorist organisation. The court also found it established that the first applicant had known about the Supreme Court’s decision of 14 February 2003. His actions had therefore amounted to incitement to participate in the activities of a terrorist organisation, punishable under Article 205.1 of the Criminal Code, and to founding of a criminal organisation, punishable under Article 210 of the Code. 22. The court sentenced the first applicant to eight years’ imprisonment. 23. In his submissions on appeal the first applicant stated that he had never called for or resorted to violence. Nor had he been involved in any terrorist activities. His conviction for spreading Islamic ideology had breached his right to freedom of speech and opinion. He also argued that the trial court had incorrectly interpreted the religious terminology contained in Hizb ut-Tahrir’s literature. Given that the trial judge did not have sufficient knowledge of religious matters, an expert opinion should have been ordered. Finally, the first applicant submitted that he had had no knowledge of the decision of the Supreme Court banning Hizb ut-Tahrir as that decision had never been officially published. 24. On 13 January 2005 the Supreme Court of the Russian Federation upheld the conviction on appeal. 25. On 2 May 2007 the Udorskiy District Court of the Komy Republic decided to bring the applicant’s sentence into conformity with the recent amendments to Article 205.1 of the Criminal Code. It found that incitement to participate in the activities of a terrorist organisation was no longer classified as adding or abetting terrorism in the new version of Article 205.1 (see paragraph 55 below). The court therefore decided to set aside the conviction under Article 205.1 and reduce the first applicant’s sentence to seven years and four months’ imprisonment. On 3 July 2007 the Supreme Court of the Komy Republic upheld that decision on appeal. 26. On 10 June 2011 the first applicant finished serving his sentence. He is now facing extradition proceedings to Uzbekistan, where criminal proceedings are pending against him in relation to his membership of Hizb ut-Tahrir. On 14 December 2012 he disappeared from Moscow and his current whereabouts are unknown. 27. On 18 June 2004 criminal proceedings were instituted against the second applicant and eight other persons by the Tyumen regional prosecutor’s office. They were accused of being members of Hizb ut-Tahrir and charged with aiding and abetting terrorism, an offence under Article 205.1 § 1 of the Criminal Code, and founding and membership of an extremist organisation, an offence under Article 282.2 §§ 1 and 2 of the Criminal Code. 28. When questioned by the investigator, the second applicant admitted to being a member of Hizb ut-Tahrir and, since the beginning of 2003, the leader of its local sections in Tyumen and Tobolsk. Their aim was to establish the Caliphate in the Middle East. He had learned that the organisation had been banned in Russia in the course of his interview with the police in the autumn of 2003. The meetings of the local sections had all been held in secret. He had chaired the meetings, had admitted new members, had distributed Hizb ut-Tahrir’s literature and had explained its ideology. He had also been responsible for maintaining contacts with the Moscow section of Hizb ut-Tahrir. 29. His co-defendants gave similar evidence. They confirmed the second applicant’s leadership position and his regular contact with other local sections of Hizb ut-Tahrir in Russia. During their regular and secret meetings they had read Hizb ut-Tahrir’s literature and discussed its aims, among which had been recruitment of new members and dissemination of Hizb ut-Tahrir’s ideology among the population through media publications and distribution of leaflets. The issues they had discussed during the meetings were often political rather than religious. Members of the organisation had to give an oath, pay contributions and obey orders by the leaders. They considered themselves part of the international organisation Hizb ut-Tahrir al-Islami. Some of them stated that they knew that the organisation had been banned in Russia. 30. The investigator also obtained statements from several witnesses. The witnesses stated that the defendants had attempted to persuade them to become members of Hizb ut-Tahrir and had supplied them with the organisation’s literature. 31. The defendants’ flats were searched and multiple copies of Hizb utTahrir’s literature and leaflets were found there. Some of those leaflets criticised the authorities’ decision to ban Hizb ut-Tahrir and the ensuing arrests and criminal proceedings against its members. It was also discovered that documents containing Hizb ut-Tahrir’s texts and information about its activities were stored on the hard disk of the second applicant’s computer and several floppy disks. 32. In June 2005 the case was sent for trial before the Tobolsk Town Court of the Tyumen Region. All defendants, including the second applicant, repudiated their previous statements, stating that they had been given under duress, and pleaded not guilty. 33. They admitted to being followers of Hizb ut-Tahrir’s ideology but denied being members of the organisation. They had gathered regularly and openly to read Islamic texts and discuss religious issues. All the texts had been printed out from the Internet and none of them had been banned or recognised as extremist. They had never planned or participated in any terrorist activities, nor had they incited others to commit terrorist acts. They were opposed to violence and strived to achieve their aim, namely establishment of the Caliphate, through ideological and political struggle. 34. The trial court then questioned witnesses called by the prosecution. Some of them confirmed the evidence they had given during the investigation, while the others repudiated their previous statements. 35. The court also listened to audio recordings and watched video recordings of the defendants’ meetings. During the meetings the defendants discussed the ideology and aims of Hizb ut-Tahrir, its structure and the methods employed by it. The second applicant and his assistant had been the principal spokesmen. They had instructed the others that orders should be immediately obeyed and had warned that those who refused to obey would be punished. They had also explained that the local section’s main activities were to be proselytism, involvement of new members and establishment of contacts with high-ranking State officials. During one of the meetings the defendants had discussed the possibility of obtaining arms and explosives and committing terrorist acts. During another meeting the second applicant’s assistant had stated the following: “‘I am astonished why you have Jews here, why you have so many of them accumulated?’ ‘We have overseers in two towns, I mean our supporters. The criminal world supports us. Hizb supports us. In our town the [criminals] support us.’ ‘You should have hate, fury... You should be a wolf, you should attack. You should not be afraid of burying someone in asphalt, when someone is assaulted you should join in, you should make a contribution to violence. You should be like that. Jews are foul people, they act in an underhand way. They will not carry out an attack themselves, they will hire someone. They are sly and rich, they control the town thanks to their money.’” 36. The court further examined the contents of the Internet site maintained by Hizb ut-Tahrir and the literature found in the defendants’ flats. 37. Finally, the court examined expert reports submitted by the prosecutor. A panel composed of experts in religious, political and linguistic matters examined the literature found during the search of the defendants’ flats and the audio and video recordings. The experts concluded that the documents and recordings contained religious and political propaganda on behalf of Hizb ut-Tahrir. Some of them contained radical fundamentalist statements accepting and advocating the use of violence and armed struggle in the form of jihad. Therefore, there were reasons to consider that Hizb utTahrir’s literature was extremist in nature and that its dissemination amounted to pro-terrorism propaganda. The documents under examination advocated the idea that all existing States and governments were illegitimate as they were not based on Islam and called for their overthrow, including by violent methods, for the universal Islamisation of mankind and for the establishment of a “Worldwide Islamic Caliphate”; in other words, they called for a coup d’état and the forcible taking over of the government in all countries. The experts noted that although the documents did not indicate clearly the methods by which the organisation’s aims were to be achieved and did not openly call for the commission of terrorist acts, they unambiguously rejected any possibility of the organisation’s participation in the democratic political process. It followed, in the experts’ opinion, that its aim of taking over governments could only be achieved through the use of violence. The documents also contained ideas promoting the superiority of Muslims over adherents of other religions and consistent calls for confrontation between Islamic fundamentalists and all others. They were capable of creating hostility and disunity in society. Finally, the linguistic experts found that the documents under examination were highly manipulative and capable of influencing the mind and the will of the reader. They employed professional manipulation techniques. Thus, they twisted the meanings of some words, for example interpreting “terrorism” as acts of violence against Muslims only, while the same acts against adherents of other religions were described as sacred war against non-believers (jihad). 38. The trial court questioned one of the experts, who confirmed his findings. He added that Hizb ut-Tahrir was an extremist organisation that was intolerant towards other religions. It called for violence against non-believers, which might be interpreted as incitement to terrorism. 39. The experts called by the defence disputed the above findings. One of the experts, a co-president of the Council of Muftis of Russia, stated to the court that Hizb ut-Tahrir was not a terrorist organisation and was not involved in the commission of any terrorist acts. Its ideology was utopian and unrealistic. Its main activity was Islamic proselytism. According to its texts, the Caliphate was to be established by peaceful methods. Another expert also testified that the members of Hizb ut-Tahrir were not violent and did not present any danger to national security. 40. On 3 October 2005 the Tobolsk Town Court found the second applicant and his co-defendants guilty as charged. Referring to the witness testimony, the defendants’ statements to the investigator, the audio and video recordings of the defendants’ meetings and the expert opinions, the court found it established that since the beginning of 2003 the defendants had been members of Hizb ut-Tahrir. That organisation had been declared to be a terrorist and extremist organisation and banned by the Supreme Court. Given that the Supreme Court’s decision had been duly published, that the second applicant had been informed about its contents in December 2003 in the course of his interview with the police in connection with a similar criminal case and that leaflets criticising that decision and the ensuing arrests and criminal proceedings against members of Hizb ut-Tahrir had been found in the defendants’ flats, the Town Court found it established that the defendants knew about the Supreme Court’s decision banning Hizb utTahrir. Despite that fact, they had not stopped their activities as members of Hizb ut-Tahrir and had continued to hold secret meetings, recruit new members and distribute the organisation’s literature. The documents distributed by the defendants were extremist as they advocated violence, rejected the rule of law and encouraged hatred towards adherents of other religions. Their actions had therefore amounted to founding and membership of a banned extremist organisation, punishable under Article 282.2 of the Criminal Code, and to incitement to participate in the activities of a terrorist organisation, punishable under Article 205.1 of the Code. 41. The court sentenced the second applicant to five years and six months’ imprisonment for the offence under Article 205.1 and to two years’ imprisonment for the offence under Article 282.2. The aggregate sentence was fixed at six years’ imprisonment. 42. In his submissions on appeal the second applicant stated that he had never committed any terrorist acts or been involved in any terrorist activities. He and his co-defendants had gathered to read Islamic literature and to discuss religious issues. His conviction had therefore violated his rights under Articles 9, 10 and 11 of the Convention. 43. On 12 January 2006 the Tyumen Regional Court upheld the conviction on appeal. 44. Information on the nature and activities of Hizb ut-Tahrir is scarce and contradictory. The most comprehensive report was prepared by the International Crisis Group in 2003. The report, entitled “Radical Islam in Central Asia: Responding to Hizb ut-Tahrir”, reads, as far as relevant, as follows: “Hizb ut-Tahrir is not a religious organisation, but rather a political party whose ideology is based on Islam. It aims to re-establish the historical Caliphate in order to bring together all Muslim lands under Islamic rule and establish a state capable of counterbalancing the West. It rejects contemporary efforts to establish Islamic states, asserting that Saudi Arabia and Iran do not meet the necessary criteria. According to Hizb ut-Tahrir, the Islamic state is one in which Islamic law – Sharia – is applied to all walks of life, and there is no compromise with other forms of legislation. Hizb ut-Tahrir claims to reject violence as a form of political struggle, and most of its activities are peaceful. In theory, the group rejects terrorism, considering the killing of innocents to be against Islamic law. However, behind this rhetoric, there is some ideological justification for violence in its literature, and it admits participation in a number of failed coup attempts in the Middle East. It also has contacts with some groups much less scrupulous about violence. But despite the allegations of governments, there is no proof of its involvement in terrorist activities in Central Asia or elsewhere. Government responses have been contradictory and often ineffective. In much of the Middle East, the organisation is banned from acting openly, and many of its members have been imprisoned. Central Asian governments have taken particularly harsh stances, with Uzbekistan leading the way by arresting and sentencing thousands of members to long prison terms. In some other Muslim countries, such as Indonesia, Hizb ut-Tahrir acts more or less openly, as it does in much of Western Europe ... The party’s writings elaborate three stages of political struggle, based on its interpretation of the historical mission of the Prophet Mohammed in establishing the first Islamic state: The First: The stage of culturing; this involves finding and cultivating individuals who are convinced by the thought and method of the party. This is necessary in order to formulate and establish a group capable of carrying the party’s ideas. The Second: The stage of interaction with the Ummah (wider Muslim community) in order to encourage the Ummah to work for Islam and to carry the Da’wah (message) as if it was its own, and so that it works to establish Islam in life, state and society. The Third: The stage of taking the government and implementing Islam completely and totally, and carrying its message to the world. The first stage is the most important in present party activity and one of the keys to its longevity. It is based on finding appropriate members and moulding them to its thinking... The second stage involves: ‘Collective culturing of the masses ... through organising lessons in the mosques, conferences, lectures, places of public gathering, newspapers, books and leaflets...’ Hizb ut-Tahrir is very effective at spreading its views through wide publication of books and leaflets in multiple languages and a network of well-run websites that provide access to most of the party’s literature. Through these two stages of political work, Hizb ut-Tahrir claims that it can develop mass understanding of its ideas (although not necessarily mass membership), and most importantly that it can persuade influential figures in politics, the military and elsewhere to act in accordance with its program and aims. The party actively attempts to recruit well-educated members of society, particularly those in positions that allow them to influence popular opinion. Getting from this position – wide acceptance of ideas, and some influence on those who are capable of influencing policy – to establishment of an Islamic state is the essence of the third stage of political struggle. It is this stage, the actual seizure of power, and the establishment of the Islamic state, that is most murky in the literature. In most of its writings Hizb ut-Tahrir rejects participation in parliamentary democracy, or any alliances with other political parties to gain power... There is little doubt about Hizb ut-Tahrir’s disregard for democracy. It rejects the concept as a Western, anti-Islamic invention and is not interested in acting as a party within an open political system. A recent publication claims: ‘Democracy ... is considered a kufr [unbelievers] system, it is in clear contradiction with the Qu’ran and Sunnah’ ... It is widely reported that Hizb ut-Tahrir, both in Central Asia and beyond, eschews violence to achieve its ends. Some human rights activists have argued that it is essentially a peaceful group that operates only in the realm of ideas and propaganda. It has never been proven to have been involved in any violence in Central Asia, and in its other global activities it has generally pursued its aims through peaceful propaganda. It is strongly opposed to U.S. policy in the Middle East, but does not call for terrorist actions against America. Indeed, it claims to be opposed to terrorist activity and asserts that the killing of innocent civilians is against Islamic law. Its literature is straightforward, claiming that ‘... military struggle is not the method of re-establishing the Khilafah’ ... Yet the view that Hizb ut-Tahrir is opposed to political violence per se is mistaken. The situation is much more nuanced than most researchers allow ... One scholar explains: ‘... in practical terms an-Nabhani argued that a regime could be brought down through acts of civil disobedience such as strikes, noncooperation with the authorities or demonstrations, or through a procession to the palace or presidential residence, provided that the movement enjoys exclusive control and leadership ... Alternatively, it could be toppled through a military coup executed by forces that have agreed to hand over power to the movement.’ However, Hizb ut-Tahrir argues that as a political party it does not undertake any physical or violent actions. So how can it justify involvement in a military coup? ‘Hizb ut-Tahrir itself eschews the use of force [but] ... internal sources argue that groups pledging the party their back-up can use arms ... if society stands against the regime its removal even by military force does not constitute an act of violence: this would be the case only if the party were to kill its opponents to arrive in power, for example.’ ... What this means in practice is not certain, but it could clearly be interpreted as seeking military assistance from other groups, should members be experiencing considerable harm, or in the broadest sense to establish the Caliphate. In this way, the party remains committed to its intellectual and political struggle but does not rule out seeking assistance from other groups, including some that will take military action on its behalf ... The party’s interpretation of jihad is also somewhat confused at first glance ... A member in Kazakhstan explained: ‘There are two types of jihad: the physical and the spiritual. The physical jihad will come after the establishment of the Caliphate. The spiritual is for now’ ... Although the main jihad is not expected until the Caliphate is introduced, this does not mean that Muslims should not fight defensive wars. Thus, Muslims, Hizb ut-Tahrir members included, are enjoined to fight against an invader if attacked ... There is much loose rhetoric about jihad in party leaflets, which does not always underline these distinctions. And there is clearly some potential for a defensive jihad to be interpreted in a very broad fashion. But the main thrust of Hizb ut-Tahrir thinking seems to have remained intact: the jihad will come when the Caliphate is established ... Historically, the party’s record provides no evidence of it being involved in terrorist activity against civilians, or in military actions against U.S. or Western interests. But there is good evidence of its involvement in a series of failed coups and attempts to overthrow governments in the Middle East. Some of the evidence for these incidents is disputed, but it seems clear that Hizb ut-Tahrir was involved in an attempted coup d’état in Jordan on several occasions in the late 1960s and early 1970s. It was also accused of involvement in an attack on the military academy in Egypt in 1974, interpreted by the government as preparation for a coup. Far from denying involvement, party representatives admit that, ‘It is no secret that Hizb ut-Tahrir has been involved in a number of failed coup attempts in the Middle East’ ... Thus while it seems clear that ideologically and practically Hizb ut-Tahrir cannot be classified as a terrorist group, it is willing to persuade militaries to overthrow their governments, and in certain cases be involved in such military coups itself. Should it ever come to power, its willingness to use violence as an Islamic state would be more certain: it consistently emphasises that the duty of the Islamic state is to carry out military campaigns to free Muslim lands from the rule of ‘unbelievers’ and to wage war against Israel ...” 45. The report goes on to describe the position of Hizb ut-Tahrir in western Europe: “According to the Hizb ut-Tahrir leader in Sweden, Fadi Abdullatif, the party is growing by actively recruiting second-generation Muslim immigrants ... The party’s popularity among Muslims in the West has continued to grow, providing it a strong organisational, and possibly financial, base. Germany became the first Western state to ban Hizb ut-Tahrir in January 2003, citing its anti-Semitic and anti-Israeli propaganda. However, the German authorities did not provide any evidence of links between it and terrorist groups. German security forces carried out further raids on known activists, now working illegally, in May 2003. In Denmark the party has also garnered support among immigrants. In March 2003 its leader, Fadi Abdullatif, was convicted of breaking anti-racism laws, after he handed out leaflets allegedly calling for Jews to be killed. The group claims the quotes were taken out of context. The government has apparently considered banning the party, which according to media reports has about 100 members. In the UK Hizb ut-Tahrir remains very active, particularly in London and in towns with major Muslim populations such as Birmingham, Bradford and Sheffield. It has been notably successful in recruiting students, although it has been banned from many university campuses, because of its anti-Semitism, alleged threatening behaviour towards students of other faiths, and public objections to homosexuality ...” 46. Human Rights Watch notes in its 2004 report “Creating Enemies of the State. Religious Persecution in Uzbekistan”: “Hizb ut-Tahrir renounces violence as a means to achieve reestablishment of the Caliphate. However, it does not reject the use of violence during armed conflicts already under way and in which the group regards Muslims as struggling against oppressors, such as Palestinian violence against Israeli occupation. Its literature denounces secularism and Western-style democracy. Its anti-Semitic and anti-Israel statements have led the government of Germany to ban it ... Some in the diplomatic community, in particular the U.S. government, consider Hizb ut-Tahrir to be a political organization and therefore argue that imprisoned Hizb ut-Tahrir members are not victims of religious persecution. But religion and politics are inseparable in Hizb ut-Tahrir’s ideology and activities ... Even if one accepts that there is a political component to Hizb ut-Tahrir’s ideology, methods, and goals, this does not vitiate the right of that group’s members to be protected from religion-based persecution ... Hizb ut-Tahrir’s designation as a nonviolent organization has been contested. Hizb ut-Tahrir literature does not renounce violence in armed struggles already under way –in Israel and the Occupied Territories, Chechnya, and Kashmir – in which it views Muslims as the victims of persecution. But Hizb ut-Tahrir members have consistently rejected the use of violence to achieve the aim of reestablishing the Caliphate, which they believe will only be legitimate if created the same way they believe the Prophet Muhammad created the original Caliphate, and which can occur only as a result of gradual ‘awakening’ among Muslims ...” 47. Another report on Hizb ut-Tahrir’s activities, entitled “Whether Hizb ut-Tahrir is an extremist organisation?”, was published on 20 October 2005 by SOVA Centre for Information and Analysis, a Russian nongovernmental organisation. The report states, in particular, that following the Supreme Court’s decision of 14 February 2003 banning Hizb ut-Tahrir, many of its members were charged with aiding and abetting terrorism, membership of a criminal organisation, membership of an extremist organisation or unlawful possession of arms. The first applicant was the first to be convicted at final instance. Many other convictions followed thereafter. 48. The report further states that the analysis of Hizb ut-Tahrir’s literature reveals that that organisation openly and unequivocally rejects democratic principles and political freedoms, such as freedom of religion and freedom of thought, declaring that they are contrary to Islam. Moreover, the literature declares that it is justified to use violence to fight democracy. However, it affirms that such violence will be used only after the establishment of the Caliphate and the commencement of jihad. Although there are two commonly accepted meanings of this term in Islam, Hizb utTahrir’s literature almost always means holy war when speaking of jihad. Many countries, such as Israel and the United States of America, are declared to be enemy States which should be fought against already, including by violent methods. Hizb ut-Tahrir, however, does not directly call upon its members to participate in that fight. Hizb ut-Tahrir expresses its support to Chechen separatists, even though it condemns terrorist acts against the civil population committed on Russian territory, at the same time denying the possibility of involvement of Chechen separatists in such acts. It should be also noted that Hizb ut-Tahrir does not use the term “terrorism” in its common meaning, considering any violent acts against enemy States, including those that would be normally classified as terrorist acts, to constitute part of holy war. The report cites Hizb ut-Tahrir’s document entitled “The Islamic rule on hijacking aeroplanes”, which states that it is justified to hijack civil aeroplanes of enemy States and kill their passengers because the citizens of such States and their property constitute legitimate war targets. That document was deleted from Hizb ut-Tahrir’s website several years ago, but no statements disavowing its contents have ever been made by the organisation’s leadership, which gives cause to believe that it has been deleted for the purposes of secrecy. As regards the means for the establishment of the Caliphate, Hizb ut-Tahrir’s literature is not clear on this point. It is certain that the organisation rejects the possibility of participation in parliamentary elections or any other democratic process in order to come to power. There remains the possibility of a coup d’état committed by more or less violent methods. The Caliphate must, however, first be established on traditionally Muslim territories, which do not include Russia. Accordingly, the report concludes that Hizb ut-Tahrir is not planning any coup d’état in Russia and its activities there are limited to proselytism. 49. Finally, the report notes that some of Hizb ut-Tahrir’s documents, including those that can still be found on the organisation’s Russian website, contain anti-Semitic propaganda, glorification of suicide bombers in Israel and calls for violence against Jews and for the destruction of Israel. It thus concludes that Hizb ut-Tahrir is an extremist organisation stirring anti-Semitic hatred and advocating violence. The report recommends, however, that the Supreme Court’s decision banning Hizb ut-Tahrir should be annulled and that prosecution of individuals on the mere ground of their membership of that organisation should be stopped. It considers it advisable that only those of the organisation’s members who have made statements advocating hatred or violence should face criminal or other proceedings. 50. A report entitled “Hizb ut Tahrir al Islami (Islamic Party of Liberation)”, published on 15 April 2007 by the European research project Transnational Terrorism, Security, and the Rule of Law (TTSRL), financed by the European Commission, reads as follows: “Hizb ut Tahrir al Islami (Islamic Party of Liberation) presents itself as ‘a political party whose ideology is Islam, so politics is its work and Islam is its ideology ...’ ... In their own eyes, Hizb ut Tahrir (for short) is a political group and not a priestly one ... It is a trans-national party or movement that claims to try to achieve its political goals without the use of violence and has branches in about forty countries, including both Islamic and Western countries. In the Islamic world they are, for instance, active not only in the Middle East, but also in Bangladesh, Malaysia, Indonesia, and the former Soviet republics in Central Asia. In almost all of these countries, Hizb ut Tahrir is perceived as a threat to the state or even as a terrorist organisation. In the Western world, Hizb ut Tahrir has a presence in, among others, the United Kingdom, the Netherlands, Germany, Australia, the United States and Canada. To these countries, Hizb ut Tahrir presents a particularly difficult challenge since it holds radical Islamist views, but openly only advocates peaceful change. Nonetheless, in a number of EU member states, the party is regarded as one that secretly does support the idea of a violent jihad and/or has been involved in anti-Semitic incidents ... The organizational structure of Hizb ut Tahrir is rather complex ... The identities of Hizb ut Tahrir’s current leader and senior officers have not been mentioned in reliable open sources. Concrete issues at the level of different national branches are in the hands of national leaders, where the scope and content of the activities within the branches greatly differ. A general distinction can be made between countries in which the party is permitted to operate freely, and countries in which Hizb ut Tahrir is prosecuted. In Uzbekistan, for instance, [Hizb ut Tahrir] is organized in a secretive and hierarchical pyramid structure made up of many five-person cells whose members, after they have completed training averaging about two months, form their own groups or ‘halka’ - also of five to six members. Other sources speak of three-person cells... In EU member states, the branches of Hizb ut Tahrir are organized like most political parties and have a hierarchical structure with a national leader, local groups and the possibility of membership for anyone who supports the party’s ideas. In addition, the European branches of the party also consist of study groups, the above-mentioned ‘halkas.’... From the beginning, Hizb ut Tahrir’s leadership decreed that members should not participate in terrorist activities. This message has been continuously reverberated. There are, however, many allegations of links between the party and terrorist organisations. It should be stressed that none of these allegations are backed by concrete evidence ... There are, nonetheless, possible indirect links between Hizb ut Tahrir and terrorist groups and individuals. In Britain, three men, who in 1995 were arrested and charged with conspiring to assassinate the Israeli ambassador, were reported to have been in possession of Hizb ut Tahrir literature and to have helped organize Hizb ut Tahrir meetings in Manchester ... Another man, Muhammad Babar – who is linked to the seven men currently on trial in London on charges of planning terrorist attacks between January 2003 and April 2004 – has stated that he became a member of Hizb ut Tahrir and another radical group, Al Muhajiroun, while at the university, when he became angered by the Gulf War ... In the above mentioned cases, as well as in most cases, those behind the allegations only point at involvement in Hizb ut Tahrir activities while studying, the possession of Hizb ut Tahrir materials, and other rather indirect relations between suspects of terrorism and the party. More serious are the allegations that connect the party to the other radical group mentioned above, AlMuhajiroun, established in 1995 as a splinter group that broke off from Hizb utTahrir. According to leader Omar Bakri Muhammad, the two groups initially split because Hizb ut Tahrir was ‘too soft’ ... His group has been accused of recruiting young Muslims in Britain to fight abroad in places such as Kashmir, Afghanistan and Chechnya ... Despite the above-mentioned allegations, authorities in the EU have not yet formally accused Hizb ut Tahrir for having links with terrorist organisations. In addition, there are no official reports that members have joined or become involved in the global jihad movement. However, it should be noted that some counties do see the organisation as a possible or potential threat to democracy and the rule of law ... Unlike more traditional Islamic parties, Hizb ut Tahrir refuses to be involved in local politics, making it impossible for regional leaders to co-opt the group. Although Hizb ut Tahrir describes itself as a political party, it does not want to participate in elections or want to be part of coalition governments ... The process towards the utopian Islamic Caliphate is viewed more as a social or intellectual process rather than a political one. For the above-mentioned intellectual struggle and intellectual transformation, Hizb ut Tahrir focuses primarily on highly educated Muslims. The method is the socalled Islamic da’wah through which society can be transformed into an Islamic one. Within the EU, the concrete translation of this concept is distributing leaflets at universities and near mosques, or to organise meetings on current political and social issues, such as the situation in Iraq, the cartoon issue in Denmark and Guantanamo Bay ... Although the method of da’wah seems very theoretical and impractical in relation to the stated goal, it cannot be denied that the party has managed to attract tens of thousands of Muslims in Europe who believe in its method ... As mentioned above, Hizb ut Tahrir has branches in some forty countries, in a number of which the party is considered a terrorist organisation. Within the EU, where religiously inspired political parties enjoy relatively greater freedom than they do anywhere else, only Germany has outlawed Hizb ut Tahrir ... ... [Many] questions remain open with regard to the nature of this party and its impact on society and how to deal with its spreading of anti-Semitic, anti-Western and non-democratic ideas and sentiments ... A case-study on an organisation such as Hizb ut Tahrir as part of an overall large research project on counter-terrorism might suggest prematurely that Hizb ut-Tahrir falls in the category of labelled terrorist organisations, or at least belongs to a group of organisations that pose a serious threat to our democratic society. However, such qualifications cannot be given to Hizb ut-Tahrir without serious reservations. The question can even be raised whether such qualification is fit for this organisation at all. Although, in its philosophy Hizb ut-Tahrir has anti-democratic tendencies, it also rejects the idea of violent jihad to achieve their goal of a caliphate. Most allegations on the terrorist connection of the organisation or some of its members point at rather indirect links, are not based on solid sources, or should by their numbers be assessed as mere coincidences. On the other hand, experience shows that organisations such as Hizb ut-Tahrir are ‘very smart in walking the very fine line between propaganda and incitement to terrorism’, according to Paul Wilkinson, director of the Centre for the Study of Terrorism and Political Violence at the University of St Andrews ... However, outlawing this organisation without a proper cause might have the opposite effect. It is therefore important to monitor with prudence and to act on facts instead of allegations.” 51. Hizb ut-Tahrir’s aims and principles, as well as the details of what an Islamic state would look like, are outlined in a range of literature produced by the organisation. In particular, it has prepared a Draft Constitution which sketches the major provisions of an Islamic State (wording as in the original): “The Islamic ‘Aqeedah [creed] constitutes the foundation of the State. Nothing is permitted to exist in the government’s structure, accountability, or any other aspect connected with the government, that does not take the ‘Aqeedah as its source. The ‘Aqeedah is also the source for the State’s constitution and Sharia canons. Nothing connected to the constitution or canons is permitted to exist unless it emanates from the Islamic ‘Aqeedah.” “The State implements the aHkaam Sharia [divine rules] on all citizens who hold citizenship of the Islamic State, whether Muslims or not, in the following manner: a. The aHkaam Sharia is implemented in its entirety, without exception, on all Muslims. b. Non-Muslims are allowed to follow their own beliefs and worships. c. Those who are guilty of apostasy (murtadd) from Islam are to be executed according to the rule of apostasy, provided they have by themselves renounced Islam. If they are born as non-Muslims, i.e., if they are the sons of apostates, then they are treated as non-Muslims according to their status as being either polytheists (mushriks) or People of the Book. d. In matters of food and clothing the non-Muslims are treated according to their religions within the limits allowed by aHkaam Sharia. e. Marital affairs (including divorce) among non-Muslims are settled in accordance with their religions, but between non-Muslims and Muslims they are settled according to the aHkaam Sharia. f. All the remaining Sharia matters and rules, such as: the application of transactions, punishments and evidences (at court), the system of ruling and economics are implemented by the State upon everyone, Muslim and non-Muslim alike. This includes the people of treaties (mu’aahid), the protected subjects (ahludh dhimmah) and all who submit to the authority of Islam. The implementation on these people is the same as the implementation on the subjects of the State. Ambassadors and envoys enjoy diplomatic immunity.” “No one is permitted to take charge of ruling, or any action considered to be of the nature of ruling, except a male who is free (Hurr), i.e. not a slave, mature (baaligh), sane (‘aaqil), trustworthy (‘adl), competent; and he must [be a Muslim].” “Muslims are entitled to establish political parties to question the rulers and to access the positions of ruling through the Ummah [Muslim community] on condition that the parties are based on the ‘Aqeedah of Islam and their adopted rules are aHkaam Sharia [divine rules]; the establishment of such a party does not require a license by the State. Any party not established on the basis of Islam is prohibited.” “The Khaleefah is deputised by the Ummah with authority to implement the Sharia.” “Every mature male and female Muslim, who is sane, has the right to participate in the election of the Khaleefah and in giving him the pledge (ba’iah). Non-Muslims have no right in this regard.” “There are seven conditions needed in the Khaleefah... They are to be a male, Muslim, free (Hurr), mature (baaligh), sane (‘aaqil), trustworthy (‘adl) and able (qaadir).” 52. The Draft Constitution further indicates that all highest Government officials, the chief judge and the judges of the Court of the Unjust Acts (the court which settles disputes between the citizens and the State) must be male and Muslims. Muslim women are allowed to become lower-level officials and judges (Articles 42, 49, 67, 69, 87). Non-Muslims may be appointed only to technical and administrative official positions (Article 97). 53. The Draft Constitution further continues: “The members of the Majlis al-Ummah [people’s assembly] are those people who represent the Muslims in respect of expressing their views to the Khaleefah when consulted. Non-Muslims are allowed to be members of the Majlis al-Ummah so that they can voice their complaints in respect to unjust acts performed by the rulers or the misapplication of the Islamic laws.” “The members of the Majlis al-Ummah are elected by the people.” “Consultation (Shoora) and the mashoora are the seeking of views in absolute terms. These views are not binding in legislation, definitions, intellectual matters such as discovering the facts and the technical and scientific matters. However they are binding when the Khaleefah consults in other practical matters and actions that do not need scrutiny or research.” “All citizens, Muslim or not, may express their views, but Shoora is a right for the Muslims only.” “Jihad is a compulsory duty (farD) on all Muslims. Military training is therefore compulsory. Thus, every male Muslim, fifteen years and over, is obliged to undergo military training in readiness for jihad...” “Segregation of the sexes is fundamental, they should not meet together except for a need that the Sharia allows or for a purpose the Sharia allows men and women to meet for, such as trading or pilgrimage (Hajj).” “Women have the same rights and obligations as men, except for those specified by the Sharia evidences to be for him or her. Thus, she has the right to practice in trading, farming, and industry; to partake in contracts and transactions; to possess all form of property; to invest her funds by herself (or by others); and to conduct all of life’s affairs by her.” “A woman can participate in elections ... and elect, and be a member of the Majlis al-Ummah, and can be appointed as an official of the State in a non-ruling position.” “Women live within a public and private life. Within their public life, they are allowed to live with other women, maHram males [males forbidden to them in marriage] and foreign men (whom they can marry) on condition that nothing of the women’s body is revealed, apart from her face and hands, and that the clothing is not revealing nor her charms displayed. Within the private life she is not allowed to live except with women or her maHram males and she is not allowed to live together with foreign men. In both cases she has to restrict herself with the rules of Sharia.” “The custody of children is both a right and duty of the mother, whether Muslim or not, so long as the child is in need of this care. When children, girls or boys, are no longer in need of care, they are to choose which parent they wish to live with, whether the child is male or female. If only one of the parents is Muslim, there is no choice for the child is to join the Muslim parent.” “Zakaah [property tax] is collected from Muslims on their properties...” “Jizyah (head-tax) is collected from the non-Muslims (dhimmis). It is to be taken from the mature men if they are financially capable of paying it. It is not taken from women or children.” “The Islamic creed constitutes the basis upon which the education policy is built. The syllabi and methods of teaching are designed to prevent a departure from this basis.” “The purpose of education is to form the Islamic personality in thought and behaviour. Therefore, all subjects in the curriculum must be chosen on this basis.” “Arts and crafts may be related to science, such as commerce, navigation and agriculture. In such cases, they are studied without restriction or conditions. Sometimes, however, arts and crafts are connected to culture and influenced by a particular viewpoint of life, such as painting and sculpting. If this viewpoint of life contradicts the Islamic viewpoint of life, these arts and crafts are not taken.” “The state’s curriculum is only one, and no curriculum other than that of the state is allowed to be taught. Private schools provided they are not foreign, are allowed as long as they adopt the state’s curriculum and establish themselves on the State’s educational policy and accomplish the goal of education set by the State. Teaching in such schools should not be mixed between males and females, whether the students or the teachers; and they should not be specific for certain deen [religion], madhab [schools of Muslim law], race or colour.” “It is absolutely forbidden for any individual, party, group or association to have relations with a foreign state...” “The state’s relations with other states are built upon four considerations. These are: ... 3. States with whom we do not have treaties, the actual imperialist states, like Britain, America and France and those states that have designs on the State, like Russia, are considered to be potentially belligerent states. All precautions must be taken towards them and it would be wrong to establish diplomatic relations with them. Their subjects may enter the Islamic State only with a passport and a visa specific to every individual and for every visit, unless it became a real belligerent country. 4. With states that are actually belligerent states, like Israel, a state of war must be taken as the basis for all measures and dealings with them. They must be dealt with as if a real war existed between us – whether an armistice exists or not – and all their subjects are prevented from entering the State.” “The State is forbidden to belong to any organisation that is based on something other than Islam or which applies non-Islamic rules. This includes international organisations like the United Nations, the International Court of Justice, the International Monetary Fund and the World Bank, and regional organisations like the Arab League.” 54. Article 205 § 1 of the Criminal Code of the Russian Federation (as in force at the material time) provides as follows: “Terrorism, that is an explosion, arson or other acts creating a danger of loss of human life, substantial material damage or other socially dangerous consequences, provided that such acts were committed for the purposes of undermining national security, frightening the population or influencing the authorities in order to make them adopt decisions favourable to terrorists, as well as threats to commit the above-mentioned acts, is punishable by eight to twelve years’ imprisonment.” 55. Article 205.1 of the Code (as in force at the material time) reads, in so far as relevant, as follows: “1. Aiding and abetting terrorism, that is incitement of a person to commit an offence under Articles 205 [terrorism], 206 [taking of hostages], 208 [organisation or membership of an armed criminal group], 211 [hijacking of an aeroplane, a ship or a train], 277 [attacking of a State official] or 360 [attacking of a person or an institution under international protection] of the Criminal Code; incitement of a person to participate in the activities of a terrorist organisation; training or arming of a person with the aim of committing one of the above-mentioned offences; or financing of terrorism, is punishable by four to eight years’ imprisonment ...” On 27 July 2006 that Article was amended. In particular, incitement to participate in the activities of a terrorist organisation was no longer classified as adding and abetting terrorism punishable under Article 205.1. 56. Article 210 of the Code reads, in so far as relevant, as follows: “1. The founding of a criminal group (criminal organisation) for committing serious and especially serious offences, as well as the leadership of such group or one of its sections ... is punishable by seven to fifteen years’ imprisonment ...” 57. Article 15 of the Code provides that serious offences are premeditated offences for which the Criminal Code prescribes a maximum penalty of between five and ten years’ imprisonment. Especially serious offences are premeditated offences for which the Code prescribes a maximum penalty of more than ten years’ imprisonment or a heavier penalty. 58. Article 282.2 of the Code reads as follows: “1. The founding of a non-profit, religious or other organisation which has been dissolved or banned by a final judicial decision on the ground of its extremist activities is punishable by a fine ..., four to six months’ detention or up to three years’ imprisonment. 2. Membership of a non-profit, religious or other organisation which has been dissolved or banned by a final judicial decision on the ground of its extremist activities is punishable by a fine ..., up to four months’ detention or up to two years’ imprisonment.” 59. Article 327 § 3 of the Code provides that the use of official documents known to be forged is punishable by a fine, correctional labour, or three to six months’ detention. 60. The Anti-Terrorism Act (Federal Law no. 130-FZ of 25 July 1998, as in force at the material time) defined terrorism as violence or the threat of violence directed against persons or organisations, as well as destruction or the threat of destruction of property or other physical objects, provided that such acts created a danger of loss of human life, substantial material damage or other socially dangerous consequences and that they were committed for the purposes of undermining national security, frightening the population, influencing the authorities in order to make them adopt decisions favourable to terrorists or satisfying their illegitimate pecuniary or other interests; an attempt on the life of a State or public official committed for the purposes of stopping his or her public or political activities or in revenge for such activities; an attack on a representative of a foreign State or a staff member of an international organisation enjoying international protection or on official buildings or means of transport of persons enjoying international protection, provided that such acts were committed with the purpose of provoking war or worsening international relations (section 3 § 1). 61. Terrorist activities include the following activities: – organisation, planning, preparation and commission of terrorist acts; – incitement to commit terrorist acts, violence against persons or organisations or destruction of physical objects for terrorist purposes; – creation of an illegal armed group, criminal group (organisation) or organised group for the commission of terrorist acts, as well as involvement in such acts; – recruitment, arming and training of terrorists; – financing of an organisation or group known to be terrorist or any assistance to them (section 3 § 2). 62. A terrorist organisation is an organisation created with the aim of carrying out terrorist activities or admitting the possibility of recourse to terrorism as part of its activities (section 3 § 8). 63. An organisation may be declared a terrorist organisation and dissolved by a judicial decision at the request of a prosecutor (section 25). 64. On 6 March 2006 a new Anti-Terrorism Act (Federal Law no. 35FZ) was passed to replace the 1998 Anti-Terrorism Act. The 2006 Anti-Terrorism Act provides that a list of organisations which have been declared terrorist by a Russian court is to be kept by the federal security services. That list must be published in the official periodical press, as determined by the Government (section 24 § 5). Pursuant to Government Decree no. 1014-p of 14 July 2006, the list of organisations which have been declared to be terrorist organisations by a Russian court is to be published in the official periodical Rossiyskaya Gazeta. 65. The Suppression of Extremism Act (Federal Law no. 114-FZ of 25 July 2002, as in force at the material time), which was recently examined by the Venice Commission (see Opinion on the Federal Law on Combating Extremist Activity of the Russian Federation, adopted by the Venice Commission at its 91st Plenary Session (Venice, 15-16 June 2012)), defines extremist activities as activities of non-profit, religious or other organisations, the media or individuals consisting in planning, directing, preparing or committing acts aimed at: – forcible change of the constitutional foundations of the Russian Federation and breach of its territorial integrity; – undermining the national security of the Russian Federation; – taking over or usurpation of power; – founding of armed criminal groups; – carrying out of terrorist activities; – encouraging racial, ethnic, religious or social hatred accompanied by violence or calls for violence; – creation of mass disorder, commission of disorderly acts or acts of vandalism out of ideological, political, racial, ethnic or religious hatred or enmity, or out of hatred or enmity towards a social group; – propaganda promoting the exceptionality, superiority or inferiority of citizens on the ground of their religion, social position, race, ethnic origin or language; – propaganda and public display of Nazi attributes or symbols, or attributes or symbols which are similar to Nazi attributes or symbols to the point of becoming undistinguishable; – public appeals to carry out the above-mentioned activities or to commit the above-mentioned acts, as well as financing of the above-mentioned activities or the assistance of their performance by other means, including by providing financial support or technical facilities, information services or other facilities (section 1§ 1). 66. The Suppression of Extremism Act further defines an extremist organisation as a non-profit, religious or other organisation which has been dissolved or banned by a final judicial decision on the ground of its extremist activities as defined by the Act (section 1 § 2). 67. It is prohibited to publish and distribute extremist material – that is, printed, audio, video or other material meeting at least one of the criteria defined in section 1 § 1. Such material includes official material of banned extremist organisations (section 13). | 1 |
dev | 001-108237 | ENG | ROU | CHAMBER | 2,011 | CASE OF G.C.P. v. ROMANIA | 3 | Remainder inadmissible;Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi | 6. The applicant was born in 1938 and lives in Bucharest. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. On 16 December 1996 a third party brought criminal proceedings against the applicant for wrongful misappropriation. The third party claimed that the applicant had unlawfully used private funds belonging to his companies in order to increase the capital of a commercial bank (Bankcoop) and become a major shareholder in the said bank. 9. On 14 January 1997 the Judicial Police attached to the Romanian Ministry of the Interior asked the third party to provide additional information in respect of the unlawful acts allegedly committed by the applicant. 10. On 19 February 1997, the Adevărul daily newspaper published an article entitled “The investigation files of G.C.P. – strictly secret?” The article quoted statements by D.I.C., one of the prosecutors conducting the investigation against the applicant, of which the most relevant part reads as follows: “We have been accused of insisting on imposing [on G.C.P.] an order not to leave the city, a measure which is usually taken when there are suspicions that somebody has committed an unlawful act. However, as I already told you and as [can be seen] from checks carried out by the Financial Control Office [Garda Financiară], here there have been unlawful acts committed, not only suspicions. In spite of that, we have proven to be humane, when at his [G.C.P.’s] request we allowed him to leave Bucharest for forty-eight hours.” 11. On 10 April 1997 the applicant was charged with fraud, forging documents and use of forged documents, embezzlement, using the goods of a commercial company against its interests and undermining the national economy, on account of the fact that, by acting on behalf of the private company (G.C.P. S.A.), which the applicant controlled as the major shareholder, he had allegedly made false statements in an official document submitted to the Romanian National Bank on 31 August 1995 in order to obtain its permission to increase the capital of Bankcoop by the amount of 10,000,000 United States Dollars (USD). More specifically, the applicant was suspected of declaring the aforementioned amount as his personal funds, when in fact it had been obtained as a loan taken out by G.C.P. S.A. from a foreign bank, which was contrary to the National Bank’s regulations on acceptable sources of money used to increase a bank’s capital. 12. On 2 June 1997 the applicant brought a challenge against the two prosecutors, including D.I.C., charged with the investigation of his case at the time, arguing, inter alia, that press statements made by the said prosecutors on 28 May 1997 in the Evenimentul Zilei daily newspaper – claiming that the applicant’s financial investments were “acts of fraud” – amounted to a breach of his right to the presumption of innocence. 13. According to the applicant, his challenge of 2 June 1997 against the prosecutors G.M. and D.I.C. was allowed by a final Prosecutor’s Office Order of 23 June 1997 and a new prosecutor was appointed to investigate his case. The applicant failed to include in the file a copy of the order of 23 June 1997. 14. On 2 July 1997 the Naţional daily newspaper published an article entitled “G.D. states that G.C.P. should have been indicted long ago for two of the proven crimes”. The most relevant part of the article, which quoted statements by G.D., the Romanian Minister of the Interior at the time, reads as follows: “G.C.P. could be indicted for two already proven crimes, namely the ones connected to the embezzlement through Bancorex, from Chemical Bank to Bankcoop. The 10 million dollars taken by G.C.P. from Chemical Bank for a factory in Arad were embezzled so that he could take over the majority of the shares in Bankcoop. (...) Although there is proof that several crimes have been committed by G.C.P., he is only under investigation for two, and the prosecutor’s investigation is lasting a suspiciously long time. ” 15. On 3 July 1997, the Evenimentul Zilei daily newspaper published an article entitled “G.C.P. and R.T. accused of undermining the national economy”. Quoting the same prosecutor, D.I.C., the relevant parts of the article read as follows: “On 1 July 1997 in file no. 180/P/97 of the General Prosecutor’s Office, the file concerning the defendant G.C.P., the criminal investigation was extended with respect to the crime of undermining the national economy, punishable under Article 165 § 1 of the Criminal Code. Hence, between 1994 and 1997, [G.C.P.] used a state-owned public interest bank, Bancorex S.A., in order to obtain certain financial facilities in the amount of 202.6 million dollars, to be used for the reimbursement of certain loans contracted by his commercial company, G.C.P. S.A. This undermined the national economy and disturbed the activity of Bancorex S.A. and, as a consequence, the national economy.” 16. By letter of 17 November 1997 prosecutor C.M., the prosecutor investigating the applicant’s case at the time, asked the Prosecutor General of Romania to confirm that he could continue the investigation in the case. He expressly stated that he did not have any personal interest or otherwise in respect of the investigation and that he would accept the Prosecutor General’s decision. He informed the Prosecutor General that if he was allowed to continue working on the case he would not be subject to any outside influence or pressure in carrying out the investigation. 17. On 19 December 1997, the Evenimentul Zilei published an article entitled “S.M. found the solution for destroying the mafia in Romania overseas: The Mexicans should come with bazookas”. The article quoted statements made by S.M., the Prosecutor General of Romania at the time. The most relevant part reads as follows: “In the case of G.C.P., who knew all about financial tricks [ingineriile financiare] and covered his tracks with lots of documents, the experts’ report is not finished yet. I believe that there is a 99% chance that he will also be sent to trial, but I would make a suggestion to the police to not just stick to the small cases of T. and G.C.P., because the two of them have [done] more than this.” 18. In addition, the parties agree that a total of around 350 articles containing information on the investigation and the trial against the applicant were published between 1997 and 2002 in all the major national newspapers, including Ziua, Adevărul, Evenimentul Zilei, Cotidianul, Naţional and Libertatea. Some of the most relevant story titles quoted by the applicant in this respect read as follows: “The trap is tightening” (Evenimentul Zilei, 17 March 1997); “Chess at millionaires!” (Evenimentul Zilei, 9 April 1997); “The return of the jackals” (Evenimentul Zilei, 18 August 1997); “Sharks at large” (Evenimentul Zilei, 28 April 1998); “G.C.P.’s companies have filled their bank accounts on Bancorex’s back” (Ziua, 12 February 1999); “Just when the prosecutors were on the point of indicting him, G.C.P. found refuge in a hospital in Switzerland” (Adevărul, 12 March 1999); “G.C.P. ran away in the U.S.A.” (Libertatea, 5 October 1999); and “The heroes G.C.P. and T.” (Evenimentul Zilei, 10 April 2002). 19. By an order of 30 January 1998 the Prosecutor General dismissed C.M. from his position of Head Prosecutor of the Criminal Department of the Bucharest Prosecutor’s Office and transferred him to the Secretarial and Public Relations Department. At the same time, M.I. was tasked with continuing the criminal investigation against the applicant. The Prosecutor General held that the criminal investigation had been unreasonably lengthy without any objective reasons and that Bancorex, one of the parties involved in the matter, had lodged a challenge and had complained about C.M. 20. On 17 June 1999 the applicant was indicted for making false statements in an official document, as he had not declared the true source of the money used for increasing the capital of Bankcoop. 21. The investigation also continued separately in respect of the charge of undermining the national economy and using the goods of a commercial company against its interests. At the same time, the charges concerning fraud, forging documents, use of forged documents and embezzlement were dropped and the part of the criminal investigation covering those charges was closed on the grounds that the applicant’s actions were found to have been lawful. 22. By a final Prosecutor’s Order of 3 September 2001 the criminal investigation initiated against the applicant for undermining the national economy was discontinued on the grounds that no unlawful act had been committed. 23. By a judgment of 11 September 2001 the Bucharest District Court decided that the indictment of 17 June 1999 was null and void because the applicant had not been informed of the charges against him, as he had been in the United States of America at the time of his indictment. Consequently, the court ordered the file to be sent back to the Prosecutor’s Office. 24. The prosecutor submitted an appeal on points of law (recurs) against the judgment of 11 September 2001. 25. By a judgment of 18 January 2002 of the Bucharest County Court the Prosecutor Office’s appeal was allowed and the case was sent back to the first-instance court for a retrial on the merits. The County Court held that there had been no reason for the indictment to be annulled, as the decision of the investigating prosecutors to send the case before the court without informing the applicant of the charges against him had been in accordance with the legal provisions of the Code of Criminal Procedure applicable to persons avoiding the investigative authorities. In reaching this decision, the court took into account the fact that neither the applicant nor his attorney had provided the investigators with an exact address at which the applicant could be summoned during the investigation. 26. By a final Prosecutor’s Order of 12 March 2002 the criminal investigation initiated against the applicant for using the goods of a commercial company against its interests was discontinued on the grounds that no unlawful act had been committed. 27. On 13 May 2002 the first hearing in the retrial of the case was held before the Bucharest District Court following the judgment of 18 January 2002. The applicant was heard by the court. He argued, inter alia, that the criminal investigation against him had been based on political motives, a fact which could be confirmed by the negative media campaign conducted against him and by the public statements made by the Prosecutor’s Office representatives. 28. By a judgment of 17 June 2002 the Bucharest District Court acquitted the applicant on the grounds that from all the evidence produced it emerged that his actions had been in accordance with the law. The Prosecutor’s Office appealed against the judgment. 29. By a judgment of 14 November 2002 the Bucharest County Court allowed the Prosecutor Office’s appeal, convicted the applicant of making false statements in an official document and sentenced him to one year of imprisonment, a sentence which was considered pardoned according to the law. The court held that, on the basis of the evidence available in the file, the applicant had made false statements in an official document and had been aware of the legal consequences of his statements. The applicant lodged an appeal on points of law (recurs) against the judgment. He argued that the criminal investigation against him had been politically motivated, a fact confirmed by the alleged failure of the domestic courts to take into account and to examine the evidence submitted by him in his defence. In addition, the applicant argued that the domestic courts had wrongfully assessed the evidence, had misinterpreted the applicable legal provisions and had ignored the fact that the indictment brought against him had been null and void because the investigating prosecutor had failed to inform him of the charges brought against him prior to sending the case before the domestic courts. 30. By a final judgment of 23 December 2002 the Bucharest Court of Appeal dismissed the applicant’s appeal on points of law and his conviction became final. The court held, on the basis of the evidence available in the file, that the lower courts had correctly assessed the evidence and interpreted the applicable legal provisions and that the applicant had been informed of the charges brought against him by the Prosecutor’s Office. 31. On 26 February, 26 April, 16 July, 21 September, 19 October, 11 November 2004 and on 18 January, 10 February, 17 March and 19 April 2005 the applicant lodged repeated extraordinary appeal of annulment (recurs în anulare) requests against the final judgment of 23 December 2002 with the Public Prosecutor’s Office attached to the Court of Cassation. He argued, inter alia, that his right to the presumption of innocence had been breached on account of an aggressive media campaign led by the Prosecutor’s Office and the Minister of the Interior which had resulted in the criminal investigation being opened against him and in him being indicted. 32. On 20 April 2005 the applicant’s extraordinary appeal applications were dismissed by the Prosecutor’s Office attached to the Court of Cassation on account of statutory amendments to the applicable rules of criminal procedure abolishing that form of appeal. 33. The relevant provisions of the Romanian Constitution in force at the relevant time are worded as follows: “ [...] A person is considered innocent pending a final court conviction.” 34. The relevant provisions of the Romanian Code of Criminal Procedure in force at the relevant time are worded as follows: “(1) The person accused of or charged with a criminal offence does not have to prove his innocence. (2) Where evidence is adduced proving a person’s guilt, the accused or the person charged with a criminal offence has the right to rebut the evidence.” | 1 |
dev | 001-84166 | ENG | NOR | ADMISSIBILITY | 2,007 | HAARVIG v. NORWAY | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Knut Haarvig, is a Norwegian national who was born in 1966 and lives in Arvikk, Sweden. He was represented before the Court by Mr T. Randby, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by their Agent, Mrs F. Platou Amble, Attorney, Attorney General’s Office (Civil Matters). The facts of the case, as submitted by the parties, may be summarised as follows. In the spring of 1997 the applicant graduated as a medical doctor. On 15 July 1997 he was granted a licence to perform duty service (turnustjeneste) at a hospital and thereafter he and a friend started to serve at the Østfold Central Hospital. On 1 May 1998 the applicant was arrested and detained on remand for six days due to his and a friend’s involvement in two incidents, which included notably an attempt of burglary, violence against the police and consumption of hashish and ecstasy. On 29 May the State Health Inspectorate notified the applicant that they considered suspending and withdrawing his duty service licence, following which the applicant withdrew from his duty service and was granted special leave with salary, until he went on sick leave in September 1998. On 16 December 1998 the Fredrikstad City Court (byrett) convicted the applicant for his involvement in attempts of burglary (Articles 267 and 268), obstruction of the police in their attempt to arrest his accomplice (Article 127), violence against the police (Article 228) and consumption of hashish and ecstasy (section 31 of the Medicines Act) and sentenced him to five months’ imprisonment (unconditional). On the other hand, the City Court rejected the prosecutor’s request to sentence the applicant under Article 29 (2) of the Penal Code to a loss of right to practice as a doctor. The applicant appealed against the conviction but the Borgarting High Court (lagmannsrett) refused him leave to appeal on 9 February 1999. As the applicant did not lodge an appeal against that decision within the statutory two week time-limit (running from notification), the decision became final on 23 February 1999 or on some date shortly thereafter. The applicant served his prison sentence from April to June 1999. Thereafter he was again on sick leave. In the meantime, on 21 January 1999, the applicant made a request for being re-instated as an intern but, on 18 February 1999, the Health Inspectorate (Helsetilsynet) decided to suspend his licence under section 9 pending a possible revocation under section 8 of the Medical Practitioner Act 1980 (Legeloven, hereinafter referred to as “the 1980 Act”). The decision was taken primarily on the ground of the matters in respect of which he had been convicted and which were deemed “conduct unworthy of a doctor” for the purposes of section 8. Regard was also had to certain irregularities noted with regard to various instances of prescription of medicines and the storage of medical journals, which, it is undisputed, played a secondary part in the decision. On 13 August 1999 the applicant instituted proceedings before the Oslo City Court asking it to quash the suspension of 18 February 1999. The Court notes that, pursuant to section 11 of the 1980 Act, such an action was to be examined under Chapter 30 of the Code of Civil Procedure concerning judicial appeals against administrative decisions. On 5 January 2000 the Health Inspectorate repealed the suspension considering that the applicant was no longer deemed unsuited to perform the profession of medical doctor and issued a disciplinary warning. In May 2000 he ended his sick leave and resumed his duty service. In view of this change, the applicant altered his suit before the City Court to concern a claim for compensation on account of the suspension (section 12 of the 1980 Act). On 6 March 2002 the City Court rejected the applicant’s compensation claim, finding that his suspension had not been unlawful or contrary to Article 4 of Protocol No. 7 to the Convention. On appeal, that judgment was upheld by the Borgarting High Court on 13 October 2003. The applicant’s further appeal was rejected by the Supreme Court (Høyesterett) on 8 September 2004. The Supreme Court unanimously found that the suspension did not violate Article 4 of Protocol No. 7, but was divided (three in favour and two against) as to whether the suspension could be regarded as lawful under the 1980 Act notwithstanding the City Court rejection in the trial of the prosecution’s request to deprive the applicant of his right to practice. Mrs Justice Stabel, who gave the reasons for the majority, held, in so far as the issue of double jeopardy under Article 4 of Protocol No. 7 was concerned, that the suspension did not constitute a criminal matter attracting the application of this provision, having regard to the three criteria for “criminal charge” in Article 6 of the Convention set out in the Engel and Others v. the Netherlands judgment of 8 June 1976 (Series A no. 22). Therefore, the revocation or the suspension of a licence to practice as a doctor, on the ground that the legal conditions for practicing no longer were fulfilled, did not constitute a criminal punishment for the purposes of Article 4 of Protocol No. 7 to the Convention, which therefore did not apply. The minority agreed with this conclusion. In so far as concerned the issue under Article 4 of Protocol No. 7, Mrs Justice Stabel’s reasoning, which the other justices of the majority endorsed in the main, included the following observations: “(34) It would in my view be useful to start by providing an overview of the Norwegian system for granting and revoking permits to practise as a doctor. I should note that authorisation is the term used for the most comprehensive permit to practise as a doctor. A licence, including an intern’s licence as applicable in our case, on the other hand, provides more limited rights. Nevertheless, the legal issues raised by the case will be the same. (35) According to section 2 (3) of the 1980 Act of 1927, a precondition for the granting of an authorisation to practise as a doctor was that the candidate was ‘of good conduct’. Under section 16 of the Act an authorisation could be withdrawn by civil judgment where the doctor was considered unfit to conduct his practice on the grounds of insanity or weakening of the mental faculties or abuse of strong drink or anaesthetising agents. The grounds for loss of authorisation were listed in exhaustive detail and accordingly legal action with respect to revocation could not be brought were the doctor subsequently to be found guilty of breach of the requirement as to good conduct. In the event of conviction of criminal offences, however, deprivation could take the form of a disqualification pursuant to Article 29 of the Penal Code. This general provision, which is now Article 29 (2) of the Penal Code, provides the legal authority to sentence a person found guilty of a criminal offence in the following way if the public interest so requires: ‘Loss for a specific period not exceeding five years or in perpetuity of the right to hold office or to carry out any activity or occupation that the defendant has shown himself or herself to be unfit for or might conceivably abuse or for which a high degree of public confidence is required. ...’ (36) In the 1980 Act, which applies in our case, the requirement as to good conduct as a precondition for authorisation and licensing was continued, with the difference that breaches of this condition would now constitute direct grounds for revocation under the Act. Section 2 (4) made it a condition for the grant of authorisation or a licence that the medical practitioner was not in a situation that could lead to the revocation of the authorisation or licence. This was regulated in section 8, the first paragraph of which read as follows: ‘An authorisation or licence may be revoked if a doctor is not fit to practise medicine on the grounds of serious mental illness, psychological or physical debility, long absence from the profession, the misuse of alcohol, drugs, or other substances with similar effects, grave lack of professional insight, improper medical practice, or conduct unworthy of a doctor.’ (37) Section 9 provided the legal authority for the suspension of an authorisation or licence where there were just and sufficient causes to suppose that grounds existed for revocation. Under section 10, the decision to revoke was no longer taken by the courts but by the Ministry, generally after an opinion had been obtained from the Norwegian Medical Council. This authority was subsequently delegated to the Directorate of Health/ Health Inspectorate. According to section 11, the decision could not be appealed but it could be brought before a court of law, which could review all aspects of the matter. If a suspension or revocation proved to be invalid or was set aside on other grounds, section 12 provided that the doctor could claim damages for losses sustained in accordance with the usual rules. (38) This system is continued in the current Act - the Health Personnel Act of 2 July 1999 No. 64 - which came into force on 1 January 2001. ... (39) Generally the system exists in parallel with the system of sanctions provided for under criminal law. This relates to the different guilt requirements under the two systems and to the fact that the objectives and subjects for assessments are different, see Proposition No. 13 to the Odelsting (1998-1999), pp. 185 and 187. It is assumed that as a general rule the public health authorities may consider revocation, even if health personnel have not been disqualified by judgment in a criminal case. It is emphasised that the regulatory authority shall be concerned with protecting patients against unqualified practitioners, not with punishment. (40) In light of the inter-relationship between the regulations discussed above, [the applicant]’s alternative submission relating to Article 4 of Protocol No. 7 may also have a bearing on corresponding questions under the current Act. Accordingly, in my view it is appropriate to consider this aspect first. (41) The question is whether the suspension decision, which was adopted after [the applicant] had been convicted of the actions in question, but acquitted of the plea that he be disqualified, must be viewed as a re-prosecution in contravention of Article 4 of Protocol No. 7. That the facts underlying the suspension decision in all essential respects are the same as those underlying the criminal conviction, is not disputed. (42) Before I continue I reiterate that the suspension of the licence presupposed the existence of a reasonable basis for assuming that ‘grounds existed for revocation’. Although this case concerns the suspension of a licence, and a revocation, the real issue is nevertheless whether Article 4 of Protocol No. 7 serves as an obstacle to the revocation of a licence where a judgment in a criminal case has already been rendered with respect to the same actions and where the plea for disqualification has not been allowed. (43) In light of Supreme Court case law as it now stands, the issue that must be considered will be identical to the question of whether this constitutes punishment pursuant to Article 6 of the Convention, see most recently the judgment of 8 June 2004 in case No. 2003/1640 HR-2004-00997-A paragraph 54. As noted in paragraph 40 of the said judgment, this question must be decided on the basis of the so-called Engel criteria, (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22). How is the situation classified under national law, the nature and purpose of the statutory rule that was applied and the content and severity of the sanction in question. (44) It will be apparent from my introductory discussion that neither the revocation nor the suspension of a permit to practise as a doctor will constitute punishment under Norwegian law. (45) As regards the second Engel criterion - the nature and purpose of the provision - it is clear to me that the theme for assessment will be the standard specified in section 9 of the 1980 Act by reference to section 8, which I have reproduced in my introductory overview. The overarching standard is whether the doctor is unfit to practise his profession, in our case on the grounds of ‘conduct unworthy of a doctor’. Although the conduct to which the standard is directed will frequently involve - and in our case in fact does involve - criminal actions, I am not inclined to agree with [the applicant] in his submission that it is the criminal actions that make up the nature of the provision. The theme for assessment is whether the doctor satisfies the requirements for holding a permit to practise the profession and continuing to practise the profession. (46) The provisions of the 1980 Act are aimed specifically at a professional group that is dependent upon a special degree of confidence in the mind of the public and accordingly requires a public permit in order to practise. The legislative history of the Act strongly emphasised the need for doctors to observe a high professional and ethical standard and the need for society to control who practises the profession by requiring a public permit to be held and, moreover, that such permits may be revoked if the preconditions are no longer fulfilled (see inter alia NOU (Norwegian Official Report) 1976:1 pp. 26 and 32). The Select Committee therefore proposed the continuation of the existing scheme, but added that a breach of the precondition as to good conduct could result in revocation. The Ministry concurred (see Proposition No. 1 to the Odelsting (1979-80), p. 44). The Select Committee emphasised that the grounds for loss of an authorisation or licence would need to encompass more than criminal actions. The Committee stated as follows: ‘There should also be room for revoking an authorisation or licence in the case of conduct or actions that are not criminal, but this should occur only rarely. On the other hand, not every criminal action should lead to revocation; here as in other contexts the doctor must be found unfit to practise the profession. The blameworthy circumstances must normally relate to his or her medical practice. Nevertheless, there may be instances in which conduct outside the profession may entail that the doctor does not enjoy the necessary confidence, for instance if he or she commits theft, embezzles in the context of his or her practice, defamation or assault of other persons etc.’ (47) As will be apparent from my introductory discussion of the provisions this object has at all times been of central importance and it is now expressly provided for in the purpose clause of the Health Personnel Act. The object of the provisions is not to punish persons who are in breach of the standard but rather to prevent them from causing their patients harm or violating the relationship of trust that must of necessity exist between the general public and the medical profession. This is expressly emphasised in Proposition No. 1 to the Odelsting (1979-80), p. 39, second column. In my assessment this is a long way from the domain of criminal law, a fact that the existence in most European countries of equivalent arrangements serves to emphasise. (48) [The applicant] has submitted that disqualification pursuant to Article 29 (2) of the Penal Code, which is described as punishment, far and away serves the same purpose as the revocation provisions of the 1980 Act. This is indisputably correct, but will nevertheless not be of particular significance. I refer here to the Norwegian Supreme Court Reports (Norsk Retstidende- “Rt.”) 2003 p 264, paragraph 41, where a parallel of this nature was found not to be decisive with respect to rights vesting in an individual permit issued by the public authorities. Nor does the fact that the sanction is for actions that have already been performed change my assessment that this is primarily a civil law sanction. Finally I should also note that there is no direct link between the sanction in question and the preconditions for punishment, as was found to be the case in Rt. 2003 p.1827, paragraph 69. As I have already noted, the overarching and decisive point is whether the doctor in question is unfit to practise the medical profession. (49) The third Engel criterion - the content and severity of the sanction - cannot lead to a different conclusion. Clearly, depriving a doctor of the right to practise will have a serious impact on that doctor. However, in decisions of this type, often referred to as disciplinary decisions, the point of departure has been that the sanctions in question must be very serious - in practice prison sentences, see Rt. 2002 p. 509 and, at p. 520, reference to Inocêncio v. Portugal (application no. 43862/98) , see also Rt. 2003 p. 1100, paragraph 53. A common point of departure has been that the decisions in question have been directed at a limited circle of people. (50) No decision by the European Court directly addresses the question of the revocation of a public permit to practise a profession. The State has referred to a number of dismissal decisions that indicate that this lies outside the domain of criminal law. As regards the revocation of a permit to conduct business, the European Court held as follows in its dismissal decision in Manasson v. Sweden (application 412865/98), a case concerning the revocation of a taxi licence on the grounds of tax offences: ‘... The Court considers that the revocation of the licence did not constitute a determination of a criminal charge against the applicant. Although it may be regarded as a severe measure, what was decisive for the revocation was the applicant’s suitability to run a commercial taxi business, and, more specifically, whether he fulfilled the conditions therefore under administrative law provisions. Thus, the revocation cannot be characterised as a penal sanction and the nature of the relevant proceedings cannot be regarded as criminal ...’ (51) The decision then refers to the Tre Traktörer AB v. Sweden judgment of 7 July 1989, where the revocation of a liquor licence on the grounds of irregularities did not constitute a penal sanction. (52) In European legal tradition the exercise of certain activities requires a public licence. The issuing of licences of this nature is, typically, an administrative activity. It would be inconsistent if the same did not apply to the revocation - reversal - of a licence of this nature where a recipient no longer fulfils the preconditions for holding the licence. (53) Against this background it is clear to me that the revocation and suspension of a licence to practise as a doctor on the grounds that the statutory and necessary preconditions for continuing to practise this activity are no longer present does not constitute a penal sanction in the European Court’s view. The question regarding the concrete application of Article 4 of Protocol No. 7 will therefore not arise.” | 0 |
dev | 001-67786 | ENG | SVK | ADMISSIBILITY | 2,004 | D.H. v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr D.H., is a Slovakian national, who was born in 1966 and lives in H. He was represented before the Court by Ms Z. Dlugošová, a lawyer practising in Bratislava. On 7 December 1999 the car driven by the applicant collided with a different car at a road crossing in Trnava. No one was injured and the police found no alcohol on the drivers’ breath. The police withheld the driving licence from the applicant on the spot. On 9 December 1999 the District Road Traffic Inspectorate in Trnava decided that the driving licence would not be restored to the applicant prior to a final decision on the case. The decision stated that the applicant had not respected a red traffic light and that it could be reasonably expected that a court or other competent authority would prohibit him from driving motor vehicles. Reference was made to Section 66(1)(a) of the Road Traffic Act. On 14 December 1999 the applicant appealed. He alleged that the decision was based on the false statement of the other driver. The applicant argued that a witness had confirmed that the traffic light had been green when he had entered the crossing. On 4 January 2000 the Regional Road Traffic Inspectorate in Trnava upheld the decision of 9 December 1999. The Regional Inspectorate held that it was irrelevant for the purpose of the decision on withdrawal of the driving licence how the matter was qualified from the point of view of the criminal law or minor offences law. The Regional Inspectorate had regard to the facts of the case as established at that time. The reasons invoked by the applicant were irrelevant in the context of deciding on the withdrawal of the driving licence. The applicant had to submit his objections or proofs in the context of the proceedings on the minor offence which was imputed to him. On 25 January 2000 the District Road Traffic Inspectorate in Trnava found that the applicant had not complied with the Road Traffic Act thereby committing a minor offence under Section 22(1)(b) of the Minor Offences Act of 1990. A fine of 3,000 Slovakian korunas (SKK) was imposed on the applicant and he was prohibited from driving motor vehicles for ten months. The period from 7 December 1999 when the police had withheld the applicant’s driving licence was to be deducted from the above period of ten months. The police authority established that the applicant had failed to respect a red traffic light and had thereby caused the accident. On 7 February 2000 the applicant appealed and argued that the investigation had been flawed. On 6 March 2000 the Regional Road Traffic Inspectorate in Trnava quashed the first instance decision for procedural shortcomings. It ordered the District Inspectorate to obtain an expert opinion and to take further evidence with a view to establishing the relevant facts. On 24 March 2000 the applicant requested that his driving licence should be restored to him. On 30 March 2000 the District Road Traffic Inspectorate in Trnava informed the applicant that the reasons for withdrawal of his driving licence as set out in the decision of 9 December 1999 still existed. On 30 March 2000 the District Inspectorate stayed the proceedings concerning the minor offence of which the applicant was accused on the ground that an expert opinion had to be obtained. On the same day an expert was appointed. On 9 June 2000 the applicant requested the Regional Inspectorate in Trnava to determine the case as the length of the proceedings was excessive. On 4 July 2000 the District Road Traffic Inspectorate informed the applicant that the case could not be proceeded with as the expert had failed to submit his opinion. On 6 July 2000 the applicant asked the Presidium of the Police Corps to quash the above decision of 4 January 2000 relating to the withdrawal of his driving licence. The expert submitted his opinion on 25 August 2000. On 7 September 2000 the District Road Traffic Inspectorate informed the applicant that the case could not be dealt with as the file had been submitted to institutions to which the applicant had complained about shortcomings in the proceedings. On 16 October 2000 the District Inspectorate returned the driving licence to the applicant. The relevant police note states that the reasons for withholding the driving licence had ceased to exist on 8 October 2000. Reference was made to the decision of 25 January 2000 under which the applicant had been prohibited from driving motor vehicles for ten months. The document further reads as follows: “For this reason, and even in the event that [the applicant] were again to be examined in respect of the minor offence in question, he could be prohibited from driving for the said ten months. This period expired on 8 October 2000. For this reason the driving licence will be returned to [the applicant] which does not mean that the case is closed.” On 3 November 2000 the District Prosecutor’s Office in Trnava found, in reply to the applicant’s complaint, that the District Inspectorate in Trnava had acted erroneously in that it had stayed the proceedings pending the submission of an expert opinion and that it had not used all available means with a view to obtaining the expert opinion without unjustified delay. The administrative authority had not displayed due diligence when proceeding with the case. The public prosecutor therefore asked the District Road Traffic Inspectorate in Trnava to remedy the shortcomings found. On 17 November 2000 the District Road Traffic Inspectorate again found that the applicant had committed a minor offence under Section 22(1)(b) of the Minor Offences Act of 1990. A fine of SKK 3,000 was imposed on the applicant and he was prohibited from driving motor vehicles for ten months including the period during which the driving licence had been withdrawn from him. The decision stated that an appeal with suspensive effect could be filed against it. On 30 November 2000 the applicant appealed. On 13 December 2000 the Regional Road Traffic Inspectorate in Trnava discontinued the proceedings. The decision referred to Section 76(1)(f) of the Minor Offence Act of 1990 and it stated that the liability for the minor offence in question had lapsed as one year had passed since the date when it had been committed. Since the applicant could no longer be held liable for any minor offence arising out of the above accident, the reason for proceeding with the case had fallen away. The applicant submits that he cannot claim compensation for damage which he suffered as a result of the accident of 7 December 1999 as a claim for compensation on the basis of the compulsory insurance of motor vehicles is dependent on the result of the police investigation. He further submits that he learned, on 26 January 2000, that the insurance company had informed the other driver involved in the accident that it had arranged for him to be compensated from the applicant’s insurance having regard to the outcome of the examination of the accident. Section 66(1)(a) entitles the police to withhold a driving licence from a driver who grossly violates the Road Traffic Act or other generally binding rule relating to it and thereby directly threatens the security or disturbs the smooth flow of road traffic or causes a road traffic accident. Section 66(4) provides that a District Road Traffic Inspectorate is to deliver a decision, within fifteen days, on the withdrawal of a person’s driving licence where the reasons for withholding the licence continue or where it can be reasonably expected that a court or a different competent authority will prohibit its holder from driving motor vehicles. Otherwise the driving licence is to be restored to the person concerned without delay. Under paragraph 6 of Section 66, the authorities dealing with the case have to examine at all stages of the proceedings whether the reasons for withholding a person’s driving licence still exist. When such reasons fall away, the driving licence is to be restored to its owner without delay. Section 124(6)(d) excludes the application of the general rules on administrative proceedings to decisions under Section 66(1) relating to the withdrawal of a driving licence. Section 20 provides that a minor offence cannot be examined, inter alia, after the lapse of one year from the moment when it was committed. Section 22(1)(b) governs minor offences against road traffic security. It extends to cases where a person violates the relevant regulations and thereby puts in danger the security of road traffic, disturbs its smooth flow or causes an accident. Paragraph 2 provides that a person who committed such a minor offence can be fined up to SKK 5,000 and he or she can be prohibited from driving motor vehicles for a period up to one year. Pursuant to Section 76(1)(f) an administrative authority discontinues proceedings relating to a minor offence where the liability for such minor offence has ceased to exist. Under Section 83(2) and (3), participants in administrative proceedings can seek a judicial review of the decision on a minor offence after the exhaustion of the ordinary remedies in the context of administrative proceedings. | 0 |
dev | 001-103151 | ENG | HUN | CHAMBER | 2,011 | CASE OF METALCO BT. v. HUNGARY | 3 | Violation of P1-1;Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award | András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria | 5. The applicant is a limited partnership under liquidation, with its seat in Pécs. 6. In 1996 the Tax Authority established that the applicant owed some 10 million Hungarian forints (HUF) in outstanding taxes. To secure this claim, on 10 April 1997 it attached a 100%-share the applicant had in another company, which was nominally worth over HUF 103 million. Aware of the applicant’s own intention to sell the share by 30 June 1997, the Tax Authority forbade the transaction but did not proceed to auctioning it within the statutory two-month deadline or afterwards. 7. In the ensuing two-year-long administrative procedure, the applicant’s tax debt was eventually cancelled and the asset unfrozen. However, by that time the company in which the share belonged had been liquidated – as of July 1997 – and the share had lost its value altogether. 8. Some time in 1999 the applicant sued the Tax Authority for damages. On 12 December 2000 the Baranya County Regional Court awarded it HUF 103 million. On 13 June 2002 the Supreme Court quashed this decision. On 3 June 2003 the Regional Court again found for the plaintiff. 9. On appeal, on 6 May 2004 the Pécs Court of Appeal reversed this judgment and rejected the applicant’s action. It held in essence that there had been no causal link between the Tax Authority’s unlawful omission to hold an auction to sell the attached asset within two months from its attachment, as required by section 116(1) of the Enforcement Act 1994, and the damage the plaintiff had sustained. In the court’s view, the burden of proof to show that had there been a timely auction the share could have successfully been sold to a buyer with the requisite liquidity lay with the applicant. However, the applicant could not prove this assertion. The court observed that the buyer suggested by the applicant had never had, according to its books, the capital needed for the acquisition; that the company in which the share belonged had lost all its own capital by early 1997 and been in liquidation as of July 1997; and that its manager had been convicted of fraudulent bankruptcy. 10. On 16 March 2005 the Supreme Court dismissed the applicant’s petition for review. This decision was served on 22 April 2005. The applicant’s request for a re-opening was to no avail. | 1 |
dev | 001-68532 | ENG | BGR | ADMISSIBILITY | 2,005 | EKIMDJIEV v. BULGARIA | 2 | Inadmissible | Christos Rozakis | The applicant, Mr Mihail Tiholov Ekimdjiev, is a Bulgarian national who was born in 1964 and lives in Plovdiv. He is represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The respondent Government are represented by Ms M. Kotzeva, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a lawyer. His practice includes, inter alia, defending criminal cases at the Plovdiv District Court and dealing with applications before European Court of Human Rights. Before becoming a lawyer he worked as a prosecutor at the Plovdiv District Prosecutor's Office. In 1997 the applicant was acting as defence counsel for a Mr Borislav Nikolov who had been charged with theft and was being kept in detention. Later Mr Nikolov lodged an application with the European Court of Human Rights, which resulted in a judgment in which violations of Article 5 §§ 1, 3 and 4 were found (see Nikolov v. Bulgaria, no. 38884/97, 30 January 2003). In early September 1997 the applicant filed with the Plovdiv District Court a habeas corpus petition on behalf of his client, Mr Nikolov. A hearing on the petition was listed for 16 September 1997 before the 4th criminal panel of the court. The panel consisted of a presiding judge, Ms S., and two lay judges. The applicant submits that on 15 September 1997 he requested to be given access to the case file of the investigation against his client in order to be able to prepare for the hearing. The presiding judge, Ms S., refused to give the applicant access, giving oral instructions to that effect to the court clerk in charge of the file. At the hearing on 16 September 1997 the applicant requested an adjournment, stating that he had not been given access to the investigation file by personal order of the presiding judge. The applicant submits that an argument ensued between him and the presiding judge as to whether he should have had access to the file. The next day the applicant read the minutes of the hearing. He submits that he discovered that they did not accurately reflect what had been said at the hearing. They read that his request for an adjournment had been based only on his assertion that he had not read the investigation file and no mention was made of the reasons of him not having read the file. The applicant apparently considered that the wording of the minutes gave the impression that it was his own fault not having read the file. On 18 September 1997 the applicant filed an application with the Plovdiv District Court, requesting rectification of the minutes. The application read: “The Plovdiv District Court 4th criminal panel ... Dear judges, At the insistence of the presiding judge, Ms S., incorrect and untrue facts, which do not correctly reflect my statements in my capacity of defence counsel, were recorded in the minutes of the hearing ... held on 16 September 1997: 1. Despite my express request the minutes do not reflect my statement that on 15 September 1997 judge S. personally, by oral order, did not allow me to acquaint myself with the investigation file and that for this reason I consider that the interests of my client were prejudiced. Instead, my statement was recorded, under the dictation of the judge, as: “I have not acquainted myself with the investigation file”. 2. The minutes do not reflect my statement that my request of 15 September 1997 ... in which I ask the presiding judge ... to allow me to acquaint myself with the investigation file has not been put in the case file. 3. The minutes do not reflect the numerous attempts of the presiding judge to prevent me from adducing arguments in support of my position as to whether the court should proceed with the hearing. For the above reasons and pursuant to Article 311 § 1 of the [Code of Criminal Procedure] I request that the minutes be rectified as necessary so that they reflect the actual statements of the parties. Only this would cure a serious procedural violation by the court which borders on the criminal offence of falsifying documents.” On 23 September 1997 the applicant complained to the chairperson of the Plovdiv District Court that he was not allowed to consult the investigation file and that he could not have this fact entered in the minutes of the proceedings. The applicant submits that on a date before 24 September 1997 the minutes were corrected to reflect his statement as it actually was. He submits, however, that this was not done in keeping with the proper procedure for the rectification of minutes. On 26 September 1997 the applicant withdrew his request for rectification of the minutes as having become moot. Meanwhile, on 19 September 1997, judge S. complained to the Plovdiv District Prosecutor's Office, requesting the opening of criminal proceedings against the applicant for having defamed her by stating that in recording in the minutes of the hearing of 16 September 1997 incorrect and untrue facts, which did not correctly reflect his statements, she had committed a “serious procedural violation which bordered on the criminal offence of falsifying documents“. On 10 December 1997 the Plovdiv District Prosecutor's Office opened criminal proceedings against the applicant for having committed the offence of defamation, contrary to Article 148 § 2 in conjunction with § 1 (3) of the Criminal Code (“the CC”). The applicant appealed to the Plovdiv Regional Prosecutor's Office, arguing that in the circumstances there was no indication of him having committed an offence. On 10 February 1998 the Plovdiv Regional Prosecutor's Office dismissed the appeal. It reasoned that, contrary to the applicant's allegations in his application of 18 September 1997, his statement that he could not have access to the investigation file because of judge S.'s instructions had been entered in the minutes. It went on to state that the mere false imputation of conduct to the judge, without more, was defamatory. On 13 March 1998 the chairperson of the Plovdiv Regional Court wrote to the Bar, informing them that, after considering the issue of granting defence counsels in habeas corpus proceedings access to the investigation files of their clients, the judges of the court had decided that there were no legal grounds for refusing such access and that henceforth counsels would be allowed to consult the files. On 23 March 1998 the applicant was charged under Article 148 § 1 (3) in conjunction with Article 147 § 1 of the CC with having imputed a crime –falsification of documents – to judge S., by having written “[o]nly this would cure a serious procedural violation by the court which borders on the criminal offence of falsifying documents”. As a measure to secure appearance at the envisaged trial the applicant was placed under an obligation to not leave the town. The same day the applicant appealed to the Chief Prosecutor's Office. He objected against the charges, arguing that the facts alleged against him did not constitute a crime, but constituted merely the lawful exercise of his procedural rights as a defence counsel. On 30 March 1998 the head of the Supreme Bar Council of Bulgaria wrote to the Chief Prosecutor, requesting the discontinuation of the proceedings against the applicant. He stated that the actions of the Plovdiv District and Regional Prosecutor's Offices were in breach of the law and that the applicant had only exercised his procedural rights. He further stated that the court was a collective body and could not be defamed or insulted within the meaning of the CC. He also expressed the Supreme Bar Council's concern that he prosecution had incriminated a routine procedural act performed in pursuance of a counsel's professional duties. The prosecution had thus infringed a lawyer's freedom to act in defence of his clients' rights. On 17 April 1998 the investigator in charge of the case concluded that the applicant should be committed for trial. On 7 May 1998 the Chief Prosecutor's Office ordered that the proceedings be transferred to the Pazardjik District Prosecutor's Office, as the applicant had formerly been a prosecutor at the Plovdiv District Prosecutor's Office and the defamation's alleged victim, judge S., was a judge at the Plovdiv District Court. On 7 September 1998 the Pazardjik District Prosecutor's Office discontinued the proceedings against the applicant. It stated that it would not examine whether the applicant had been properly charged, but reasoned that he had neither committed the actus reus of the crime of defamation, nor had the mens rea to commit defamation. In his application of 18 September 1997 the applicant had used the form of address “dear judges”. Therefore, the application had not been addressed personally to judge S. The judge had to acquaint herself with the application, which was addressed to the 4th criminal panel of the court, in her professional capacity. By making this application for rectification of the minutes the applicant had merely sought to defend the interests of his client, which was, indeed, within his professional obligations. It was also beyond doubt that the words “borders on a crime” featuring in the applicant's text could not be considered as amounting to the imputation of a specific crime. Article 147 of the CC, as in force at the relevant time, provided: “1. Whoever divulges a vilifying fact about another or imputes to him a crime shall be punished for defamation by up to one year imprisonment or a fine of up to five levs, as well as by public reprimand. 2. The perpetrator shall not be punished if he or she proves the truth of the divulged facts or the imputed crimes.” Article 148 §§ 1 (3) and 2 of the CC, as in force at the material time, provided that if the defamed person was an official and the defamation was committed against him during or in connection with the performance of his or her duties, the punishment was up to three years' imprisonment and a public reprimand. Offences under Article 148 §§ 1 (3) and 2 of the CC were publicly prosecutable (Article 161 of the CC, as in force at the relevant time). According to the doctrine, the actus reus of defamation consists of imputing to someone the commission of a crime, i.e. the defamer must state before a third party that the defamed has committed a specific crime, which the defamed has not in fact committed (Александър Стойнов, Наказателно право, Особена част, Престъпления против правата на човека, София, 1997, стр. 138). Defamation is completed when at least one third party has learned about the defamer's statement (id., стр. 139). Criminal proceedings for a publicly prosecutable crime must be opened whenever the prosecution authorities receive a notification, supported by sufficient information, that a crime might have been committed (Articles 187 and 190 of the Code of Criminal Procedure (“the CCP”)). If the notification to the prosecuting authorities was not supported by sufficient information, they had to order a preliminary inquiry in order to determine whether the opening of criminal proceedings was warranted (Article 191 of the CCP, as in force at the material time). Article 207 of the CCP provides that when sufficient evidence is gathered that a person has committed an offence, he or she must be charged. Under Article 146 the CCP, a measure to secure appearance before the competent authority must be imposed in respect of every person charged with having committed a publicly prosecutable crime. The most lenient such measure is a written undertaking by the accused that he or she would not leave his town without authorisation by the respective authority – the prosecutor or the court, depending on the stage of the proceedings (Article 149 of the CCP). Section 2 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“), which sets out causes of action for tort claims against the investigation and the prosecution authorities and the courts, provides, as relevant: “The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful: ... 2. accusation of a crime, if the accused is acquitted or if the criminal proceedings are discontinued because ... the act committed by the accused is not a crime...; The State is liable for all pecuniary and nonpecuniary damages which are the direct and proximate result of the unlawful act (section 4). The State's liability is strict, i.e. no proof of fault is required (section 4 in fine). An action under the Act is exempt from the initial payment of court fees (section 10(2)). Minutes must be kept of all court hearings (Article 310 of the CCP). They must set out, inter alia, all motions, remarks and objections of the parties (Article 101 § 1 in conjunction with Article 310 of the CCP). They must be signed by the presiding judge and the secretary of the court (Article 310 § 2 of the CCP). If one of the parties considers that the minutes are not complete or are erroneous, it may, within three days after their drafting, make a written request for their rectification or amendment. The request is first examined by the presiding judge, and if he or she denies it, it is examined in private by the entire court panel (Article 311 of the CCP). | 0 |
dev | 001-23114 | ENG | LVA | ADMISSIBILITY | 2,001 | KOZLOVA and SMIRNOVA v. LATVIA | 1 | Inadmissible | null | The applicants, Oksana Kozlova and Tatjana Smirnova, are “permanently resident non-citizens” of Latvia, born in 1930 and 1946 respectively and living in Riga (Latvia). They were represented before the Court by Mr G. Kotovs, a lawyer practising in Riga. In 1931 the Latvian State sold to a certain O.A.R. a plot of land 3,740 sq. m in area with a semi-detached weekend house, located in Vecāķi (in the suburbs of Riga). After O.A.R.’s death in 1939, the property passed to his daughter, M.R. In 1944 fear of Stalinist persecution forced M.R. to go into exile in the West and abandon her property. The house was also considerably damaged during the 1940s. In a decision of 9 June 1948 the executive committee of the Mangaļi Municipal Council granted the right to use the above-mentioned land to Colonel S. (the applicants’ father) and Lieutenant Colonel B., and calculated the actual value of the building on it. On 27 August 1948 Mr S. and Mr B. purchased the house by paying the tax authorities the sum of 2,080 Soviet roubles. In the following years S. and B. rebuilt the house. In a decision of 4 February 1952 the municipal authorities granted S. and B. the definitive right to use the land. However, on 1 July 1952 those authorities divided the land into three parts, two of which were allocated to S. and B. and the third of which was placed in public ownership. On 25 December 1968 the municipality’s executive council divided the house into two parts and registered them as two separate properties with different numbers. The title to one of the parts was granted to the heirs of S., who had died that year; title to the other half was granted to B.’s former wife. In 1969 the applicants were recognised as the heirs to equal portions of their fathers’ estate. On 30 October 1991 after Latvia had regained its independence, the Supreme Council (Augstākā padome) enacted the Law on the Return of Real Estate to the Legitimate Owners (Likums “Par namīpašumu atdošanu likumīgajiem īpašniekiem”). On 30 May 1995, in response to an application by O.A.R.’s grandson, A.R., Riga Municipal Council restored ownership of the land in issue to A.R. That decision did not, however, cover the buildings erected on the land. In April 1998 A.R. asked the Riga Regional Court to set aside all the decisions taken in relation to the semi-detached house during the Soviet period and recognise him as the legitimate owner. In a judgment of 30 June 1998 delivered after adversarial proceedings the Riga Regional Court allowed A.R.’s application. The Court noted first of all that although the house in issue had never been formally expropriated, it was covered by section 7 of the Law on the Return of Real Estate to the Legitimate Owners, which excluded property abandoned for fear of persecution from the category of res nullius (the property of nobody). The taking of possession of the property by the Soviet local authorities in 1948 had therefore been arbitrary and illegal, especially as it had not been based on any judicial decision. Furthermore, the Regional Court pointed out that section 6 of the aforementioned law precluded the return of items of property sold to private individuals acting in good faith by means of contracts certified by a notary. However, it noted that there had been no such contract in the instant case. Lastly, the Regional Court rejected the applicants’ argument that the disputed house had been completely rebuilt by their father and was in fact a new item of property. In that connection, the Court considered on the basis of the evidence produced that the repairs carried out (the replacement of doors, windows and roofing and repairs to some of the walls) were not sufficient to warrant the assertion that the initial building no longer existed and that S. had built a new house. Consequently, the Regional Court declared the decision of 9 June 1948 and all subsequent measures relating to the building null and void and ordered that it be returned to A.R. The applicants appealed against that judgment to the Civil Division of the Supreme Court, which, in a judgment delivered on 9 December 1998 following adversarial proceedings, dismissed A.R.’s application on the ground that the documents he had submitted were not sufficient to prove O.A.R.’s title to the disputed house. In a judgment of 3 March 1999 the Cassation Division of the Supreme Court, ruling on an appeal on points of law lodged by A.R., quashed the aforementioned judgment and remitted the case to the Civil Division. According to the Cassation Division, as a building was in principle an adjunct to the land on which it was built, the house in question should, in the absence of any evidence to the contrary, have been considered to have belonged to the owner of the land, namely O.A.R. In a judgment of 20 May 1999 the Civil Division of the Supreme Court allowed A.R.’s application. Having established that the semi-detached house had indisputably belonged to O.A.R., the Civil Division ruled as follows: “... Section 7 of the Law on the Return of Real Estate to the Legitimate Owners provides that an item of property abandoned by its owner following the events of the Second World War, particularly in order to avoid persecution or other adverse consequences, cannot be classed as res nullius. It appears from the documents in the case file that in 1944, after the death of his grandmother, the appellant and his family left Latvia to escape potential oppression. The case file does not contain any information attesting to the legal basis for the taking of possession of the property by the executive committee ... . No judgment was adopted regarding a res nullius. ... ... [T]he Civil Division considers that by taking possession of the disputed property without paying any compensation and by making use of it subsequently, the municipality infringed the rights of the legitimate owner and adopted a policy of administrative arbitrariness. Under section 6 of the Law on the Return of Real Estate to the Legitimate Owners, no court order can be made for the return of items of property acquired against payment by natural persons acting in good faith and on the basis of contracts certified by a notary. The file does not contain any evidence that the property came into the ownership of [S.] and [B.] on the basis of an official conveyance certified by a notary. ... That being so, the Civil Division considers that [B.] and [S.] cannot be regarded as purchasers acting in good faith within the meaning of section 6 of the Law on the Return of Real Estate to the Legitimate Owners. ... Since [S.] cannot be deemed to have purchased the house in good faith, the Civil Division considers the certificate of succession to the estate issued to Tatjana Smirnova [and] Oksana Kozlova ... to be null and void ...” The applicants appealed on points of law against the above judgment cited above to the Cassation Division of the Supreme Court. In a judgment of 6 October 1999 the Cassation Division, ruling as an extended bench of seven judges, rejected that appeal, upholding the reasons given by the Civil Division. The relevant provisions of the Law of 30 October 1991 on the Return of Real Estate to the Legitimate Owners (Likums “Par namīpašumu atdošanu likumīgajiem īpašniekiem”) provide as follows: “Title to immovable property of which the State or legal persons took possession without paying compensation during the period between the 1940s and the 1980s, as part of a policy which infringed the rights of owners and was tainted by administrative arbitrariness, shall be restored to the former owners or their heirs irrespective of their present nationality.” “The property rights of former owners or their heirs who have lodged an application shall be restored by a court order in accordance with the provisions of the Latvian Code of Civil Procedure. ...” “... [T]he courts may declare null and void measures taken by administrative authorities putting an end to or restricting a lawful right to property.” “Immovable property that has come into the ownership of natural persons acting in good faith against payment and on the basis of contracts certified by a notary may not be returned ... In this case, the former owner (or his heir) has the right to demand from the vendor who acquired the property compensation up to the price laid down in the contract of sale; compensation corresponding to the real value of the property must be paid as provided by law. ...” “Immovable property which had to be abandoned by its owner following the military operations of the Second World War, particularly in order to avoid potential repression or other adverse consequences, may not be regarded as res nullius. ...” “Where the immovable property eligible to be claimed by means of a judicial remedy has not survived ..., former owners (or their heirs) are entitled to compensation as provided by law. Immovable property which, after 30 October 1991, has been rebuilt in such a way that most of it (more than sixty-five percent) amounts to a new building, shall also be considered not to have survived in substance. Where the construction or reconstruction has been carried out in breach of the requirements of a law or regulation or by an occupier acting in bad faith, that fact may not be relied on to dismiss an application for restitution of the property.” In a judgment of 22 October 1997 (case no. SKC-287) the Cassation Division held that a decision taken by the municipal authorities in the 1940s whereby a private individual was granted title to an expropriated house provided that he paid a sum to the tax authorities corresponding to the value of the building was equivalent to a “contract certified by a notary” within the meaning of section 6 of the Law. The relevant provisions of the Latvian Civil Code (Latvijas Republikas Civillikums) read as follows: “The claimant must prove that he has title. For this purpose, it is sufficient for him to show that he genuinely acquired that title in a legal manner; it is subsequently for the defendant to prove that the claimant is no longer the owner. Where the claimant maintains that he acquired the property from a third party through delivery or inheritance, he must prove that his predecessor was the owner.” “The defendant may have the application dismissed if he proves that he has title to the property or the right to possess it on the basis of a right in rem or a right in personam which the claimant must respect.” | 0 |
dev | 001-92116 | ENG | DEU | ADMISSIBILITY | 2,009 | BERGER v. GERMANY | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Joachim Berger, is a German national who was born in 1956 and lives in Singen. He is represented before the Court by Mr O. Berg, a lawyer practising in Strasbourg. The respondent Government are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In March 1996 the applicant was first questioned by the police on suspicion of three counts of abetting economic subsidy fraud. The indictment was issued on 15 September 1999. On 16 May 2002 the Mühlhausen Regional Court opened the main proceedings. On 6 June 2005 the Mühlhausen Regional Court informed the applicant that it intended to terminate the proceedings in accordance with Article 206a of the Code of Criminal Procedure as it considered that the length of proceedings precluded their continuation (see “Relevant domestic law” below). On 12 June 2005 the applicant gave his consent to that discontinuation. On 16 June 2005 the prosecutor’s office submitted that it would contest such termination of the proceedings. However, it suggested discontinuing the proceedings in accordance with Article 153 of the Code of Criminal Procedure (see “Relevant domestic law” below). On 23 June 2005 the Regional Court discontinued the proceedings in accordance with Article 153 of the Code of Criminal Procedure after the applicant’s lawyer had agreed to the proposed termination of the proceedings on the same day. On the same day the sitting judge of the Regional Court instructed the court’s registry to formally serve the discontinuation order on the applicant’s defence counsel and to informally transmit a copy of that decision to the applicant together with other documents, such as the submissions of the Public Prosecutor’s Office of 16 June 2005. On 24 June 2005 the applicant’s defence counsel acknowledged receipt of the court’s decision of 23 June 2005. On an unspecified date the applicant received the Regional Court’s letter of 23 June 2005; however, it is disputed between the parties whether that letter contained the court’s decision to discontinue the proceedings. Between 24 June 2005 and 27 July 2005 the applicant addressed further letters to the Regional Court requesting the court to comply with its obligation to proceed speedily. On 12 November 2007 the Court requested that the applicant provide information as to whether the proceedings had been discontinued in the meantime. On 26 November 2007 the applicant replied that he had not received any information about the discontinuation of the proceedings and that he did not know whether a discontinuation was imminent or intended. Therefore, on 22 January 2008 the Court decided to communicate the application to the respondent Government concerning the length of the proceedings. Under Article 206a of the Code of Criminal Procedure, the court may terminate the proceedings by an order made outside the main hearing should a procedural impediment arise after the main proceedings have started. Thus the length of proceedings may preclude their continuation if, in exceptional circumstances, redress for the length of proceedings cannot be granted in a decision on the merits. Article 153 of the Code of Criminal Procedure governs the discontinuation of criminal proceedings on the ground of insignificance. During the investigation proceedings the Public Prosecutor’s Office may discontinue the criminal proceedings if they concern an offence that does not carry a sentence of at least one year’s imprisonment (Vergehen), if the defendant’s guilt is of a minor nature and if there is no public interest in criminal prosecution. The court which has jurisdiction to open the main proceedings must consent to discontinuing the proceedings unless they concern offences which are not subject to an increased minimum penalty and the consequences ensuing from the offence were minor (Article 153 § 1). If the indictment has already been preferred with the court the latter may discontinue the proceedings at any stage under the conditions set out in Article 153 § 1 with the consent of both the public prosecutor’s office and the defendant (Article 153 § 2). | 0 |
dev | 001-81366 | ENG | POL | CHAMBER | 2,007 | CASE OF WILUSZ v. POLAND | 4 | Violation of Art. 6-1 | Nicolas Bratza | 4. In 1972 the State Treasury transferred to the applicants a property situated in Krosno. There was no adequate access by road to the property at that time, but the State authorities declared that an access road would soon be constructed. However, the authorities did not undertake any action to ensure proper access to the applicants' property. In particular, a right of way through neighbouring properties was never created. 5. In 1983 the applicants brought a civil action to have a right of way established by way of a judicial decision. On 31 December 1986 the Krosno District Court allowed their request. Their neighbours appealed. 6. On 27 October 1987 the Krosno Regional Court quashed the judgment of the firstinstance court and remitted the case for reexamination, finding that the first-instance court had failed to assess the evidence properly. 7. By a judgment of 23 October 1990 the Krosno District Court again granted a right of way to the applicants. The neighbours brought a new appeal. On 20 June 1991 the Krosno Regional Court quashed the contested judgment and again remitted the case for re-examination. 8. On 3 November 1997 the Krosno District Court allowed the applicants' claim. The Krosno Regional Court dismissed the neighbours' appeal on 6 October 1998. The neighbours brought a cassation appeal before the Supreme Court. 9. The Supreme Court refused to entertain their appeal on 22 June 2001. This decision was served on the applicants on 13 September 2001. 10. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”), are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005V. 11. In particular, section 18 of the 2004 Act lays down the following transitional rules in relation to applications already pending before the Court: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. 2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court. 3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.” | 1 |
dev | 001-58176 | ENG | GBR | CHAMBER | 1,998 | CASE OF L.C.B. v. THE UNITED KINGDOM | 2 | No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect) | John Freeland | 10. Between 1952 and 1967 the United Kingdom carried out a number of atmospheric tests of nuclear weapons in the Pacific Ocean and at Maralinga, Australia, involving over 20,000 servicemen. Among these tests were the “Grapple Y” and “Grapple Z” series of six detonations at Christmas Island in the Pacific Ocean (November 1957–September 1958) of weapons many times more powerful than those discharged at Hiroshima and Nagasaki. 11. During the Christmas Island tests, service personnel were ordered to line up in the open and to face away from the explosions with their eyes closed and covered until twenty seconds after the blast. The applicant alleged that the purpose of this procedure was deliberately to expose servicemen to radiation for experimental purposes. The Government denied this and stated that it was believed at the time of the tests, and was the case, that personnel were sufficiently far from the centre of the detonations to avoid being exposed to radiation at any harmful level and that the purpose of the line-up procedure was to ensure that they avoided eye damage and other physical injury caused by material blown about by the blast. 12. While the applicant’s father was serving as a catering assistant in the Royal Air Force, he was present at Christmas Island during four nuclear tests in 1957 and 1958. He also participated in the clean-up programme following the tests. 13. The applicant was born in 1966. In or about 1970 she was diagnosed as having leukaemia, a cancerous disease of the organs which manufacture blood. Her records of admission to hospital state, under the heading “Summary of Possible Causative Factors”, “Father – Radiation exposure”. 14. The applicant received chemotherapy treatment which lasted until she was 10 years old. Because of her illness and associated treatment she missed half of her primary school education and was unable to participate in sports or other normal childhood activities. 15. In December 1992 the applicant became aware of the contents of a report prepared by the British Nuclear Tests Veterans’ Association (“BNTVA”) indicating a high incidence of cancers including leukaemia in the children of Christmas Island veterans. The applicant is a member of the BNTVA. 16. She still has regular medical check-ups and is afraid to have children of her own in case they are born with a genetic predisposition to leukaemia. 17. In 1983 an Independent Advisory Group, chaired by Sir Douglas Black, was set up in the United Kingdom to investigate reports of an abnormally high number of children contracting leukaemia in the area around the nuclear power reactor at Sellafield (formerly called Windscale) in northern England. The Group confirmed that childhood leukaemia was more common in this area than normal, but was not able to determine the reason for this. One of the members of the Group, Dr Martin Gardner, went on to conduct three studies into the phenomenon. The third, published on 17 February 1990 (“the Gardner Report”), found a statistical association between the incidence of leukaemia in children from the town of Seascale, near Sellafield, and relatively high recorded doses of external whole-body radiation received by their fathers employed at the nuclear power plant prior to conception. 18. Following the publication of this report, two cases were brought against the authority responsible for the Sellafield reactor by plaintiffs who had contracted leukaemia and non-Hodgkin’s lymphoma respectively, claiming that their fathers’ employment at Sellafield had caused their illnesses. The two cases were heard concurrently in the High Court of Justice, London, on ninety days between October 1992 and June 1993. Over thirty expert witnesses gave oral evidence before the court and approximately one hundred written reports were submitted, primarily directed at the question whether the statistical association found by Dr Gardner could be relied upon and was directly causal, as claimed by the plaintiffs. 19. Judgment was given by Mr Justice French on 8 October 1993. He found, inter alia, that the Gardner Report was “a good study, well carried out and presented”. However, certain technical criticisms which had been made of it were valid so as to diminish confidence in its conclusions and underline the need to seek confirmation from other independent studies before relying on it. He did, however, find that the evidence bore out a strong prima facie association between paternal preconceptional irradiation and childhood leukaemia in Seascale, although considerable reserve was necessary before it could be concluded that there was a causal link. Although the judge was content to assume that there was a heritable component to the plaintiffs’ diseases, he considered that this was very small. He placed particular reliance on studies of the children of survivors of the Nagasaki and Hiroshima bombings, which did not show any significant increase in leukaemia or non-Hodgkin’s lymphoma, and were therefore quite inconsistent with the Gardner hypothesis. One of the defendant’s witnesses, Sir Richard Doll, had referred to research emphasising the role of infection in causing childhood leukaemia, particularly in areas where unusual population mixing had occurred, as was the case in Seascale, which had a very mobile population of high socio-economic class situated in a remote rural area. The judge found that a theory of causation based on such factors, combined with chance, was no less plausible than the Gardner hypothesis. In conclusion, he held that, “on the evidence before me, the scales tilt decisively in favour of the defendants, and the plaintiffs, therefore, have failed to satisfy me on the balance of probabilities that paternal preconceptional radiation was a material contributory cause of the Seascale excess or, it must follow, of [their diseases]” (Reay v. British Nuclear Fuels PLC; Hope v. British Nuclear Fuels PLC [1994] 5 Medical Law Reports 155; and see also ‘Childhood leukaemia and Sellafield: the legal cases’, Journal of Radiological Protection, vol. 14, no. 4, pp. 293–316). 20. On 14 January 1966 the United Kingdom lodged with the Secretary General of the Council of Europe the following declaration: “… in accordance with the provisions of Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on the 4th of November 1950, … the Government of the United Kingdom of Great Britain and Northern Ireland recognise, in respect of the United Kingdom of Great Britain and Northern Ireland only …, for the period beginning on the 14th of January 1966, and ending on the 13th of January 1969, the competence of the European Commission of Human Rights to receive petitions submitted to the Secretary General of the Council of Europe, subsequently to the 13th of January 1966, by any person, non-governmental organisation or group of individuals claiming, in relation to any act or decision occurring or any facts or events arising subsequently to the 13th of January 1966, to be the victim of a violation of the rights set forth in that Convention and in the Protocol thereto…” A declaration under Article 46 of the Convention, recognising the Court’s jurisdiction subject to similar conditions, was filed on the same day. Both declarations have been renewed on several occasions subsequently. | 0 |
dev | 001-79503 | ENG | POL | CHAMBER | 2,007 | CASE OF RUCINSKI v. POLAND | 4 | No violation of Art. 5-3 | Nicolas Bratza | 4. The applicant was born in 1943 and lives in Kielce. 5. In April 2002 the Kielce Regional Prosecutor ordered the applicant’s house, car and premises used for commercial activities to be searched in view of the strong suspicion that he had been a member of a criminal group and had committed offences concerning property and documents. 6. On 28 May 2002 the applicant was arrested and on 29 May 2002 he was remanded in custody by the Kielce District Court on suspicion of forging documents, financial fraud and membership of a criminal gang. The court considered that there was a reasonable risk that the applicant would tamper with evidence, given the fact that he had had close personal and business connections with several other persons charged with the same offences. On 17 June 2002 the Kielce Regional Court upheld the decision to detain him. 7. In decisions of 21 August and 22 November 2002 the Katowice District Court prolonged the applicant’s detention, holding that there was a contradiction between the applicant’s statements and the evidence collected in the course of the proceedings. In addition, some documents had been forged and the prosecuting authorities could not yet identify all the perpetrators of the offences. The court made reference to the activities already carried out and gave a precise indication of the evidence that still had to be taken. Consequently, it decided that it was indispensable to separate the applicant from the other suspects and from the evidence which had not yet been secured. The court also relied on the serious nature of the charges against the applicant and the severity of the penalty he faced. 8. On 20 January 2003 the Kielce Regional Prosecutor extended the charges against the applicant. 9. The applicant’s detention was prolonged on 24 February 2003 by the Kielce District Court and subsequently by the Cracow Court of Appeal on 22 April 2003. The courts relied on the same grounds as previously invoked by the District Court. They pointed to the complexity of the case and the existence of a fear of collusion, given the applicant’s role in the criminal gang and the considerable number of witnesses acquainted with the applicant who had yet to give evidence. 10. On 21 July 2003 a bill of indictment concerning 20 persons was filed with the Kielce District Court. The applicant was indicted on charges of multiple fraud, insurance fraud, misuse of property and membership of a criminal gang. The prosecution asked the court to hear evidence from 254 witnesses and to obtain over 300 other pieces of evidence. 11. On 30 July 2003 the Kielce District Court prolonged the applicant’s detention until 30 October 2003, holding that there was a reasonable risk that the applicant and other defendants with whom he maintained close personal or business relations would tamper with evidence by inducing others to give false statements. On 28 August 2003 the Kielce Regional Court dismissed an appeal by the applicant against that decision. 12. On 17 September and 17 November 2003 the Kielce District Court held hearings. Owing to the fact that many of the accused had entered into a plea bargain, the prosecutor filed a new bill of indictment and the hearings scheduled for 17, 18 and 19 November 2003 were adjourned until 17 December 2003 in order to give the accused the opportunity to familiarise themselves with the new bill. 13. Hearings were held on 17 December 2003, 19, 20, 21, 28 and 29 January, 16, 17, 18, 23 and 25 February, 15, 17, 22 and 24 March, 21 April, 19 May, 16 and 30 June, 14, 15, 21 (adjourned on an application by the accused) and 29 July (a hearing scheduled for 22 July was adjourned because the lawyer of one of the accused was absent), and 1, 6, 7, 8, 13 and 15 September 2004. 14. Meanwhile, the applicant’s detention was prolonged on 29 October 2003 and 28 January (an appeal by the applicant was dismissed on 11 February 2004), 24 March and 15 April 2004. The court relied on the fear of collusion stemming from the fact that many of the witnesses had not yet given evidence and that the members of the criminal group had maintained close relations. In particular, the court stressed that during the preparatory proceedings the defendants had illegally tried to contact each other. In its last decision the court also stated that the applicant and another defendant had twice lodged applications to adjourn the hearings at which it was to take evidence from the former co-accused, who possessed the greatest knowledge about the defendants’ activities. 15. On 16 September 2004 the District Court made an application to the Cracow Court of Appeal under Article 263 § 4 of the Code of Criminal Procedure, requesting the prolongation of the applicant’s detention beyond the statutory time-limit of 2 years. On 13 October 2004 the Court of Appeal prolonged his detention until 21 December 2004, partly allowing the application. The court stressed that the proceedings had almost been completed and that there was therefore no need to prolong the applicant’s detention for the whole period requested. Its decision was upheld on 23 November 2004. 16. A hearing scheduled for 18 October 2004 was adjourned until 19 October owing to the illness of one of the defendants. The hearing set down for 20 October 2004 had to be adjourned owing to the absence of a witness. It was held on 21 October 2004. 17. Further hearings were held on 10, 17 and 24 November 2004. The hearing scheduled for 29 November was adjourned at the request of one of the accused. 18. On 30 November 2004 the Kielce Regional Prosecutor filed another bill of indictment against the applicant and some of his co-defendants. 19. In the course of the proceedings, the applicant lodged several unsuccessful applications for release from detention, which were dismissed on 23 July, 25 September and 31 October 2002, 17 December 2003, and 16 June and 1 September 2004. 20. On 8 December 2004 the Cracow Court of Appeal dismissed a second application by the District Court for the prolongation of the applicant’s detention. The appellate court held that the District Court had failed to conclude the proceedings within the expected time-frame and that the applicant should not have to suffer the negative consequences of that fact. It further argued that the proceedings could be terminated in the course of the forthcoming hearings, given that there remained only one witness to be examined and that in the event of his absence his statements could be read out. On 15 October 2004 an appeal by the prosecutor against that decision was dismissed. 21. Hearings were held on 1, 15 and 20 December 2004. 22. At the hearing on 20 December 2004 the court decided to place the applicant under police supervision and to prohibit him from leaving the country. 23. On 28 July 2005 the Kielce District Court gave judgment, convicting the applicant and sentencing him to four years and six months’ imprisonment for a total of 24 offences, most of them committed when acting within an organised criminal group. 24. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 August 2006). | 0 |
dev | 001-88780 | ENG | RUS | CHAMBER | 2,008 | CASE OF MOISEYEV v. RUSSIA | 3 | Violations of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Violations of Art. 6-1;Violation of Art. 6-3-b and 6-3-c;No Violation of Art. 7;Violations of Art. 8;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1946 and lives in Moscow. 7. On 3 July 1998 Mr C., a South Korean diplomatic officer, was apprehended by the Federal Security Service of the Russian Federation (“the FSB”) while receiving certain materials from the applicant who was then deputy head of the First Asian Department in the Ministry of Foreign Affairs of the Russian Federation. On the following day Mr C. was declared persona non grata and left Russia. 8. On 3 July 1998 at 11.30 p.m. a group of eight armed FSB officers entered and searched the applicant’s flat. They apprehended the applicant and escorted him to the Lefortovo remand prison. 9. On 3 August 1998 the Ministry of Foreign Affairs dismissed the applicant for serious breaches of the Russian legislation on the civil service. 10. On 4 July 1998 investigators from the FSB Investigations Department interrogated the applicant as a suspect in a high treason case. 11. On 6 July 1998 a deputy Prosecutor General remanded the applicant in custody. The applicant’s detention was subsequently extended on several occasions. 12. On 13 July 1998 the applicant was charged with high treason in the presence of his legal-aid counsel, Mr Konoval. He was accused of having disclosed classified information to a South Korean intelligence agent. 13. On 15 July 1998 the applicant retained Mr Gervis as his defence counsel. 14. On 22 and 23 July, 16 September and 12 November 1998 the investigator ordered seizure of the applicant’s car and garage, 5,447 US dollars and a computer from his home, as security in respect of possible forfeiture of the applicant’s property following a conviction. 15. On 14 January, 12 March and 20 May 1999 the applicant attempted to challenge the orders authorising his continued detention on remand. 16. On 1 February and 4 June 1999 the Moscow City Court examined the applicant’s complaints and rejected them as unsubstantiated. The court found that the investigator had correctly imposed the preventive measure, having regard to the gravity of the charge and the applicant’s potential to abscond or interfere with the investigation. 17. On 10 June 1999 the pre-trial investigation was completed and the applicant was granted access to the case file. 18. On 25 August 1999 the bill of indictment was served on the applicant. The applicant was refused permission to take a copy of the indictment to his cell because the document contained classified information. The applicant could examine the indictment at the special department (спецчасть) in the remand centre. 19. On 16 December 1999 the Moscow City Court found the applicant guilty as charged, sentenced him to twelve years’ imprisonment and ordered confiscation of his property. 20. On 15 June 2000 and other dates the applicant and his lawyers appealed against the conviction. 21. On 25 July 2000 the Supreme Court of the Russian Federation quashed the conviction and remitted the case to the trial court for a fresh examination. It found as follows: “In finding [the applicant] guilty of the offence under Article 275 of the Criminal Code, the [first-instance] court noted that... between early 1994 and 3 July 1998 [the applicant] had... communicated information and documents containing State secrets to the South Korean intelligence service. The [first-instance] court gave only a general list of information and documents..., without specifying which information and documents and when [the applicant] had communicated. As the offences imputed to [the applicant] were continuous in time and spanned the period from 1992-1993 to July 1998, during which period Russian legislation evolved, the determination of these issues is of crucial importance for the case. Pursuant to Article 29 § 4 of the Constitution... the list of information constituting State secrets was to be defined in a federal law. Such a list was first established in the federal law ‘On the introduction of changes and amendments to the State Secrets Act’ of 6 October 1997. Hence, until that date there was no list of information constituting State secrets that met the requirements of the Constitution. As there is no indication in the judgment about when exactly [the applicant] transmitted information and documents, it is impossible to reach the correct conclusion as to which of the offences imputed to the applicant were committed during the period when the federal law containing a list of State secrets and compatible with the requirements of the Constitution was in force. The case file shows that... experts from the Ministry of Foreign Affairs prepared their report [on the classified nature of the information transmitted by the applicant] on the basis of the State Secrets Act of 21 July 1993, the President’s decree of 30 November 1995 and the Government resolution of 18 September 1992, and the expert from the Main Intelligence Department of the General Headquarters of the Russian Army worked on the basis of the Security Act of 5 March 1992, the State Secrets Act of 21 July 1993 and the President’s decree of 30 November 1995. However, it has to be taken into account that the State Secrets Act of 21 July 1993 on which the above experts relied contained no list of information constituting State secrets. Section 5 of the Act (text of 21 July 1993) referred only to the information that could be classified as State secrets. The conclusions of these reports... have to be re-assessed with regard to the above considerations. Taking into account that the actus reus of the offence under Article 275 of the Criminal Code only comprises acts involving State secrets, the [first-instance] court should have determined which information and documents listed in the indictment and communicated by [the applicant] could have been considered as State secrets in accordance with the requirements of the laws in force at the material time.” 22. On 5 September 2000 the Moscow City Court began hearing the applicant’s case. Presiding Judge Gubanova and two lay judges sat on the bench. 23. The applicant applied to the court for release pending trial. On the same day the court rejected the application. It held that detention on remand could be imposed on a person charged with high treason on the sole ground of the dangerousness of the offence and that there were therefore no grounds to release the applicant. 24. On 11 September 2000 the applicant requested the court to change the measure of restraint applied to him. On the same day the court dismissed the request, finding that the dangerousness of the offence alone was a sufficient ground to remand him in custody. On 15 September 2000 the applicant appealed against that decision to the Supreme Court. The appeal was not examined. According to the applicant, by a letter of 14 March 2001, Judge Galiullin of the Supreme Court informed Judge Yegorova, President of the Moscow City Court, that “there had been no grounds to lodge an appeal against that decision of the court”. A copy of the letter was not made available to the Court, but the Government did not dispute the applicant’s rendition of the letter’s content. 25. On 12 September 2000 one of the lay judges was replaced by the substitute lay judge. 26. On 24 or 29 November 2000 the acting President of the City Court ordered a change in the court’s composition, referring to Judge Gubanova’s prolonged sick leave. He assigned Judge Koval and two new lay judges to sit in the case. 27. On the same day the applicant challenged the new composition of the bench as unlawful and asked for copies of the decision officialising the change and of documents confirming the lawfulness of the appointment of new lay judges, as no reasons for replacement of the lay judges had been given. On 1 December 2000 Judge Koval dismissed the complaint, finding that the case had been reassigned by order of the acting President of the City Court and that no procedural decision on that matter was required. 28. The applicant appealed to the Supreme Court. On 14 March 2001 the Supreme Court dismissed the appeal. It found that Judge Gubanova had been on sick leave from 15 November to 13 December 2000 and then from 18 December 2000 to 18 January 2001, and that the decision on her replacement had therefore been lawful and justified. The Supreme Court did not mention the appointment of new lay judges. 29. On 1 December 2000 the applicant again applied for release, claiming his innocence. The City Court dismissed the application, finding that the measure of restraint had been imposed in accordance with the law and there was no reason to change it. The applicant appealed to the Supreme Court. The appeal was not examined. 30. On 10 April 2001 the proceedings were adjourned until 13 June 2001, pending translation of various documents from Korean into Russian. The applicant challenged the decision on the adjournment of the proceedings, which had the effect of extending his detention; the City Court dismissed the challenge. On 6 June 2001 the Supreme Court dismissed the appeal concerning the adjournment of the proceedings as unsubstantiated. 31. On 10 July 2001 the entire bench was replaced and the case was assigned to Judge Medvedev and two new lay judges. No reasons for the replacement were given. 32. The applicant unsuccessfully challenged the substitution of the bench. 33. On 16 July 2001 the applicant appealed against the rejection of his challenge to the Supreme Court, which dismissed the appeal as unsubstantiated on 26 September 2001. 34. On 20 July 2001 the President of the City Court instructed Judge Komarova to accept the case. Judge Medvedev and both lay judges were replaced by Judge Komarova and two new lay judges, A.A. and N.A. No reasons were indicated. 35. The applicant challenged the new bench; his challenge was dismissed on the same day. His request to have the substitute lay judge appointed in accordance with Article 242 of the RSFSR Code of Criminal Procedure was also refused. 36. An appeal to the Supreme Court was examined and rejected in a summary fashion on 26 September 2001. 37. On 31 July 2001 lay judge A.A. stepped down for family reasons and was replaced by lay judge A.M. 38. The applicant unsuccessfully challenged the replacement. His appeal was dismissed in a summary fashion by the Supreme Court on 26 September 2001. 39. On 10, 20 and 31 July 2001 the applicant lodged three further applications for release. Those were rejected by the Moscow City Court on the same days. Each time the court determined that the measure of restraint had been imposed lawfully and there were no grounds to change or revoke it. 40. On 16 and 24 July and in early August 2001 the applicant filed appeals against these decisions with the Supreme Court. 41. On 26 September 2001 the Supreme Court examined all three appeals and upheld the decisions of the City Court. 42. On 14 August 2001 the Moscow City Court convicted the applicant of high treason committed in the form of espionage, an offence under Article 275 of the Criminal Code of the Russian Federation. 43. As regards the actus reus of the offence, the court found that during his long-term diplomatic mission in Seoul in 1992-1994 the applicant had consented to informal co-operation with South Korea’s Agency for National Security Planning (“the KCIA”) in return for regular payment. In fulfilment of the KCIA’s instructions, between early 1994 and 3 July 1998 the applicant had arranged no less than 80 meetings with the KCIA’s agent, Mr C., and communicated to the KCIA the following documents collected at the KCIA’s request: “-secret information constituting State secrets, on Russia’s position and approach to the friendly relationship, friendship and co-operation with the Democratic People’s Republic of Korea (the DPRK), set out in two draft treaties on the basis of friendly relationships between the two states: in September 1995 – the draft treaty on the basis of a friendly relationship between Russia and DPRK; in September 1996 – the draft treaty on friendship and co-operation between Russia and the DPRK, - in autumn 1997, secret information constituting State secrets that was contained in the updated report of the Korean Department of the MFA on military co-operation between Russia and DPRK... which he had copied and kept in his office at the MFA until communication; - secret information constituting State secrets in the field of military co-operation: in November 1994 – on the beginning of implementation of the inter-governmental treaty, contained in the letter addressed to the Russian Ambassador in the DPRK, dated 19 September 1994; in August 1994 – on the Russian proposal to initiate closed negotiations in the field of military co-operation; in May 1995 – on the position of the Russian Ministry of Defence... on 18 March 1996 – information in the area of politically sensitive relationships between Russian and DPRK, contained in two documents of 14 March 1996... on 20 June 1996 – on termination of the Russian-North Korean treaty on military intelligence, received by the MFA from the Russian Embassy to the DPRK on 11 June 1996; - other information which did not contain State secrets, by communicating copies of internal documents: in 1994: copies of documents on negotiations between deputy foreign ministers of Russia and the DPRK... list of diplomats of the DPRK Embassy, report on certain developments in the political life of the DPRK...; in 1995: copies of... a report by the Russian Embassy in Pyongyang on the political situation in the DPRK in 1994, report on the situation in the DPRK following the death of Kim Il-sung, list of diplomats of the DPRK Embassy in Moscow... list of Russian citizens working in the DPRK; in 1996: copies of the 1995 directory of the DPRK management cadres... a draft press-release following a visit by a State Duma delegation to Pyongyang and the list of the delegation members... in 1997: copies of the 1996 directory of the DPRK management cadres... contract between the Russian Industria concern and the foreign relations committee of the DPRK... in 1998: copies of the 1997 directory of the DPRK management cadres... updated report on the situation in DPRK... report by the Russian Embassy on the situation in the DPRK, information on the members of a delegation accompanying the Vice-Prime Minister of the Russian Federation on a forthcoming visit to the Republic of Korea... In addition, between 5 January 1994 and 5 November 1996 Mr Moiseyev orally communicated to the South Korean intelligence no fewer than thirty-five pieces of information on various aspects of inter-State relationship that did not contain State secrets. Having received from Mr C. in 1997 the list of information that was of interest for the KCIA, Mr Moiseyev copied and communicated to the South Korean intelligence service certain internal documents, such as protocols and co-operation treaties between Russia and the DPRK in various areas.” 44. The court established that the KCIA had paid the applicant no less than fourteen thousand US dollars in remuneration. 45. The court founded its findings on, in particular, the applicant’s own statements, obtained in the days immediately following his arrest, and statements by several witnesses. Most witnesses were identified in the judgment only by their three initials, i.e. the first letters of their first, father’s (patronymic) and last names. For some witnesses, only the first letter of their last name was given. 46. Witness “K.G.B.” stated in his pre-trial deposition that virtually all documents concerning Russia’s bilateral relationships with other countries and appraisal of the political and economic situation in these countries, which had been prepared within the Ministry of Foreign Affairs, had contained sensitive information and their disclosure or communication to other states had been highly undesirable. The court noted that on 12 September 1990 the applicant, when taking up his duties at the Ministry of Foreign Affairs, had signed an undertaking not to disclose State or work-related secrets. In their pre-trial depositions witnesses “M.A.I” and “I.A.T.” confirmed that the applicant had had access to sensitive documents which had been of interest to the South Koreans and that Mr C.’s affiliation with the intelligence service had been common knowledge among experts in Korean issues. Their depositions were read out in court and witness “T.G.D.” also made oral submissions to the same effect. Both “I.A.T” and “T.G.D.” testified that the South Koreans had had good knowledge of issues which they were not supposed to have been aware of. 47. The court further noted that, according to information from the External Intelligence Service of the Russian Federation (СВР РФ) and the Main Investigations Department of the Russian Army Headquarters (ГРУ ГШ ВС РФ), during his work in Seoul between June 1992 and February 1994 the applicant had had contacts with employees of the Korean intelligence services and had negligently discussed sensitive matters in unprotected areas. In 1996 it was discovered that the South Korean intelligence service regularly received confidential information to which the applicant had access and that the applicant maintained private contacts with Mr C. in return for remuneration. Witness “M.”, an employee of the Federal Security Service, testified to the court that in January 1996 he had contacted the applicant and advised him of Mr C.’s official mission as a representative of the KCIA in Moscow. The applicant had acknowledged that he had been aware of this fact. 48. Referring to a letter from the Counter-intelligence Operations Department of the Federal Security Service of the Russian Federation (УКРО ДКР ФСБ РФ) of 9 July 1998, the court established that in February 1997 the External Intelligence Service had provided the Federal Security Service with copies of a “draft order on the organisation of the work of KCIA agents, resident in Moscow in 1997” and the applicant’s “personal residence file”, from which it followed that the applicant had been recruited by the KCIA during his stay in South Korea and enlisted as a functioning agent of that service. 49. The court relied on the experts’ findings in establishing that the information communicated by the applicant had contained State secrets. It found as follows: “The court agrees with the experts’ conclusions because the [study] was performed by competent persons in compliance with the rules of criminal procedure and [has been] scientifically proven. According to the experts, the information [disclosed] reveals the substance of Russia’s foreign policy and co-ordination agreements with foreign states in the field of military co-operation and intelligence and also contains politically sensitive data. The arguments put forward by the defendant and his lawyer about a lack of competence on the part of the experts cannot be considered substantiated, because the expert study was carried out by a panel that included experts designated by [the applicant] and his defence; at their request the experts who had been on the expert panel at the pre-trial investigation stage took part in the court hearing and supplied [the court] with their written conclusions and clarifications...” 50. Finally, the court dismissed in the following terms the applicant’s argument that he could not be held liable for disclosure of State secrets because there had been no list of classified information prior to the amendment of the State Secrets Act of 6 October 1997: “Pursuant to section 2 of the State Secrets Act of 6 October 1997, the list of information constituting State secrets is the aggregate of categories of information which can be classified as State secrets... This definition was included in the terminology part [of the law] in order to bring its original wording into compliance with the Russian Constitution. Since the information constituting State secrets cannot be explicitly enumerated in the law, the approach chosen was that the list was to be understood as an aggregate of the relatively generic categories of information described in section 5 of the new law [i.e. that of 6 October 1997]. Hence, there is merely an unimportant semantical difference between section 5 of the State Secrets Act in its 1993 wording and that of 1997. By no means does it imply that there were no legal instruments countering encroachments upon the fundamentals of the constitutional structure and the security of the Russian State until 6 October 1997... Nor are the arguments to the effect that the actus reus of the offence under Article 275 of the Criminal Code only comprises acts involving State secrets based on the law. The object of espionage may include information constituting State secrets, as well as other information that is being collected and transmitted at the request of a foreign intelligence service for use detrimental to the external security of the Russian Federation...” 51. Having regard to the applicant’s clean criminal record, age, state of health, lengthy detention in custody, positive work references and the absence of aggravating circumstances, the court invoked the “special-circumstances” clause of Article 64 of the Code of Criminal Procedure and sentenced him to a shorter term than that provided in the relevant sanction, specifically to four years and six months’ imprisonment in a strict-security correctional colony, with account for the time served from 4 July 1998, and confiscation of his property. 52. On 26 December 2001 and other dates the applicant and his three lawyers appealed to the Supreme Court against the conviction. They alleged violations of the applicant’s rights as guaranteed by the Russian Constitution and various Convention provisions. The points of appeal touched on substantially the same issues as those raised before this Court. 53. On 9 January 2002 the Supreme Court upheld the conviction. The court rejected the arguments by the defence and found that the first-instance court and the investigators had fully complied with both national and international law throughout the proceedings. There had been no violations of law capable of rendering the judgment unfounded or unlawful. The Supreme Court reproduced verbatim the city court’s reasoning concerning liability for disclosure of State secrets. 54. From 4 July 1998 to 25 January 2002 the applicant was held in the Lefortovo remand prison, run by the Federal Security Service. 55. According to the Government, the applicant was held in a two-person cell measuring 8.2 sq. m. The cell was equipped with heating, mandatory ventilation, a window that could be opened, furniture, a fridge, a TV set, a sink and a lavatory. The applicant had an individual sleeping place and bedding. He received food three times a day in accordance with standard norms. The applicant was given cutlery and personal hygiene items, as well as books and magazines from the library. He could exercise outside for one hour a day. 56. In the applicant’s submission, the cell of 8.2 sq. m was designed for three inmates and contained three bunk beds fixed to the concrete floor and walls. He shared the cell with two other detainees in February and March 2000 and then from 19 September 2000 to 15 January 2001. The furniture consisted of two small tables and an open shelf, which the detainees mockingly referred to as “a TV set” because all the items on the shelf were on display. Contrary to the Government’s assertion, there was no fridge or TV set. 57. The lavatory in the corner of the cell had no flush system and inmates filled a pail with water from the sink to eliminate waste. The toilet was not separated from the living area; the applicant had to use the toilet and apply his treatment for haemorrhoids in front of his cellmates and the wardens who observed them through a peephole in the door. Detainees cleaned the cell themselves. No broom, dustbin or detergent was given to them. Once in a while they received 100 g of sodium hydrate to disinfect the lavatory. The applicant had access to the showers once a week and received 50 g of laundry soap for washing. 58. The cell was dimly lit by two 40-60-watt bulbs, fixed in the ceiling and covered with metal bars and opaque glass. The artificial light was never switched off. The window pane also had frosted glass. The exercise courts were located on the roof of the facility and measured about 10 sq. m. The external walls were three metres high and the opening to the sky was protected with metal bars and netting. 59. On 5 December 2001 the applicant lodged a complaint with the Lefortovskiy District Court of Moscow about the general conditions of his detention, inadequate medical assistance, meagre food provisions and lack of privacy in the cell. On the same day the applicant was visited by the head of the remand prison and senior medical officer and asked about the reasons for lodging the above complaint. The head of the prison had a printed copy of the applicant’s complaint, originally hand-written, which had never been addressed to the prison administration. 60. On 17 December 2001 the Lefortovskiy District Court invited the applicant to identify the authority against which he was complaining and to pay the court fee by 27 December 2001. The applicant received this decision only on 27 December 2001. On the same day the court disallowed the applicant’s complaint because the instructions of 17 December 2001 had not been fulfilled; the copy of that decision was served on the applicant on 8 January 2002 and on the following day his conviction became final. 61. The applicant was transported from the remand centre to the courthouse and back more than 150 times. 62. The prison vans in which the applicant was transported had a passenger cabin which was 3.8 m long, 2.35 m wide, and 1.6 m high. The cabin was divided into two multi-occupancy cubicles, designed for twelve inmates each, and one single-occupancy cubicle. The cubicles were equipped with hard benches. In addition to the detainees’ cubicles, the cabin contained a 1.5-m wide lobby for two police officers. According to the Government, the applicant was placed in a single-occupancy cubicle on the basis of a written request by the prison administration, in order to prevent him from communicating with other detainees (a copy of that request has not been provided to the Court). The applicant submitted that he was usually placed in a multi-occupancy cubicle with up to eighteen other detainees, who had stood or sat on one another’s laps. Even when he was confined to the tiny solitary cubicle, he had had to share it with another person and they had taken turns sitting on each other’s laps. He was never transported alone and he could not be isolated from others because the van was so overcrowded. 63. The Government submitted that the prison-van heaters and interior lights had been powered by the van engine. The vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow. The passenger cabin was cleaned and disinfected on a daily basis. The applicant insisted that the natural flow of air through the hatches was insufficient and that it was stiflingly hot in summer. Moreover, as the hatches were located in the wardens’ lobby, the latter opened and closed the hatches on whim. In winter there was no heating when the engine was not running, and detainees were locked for hours inside the extremely cold van at assembly points. The floor of the cabin was extremely dirty and covered with cigarette butts, food crumbs and packaging, plastic bottles and bags with urine; no access to the toilet was possible during the transport. 64. According to the Government, the travel time from the Lefortovo prison to the Moscow City Court and back did not exceed thirty minutes. The applicant pointed out that for attendance at court hearings he had usually been taken out of the detention centre early in the morning but was never brought back until ten to fifteen hours later. The road from the Moscow City Court to the Lefortovo facility took much longer than thirty minutes because the van called en route at either the Matrosskaya Tishina or Butyrka remand prison, both of which served as assembly points for detainees. As a result, the travel time was as long as three to eight hours. By way of example, the applicant gave the following figures: on 26 December 2000 the travel time from the court to the Lefortovo prison was 3 h 10 min; 11 January 2001 – 4 h 30 min; 17 January 2001 – 4 h 15 min; 5 February 2001 – 3 h 20 min; 27 July 2001 – 3 h 30 min (to the court) and 4 h 20 min (from the court); 30 July 2001 – 4 h 50 min; 3 August 2001 – 5 h 20 min; 9 August 2001 – 5 h 50 min (until 1.10 a.m. on the following day). 65. The applicant gave the following account of the conditions of his transport in a complaint of 25 December 2000 addressed to the Prosecutor General’s Office (resent on 25 January 2001): “On 22 December 2000 [we] left the premises of the Moscow City Court around 5 p.m., and I was brought back to the FSB (Lefortovo) remand prison at 1.15 a.m. on the following morning, that is, 8 hours later. During the entire period I was kept in an unheated van [used] for the transport of detainees, although the outside temperature was approximately -10o C, without anything to eat or drink and without access to a toilet. Each cubicle of the van contained up to 18 persons: they had to stand or to sit on each other’s laps. Following this ‘trip’ I had the symptoms of flu, I had an acute attack of gastroduodenitis, [suffered from] a headache and other symptoms resulting from a lengthy period of sitting on cold benches in the frost. This situation was in no way exceptional: on 19 December [2000], for example, we started from the courthouse of the Moscow City Court at approximately at 9.30 p.m., although the court hearing ended at about 5 p.m. We arrived at the detention centre at about 11 p.m.... Similar incidents also occurred thereafter: instead of the 10-15 minutes normally required for a ride, [the journey] to the remand centre takes, as a rule, three to eight hours.” 66. On 28 April 2001 the commander of the police convoy regiment replied to the applicant that an unidentified regiment officer who had violated the applicable regulations had been disciplined. 67. On 13 February 2001 the applicant unsuccessfully attempted to complain about the conditions of transportation to the administration of the remand prison. A similar complaint lodged with the Prosecutor General’s office on 13 August 2001 evoked the following response from the Moscow City Department of the Interior on 23 November 2001: “The delays in transportation were due to objective factors. Measures have been undertaken to avoid similar delays in the future”. 68. In August 2001 the applicant complained of degrading and inhuman conditions of transport to the trial judge. His statements were entered in the trial record and the judge promised to get in touch with the relevant authorities to find a way to improve the situation. 69. The applicant also mentioned the appalling conditions of his transport to and from the remand centre in his complaint of 5 December 2001 to the Lefortovskiy District Court (see paragraph 59 above). 70. On the days of court hearings the applicant was held in the convoy cells of the Moscow City Court. On more than a dozen occasions – on 7 and 21 September, 1, 15, 20 and 23 November, 5 and 19 December 2000, 11 and 29 January, 1 February, 5 and 21 March 2001 – the applicant was brought to the courthouse but no hearings were held, and he remained in the convoy cell for the entire day. 71. According to the Government, the convoy cells had standard dimensions of 1.95 m (width) by 1 m (depth) by 3.1 m (height) and the applicant was held there alone to prevent him from communicating with other detainees. The applicant submitted that the convoy cell measured one metre square and was nicknamed a “stone tube” («каменный стакан») because the floor and walls were covered with an abrasive concrete lining and the height was almost twice the width or depth. He was never alone in the convoy cell and occasionally he had to share it with a consumptive inmate. 72. The Government indicated that convoy cells were equipped with a bench fixed to the floor, mandatory ventilation, heating, lighting and a metal door with a peephole. In cold seasons the average internal temperature was 22o C. Cells were cleaned daily and disinfected weekly. The convoy premises had a toilet room, to which detainees had access at their discretion. The applicant submitted that the bench fixed to the floor could barely accommodate two persons; the third detainee had to remain standing. The cell was lit by a small bulb behind metal bars that provided insufficient light to read by. The floor and the bench were dirty and covered with cigarette butts, food waste and torn paper. The cell had no windows and the only opening was the peephole in the door. Heating and the mandatory ventilation were not available; the air was heavy with cigarette smoke from prisoners smoking in the cell and police officers smoking outside. A visit to the toilet was possible two or three times a day at the warden’s order; from within the cell it was impossible to call the warden. The applicant never received any food (hot meal or a dry ration) in the convoy cell. 73. The applicant had no family visits from 3 July 1998 to 9 April 1999. 74. On 25 January 1999 the applicant’s wife asked the investigator for permission to see her husband. Her request was refused on 10 February 1999 with reference to the nature of the applicant’s case and the gravity of the charge against him. The investigator considered a visit “inopportune”. 75. On 22 February 1999 the applicant asked the investigator to allow his wife to visit him. Four days later his request was refused, as the visit was deemed to be “inopportune at that moment”. 76. On 10 March 1999 the applicant’s wife complained about the investigator’s decision to the Prosecutor General’s office. By a letter of 30 March 1999, the Chief Military Prosecutor’s office responded that by law the investigator had full discretion in the matter of family visits and that he had acted within his competence. 77. On 18 March 1999 the applicant wrote a complaint to the Chief Military Prosecutor’s office. He indicated, in particular, that he had not seen his family for more than eight months and that the investigator had offered to permit him a family visit in exchange for withdrawal of a judicial complaint concerning the unlawfulness of his detention. On 2 April 1999 the prosecutor’s office responded that the FSB Investigations Department had been asked “to settle the issue” of family visits. 78. On 5 April 1999 the applicant applied for permission for his wife and daughter to visit him. Permission was granted to his daughter only and on 9 April 1999 she paid him a visit. 79. On 11 May 1999 the applicant asked for permission to see his wife. On 24 May 1999 his wife was allowed to see him. 80. In the subsequent period the applicant’s family was allowed to visit him no more often than twice a month, each visit lasting up to one hour. During the visits the applicant was separated from his relatives by a glass partition and talked to them through an interphone. A warden was present. 81. The applicant had no family visits from 3 March to 5 September 2000. 82. On 25 July 2001 the applicant’s daughter asked to see her father. She was refused because on 9 June 2001 she had already come to see him with her mother, which counted as two visits, whilst the law only provided for two visits by relatives a month. 83. On 26 July 2001 the applicant’s wife complained about the refusal to the Moscow City Court and the Prosecutor General’s office alleging, inter alia, a violation of Article 8 of the Convention. A week later she was granted permission to visit the applicant. 84. Between 7 December 2001 and 10 January 2002 no permits for family visits were issued. 85. Throughout the proceedings the applicant’s lawyers were permitted to visit him on the basis of permits that were valid for one visit only. Such permits were issued by investigators from the Federal Security Service at the pre-trial investigation stage or by a judge during the trial. 86. On 26 April and 4 May 2000 Ms Moskalenko, one of the applicant’s lawyers, applied to the Supreme Court of the Russian Federation for an unrestricted permit to visit the applicant. In both cases the registry clerk gave her a printed permit valid for “[one] visit”. However, yielding to Ms Moskalenko’s demands, on both occasions the clerk made handwritten corrections, changing the singular to the plural. 87. On 26 April 2000 the staff of the Lefortovo remand centre treated the Supreme Court’s document as a single-use permit because it had been corrected by hand, whereas it originally referred to a single visit. 88. On 5 May 2000 Ms Moskalenko attempted to file a written request to the director of the Lefortovo prison for an unrestricted permit to visit the applicant. The facility staff refused to accept the request and told her that she could not see the director. 89. Subsequently a deputy director of the Lefortovo prison visited the acting director of legal services office no. 10, where Ms Moskalenko worked, and told her that Ms Moskalenko had forged the permit to visit the applicant; he threatened Ms Moskalenko with criminal prosecution. Ms Moskalenko denied all those allegations. 90. On 1 June 2000 the Supreme Court issued Ms Moskalenko with a printed permit valid for “[several] visits” to the applicant. According to the Government, on 23 May 2001 Ms Moskalenko was refused permission to visit the applicant as she did not provide a mandate by her legal services office for the defence of his interests. 91. On 21 August, 12 September and 17 October 2001 Ms Kostromina, one of the applicant’s lawyers, unsuccessfully applied to the trial court for a multiple-use permit to visit the applicant. 92. On 25 October 2001 the Constitutional Court held that section 16 § 15 of the Custody Act, which allowed the authorities to require that a visit of a detainee by his advocate be authorised by the investigator or trial court, was incompatible with the constitutional right to legal assistance in criminal cases, in that it made the exercise of the right to defence conditional on a discretionary decision by the authority in charge of the case (Ruling no. 14P). 93. On 10 January 2002, after the conviction had become final, Ms Kostromina received an unrestricted permit to visit the applicant. 94. During the pre-trial investigation the bill of indictment was kept in the special department of the remand centre. The applicant could access it with the written consent of the administration. His lawyers obtained access to the bill of indictment after the beginning of the trial, at the special registry of the Moscow City Court. 95. Any exchange of documents between the applicant and his lawyers was only possible through the remand centre administration and with its written consent. The administration perused the documents before passing them on. 96. During the trial the applicant could make notes only in special notebooks that were deposited with the indictment at the special registry of the City Court. The same requirements applied to the applicant’s lawyers, who were directed to keep all case-related files, notes and copies of complaints at the special registry. 97. According to the applicant, he was chained by his hand to a table or chair when studying the case file on the premises of the Moscow City Court after the court session on a given day was over. He had to assume an uncomfortable posture and after a while his chained hand went numb. Moreover, when he was chained by his right hand, he could not use a pen and make notes. The time afforded for studying the case file was granted at the discretion of wardens. The Government submitted that the applicant had only been handcuffed on his way to and from the hearing. 98. On 29 October 2001 the applicant lodged a complaint about the inadequate conditions for preparation of the defence with the Moscow City Court. The complaint remained unanswered. 99. The Criminal Code of the Russian Soviet Federalist Socialist Republic of 27 October 1960 (in force until 31 December 1996) provided as follows: “(a) Treason, being an intentional act of a USSR citizen undermining the sovereignty, territorial integrity, national security or defence of the USSR, in particular, desertion to the enemy, espionage, communication of a State or military secret to a foreign state,... shall be punishable by ten to fifteen years’ imprisonment and confiscation of property or by the death penalty and confiscation of property...” “Communication of State or military secrets, as well as their collection or storage with a view to communicating them to a foreign state, a foreign organisation or their agents, and also communication or collection of other information at the request of a foreign intelligence service for the purpose of using them to harm the interests of the USSR, committed by a foreign national or a stateless person, shall be punishable by seven to fifteen years’ imprisonment and confiscation of property or by the death penalty and confiscation of property.” 100. The Criminal Code of the Russian Federation of 13 June 1996 (in force from 1 January 1997) provides as follows: “High treason, that is, espionage, disclosure of State secrets or assistance otherwise provided to a foreign state, a foreign organisation or their representatives for ... subversive activities undermining the external security of the Russian Federation, committed by a Russian national, shall be punishable by twelve to twenty years’ imprisonment and confiscation of property...” “Communication of State secrets, as well as their collection, theft or storage with a view to communicating them to a foreign state, a foreign organisation or their representatives, and also communication or collection of other information at the request of a foreign intelligence service for the purpose of using them to harm the external security of the Russian Federation, committed by a foreign national or a stateless person, shall be punishable by ten to twenty years’ imprisonment.” 101. The Constitution of 12 December 1993 provides: “3. Laws must be officially published. Unpublished laws are not to be applied. No legal acts interfering with the rights, freedoms and obligations of a man and citizen may be applied unless they are officially published and publicly available”. “4. Everyone has the right to freely search, obtain, impart, generate and disseminate information by all lawful means. The list of information constituting State secrets shall be defined in a federal law.” 102. On 21 September 1993 the State Secrets Act (Law no. 5485-1) was enacted. Section 5 provided as follows: “The following information may be classified as a State secret: ... (2) information in the field of the economy, science and engineering... (3) information concerning foreign policy and trade: [information] about the foreign policy... of the Russian Federation in respect of which its premature disclosure may harm [the State’s] interests;...” 103. Section 9 described the procedure for classification of information as State secrets. Authority to classify information was delegated to the heads of State agencies. The Act did not contain a list of such officials, which was to be approved by the President. The President was also to approve a List of information classified as State secrets, which was to be officially published. 104. On 16 March, 26 and 27 October 1995 the State Duma, noting that the absence of a list of classified information “deprived the law-enforcement agencies of a legal basis for the performance of their duty to protect the security of the State, community and individuals”, repeatedly petitioned the Government to prepare for the President’s approval a draft decree containing the list of classified information. 105. On 30 November 1995 the President approved Decree no. 1203 “On the list of information classified as State secrets”. Paragraphs 23-30 of the list provided for classification of information concerning foreign policy and trade and designated the Ministry of Foreign Affairs, the Ministry of Defence, the Ministry for Foreign Economic Relations, the External Intelligence Service and other agencies as bodies authorised to classify such information. 106. On 20 December 1995 the Constitutional Court examined the compatibility of the State Secrets Act with the Constitution and found as follows: “4... The State may classify as State secrets information in the field of defence, economic and other activities, disclosure of which may undermine national defence and the security of the State. In this connection Article 29 § 4 of the Constitution provides that the list of information constituting State secrets is to be adopted in the form of a federal law. The State may also determine forms and measures for the protection of State secrets, including by way of establishing criminal liability for its disclosure and communication to a foreign State. However, by virtue of the above-mentioned constitutional provision, criminal liability for disclosure of State secrets to a foreign state is only justified on condition that the list of information constituting State secrets is established in an officially published and universally accessible federal law. Pursuant to Article 15 § 3 of the Constitution, no law-enforcement decision, including a conviction by a court, may be grounded on an unpublished legal act. The requirements of Article 29 § 4 of the Constitution are fulfilled by the State Secrets Act of 21 July 1993 which defines the concept of State secrets and indicates the information classifiable as State secrets. Accordingly, establishing criminal liability for disclosure of State or military secret to a foreign State is not incompatible with Articles 15 § 3, 29 § 4 and 55 § 3 of the Constitution.” 107. On 6 October 1997 a federal law (no. 131-FZ) amending the State Secrets Act was enacted. Section 5 of the State Secrets Act was changed to read as follows: “State secrets shall include: ... (3) information in the field of foreign policy and trade...” The amended section 5 listed categories of information constituting State secret. 108. On 17 April 2000 the Supreme Court, having considered the prosecutor’s appeal against the acquittal of Mr Nikitin on charges under Articles 275 and 283 § 1 of the Criminal Code (case no. 78-000-29), upheld the acquittal in the following terms: “Having acquitted Mr Nikitin for the lack of constituting elements of a criminal offence in his acts, the [first-instance] court proceeded from the premise that between 12 December 1993 and 30 November 1995 there had been no legal definition of information constituting State secrets... Pursuant to Article 29 § 4 of the Russian Constitution... the list of information constituting State secrets was to be defined in a federal law. Such a list was first determined in the federal law ‘On the introduction of changes and amendments to the State Secrets Act’ of 6 October 1997. Taking into account that during the period when Mr Nikitin committed his acts [in 1995], there was no list of information constituting State secrets that met the requirements of the Constitution, the information that he had collected... and disclosed... cannot be said to have contained State secrets... As the actus reus of offences under Articles 275 and 283 of the Criminal Code only refers to acts involving State secrets, the same acts involving other information cannot be held to be high treason and disclosure of State secrets... The State Secrets Act [in its 1993 version] could not have been applied to Mr Nikitin as it did not contain a list of information constituting State secrets, since section 5 of that Act only referred to information that could be classified as State secrets. However, Article 29 § 4 of the Constitution required that the said list be established in a federal law. As section 5 of the State Secrets Act and Article 29 § 4 of the Constitution refer to different subjects, the court cannot agree with the argument of the appeal to the effect that the difference between these provisions is merely semantic...” 109. Section 21 of the State Secrets Act and section 2 of the Law “On additional safeguards for the social protection of judges and administrative staff of the courts of the Russian Federation” stipulate that judges with security clearance are eligible for additional financial benefits. The scale and amount of these benefits depend on the level of security clearance. Authority to set the specific amounts of such benefits is delegated to the Government and other executive bodies, such as the Ministry of Justice. 110. The RSFSR Code of Criminal Procedure provided: “Every case must be examined by one and the same composition. If one of the judges is no longer able (лишен возможности) to take part in the proceedings he must be replaced by another judge, and the court proceedings must restart from the beginning, except in cases described in Article 242.” “If a case requires a long time for its examination, a substitute lay judge may be appointed. The substitute lay judge is present in the courtroom from the beginning of the proceedings and may step in in case of withdrawal of a lay judge. If the substitute lay judge who has stepped in does not ask for the proceedings to start anew, the proceedings may continue.” 111. The Courts Organisation Act (RSFSR Law of 8 July 1981) establishes that a court President may appoint judges as the presiding judges and distribute duties between judges (sections 26 (1) and 37 (4) and (11)). The Act stipulates that lay judges have the same rights as professional judges in the administration of justice (section 11). 112. The Status of Judges Act (Law no. 3132-I of 26 June 1992) provides: “1. The court President, at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by federal constitutional laws and federal laws, carries out the following functions: (1) organises the court’s work; ... (3) distributes duties between the President’s deputies and, in accordance with the procedure provided for by federal law, between the judges.” 113. The Constitution establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). At the material time, a decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96 of the RSFSR Code of Criminal Procedure, the “CCrP”). 114. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment (Article 96 of the CCrP). The amendments of 14 March 2001 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. 115. After arrest a suspect could be placed in custody “pending investigation” for an initial two-month period (Article 97 of the CCrP). Further extensions could be granted by prosecutors at ascending levels of jurisdiction. 116. Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file, the file was submitted to a trial court. From that day the defendant’s detention was “before the court” (or “pending trial”). Until 14 March 2001 the Code of Criminal Procedure set no time-limit for detention “pending trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during trial” could not normally exceed six months from the date the court received the file. 117. The Custody Act (Federal Law on the Detention of Suspects and Defendants, no. 103-FZ of 15 July 1995) provides as follows: “The Ministry of Justice, the Ministry of the Interior, the Federal Security Service, the Ministry of Defence shall adopt, upon approval of the Prosecutor General, the Internal Rules for Remand Centres, for the purpose of ensuring order in remand centres. The Internal Rules establish the procedure for: ... (7) receiving and dispatching telegrams, letters and money transfers by suspects and defendants; ... (15) organising meetings between suspects and defendants and the persons listed in section 18 of the present Act...” “Suspects and defendants have the right: ... (5) to meet with relatives and other persons listed in section 18; (6) to keep documents and records relating to the criminal case or to exercise of their rights and lawful interests... ... (8) to maintain correspondence and to use writing utensils.” “From the moment of arrest, suspects and defendants may be visited by their legal representative in privacy. Visits are not limited in frequency or duration. Visits may be granted: if the legal representative is an advocate – upon presentation of a mandate issued by the legal services office (ордер юридической консультации)... and an identity document. ... Subject to written consent from the official or authority in charge of the criminal case, a suspect or defendant may have up to two meetings per month with relatives and other persons, each visit to last for up to three hours...” “Suspects and defendants may correspond with relatives and other persons, without any limitation on the number of incoming and outgoing letters or telegrams... Correspondence by suspects and defendants is to be carried out through the administration of the remand prison and is subject to censorship. Censorship is carried out by the administration of the remand prison and, if necessary, by the official or authority in charge of the criminal case ...” | 1 |
dev | 001-77580 | ENG | TUR | CHAMBER | 2,006 | CASE OF YILDIRIM AND OTHERS v. TURKEY | 3 | Preliminary objection joined to merits (non-exhaustion of domestic remedies);No violation of Art. 2;Violation of Art. 2;No violation of Art. 3;Not necessary to examine Art. 6-1;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | David Thór Björgvinsson | 8. The applicants were born in 1928, 1955, 1980, 1982, 1984, 1987 and 1994 respectively. The first applicant lives in Diyarbakır and the remainder of the applicants live in Istanbul. The first applicant is the father, the second applicant is the wife and the remainder of the applicants are the children of Adnan Yıldırım, who was killed on 3 June 1994. 9. On 3 June 1994 at about 4.30 a.m. while Adnan Yıldırım was leaving the casino at the Çınar Hotel in the Yeşilyurt area of Istanbul with his two friends Savaş Buldan and Hacı Karay, seven or eight people wearing bullet-proof vests and carrying firearms approached them. They introduced themselves as police officers and forced the three men into three cars. 10. The applicants were informed of the incident on that same day. They immediately contacted the Bakırköy public prosecutor and the Yeşilköy police headquarters to find out more about the kidnapping. They were informed that the three persons had not been taken into custody. The same day, the brother of Savaş Buldan filed a complaint with the Bakırköy public prosecutor and complained that his brother and his two friends, Adnan Yıldırım and Hacı Karay, had been abducted by people who had introduced themselves as police officers. 11. On 3 June 1994 at about 9 p.m. İsmail Taşcan contacted the Yığılca gendarmerie station within the district of Bolu. He informed the gendarmes that he had seen three bodies in an area near the river where he had gone to fish. At about 9.15 p.m. the gendarmerie arrived at the scene. The positions of the bodies were recorded. No documents or other property were found on the bodies which might establish their identities. The corpses were taken to the Health Centre in Yığılca for further examination. 12. On 4 June 1994 a post mortem examination of Adnan Yıldırım's body was carried out by two doctors in the presence of the Yığılca public prosecutor. In the body examination report, it was noted that there was an ecchymosis measuring 1x1 cm and an abrasion on the surface of the knee cap of the second body that was later identified as that of Adnan Yıldırım. It was further recorded that cyanosis was noted on the front part of the body, left leg upper part, left knee, genitals and the head. It was perceived that rigor mortis was fading. According to the report, when the body was touched, the skin peeled - which was most probably due to its damp condition. One bullet entrance hole on right occipital area and burnt hair caused by a close-range shot and a bullet exit hole behind the right ear (which damaged the tissue, internal tissue and bones) were noted. A wide haematoma on the left eye due to trauma caused by a blunt object, fracture of the nose, and blood from the nostrils to the moustache area were also noticed. No other signs or abnormalities were observed either on the back of the body or the genital area. There were no documents to prove identification, nor were there any valuables or money. On the surface of the right hand and wrist a further ecchymosis measuring 1 cm. in width was noted, which was probably caused when the hands were tied with a rope. The doctors further concluded that as the cause of death was clearly cerebral haemorrhage, there was no need to conduct a classical autopsy. The estimated time of death was given as 10 hours before the autopsy was carried out. 13. The bullets recovered from the bodies were sent for ballistic examination to the Central Police Forensic Laboratory, which prepared two forensic reports dated 6 and 14 June 1994 respectively. The report dated 14 June 1994 showed that the five spent bullet cases found at the scene of the killing had been discharged by three different pistols. The report concluded that comparisons of the five spent bullet cases with other bullet cases recovered from the scenes of other unknown perpetrator killings since 1985 did not reveal any similarities. 14. The bullets were then sent to the Gendarmerie Forensic Laboratory which prepared its own report on 17 June 1994. The report stated that comparisons of the five spent bullet cases found at the scene of the killing with other bullet cases recovered from the scenes of other unknown perpetrator killings did not reveal any similarities. 15. On 4 June 1994 the Yığılca public prosecutor conducted a search of the scene of the crime in the presence of İsmail Taşcan, who had found the bodies. During the examination, a person named Ms Ayşe Araç told the public prosecutor that she had heard a gun shot in the morning of 3 June 1994. 16. From 4 to 7 June 1994 the Yığılca gendarmerie took statements from twenty-six persons. 17. On 4 June 1994 the Bakırköy public prosecutor took a statement from Sebahattin Uz, the doorman at the Çınar Hotel. In his statement, Mr Uz explained that when Adnan Yıldırım, Savaş Buldan and Hacı Karay, who were regular customers at the hotel casino, left the hotel around 5 a.m. on 3 June 1994, six or seven persons, who had arrived in two cars, approached them and conducted body searches holding them against the wall. The three persons were then put into a dark-coloured Mercedes car with registration number 34 CK 420. The doorman stated that he had overheard one of the men saying that they were police officers and that they would release the three persons as soon as their statements were taken. The Mercedes was followed by a sports car. The doorman was unable to describe any of the men, since it was dark and he had seen them from a distance. 18. Also on 4 June 1994 the Bakırköy public prosecutor took the statement of Hüseyin Kılıç, a security guard at the Çınar Hotel. He stated that seven or eight men, wearing waistcoats and carrying weapons, had approached the three men as they walked out the door. They forced the three men into the waiting cars, after having conducted body searches. This witness stated that one of the cars was a sports car. 19. On 5 June 1994 Serdar Özdemir, a taxi driver waiting at the taxi rank outside the Çınar Hotel, gave his statement to the Bakırköy public prosecutor. He stated that while waiting for customers, he had noticed three persons coming out of the casino. At that very moment, seven or eight men walked towards them, made the three persons face the wall and then searched them. Afterwards, the three were put into the waiting cars. One of the cars was a black-coloured Mercedes 300 SEL. The second car was a cherry-red Hyundai. The witness also recalled that he had seen a third car, a sports car, which was driven away by one of the men wearing a waistcoat. The witness had been unable to see the licence plates of the cars or the faces of these men. 20. Again on 5 June 1994 the Bakırköy public prosecutor took a statement from another taxi driver, Hüsnü Durmazer. He stated that as he approached the taxi rank outside the hotel, he saw some people forcing three men into a black car. 21. On 9 June 1994 the Istanbul Security Department established that the car with registration number 34 CK 420 was a burgundy coloured 1987 model BMW and that it belonged to a certain C.P., who resided in Istanbul. 22. On 18 June 1994 the first applicant, Selim Yıldırım, gave a statement to the police. He stated that his son, Adnan Yıldırım, had been abducted from the Çınar Hotel. He explained that when the Bolu Gendarmerie informed him about the three dead bodies that had been found in Yığılca, he had identified his son's body in the Bolu State Hospital. He asked the authorities to find the perpetrators of this crime. 23. The preliminary enquiries led the Bakırköy public prosecutor to issue a continuous search warrant on 23 June 1994, which was valid for ten years. The investigation file was forwarded to the Yığılca public prosecutor on 17 March 1995 since the bodies were found within his area of jurisdiction. 24. As it had not been possible to establish the identities of the perpetrators, on 31 August 1995 the Yığılca public prosecutor issued a permanent search warrant for the perpetrators of the killings, which would remain valid for twenty years pursuant to Article 102 of the Criminal Code. The prosecutor further stated in his report that no evidence had been found during the investigation. Copies of this search warrant were distributed to the Yığılca gendarmerie and the Yığılca police as well as to the Bakırköy public prosecutor in Istanbul so that they could inform the Yığılca public prosecutor if they found the perpetrators. The prosecutor also instructed these authorities to continue carrying out meticulous searches for the perpetrators. 25. After the Susurluk incident, Hanefi Avcı, who was the Head of Intelligence Branch of Istanbul Police Headquarters at the time, gave a statement to the public prosecutor in connection with the Susurluk incident. In his statement, he referred to the killings of Savaş Buldan, Adnan Yıldırım and Hacı Karay as the work of an illegal group. He further stated that, as that information was based on secret intelligence, he did not have any documents to prove the allegations. He was, however, of the opinion that, if an investigation was carried out into certain sources, it would be possible to find documents to verify the accuracy of these allegations. He was prepared to indicate those issues in respect of which it might be possible to find documents. Among his submissions, which were recorded in a seven-page statement, Mr Avcı stated, inter alia, the following: “The Gendarmerie and the National Intelligence Service (Milli İstihbarat Teşkilatı, hereinafter MIT) became concerned about the financial assistance being provided to the PKK from certain members of the Kurdish community, which they felt accounted for its increased activity between 1991 and 1993. They did not feel that they had enough evidence to bring charges and consequently some officers from the Police, Gendarmerie and MIT started talking about using different methods of dealing with certain members of the Kurdish community. A special team was formed for this purpose by, inter alia, the Chief of Police, Mehmet Ağar and the Chief of Special Forces, Korkut Eken. This team consisted both of members of the Special Forces and certain civilians, including Yaşar Öz. The activities of this special team were known to other members of the MIT and the Intelligence Branch of the Gendarmerie (the JİTEM). The kidnapping and the killing of Savaş Buldan and his friends formed part of such activities. It was established that these persons were helping the PKK financially. The way they were kidnapped and killed did not bear any resemblance to the activities of a Mafia or other underground organisation known to us. Police identity cards and policing methods were used during the kidnapping of Savaş Buldan and his friends, otherwise it would not have been possible to kidnap them and to kill them as there are checkpoints on the roads along which they would have been stopped. To go through these checkpoints could only have been possible by making use of an official title”. On 24 March 1997 Hanefi Avcı was interrogated once again in Ankara at the request of the Yığılca public prosecutor. In his statement, he stated that he did not know how and by whom the killings were carried out. 26. On 11 March 1997 the police officers Ercan Ersoy, Oğuz Yorumaz and Ayhan Çarkın, who were in detention in connection with an investigation into the Susurluk incident, were shown to the eyewitnesses to the abduction, Hüsnü Durmazel and Sabahhattin Uz. However, the eyewitnesses stated that they had not seen these persons before. 27. The photo-fit drawings of the three abductors made on the basis of the statements of the witnesses were compared with the photographs of Ercan Ersoy, Oğuz Yorulmaz and Ayhan Çarkın at the Criminal Police Laboratory. In the laboratory report, dated 19 March 1997, it was stated that the photo-fits did not have the necessary facial characteristics to make a positive comparison. 28. The photo-fits were also compared with the photograph of Yaşar Öz, another suspect detained in connection with the Susurluk investigation. The report of the criminal laboratory dated 27 March 1998 concluded that one of the photo-fits bore resemblances to the photograph and that the person in the photo-fit could be Yaşar Öz. Accordingly, on 20 April 1998 the Yığılca Magistrates' Court issued an arrest warrant for Yaşar Öz. On 7 May 1998 Yaşar Öz gave a statement to the public prosecutor. He stated that he was not in Istanbul between 1 April 1994 and October 1994 and that he did not know who had carried out the kidnapping on 3 June 1994. He further stated that he did not fit the description of any of the abductors as he had had a beard at the time of the kidnapping. He explained that this fact could be easily verified because he had given an interview to a local television channel in Milas at around the time of the kidnapping. 29. On 14 May 1998 the Yığılca Criminal Court rejected the appeal of Yaşar Öz against the decision ordering his arrest for the kidnapping and killing of the applicants' relative and the other two persons. On 29 May 1998 an identity parade was held in the prison where Yaşar Öz was being detained on remand. Both Sebahattin Uz, the doorman at the Çınar Hotel, and Hüsnü Durmazer, the taxi driver who had witnessed the kidnapping on 3 June 1994, stated that Yaşar Öz, who was included in a line-up of ten persons, was not one of the men who had carried out the kidnapping. On 14 July 1998 Ali Osman Sivri was questioned by the public prosecutor. Mr Sivri was a watchman working at the Karadere Forest, which was on the road to the Yedigöller National Park. He referred to his previous statement which he had given on 7 June 1994 and stated that he had only seen a red car stop outside his office in the forest at around 10.30 a.m. on 3 June 1994. One person had left the car and filled a container with water from a fountain. When he was shown pictures of Yaşar Öz, the witness stated that the person he had seen did not look like Yaşar Öz. 30. On 24 July 1998 the Yığılca public prosecutor took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor sent the investigation file to the Ankara State Security Court which, in the prosecutor's opinion, was the competent court to prosecute Mr Öz. 31. In the meantime, on 29 September 1998, the Istanbul Security Department wrote to the management of the Çınar Hotel Casino and requested that the video recordings of the security camera for the night of 3 June 1994 be transmitted to them. In reply, on 2 October 1998 the casino management informed the security department that the video recordings were kept for one month and then erased. They further stated that as the casino was closed as of 12 February 1998, all video recordings were deleted. 32. On 7 October 1998 the public prosecutor attached to the Ankara State Security took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor concluded that there was insufficient evidence to suggest that the killings had been carried out by or on behalf of an illegal organisation. He therefore concluded that the State Security Court did not have jurisdiction in this matter. The file was sent to the Düzce public prosecutor, who later transferred the file to the Yığılca public prosecutor. 33. On 2 November 1998 the Yığılca public prosecutor, noting that Yaşar Öz had been arrested and put on trial for the killings, decided to continue the search for the other perpetrators. The prosecutor also asked the Düzce public prosecutor to charge Yaşar Öz, who, according to the evidence gathered by the Yığılca public prosecutor, was one of the perpetrators of the kidnappings and subsequent killings. 34. On 16 November 1998 the Düzce public prosecutor filed a bill of indictment with the Düzce Assize Court. The prosecutor alleged that the evidence justified the prosecution of Yaşar Öz for the murder of the applicant's brother and his two friends. 35. During the proceedings before the Düzce Assize Court, the court took into consideration the indictment which had been submitted to the Istanbul State Security Court on 29 April 1997 and which dealt with Yaşar Öz's role in the Susurluk affair. The Düzce Assize Court noted that, according to this indictment, Mr Öz was a notorious international drugs trafficker who held three official service passports, two of which were in the names of Tarık Ümit and Eşref Çuğdar. 36. The Düzce Assize Court finally noted that Yaşar Öz's name had been implicated in the Susurluk Report which had concluded that the fight against terrorism had gained momentum in 1993 when Mehmet Ağar was appointed head of the General Police Headquarters in Ankara. According to this Report, there had been a number of unknown perpetrator murders in the area between Izmit, Adapazarı and Bolu after the then prime minister declared publicly that she had in her possession a list containing the names of those businessmen who were supporting the PKK. The Report further stated that the killings of Savaş Buldan, Behçet Cantürk, Vedat Aydın, Medet Serhat Yöş and Metin Can formed part of such activities. 37. Recalling that Savaş Buldan, Adnan Yıldırım and Hacı Karay had been kidnapped by seven persons and then killed in the area between Izmit, Adapazarı and Bolu, the Düzce Assize Court held that these killings resembled the above-mentioned killings in the same area. Considering that the defendant was already facing prosecution before another court for membership of an organisation which was allegedly responsible for killing persons who had much in common with the deceased persons in the present case and as there was no other evidence to suggest that these killings were carried out for personal reasons, the Düzce Assize Court concluded on 24 November 1998 that it was precluded from examining the merits of the case for reasons of jurisdiction. 38. The case file was transferred to the Ankara State Security Court which had jurisdiction to deal with cases involving organised crime. On 16 December 1998 the court concluded that it too did not have jurisdiction to deal with the case. It held that, according to the Düzce public prosecutor's indictment of 16 November 1998, Yaşar Öz was charged with multiple murders. The indictment had made no reference to organised crime and the court did not have jurisdiction to examine this allegation ex officio. The case file was sent to the Court of Cassation in order to resolve the dispute over jurisdiction. 39. On 25 February 1999 the Fifth Criminal Chamber of the Court of Cassation, upholding the decision of the Ankara State Security Court, ruled that the Düzce Assize Court had jurisdiction to deal with the case. 40. Seven hearings were held before the Düzce Assize Court in the course of the criminal proceedings against Yaşar Öz. The applicants joined the proceedings as a civil party. Yaşar Öz told the court that there was no evidence to link him to the killings and that the only reason for putting him on trial was to prove to the European courts that the killings were being investigated. Nineteen eyewitnesses, who had either seen the three men being put into the cars outside the hotel in Istanbul or had seen the three cars near the spot where these persons were killed, stated during the hearings that they had never seen Yaşar Öz before. 41. On 18 November 1999 the Düzce Assize Court acquitted Yaşar Öz of the charge of multiple murders due to lack of evidence. On 25 May 2001 the Court of Cassation upheld this decision. 42. The parties submitted various documents with a view to substantiating their claims. These documents, in so far as they are relevant, may be listed as follows. (i) Scene of incident report, dated 3 June 1994, prepared by the District Gendarme Commander. (ii) Second scene of incident report, dated 4 June 1994, prepared by the District Gendarme Commander. (iii) Sketch of the scene of incident drawn by District Gendarme Commander, dated 4 June 1994. (iv) Decision of the Yığılca public prosecutor for a continuous search warrant, dated 31 August 1995. (v) A further scene of incident report, dated 4 June 1996, prepared by the Yığılca public prosecutor. (vi) Further statement of Ayşe Araç, dated 4 June 1996, who allegedly heard gun shots on the day of the incident. (vii) A further sketch of incident, dated 4 June 1996, prepared by the Yığılca public prosecutor's office. (viii) An expert report, dated 6 June 1996, stating that from the point where the witness, Ayşe Araç, had been standing on the day of the incident it was probable that she might have heard gun shots. (ix) The letter of the Ministry of Justice International Law and Foreign Affairs Directorate, dated 3 June 1996, to the Düzce public prosecutor's office. (x) Periodic follow-up reports (thirty one in all) of gendarmes between 1998 and 2004. (xi) Bakırköy public prosecutor's decision to transfer the case file to Yığılca public prosecutor's office, dated 17 March 1995. (xii) Report of the Istanbul Security Department to the Yeşilköy police, dated 15 November 1996. (xiii) Report of identity parade, in which it is indicated that Ercan Ersoy, Oğuz Yorulmaz and Ayhan Çarkın were shown to two eyewitnesses to the kidnapping, Mr Sebahattin Uz and Hüsnü Durmazel, and that no similarities with the perpetrators had been noted. (xiv) Letter of Çınar Hotel Casino Management to the Istanbul Security Directorate, dated 2 October 1998. (xv) Decision of the Yığılca public prosecutor to continue searching for the perpetrators of the killings, dated 2 November 1998. (i) Statements of Sabahattin Uz, doorman of the Çınar Hotel, dated 4 June 1994 and 10 March 1997 respectively, taken by the Bakırköy public prosecutor's office. (ii) Statement of Hüseyin Kılıç, security guard of the Çınar hotel, dated 4 June 1994, taken by the Bakırköy public prosecutor's office. (iii) Statement of Serdar Özdemir, dated 5 June 1994, taken by the Bakırköy public prosecutor's office. (iv) Statements of Hüsnü Durmazer, dated 5 June 1994 and 10 March 1997 respectively, taken by the Bakırköy public prosecutor's office. (v) Statement of İsmail Taşcan, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie. (vi) Statements of Ayşe Araç, a villager, dated 6 June 1994 and 14 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (vii) Statement of Bengül Ünsal, a student, dated 4 June 1994, taken by Yığılca District Gendarmerie. (viii) Statement of Nuriye Cesur, a student, dated 4 June 1994, taken by the Yığılca District Gendarmerie. (ix) Statements of Ayşe Uzun, a villager, dated 4 June 1994 and 6 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (x) Statement of Hazım Yıldız, driver of the school bus, dated 4 June 1994, taken by the Yığılca District Gendarmerie. (xi) Statements of Mehmet Baş, a villager, dated 4 June 1994 and 14 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xii) Statements of Seyfettin Çakmak, a villager, dated 4 June 1994 and 14 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xiii) Statement of Fevzi Aydın Aslan, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xiv) Statement of Bayram Yılmaz, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie. (xv) Statements of İrfan Kurşunlu, a villager, dated 4 June 1994 and 4 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xvi) Statements of Hasan Baş, a villager, dated 4 June 1994 and 6 June 1994 taken by theYığılca District Gendarmerie and the public prosecutor respectively. (xvii) Statements of Mehmet Beşir Erdoğan, a villager, dated 4 June 1994 and 22 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xviii) Statement of Mehmet Yıldız, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xix) Statements of Şevket Öztürk, a villager, dated 6 June 1994 and 12 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xx) Statements of Yunus Öztürk, dated 6 June 1994 and 14 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xxi) Statement of Ruhi Aldal, who works at the Yedigölller national park, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxii) Statement of Halit Sivri, who works at the Yedigölller national park, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxiii) Statement of Fikret Gürez, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxiv) Statement of Hasan Salcı, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxv) Statement of Kamil Çolak, dated 6 June 1994, taken by the Yığılca Ditrict Gendarmerie. (xxvi) Statements of Muzaffer Yıldız, dated 6 June 1994 and 12 June 1996, taken by the Yığılca District Gendarmerie and the prosecutor. (xxvii) Statement of Mehmet Yıldız, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxviii) Statement of İsmail Topcan, dated 6 June 1994, taken by the Yığılca District Gendarmerie. (xxix) Statement of İlyas Topuz, dated 7 June 1994, taken by the Yığılca District Gendarmerie. (xxx) Statements of Hasan Topuz, dated 7 June 1994 and 21 June 1996, taken by the Yığılca Gendarmerie and the public prosecutor respectively. (xxxi) Statement of Şükrü Bayram Yılmaz, dated 7 June 1994, taken by the Yığılca District Gendarmerie. (xxxii) Statement of Fevzi Aydın, dated 7 June 1994, taken by the Yığılca District Gendarmerie. (xxxiii) Statement of Ali Osman Sivri, dated 7 June 1994, taken by the Yığılca District Gendarmerie. (xxxiv) Statements of Bahar Yıldırım, dated 7 June 1994 and 12 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively. (xxxv) Statement of Bengü Çelebi, dated 6 June 1996, taken by the Yığılca District Gendarmerie. (xxxvi) Statement of Nihat Buldan, the brother of Savaş Buldan, dated 21 June 1994, taken by the Yığılca District Gendarmerie. (xxxvii) Statement of Arif Karay, the brother of Hacı Karay, dated 18 June 1994, taken by the police. (xxxviii) Statement of Selim Yıldırım, dated 18 June 1994, taken by the police. (i) Body examination report, dated 4 June 1994. (ii) Photo-fits of three of the perpetrators. (iii) Ballistics examination reports, dated 6 and 14 June 1994, prepared by Central Police Forensic Laboratory. (iv) Ballistics report dated 17 June 1994, prepared by Gendarmerie Forensic Laboratory. (v) Ballistics examination report dated 10 January 1995, prepared by the Central Police Forensic Laboratory. (vi) Ballistics examination report of the Gendarmerie Forensic Laboratory, dated 15 January 1997. (vii) Report of Central Police Laboratory dated 19 March 1997, comparing the photo-fits of the perpetrators to Ercan Ersoy, Oguz Yorulmaz and Ayhan Çarkın. (i) Statement of Korkut Eken, Head of Special Operations team, dated 11 March 1997. (ii) Statements of Hanefi Avcı, dated 7 February 1997, 24 March 1997, and 20 April 1998 concerning the Susurluk incident. (iii) Report of the Central Police Laboratory indicating that the photo-fits of the perpetrators had similarities with the photo of Yaşar Öz. (iv) Statement of Yaşar Öz, dated 7 May 1998. (v) Report of identity parade, dated 29 May 1995, which indicates that although Yaşar Öz had been shown to two eye witnesses to the kidnapping, Mr Sabahattin Uz and Hüsnü Durmazer, the witnesses concluded that they had not seen Yaşar Öz before. (vi) Decision of non-jurisdiction, delivered by the Yığılca public prosecutor concerning the prosecution of Yaşar Öz, dated 7 March 1998. The file was transferred to Ankara State Security Court. (vii) Non-jurisdiction decision of the Ankara State Security Court, dated 7 October 1998. (viii) Non-jurisdiction decision of Düzce Assize Court, dated 24 November 1998, and transfer of case file to the Ankara State Security Court. (ix) Non-jurisdiction decision of Ankara State Security Court, dated 16 December 1998. The case was sent to the Court of Cassation to settle the dispute on jurisdiction. (x) Decision of the Court of Cassation, dated 25 February 1999, settling the dispute over jurisdiction between the Ankara State Security Court and the Düzce Assize Court. The case file was sent to Düzce Assize Court. (xi) Minutes of the criminal proceedings against Yaşar Öz before the Düzce Assize Court. (xii) Decision of the Düzce Assize Court, dated 18 November 1999, by which Yaşar Öz was acquitted of the charges against him due to lack of evidence. (xiii) Judgment of the Court of Cassation, dated 25 May 2001, upholding the decision of the Düzce Assize Court dated 18 November 1999. 43. The applicants submitted a copy of the so-called “Susurluk Report”, which was produced at the request of the Prime Minister by Mr Kutlu Savaş, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld. 44. The introduction states that the Report was not based on a judicial investigation and did not constitute a formal investigation report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups. 45. The Report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there was a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result, particularly in the drug-trafficking sphere. In the Report, reference is made to the killing of the applicant's brother: “All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter represented in economic terms. These factors also operated in the murder of Savaş Buldan, a smuggler and pro-PKK activist. (page 74).” 46. The Report concludes with numerous recommendations, such as improving co-ordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security force personnel implicated in illegal activities; limiting the use of “confessors”; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police force outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken. 47. For the relevant domestic law and background information on the Susurluk Report, the Court refers to the judgments of Ülkü Ekinci v. Turkey (no. 27602/95, §§ 111-18, 16 July 2002) and Tepe v. Turkey (no. 27244/95, §§ 115-22, 9 May 2003). | 1 |
dev | 001-4870 | ENG | DEU | ADMISSIBILITY | 1,999 | WILHELM v. GERMANY | 4 | Inadmissible | Matti Pellonpää | The first applicant is a German national, born in 1963 and living in Wiefelstede. He is a lawyer by profession. He also brings the application on behalf of his daughter, born in wedlock in 1985. A. In 1991 the applicant and his wife Mrs G. separated. The ensuing divorce proceedings before the Ludwigshafen am Rhein District Court (Amtsgericht), sitting in family matters (Familiengericht), concerned inter alia the question of custody over the spouses’ children Daria and Julian, born in wedlock in 1987, and involved the taking of psychological expert evidence. Divorce was granted on 26 March 1993. Moreover, upon the spouses’ common proposal, custody of the daughter Daria was awarded to the applicant, and custody of Julian was awarded to Mrs G. Subsequently, Mrs G. remarried. The applicant married again in 1993 and his son Malte was born in October 1993. In November 1994 Mrs G. applied to the Ludwigshafen District Court to be awarded custody of Daria. She submitted that Daria did no longer wish to live with the applicant. The applicant contested these submissions. It appears that he also requested that he be awarded custody of Julian; these proceedings were conducted separately. On 23 December 1994 the Ludwigshafen District Court, having twice heard Daria, issued an interim injunction provisionally transferring the right to determine Daria’s place of residence (Aufenthaltsbestimmungsrecht) to Mrs G. Daria has been living with Mrs G. since. On 30 June 1995 the applicant withdrew his appeal following a hearing before the Zweibrücken Court of Appeal (Oberlandesgericht) which had also questioned the child. On 17 November 1995 the Ludwigshafen District Court amended the decision of 26 March 1993 and awarded the custody of Daria to Mrs G. The District Court, referring to section 1696 of the Civil Code (Bürgerliches Gesetzbuch) and the case-law of the Federal Court of Justice (Bundesgerichtshof), observed that decisions on custody should only be changed, if there were valid reasons seriously affecting the child. Having heard the parents and in particular Daria, the court found that the child did no longer wish to live with the applicant, but with Mrs G. It considered that Daria’s wish had to be respected. She had unequivocally expressed her wish in court on 20 December 1994 and 27 October 1995. As stated in the opinion submitted by the competent youth office, she had made the same statement when heard at the youth office. In the court’s view, the argument that this wish had been influenced by third persons was not valid. In particular, she had decided to live with her mother although she could expect the difficulties of being involved in court proceedings. Her statements in court had appeared true and genuine, and she had upheld her position over a lengthy period during which she had regularly access to the applicant, including holidays. On 23 April 1996 the Zweibrücken Court of Appeal dismissed the applicant’s appeal. The Court of Appeal, having heard the applicant and Mrs G., Daria and an employee of the competent youth office, found that the custody decision had to be changed in the interest of the child. In this respect, it noted that, upon divorce, custody of Daria had been awarded to the applicant in accordance with the spouses’ common proposal. Following the preliminary injunction issued by the District Court in December 1994, after having heard Daria twice, she had been living with Mrs G. In this period, Daria had changed from primary to secondary school without problems. The competent youth offices had confirmed that both parents were capable of educating children. Daria was meanwhile living together with her brother Julian. Given the bonds between brother and sister, as confirmed at the hearing, it was also in Daria’s interest that they grew up together. Moreover, at least in the meantime, a closer relationship had developed between Daria and Mrs G. Daria’s repeated questioning had shown that she felt safer with her mother and had more personal care and definitively wished to live with Mrs G. There was no indication that Daria’s statements had been caused by Mrs G. and did not reflect Daria’s own wish. Although Daria had not yet completed the age of 14 and had no formal right of veto, the statement of her will had to be respected as act of self-determination. In these circumstances, the Court of Appeal regarded as decisive that Daria’s future well-being and development would suffer, if her firm wish to live with Mrs G. was broken and she be forced to return to the applicant. Awarding custody to Mrs G. was, therefore, in the interest of Daria’s well-being. Furthermore, as regards the applicant’s subsidiary request for joint custody, the Court of Appeal, referring to the case-law of the Federal Constitutional Court (Bundesverfassungs-gericht), observed in particular that joint custody presupposed both parents’ willingness to share the responsibility for the child after divorce. However, Mrs G. had refused joint custody, arguing that the applicant was not ready for cooperation and would impose his will. The Court of Appeal considered that a parent refusing joint custody was in a position to exclude the other parent from custody. However, such a refusal was not necessarily abusive and therefore irrelevant. Rather, the child’s interests were of paramount importance. In the absence of any willingness to cooperate in the child’s education, joint custody could not be regarded as being in the interest of the child’s well-being. On 23 July 1996 the Federal Constitutional Court refused to entertain the applicant’s constitutional appeal. B. Relevant domestic law and practice Section 1671 §§ 1 and 2 of the Civil Code, as in force at the relevant time, provided that, in case of the parents’ divorce, the competent court decided on which parent should have custody of a common child, and took the decision which was in the interest of child’s well-being; the child’s bonds, especially to its brothers and sisters, were to be considered. A common proposal by the parents was only to be disregarded if necessary in the interest of the child. In a decision of 3 November 1982, the Federal Constitutional Court declared unconstitutional paragraph 4, first sentence, of Section 1671, according to which custody had to be awarded to one of the parents in case of divorce. The Constitutional Court considered that a joint right to custody was possible in case of divorce if there is a common proposal by the parents to this effect, showing their willingness to share the responsibility for their child after their divorce. According to section 1696 of the Civil Code, as in force at the relevant time, the competent courts may change their decisions relating to custody matters at any time, if necessary in the interest of the child (im Interesse des Kindes). The relevant legislation has been amended on the basis of the Government Bill of 28 February 1996 on the reform of the law on family matters. This reform of 16 December 1997, which has entered into force on 1 July 1998, harmonises the rules regarding children born in wedlock and children born out of wedlock. Section 1671 of the Civil Code, as amended, provides that, in case of a definite separation of parents who jointly exercise custody, each parent can request for a sole exercise of custody. The competent court will grant the request if (1) the other parent agrees, unless the child having completed the age of 14 disagrees, or if (2) the termination of joint custody and award to the one parent most likely serves best the child’s well-being. According to section 1696, as amended, the competent courts shall change their decisions if there are valid reasons seriously affecting the child (triftige, das Wohl des Kindes nachhaltig berührende Gründe). | 0 |
dev | 001-109082 | ENG | RUS | CHAMBER | 2,012 | CASE OF SHUMKOVA v. RUSSIA | 3 | Remainder inadmissible;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);Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | 5. The applicant was born in 1928 and lives in Irkutsk. 6. On 8 December 1993 the applicant’s son, Vladimir Shumkov, was arrested on suspicion of murder and placed in a temporary remand centre. On 10 December 1993 he was transferred to a remand prison. 7. On 9 March 1995 Mr Shumkov was convicted of murder and perjury and sentenced to nine years and six months’ imprisonment. The sentence was due to expire on 7 June 2003. 8. On 15 July 1995 Mr Shumkov was transferred from the remand prison to correctional facility ITK-19 in Irkutsk to serve his sentence. 9. On 14 January 1999 he was transferred to correctional facility IK-6 in Irkutsk so as to prevent a conflict with other detainees. 10. On 6 February 1999 Mr Shumkov requested to be transferred to a different correctional facility since he was in conflict with other detainees and had allegedly been threatened by them. 11. On 13 July 1999 Mr Shumkov was transferred from correctional facility IK-6 to correctional facility IK-15 in Angarsk, again to prevent a conflict with other detainees. 12. On 10 April 2001 he was transferred to correctional facility IK-20 in Ust-Kuta, once again to prevent a conflict with other detainees. 13. In 1995 Mr Shumkov was diagnosed with epilepsy. Later the diagnosis was changed to psychopathic personality disorder. Between 1995 and 2001 he regularly underwent medical examinations and in-patient treatment in prison hospitals: - on 2 August 1995 Mr Shumkov was admitted to prison hospital no. 1 in Irkutsk and was diagnosed with psychopathic personality disorder and epilepsy; - on 26 August 1995 he was transferred to prison hospital no. 2 in Angarsk with a diagnosis of epilepsy; he was discharged on 13 September 1995 following an improvement in his condition; - on 23 July 1996 Mr Shumkov was admitted to prison hospital no. 1 in Irkutsk and was diagnosed with psychopathic personality disorder, with explosive-type accentuation; he was discharged on 23 August 1996 following an improvement in his condition; - on 20 March 1997 he was again placed in prison hospital no. 1 in Irkutsk with a diagnosis of psychopathy of explosive-hysteroid type, and demonstratively blackmailing behaviour with simulation of psychic equivalences and paraxial disorders; he was discharged on 14 May 1997 following an improvement in his condition; - on 24 February 1998 Mr Shumkov was admitted to prison hospital no. 1 in Irkutsk with a diagnosis of psychopathy of explosive-hysteroid type; he was discharged on 12 March 1998 following an improvement in his condition; - on 7 July 1998 he was admitted to prison hospital no. 2 in Angarsk with a diagnosis of psychopathy of explosive-hysteroid type with simulation of paraxial disorders; he was discharged on 18 August 1998 following an improvement in his condition; - on 1 April 1999 Mr Shumkov was admitted to prison hospital no. 1 in Irkutsk with a diagnosis of psychopathy of hystero-excitable type and neurocirculatory dystonia; he was discharged on 14 April 1999 following an improvement in his condition; - on 9 March 2000 Mr Shumkov was admitted to prison hospital no. 2 in Angarsk with a diagnosis of psychopathy of explosive-hysteroid type with simulation of paraxial disorders; he was discharged on 30 March 2000 following an improvement in his condition; - on 26 April 2000 he was admitted to prison hospital no. 1 in Irkutsk with a diagnosis of psychopathy of explosive type and a duodenal ulcer; he was discharged on 19 June 2000 following an improvement in his condition; - on 28 February 2001 Mr Shumkov was again admitted to prison hospital no. 1 in Irkutsk with a diagnosis of a duodenal ulcer and hypertension; he was discharged on 30 March 2001 following his recovery; - on 23 May 2001 Mr Shumkov was once again admitted to prison hospital no. 1 in Irkutsk with a diagnosis of psychopathy of explosive type; he was discharged on 6 June 2001 following an improvement in his condition. 14. On 17 June 2001 Mr Shumkov was placed in a disciplinary cell, where on 1 August 2001 he slashed his left wrist. After medical aid had been administered to him, he was ordered to return to the cell. When Mr Shumkov refused to comply, officers L. and S. used rubber truncheons and physical force to return him to his cell. 15. On 4 August 2001 at 2 a.m. Mr Shumkov knocked at the door of his cell to attract the warder’s attention, and when the warder Yu. came over Mr Shumkov said that he needed pills for blood pressure. Warder Yu. reported accordingly to Major P., an officer on duty, who promptly arrived at the disciplinary cell and, having opened the door, found that Mr Shumkov had slashed veins in his elbows. Mr Shumkov said that he needed a bandage but refused to accept medical assistance from the warders and also said that he would not let anybody into the cell except for the prison doctor. At 2.15 a.m. Major P. sent officer D. to fetch the prison doctor, G. At around 2.40 a.m. Dr G. arrived, dressed the wounds and administered injections of cardiamine and caffeine. Mr Shumkov was then placed on a stretcher and transported to the medical unit; however, he was dead upon arrival at the unit as a result of heavy blood loss. The time of death was entered in the register as 2.40 a.m. 16. On 6 August 2001 a post-mortem report was drawn up. According to the report, the cause of Mr Shumkov’s death was heavy blood loss as a result of injuries to the large blood vessels in the antecubital fossa and forearms. 17. On 10 August 2001 the prison governor, K., decided not to open a criminal investigation into the death of Mr Shumkov for lack of corpus delicti. 18. On 17 August 2001 the Kazachinsko-Lenskiy District Prosecutor’s Office quashed that decision and referred the case back for additional inquiries. He stated, in particular, that in the course of the inquiries conducted it had not been established whether the officers on duty had tried to provide Mr Shumkov with medical aid and that neither the officers on duty nor the detainees held in adjacent cells had been questioned. 19. On 20 August 2001 the prison doctor G. provided an explanation concerning the events of 4 August 2001 to the Kazachinsko-Lenskiy District Prosecutor’s Office. He submitted: “At 2.30 a.m. on 4 August 2001 a service car arrived to collect me from my home, and I was told that I had to go urgently to the [correctional facility] since a detainee [had collapsed] in a disciplinary cell. I immediately got into the car and at 2.40 a.m. we arrived at the [correctional facility]. Having entered the disciplinary wing, I asked to open the cell where [Mr] Shumkov was being held. [When] the warder opened the door, I saw that [Mr Shumkov] was lying motionless on the floor and blood was splashed around the whole cell. Having examined [Mr Shumkov’s] elbow joints, I found that a vein and an artery were cut open on the left elbow joint and similar injuries had been caused to the right elbow joint. I immediately dressed the wounds and administered injections of cardiamine, caffeine..., glucose and gluconate and performed artificial ventilation. Since the treatment had no effect, [Mr Shumkov] was transported to the medical unit and fifteen minutes after the beginning of the treatment I pronounced him dead as a result of heavy blood loss. Before my arrival at the disciplinary cell the warders did not provide [Mr] Shumkov with medical aid since he requested to be seen by a doctor and refused to accept medical aid until the [doctor’s] arrival. On 1 August 2001 [Mr] Shumkov had committed an act of self-mutilation, having slashed minor blood vessels on his left arm... An antiseptic dressing was applied. If [on 4 August 2001] I had arrived twenty or thirty minutes earlier, it would still have been impossible ... to save [Mr Shumkov’s] life since he had arteries and veins slashed in both arms.” 20. On 21 August 2001 the prison governor K. again refused to open a criminal investigation as no crime had been committed. He stated that on 4 August 2001 the prisoner had asked warders to call for a doctor because he had high blood pressure. The warders had discovered that the prisoner had cut veins in both elbows. Mr Shumkov had then been placed in the medical unit, where he had died as a result of heavy blood loss. 21. On 24 August 2001 the Kazachinsko-Lenskiy District Prosecutor’s Office refused to open a criminal investigation into the death of Mr Shumkov for lack of corpus delicti. 22. On 4 June 2002 the Office of the Prosecutor General set aside the decision of 24 August 2001 and opened a criminal investigation. The prosecutor noted that the district prosecutor’s office had failed to investigate the grounds for Mr Shumkov’s confinement in a disciplinary cell, the circumstances leading to his suicide and his mental state, in particular taking into account the medical records concerning his treatment from 1996 to 2001. Nor had they identified the object with which Mr Shumkov had slashed the veins in his elbows. 23. The case was forwarded to the Irkutsk Regional Prosecutor’s Office. The applicant was informed of that decision by letters of 7 and 25 June 2002. 24. On 8 July 2002 another post-mortem report was drawn up on the basis of Mr Shumkov’s medical file. It confirmed the findings of the postmortem report of 6 August 2001. 25. On 15 July 2002 the prison doctor G. was questioned. He stated that he had known Mr Shumkov since June 2001, when the latter had complained of headaches and high blood pressure. At around 2.40 a.m. on 4 August 2001, following a call from the officer on duty, he had arrived at the disciplinary cell, where he had found that Mr Shumkov had slashed his veins. Dr G. had dressed the wounds and administered an injection of caffeine; however, by that time Mr Shumkov was already in a semiconscious state. Mr Shumkov had been then transported to the medical unit, where, according to doctor G.’s statement, he had died at 2.40 a.m. 26. On the same date the Ust-Kuta District Prosecutor’s Office refused to institute criminal proceedings against officers L. and S. concerning the events of 1 August 2001, and against warder Yu. and Major P. concerning the events of 4 August 2001. The decision stated, inter alia, that after Mr Shumkov had committed an act of self-mutilation on 1 August 2001, his cell had been searched on several occasions and no forbidden items had been found. On 4 August 2001 warder Yu. and Major P. had immediately provided Mr Shumkov with first aid. 27. On an unspecified date the applicant complained about the length of the criminal investigation. On 30 December 2002 the Ust-Kuta District Prosecutor’s Office replied to her that it had questioned all the witnesses and had examined medical evidence and that an expert report on Mr Shumkov’s mental state at the relevant time had been commissioned. 28. On 27 January 2003 the Ust-Kuta District Prosecutor’s Office discontinued the criminal proceedings against the prison governor K. and officer Y., the head of the operating unit, for lack of corpus delicti. It appears that on an unspecified date that decision was quashed. 29. On 31 January 2003 a commission of four psychiatrists and one psychologist drew up a forensic psychiatric report in respect of Mr Shumkov. The commission concluded as follows: “[The commission’s] conclusion: [Mr] Shumkov suffered from a chronic psychiatric disorder in the form of psychopathy of mixed type. [This diagnosis] is confirmed by the anamnesis, medical documents and the criminal case file: [Mr Shumkov] had such character traits as difficulty in communication, quarrelsomeness, hot temper, irritability, aggressiveness, affective instability, tendency towards hysterical and demonstrative reactions with self-mutilation in subjectively difficult situations, tendency towards simulative behaviour (his examination and lengthy monitoring in the course of repeated placements for psychiatric and neurological in-patient treatment did not confirm the epileptic nature of the ‘fits’) ... However, the above-mentioned peculiarities of [Mr Shumkov’s] psychic state were not accompanied by a broad decrease in intellect or disturbances of thought, delirium, hallucinations or disturbances of critical and prognostic functions, since as a whole he could control his actions (his conduct changed depending on the place and environment, he took into account the social status and rank of the interlocutor), realise the meaning of his actions and direct them. In the period preceding [the act of self-mutilation committed by Mr Shumkov] ... he did not display signs of a temporary mental disorder or dementia, he did not have delirium or hallucinations, and he could realise the meaning of his actions and direct them. The psychologist’s conclusion: Psychological analysis of the contents of the criminal case file confirms that [Mr] Shumkov had such individual psychological peculiarities as egocentrism, emotionally volitional instability, hot temper, increased irritability, malignance, aggressiveness, difficulties in interpersonal contact, tendency towards conflict in close contact, tendency to create conflict situations, [tendency towards] asocial acts, and impulsiveness. In subjectively difficult situations [he] displayed affective outbursts, demonstrative behaviour, a tendency towards impulsive behavioural reactions, simulative behaviour and suicide attempts... The analysis of the contents of the criminal case file confirms the lack of extreme conditions which would have prompted the suicide, and of conditions that would have been conducive to the accumulation of negative emotional experiences and ... neuropsychological tension. [Mr Shumkov’s] individual psychological peculiarities were conducive to his committing suicide.” 30. On 28 February 2003 Ust-Kuta District Prosecutor’s Office again discontinued the criminal proceedings against the prison governor K. and officer Y. on the same ground as before. 31. On 31 March 2003 the Deputy Prosecutor of the Irkutsk Region quashed the decision of 28 February 2003 as ill-founded and premature. He stated, in particular, that the investigating authorities had failed to clarify all the circumstances preceding Mr Shumkov’s death, had not fully complied with the instructions of the Office of the Prosecutor General, had not made a legal assessment of the correctional facilities’ officers’ actions as regards the search in the disciplinary cell, and of the prison doctor G.’s actions as regards the untimely medical aid provided on 4 August 2001. 32. On 28 May 2003 the Ust-Kuta District Prosecutor’s Office discontinued the criminal proceedings on the following grounds. 33. According to the decision, Mr Shumkov was irritable, aggressive, had an explosive temper and had constant conflicts with other detainees and warders. He often complained of poor health and headaches. During the period of serving his sentence, that is, from December 1993 to August 2001, Mr Shumkov was on eleven occasions admitted to hospitals within the penal system. In 1995 he was diagnosed with epilepsy; however, the diagnosis was not confirmed and in 1998 it was changed to psychopathy. From 23 May to 9 June 2001 Mr Shumkov underwent treatment for his condition in Hospital No. 1 in the Irkutsk Region. For swearing and threatening physical violence he was discharged from the hospital on 9 June 2001 and transferred back to correctional facility IK-20. Between 10 April and 1 August 2001 Mr Shumkov was subjected to disciplinary measures on six occasions. 34. On 17 June 2001 Mr Shumkov was placed in a disciplinary cell for a breach of discipline. On 1 August 2001 he cut his veins. After medical aid had been administered to him, he refused to return to his cell, insulted and threatened officers L. and S. and grabbed L.’s uniform. So as to prevent his unlawful threats, L. and S., using physical force and rubber truncheons, placed him in the cell. Thereafter Mr Shumkov was examined by a member of staff of the medical unit, who noted bruises on his body and extremities. According to the results of the investigation, officers L. and S. lawfully used rubber truncheons and physical force against Mr Shumkov. On the same date the prison governor ordered Mr Shumkov’s placement in a disciplinary cell for the act of self-mutilation. 35. At around 2.10 a.m. on 4 August 2001 Mr Shumkov, while being held in disciplinary cell no. 20, cut his veins. He refused medical aid from the officers on duty and requested to be seen by a doctor. At around 2.40 a.m. the prison doctor G. provided Mr Shumkov with medical aid, having dressed the wounds and administered injections, following which Mr Shumkov was transported to the medical unit, where he died at 2.45 a.m. as a result of heavy blood loss. 36. The prison governor K. submitted that on 1 August 2001 he had ordered Mr Shumkov’s placement in a disciplinary cell for having committed an act of self-mutilation. 37. A witness, S-v, stated that on 4 August 2001 he had been held in an adjacent disciplinary cell when he had heard Mr Shumkov shouting and complaining of high blood pressure. Then Mr Shumkov had cut his veins. S-v did not know why he had done so. 38. Major P. stated that on 4 August 2001 he and warder Yu. had been among the officers on duty in the disciplinary wing. At around 2.10 a.m. he had heard screaming from cell no. 20, where Mr Shumkov was being held. At around 2.15 a.m. he and warder Yu. had entered the cell and had seen that Mr Shumkov had cut his veins. They had tried to provide him with medical aid so as to stop the bleeding, but he had firmly refused to be aided and to leave the cell and had stated that he needed a doctor. Major P. had then called for a doctor, who had arrived at the disciplinary wing at 2.40 a.m. Dr G. had dressed the wounds and had administered injections, following which Mr Shumkov had immediately been transported to the medical unit. However, because of the blood loss he had died there at around 2.45 a.m. In the course of additional questioning Major P. submitted that late in the evening of 3 August 2001 he and warders D. and Yu. had conducted an inspection of the disciplinary wing and had not found any forbidden objects. 39. Warder Yu. made a similar statement and added that after Mr Shumkov had been pronounced dead, officer Y., the head of the operating unit, had arrived at the disciplinary wing and conducted an inspection of cell no. 20. 40. Dr G. submitted that on 4 August 2001 he had been the prison doctor on standby duty. At around 2.40 a.m., after a call from an officer on duty, he had arrived at the disciplinary wing, where in cell no. 20 he had dressed the wounds and administered an injection of caffeine to Mr Shumkov, who had cut his veins. At the time Mr Shumkov had been in a semi-conscious state. Then Mr Shumkov had been transported on a stretcher to the medical unit, where he had died. Dr G. had pronounced him dead at 2.45 a.m. 41. The post-mortem report stated that the death of Mr Shumkov had occurred because of heavy blood loss as a result of injuries caused by the slashing of the large vessels in the elbows and forearms. It also noted that the prisoner had had bruises on his body and legs. 42. According to a psychiatric and psychological expert report, Mr Shumkov suffered from psychopathic personality disorder, was in constant conflict with other persons, and tended towards hysterical behaviour, self-mutilation, suicide attempts and simulation of epileptic fits. However, he was able to assess and control his conduct and never showed symptoms of imbecility. The experts did not establish the existence of any circumstances which could have prompted Mr Shumkov to commit suicide. 43. In the course of the investigation no proof of prison governor K.’s and officer Y.’s having committed such offences as abuse of official powers and incitement to suicide was found. 44. In the course of additional inquiries, it was established that Mr Shumkov had cut his veins with a piece of a blade from a disposable safety razor which he had had with him in the disciplinary cell as it was allowed by the internal regulations. When warder D. had asked Mr Shumkov what he had done with the piece of blade, he had replied that he had placed it in the lavatory pan. 45. The additional check also established that duty schedules were fixed for medical staff for holidays and weekends. At night a member of the medical staff remained on duty at his home. The time required for a member of the medical staff to arrive at the correctional facility in reply to an urgent call depended on the distance between his home and the facility. Dr G., who had been the prison doctor on duty on 4 August 2001, had arrived at the facility within twenty minutes from the departure of the operating unit to fetch him. This was also confirmed by Dr G. in the course of additional questioning and by the head of the medical unit, K-v. 46. Warder D. stated that during the night of 3 to 4 August 2001 he had been the assistant officer on duty. At around 10 p.m. on 3 August 2001 he, Major P. and warder Yu. had conducted an inspection of the disciplinary wing and had found no forbidden objects. At around 2 a.m. on 4 August 2001 or a little later, following a call from warder Yu., he had arrived at disciplinary cell no. 20 and had seen that Mr Shumkov had cut his veins. When he had asked him how he had cut his veins, Mr Shumkov had explained that he had used a piece of blade from a disposable safety razor which he had thrown into the lavatory pan. Mr Shumkov had refused to leave the cell to be provided with first aid and requested to be seen by a doctor. Warder D. then had gone to fetch Dr G. and had returned with him twenty minutes later. He did not know what medical aid Dr G. had provided since he had left to inspect the facility. Having reached the medical unit, he had learnt from Dr G. that Mr Shumkov had died of blood loss. 47. Having regard also to (i) Annex 1 to the Internal Regulations of Correctional Institutions, adopted by order no. 224 of the Ministry of the Interior of 30 July 2001, which did not forbid the keeping of a disposable safety razor in a disciplinary cell, and (ii) the Instruction on Supervision of Inmates held in Correctional Facilities, adopted by order no. 83 of the Ministry of Justice of 7 March 2000, which provided that constant supervision of inmates held in disciplinary cells must be effected through the inspection hole in the doors of the cells, and that officers on duty must call a doctor for inmates requiring medical assistance, the Ust-Kuta District Prosecutor’s Office concluded that the prison governor K., the head of the operating unit Y., Major P., warders D. and Yu. and the prison doctor G. had not committed the alleged offences of incitement to suicide, abuse of official powers and neglect of duty or failure to assist in a dangerous situation, and discontinued the criminal proceedings. 48. On 9 September 2004 the Office of the Prosecutor General dismissed a complaint by the applicant about the discontinuation of the criminal proceedings, finding that decision to have been lawful and well-founded. 49. On an unspecified date the applicant challenged the decision of 28 May 2003 before a court. She also complained that her son’s beating with rubber truncheons by warders on 1 August 2001 had not been lawful. 50. On 29 October 2004 the Ust-Kuta District Court of the Irkutsk Region dismissed the applicant’s complaint. The applicant was not present at the hearing. 51. On 14 February 2005 the Irkutsk Regional Court quashed that decision and remitted the case for a fresh examination on the ground that the applicant had not been duly notified of the hearing of 29 October 2004. 52. On 5 April 2005 the Ust-Kuta District Court held that the prosecutor’s decision was lawful and dismissed the applicant’s complaints. 53. On 6 September 2005 the Irkutsk Regional Court upheld the decision on appeal. The applicant’s subsequent application for supervisory review of that decision was refused by the Irkutsk Regional Court on 18 January 2006. 54. On 29 July 2002 Dr P., a neuropathologist at prison hospital no. 2, was questioned. He submitted that in March 2000 Mr Shumkov had been admitted to the hospital, having been diagnosed with epilepsy. However, the diagnosis had not been confirmed and Mr Shumkov had been diagnosed with a psychopathic disorder. During his stay at the hospital he had displayed unbalanced behaviour and mood swings, and had been irritable and emotionally unstable. Mr Shumkov had been provided with a complete course of treatment. His parents had never been asked to provide any medicines for him since all the required medicines had been available at the hospital. 55. Having examined Mr Shumkov’s medical file, the neurologist G. stated that in his childhood he had suffered a craniocerebral trauma. Since 1988 he had been suffering from frequent fits that had mostly occurred at night. He had been diagnosed with epilepsy and had undergone in-patient treatment in 1992. Later he had been treated in the psychiatric ward of prison hospital no. 1. There he had repeatedly feigned polymorphous fits and had been placed under constant monitoring, which had revealed no momentary lapses of reason or convulsive contractions, although irritability, hot temper and rudeness had remained. Accordingly, the diagnosis of epilepsy had been changed to one of psychopathy. During the term of Mr Shumkov’s detention, in-patient and outpatient treatment and supervision had been fully available to him. 56. The head of a psychiatric ward, Sh., having studied Mr Shumkov’s medical file, concluded that while in detention he had been fully provided with the requisite medical assistance for his mental and somatic state. The diagnosis of epilepsy had been correctly discarded and had not subsequently been confirmed. 57. On 30 April 2009 L., the head of the medical unit of correctional facility IK-20, issued a certificate concerning the circumstances of Mr Shumkov’s death. The certificate stated: “At around 2 a.m. on 4 August 2001 ... [Mr Shumkov] knocked at the door of disciplinary cell no. 2, told [warder Yu.] that he had high blood pressure and asked him to call for a doctor on duty. [Warder Yu.] reported to [Major P.], [who] immediately sent [warder D.] in a car to fetch [prison doctor G.], who lived near the correctional facility and was required to go to the facility in the event of an emergency. At the same time [Mr Shumkov] was placed under constant visual supervision through the inspection hole in the door of the cell. At 2.15 a.m. [the warders] opened cell no. 20 following changes in [Mr Shumkov’s] behaviour and discovered that he had committed an act of self-mutilation, having cut blood vessels in both arms. [Mr Shumkov] refused to leave the cell to receive medical assistance and stated that he would wait for the doctor in the cell. [The warders] brought bandages to the cell in order to dress the wounds. [Mr Shumkov] took the bandages but refused [the warders’] medical assistance. At 2.30 a.m. [Dr G.] arrived and immediately provided [Mr Shumkov] with medical assistance in the cell. [He] dressed the wounds so as to stop the bleeding, administered injections to increase blood pressure and stimulate cardiac activity ..., and performed artificial lung ventilation and indirect heart massage, following which [Mr Shumkov] was taken to the medical unit ... where, despite the efforts to resuscitate him, at 2.40 a.m. he was pronounced dead as a result of heavy blood loss caused by the injuries to the large blood vessels.” 58. According to a certificate of 21 April 2009 issued by the prison authorities, during Mr Shumkov’s detention in correctional facility IK-20 from 10 April to 23 May 2001 and from 9 June to 4 August 2001 he was held in conditions which complied with the relevant regulations. There was no infringement of Mr Shumkov’s right to life by any officers of the correctional facility. 59. Another certificate issued on the same date stated, inter alia, that in the course of serving his sentence Mr Shumkov had breached prison discipline thirty-five times, as a result of which he had on six occasions been placed in the disciplinary wing and twenty-seven times in solitary confinement in a disciplinary cell. In 2000 he was recognised as a persistent offender and placed in stricter conditions of detention. All these measures were applied lawfully. Mr Shumkov was hot-tempered, tended to create conflicts, behaved defiantly and did not react to admonitions. 60. In an undated certificate prison officer A. stated that throughout the term of his imprisonment Mr Shumkov had physically resisted prison officers, provoked conflicts with other inmates, behaved aggressively and breached disciplinary regulations. 61. In two undated certificates prison officers U. and E. stated that in 1999 they had served in correctional facility IK-6. They submitted that Mr Shumkov had been mentally unstable and had repeatedly created conflicts with other detainees, which was the reason for his subsequent transfer to a different correctional facility. A number of times he had attempted to commit acts of self-mutilation by cutting his forearms. He had also regularly been admitted for treatment in prison hospital no. 1. 62. In a certificate of 16 April 2009 prison officer B. stated that during the term of his imprisonment Mr Shumkov had on a number of occasions been subjected to disciplinary sanctions for disobedience, insults and conflicts with other inmates. He had often been aggressive and violent. Such behaviour had been caused not only by his psychological particularities but by a manifest unwillingness to follow the prison rules. 63. In a report of 20 April 2009 prison officer P-na stated that from 1996 to 2000 she had held a post as inspector of the living quarters. She remembered Mr Shumkov as a frequent offender who had behaved defiantly towards other detainees, which had often caused conflicts. 64. On 2 August 2001 inspector K. of correctional facility IK-20 drew up an internal inspection report concerning the incident of 1 August 2001. According to the report, the use of rubber truncheons in respect of Mr Shumkov was lawful and proportionate. 65. On 15 August 2002 the Ust-Kuta Prosecutor’s Office refused to institute criminal proceedings against officers L. and S. in respect of the events of 1 August 2001. The decisions stated, inter alia: “On 1 August 2001 [the detainee Mr] Shumkov committed an act of self-mutilation having slashed his veins. However, he was provided with medical aid in due time. After [officers L. and S.] asked [Mr] Shumkov to return to his cell, the latter refused, grabbed [L.’s] uniform, swore at him and threatened him with physical violence. So as to prevent the unlawful threats of [Mr] Shumkov, [L. and S.], using physical force and rubber truncheons, placed him in the cell. [Thereafter] [Mr] Shumkov was examined by a member of staff of the medical unit, who noted bruises on his body and extremities. Taking into account the foregoing, as well as the fact that [officers L. and S.] used [rubber truncheons] and physical force in respect of [Mr] Shumkov after the latter’s refusal to comply with their lawful orders, the institution of criminal proceedings against [L. and S.] should be refused for lack of corpus delicti.” 66. Article 20 of the Constitution of the Russian Federation protects the right to life. 67. The Health Care (General Principles) Act of 22 July 1993 provides that persons serving a sentence in prisons are entitled to medical assistance at the State’s expense and, as the case may be, at institutions run by the general public health service (section 29). 68. The Correctional Institutions Act of 21 July 1993 provides that correctional institutions are responsible for inmates’ security and healthcare (section 13). 69. Article 18 of the 1997 Code on the Execution of Sentences, as it read at the material time, provided that inmates suffering from a psychiatric disorder which did not attain the degree of legal insanity could be subjected to compulsory medical treatment subject to authorisation by a competent court. Such inmates included persons who posed a danger to others or themselves, in which case the prison authorities had to apply for a court order for their compulsory medical treatment. 70. Article 101 of the 1997 Code on the Execution of Sentences, as it read at the material time, provided that medical units and hospitals, including specialised psychiatric and tuberculosis hospitals, were available within the penal system to provide medical care for inmates (§ 2). Medical aid should be provided in accordance with the laws of the Russian Federation and statutory instruments of the Ministry of Justice and the Ministry of Healthcare (§§ 1 and 5). 71. According to the Internal Regulations of Correctional Institutions, adopted by order no. 330 of the Ministry of the Interior of 30 May 1997, in force in the relevant part until 7 September 2001, a correctional facility provided medical examinations, supervision and treatment of inmates using the means and facilities recommended by the Ministry of Healthcare. In instances where medical aid could not be provided in a medical institution within the penal system the inmate could be transferred to a medical institution within the ordinary healthcare system (section 19). 72. The Internal Regulations further provided that inmates placed in disciplinary cells or solitary confinement could not take foodstuffs and personal items to their cell, except for a towel, a piece of soap, toothpaste and a toothbrush (section 23). Annex 1 to the Internal Regulations listed items whose use was forbidden in a correctional facility, including knives and other sharp cutting or piercing objects. 73. Annex 1 to the Internal Regulations of Correctional Institutions, adopted by order no. 224 of the Ministry of the Interior of 30 July 2001, which from 7 September 2001 (the new Regulations) replaced the Internal Regulations adopted on 30 May 1997, listed items whose use was forbidden in a correctional facility, including knives, straight razors and blades for safety razors. The Internal Regulations were published in the Bulletin of Statutory Acts of the Federal Bodies of Executive Power (no. 35 of 27 August 2001). 74. Under the new Regulations it was permitted to inmates placed in disciplinary cells or solitary confinement to take with them to their cell a towel, a piece of soap, toothpaste and a toothbrush, toilet paper, hygienic items (for women), newspapers and magazines they were subscribed to, religious literature and objects of cult (section 23). 75. The Instruction on Supervision of Inmates held in Correctional Facilities, adopted by order no. 83 of the Ministry of Justice of 7 March 2000, as in force at the relevant time, provided that officers responsible for supervision of inmates held in disciplinary cells monitored the inmates’ presence and conduct by means of constant surveillance through inspection holes in the doors of the cells. Officers on duty had to call for a doctor for inmates requiring medical aid (section 5.1.3). In the event of sudden illness, self-mutilation or a suicide attempt on the part of an inmate, a junior officer immediately had to alert the officer on duty and, upon the latter’s arrival, and having ensured that it was not a case of simulation, would open the cell and provide the inmate with the requisite aid. The officer on duty would then decide what further action to take (section 5.1.7). 76. The 1960 Code of Criminal Procedure of the RSFSR, which was in force until 1 July 2002, required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed. That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction. The decision whether or not to institute criminal proceedings had to be taken within three days of the first report on the relevant facts (Articles 3 and 108-109). 77. No criminal proceedings could be brought in the absence of a corpus delicti (Article 5). Where an investigating body refused to open or terminated a criminal investigation, a reasoned decision was to be provided. Such decisions could be appealed against to a higher-ranking prosecutor or to a court (Articles 113 and 209). 78. On 1 July 2002 the 1960 Code of Criminal Procedure of the RSFSR was replaced by the Code of Criminal Procedure of the Russian Federation. 79. Article 125 of the new Code lays down a judicial procedure for the consideration of complaints. Orders of an investigator or prosecutor refusing to institute criminal proceedings or terminate a case, and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen’s access to justice, may be appealed against to a local district court, which is empowered to check the lawfulness and grounds of the impugned decisions. | 1 |
dev | 001-107697 | ENG | UKR | CHAMBER | 2,011 | CASE OF ANDRIYEVSKA v. UKRAINE | 4 | Violation of Art. 6-1 | Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 5. The applicant was born in 1957 and lives in Pavlograd. 6. In June 2003 the applicant instituted proceedings for damages against Oranta State Insurance Company in the Babushkinskyy District Court of Dnipropetrovsk (“the Babushkinskyy Court”). 7. On 18 April 2005 the court dismissed the claim as unsubstantiated. 8. On 1 September 2005 and 18 May 2006 the judgment was upheld by the Dnipropetrovsk Regional Court of Appeal and the Supreme Court of Ukraine, respectively. 9. In June 2003 the applicant also instituted proceedings against her former employer, the local police department, seeking recovery of some retirement-related and other payments. 10. On 10 May 2005 the Babushkinskyy Court found against her. 11. On 17 November 2005 the Dnipropetrovsk Regional Court of Appeal upheld the judgment. It stated in the operative part that the applicant had the right to challenge the decision before the Higher Administrative Court within one month. 12. The applicant appealed in cassation. 13. On 3 February 2006 the Higher Administrative Court declined jurisdiction to consider her appeal in cassation on the ground that the case was of a “civil” rather than an “administrative” nature and therefore the Supreme Court was the correct court of cassation. 14. The applicant resubmitted her appeal in cassation to the Supreme Court. On 5 June 2006 the latter, referring to Article 210 of the Code of Administrative Justice, declined jurisdiction asserting that, in fact, the Higher Administrative Court was the appropriate forum for the case. 15. The relevant domestic law and documents of the Council of Europe are quoted in the judgment in Bulanov and Kupchik v. Ukraine (nos. 7714/06 and 23654/08, §§ 20-25, 9 December 2010). | 1 |
dev | 001-85805 | ENG | GBR | ADMISSIBILITY | 2,008 | HATTEN v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi | The applicant, Mr Alan Hatten, is a British national who was born in 1941 and lives in Devon. 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 27 February 1997. On 8 August 2001 the applicant applied for widows’ benefits. On 20 September 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The applicant was not in receipt of child benefit at the time of his claim. The domestic law relevant to this application is set out in 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 |
dev | 001-71085 | ENG | POL | ADMISSIBILITY | 2,005 | GRABINSKI v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Aleksander Grabiński, is a Polish national who was born in 1949 and lives in Warsaw. The applicant’s family owned a plot of land with a surface area of 1454 sq. m. situated in the very centre of Warsaw, at the junction of Jerusalem Avenue and Marszałkowska Street. The applicant is one of the heirs of the owners of that property. By virtue of the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw (“the 1945 Decree”) the ownership of all private land was transferred to the City of Warsaw. On 30 September 1948 the applicant’s family filed an application for the grant of the right of temporary ownership (własność czasowa) of the plot of land pursuant to section 7 of the 1945 Decree (“the 1948 application”). On 14 September 1953 the Board of the Warsaw National Council (Prezydium Rady Narodowej) refused the application and ruled that, consequently, the ownership of all the buildings located on the plot of land at issue be transferred to the State. On 25 January 1954 the competent Minister upheld that decision. In the meantime, the Law of 20 March 1950 on the Local State Administration entered into force on 13 April 1950. According to section 32 § 2 of that Law, the ownership of all property previously held by the local governments was transferred to the State. In 1955 the State constructed the Metropol Hotel on the part of the plot which was formerly owned by the applicant’s family. Following the re-establishment of the local government in Poland, on 27 May 1990 the ownership of a part of the plot of land previously owned by the applicant’s family was transferred to the City of Warsaw by operation of the law. At present, the plot of land of 1454 sq. m, formerly owned by the applicant’s family, is divided into two separate parts. The first part with a surface area of 818 sq. m. is owned by the City of Warsaw and constitutes a part of a larger plot no. 39 with a surface area of 4163 sq. m. The second part with a surface area of 636 sq. m is owned by the State and administered by the Warsaw District Office (Starostwo Powiatu Warszawskiego). Currently, the latter plot is leased to a certain company and used as a car park. On 29 June 1993 the Board of the Union of Warsaw Municipalities (Zarząd Związku Dzielnic Gmin Warszawy) issued a decision declaring that as of 5 December 1990 the “Syrena” Warsaw Tourist Company was granted the right of perpetual use of the plot of land no. 39 with a surface area of 4163 sq. m located at no. 45 Jerusalem Avenue. On the strength of the same decision the ownership of the buildings attached to that plot, including the Metropol Hotel, was transferred to the “Syrena” company against the payment of a fee. On the relevant date the company was owned by the City of Warsaw. On 1 October 1992 S.P., another heir of the applicant’s family, filed with the Minister of Planning and Construction (Minister Gospodarki Przestrzennej i Budownictwa) an application for annulment of the administrative decisions refusing the grant of the temporary ownership. On 24 March 1993 the Minister quashed the decisions of the Board of the Warsaw National Council of 14 September 1953 and the relevant Minister of 25 January 1954. Consequently, the competent administrative authorities were required to rule on the 1948 application for the grant of the right of perpetual use, which replaced the former temporary ownership. The applicant and other heirs of the previous owners were, as their legal successors, the parties to the subsequent proceedings. Following the above decision, on 14 July 1994 the Minister of Planning and Construction awarded the applicant and other heirs compensation in the amount of PLZ 12,764,569,000. It appears that that decision has not been enforced. On 29 April 1995 the Minister of Planning and Construction instituted ex officio proceedings with a view to having his earlier decision of 24 March 1993 annulled. On 9 July 1996 the Minister declared the decision of 24 March 1993 null and void. On 20 July 1996 the applicant and S.P. made an application to the President of the Office for Housing and Urban Development (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast) for reconsideration (wniosek o ponowne rozpatrzenie sprawy) of the decision of 9 July 1996. On 28 February 1997 the President of that Office upheld the decision of 9 July 1996. The applicant appealed against that decision and the earlier decisions of the Minister of Planning and Construction to the Supreme Administrative Court (Naczelny Sąd Administracyjny). On 15 May 1997 the Supreme Administrative Court ordered that the enforcement of the decision of 28 February 1997 be stayed. On 11 December 1998 the Supreme Administrative Court quashed both contested decisions, considering that there were no grounds on which to hold that the decision of 24 March 1993 could be declared null and void. As a consequence of that judgment, the 1948 application for the grant of the right of perpetual use filed by the applicant’s family was yet to be examined. On 11 June 1996 the Board of the City of Warsaw (Zarząd Miasta Stołecznego Warszawy) decided ex officio to stay the proceedings until the termination of the proceedings instituted by the Minister of Planning and Construction in 1995 (see above). The applicant appealed against that decision. On 29 August 1996 the Warsaw Local Government Board of Appeal (Samorządowe Kolegium Odwoławcze) quashed the decision of 11 June 1996. On 19 August 1997 the applicant wrote a letter to the Board of the City of Warsaw, inquiring about the progress in the proceedings following the decision of the Board of Appeal of 29 August 1996. He demanded an explanation about the delays in the proceedings. On 12 November 1997 the Board of the City of Warsaw decided to discontinue the proceedings, considering that they had become devoid of purpose. It observed that the 1948 application for the grant of the right of perpetual use had been already dismissed, and that the application for the annulment of the latter decision had failed. The applicant appealed against that decision. On 24 March 1998 the Local Government Board of Appeal quashed the impugned decision and remitted the case for re-examination. On 19 June 1998 the applicant filed with the Board of Appeal a complaint about the inactivity of the Board of the City of Warsaw. On 14 July 1998 the Board of the City of Warsaw stayed the proceedings until the termination of the proceedings before the Supreme Administrative Court concerning an appeal against the decision of the President of the Office for Housing and Urban Development of 28 February 1997. On 13 August 1998 the Warsaw Local Government Board of Appeal ordered the Board of the City of Warsaw to issue a decision in the case by 30 September 1998. On 16 January 1999, following the judgment of the Supreme Administrative Court of 11 December 1998, the applicant requested the Warsaw Mayor to grant him the right of perpetual use. In January 1999 the Mayor of Warsaw began negotiations with the applicant and other heirs of the former owners with a view to renouncing their claims to the plot of land at issue in exchange for an alternative plot. On 23 March 1999 the applicant and other heirs accepted the Mayor’s proposal. However, on 29 April 1999 the Deputy Mayor of Warsaw informed them that he had to withdraw from the negotiations as there were grounds on which the 1948 application could be dismissed. On 1 June 1999 the Board of the City of Warsaw refused the application. It observed that the plot of land of specific surface and shape, which had been the subject of the application, was not in existence at the time of the issuing of the present decision. Moreover, it noted that on part of the plot of land formerly owned by the applicant’s family, the State had constructed the Metropol Hotel. Thus, it considered that it was not possible to mark off the plot of land which was the subject of the application. In addition, the Board of the City of Warsaw noted that the “Syrena” company had been granted the right of perpetual use of the plot of land which partly overlapped with the plot of land at issue by virtue of a decision of 29 June 1993. On 21 June 1999 S.P., one of the heirs of the applicant’s family, lodged an appeal against the decision of the Board of the City of Warsaw. On 1 June 2000 the Warsaw Local Government Board of Appeal upheld the contested decision. On 30 June 2000 S.P. lodged an appeal with the Supreme Administrative Court against the decision of the Warsaw Local Government Board of Appeal. On 27 February 2002 the Supreme Administrative Court quashed the impugned decision and the earlier decision of the Board of the City of Warsaw. It considered that section 7 of the 1945 Decree laid down two requirements which had to be met in order to grant the right of perpetual use of land, i.e. the filing of the application in time and the compatibility of the intended use of the land with the local development plan. The Supreme Administrative Court observed that the relevant application had been lodged in time. However, the administrative authorities had not at all examined the second requirement laid down in the 1945 Decree, but had instead based their decisions on grounds which were not provided in the relevant law. Lastly, the Supreme Administrative Court instructed the administrative authorities to examine the heirs’ intentions as to the use of the land at issue. It further emphasised that if the intended use was compatible with the local development plan, the administrative authorities were under an obligation to grant the application. On 13 August 2002 the Board of the City of Warsaw informed the applicant and other heirs that due to the complex nature of the case a decision would be issued by 30 November 2002. On 25 April 2003 the applicant lodged with the Warsaw Local Government Board of Appeal a complaint about the inactivity of the Board of the City of Warsaw. On 30 May 2003 the applicant informed the Board that he intended to use the plot of land at issue in accordance with the local development plan. On 9 December 2003 the Mayor of Warsaw, who in the meantime had assumed the competences of the Board of the City of Warsaw, issued his decision in the case. He refused the application, considering that the use of the plot by the heirs of the former owners would not be compatible with the local development plan adopted on 9 February 1993. In particular, the Mayor found that one part of the plot at issue was designated partly for walkways and green areas, and partly for the junction of Jerusalem Avenue and Marszałkowska Street which was an important area for public transport in the whole city centre. In respect of the other part of the plot at issue, the Mayor considered that the Metropol Hotel stood on it and that it was not feasible to detach from the existing larger plot a part which was owned by the applicant’s family. He also had regard to section 31 of the Land Administration Act (ustawa o gospodarce nieruchomościami) which provided that in the case of a plot of land with a building situated on it, the grant of the right of perpetual use of the plot was to be effected with the simultaneous acquisition of the buildings located on the plot. However, the building of the Metropol Hotel was owned by the “Syrena” company and could not be split so as to reflect the borders of the estate formerly owned by the applicant’s family. Furthermore, the application could not be granted because the right of perpetual use of the plot of land which partly overlapped with the plot at issue, had been awarded to the “Syrena” company on the strength of the decision of 29 June 1993. On 24 December 2003 the applicant filed an appeal against the decision of the Mayor of Warsaw to the Warsaw Local Government Board of Appeal. On 24 February 2004 the applicant lodged with the Supreme Administrative Court a complaint about the inactivity of the Warsaw Local Government Board of Appeal. It appears that the proceedings are pending. On 5 February 1999 the applicant requested the Warsaw District Office to grant him the right of perpetual use of the plot of land owned by the State Treasury. On 11 March 1999 he lodged with the Warsaw Governor a complaint about the inactivity of the Warsaw District Office. On 23 March 1999 the Warsaw District Office asked the Board of the City of Warsaw to provide the relevant documents concerning the status of the property at issue. On 10 May 1999 the relevant documents were submitted to the District Office. On 25 May and 16 June 1999 the District Office requested the Warsaw-Centre Municipality to submit some additional documents. On 9 July 1999 the applicant filed with the Warsaw Governor a second complaint about the inactivity of the District Office. On 9 August 1999 the District Office requested the Warsaw-Centre Municipality to provide information as to the use of the plot of land at issue as provided in the local development plan. The requested information was submitted on 17 August 1999. On 30 August 1999 the Warsaw Governor ordered the Warsaw District Office to issue a decision in the applicant’s case within one month. On 8 October 1999 the District Office informed the applicant that due to the complex nature of the case a decision would be issued by 15 January 2000. On 4 January 2000 the Warsaw District Office refused to grant the right of perpetual use in respect of the plot owned by the State Treasury, considering that that plot was designated in the local development plan for a street, i.e. for public use. The applicant appealed against that decision. On 7 September 2000 the Warsaw Governor upheld the decision of the Warsaw District Office. S.P. lodged an appeal against the decision of the Governor with the Supreme Administrative Court. On 12 March 2002 the Supreme Administrative Court quashed the decision of the Warsaw Governor of 7 September 2000 and the earlier decision of the Warsaw District Office as they were issued in breach of section 7 of the 1945 Decree. It considered that the use of the plot of land at issue by the successors of the former owners would not be incompatible with the local development plan. On 7 June 2002 the Warsaw District Office informed the applicant that it would not be possible to conclude the proceedings within the time-limit specified in Article 35 of the Code of Administrative Procedure due to the need to undertake further examination of the application. It appears that the proceedings are pending. On 10 May 1996 S.P., one of the heirs, filed with the Board of the City of Warsaw an objection against the auction for the sale of shares in the “Syrena” company. On 17 September 1996 the applicant made an application to the Warsaw Local Government Board of Appeal for annulment of the decision of the Board of the Union of Warsaw Municipalities of 29 June 1993 (see above part 1). On 31 October 1996 the Board of Appeal refused to institute the proceedings. On 20 November 1996 the applicant filed an application for reconsideration of that decision. On 30 December 1996 the Board of Appeal decided to stay the proceedings until the termination of the proceedings pending before the Minister of Planning and Construction (see part 2. above). On 7 October 1997 the Board of Appeal quashed its earlier decision of 31 October 1996. On 26 November 1997 it refused that application. The applicant filed an application for reconsideration of the matter. On 17 September 1998 the Board of Appeal quashed its earlier decision and refused to institute proceedings for the annulment. The applicant appealed against that decision to the Supreme Administrative Court. On 19 November 1998 the Supreme Administrative Court stayed the proceedings until the termination of the proceedings concerning the application for annulment of the Minister of Planning and Construction’s decision of 24 March 1993. The proceedings were resumed on 27 September 2002. On 11 December 2002 the Supreme Administrative Court quashed the decision of the Board of Appeal of 17 September 1998 on procedural grounds. Consequently, the Board of Appeal was to examine the applicant’s application for annulment again. On 20 June and 20 December 2003 the applicant requested the Board of Appeal to expedite the proceedings. On 10 December 2003 the Board of Appeal quashed its earlier decision of 26 November 1997 and declared null and void the decision of the Board of the Union of Warsaw Municipalities of 29 June 1993 as having been issued in manifest breach of the law. It considered that the decision of 29 June 1993 had been issued in a flagrant violation of the rights of the heirs of the former owners, as their application for the grant of the right of perpetual use was pending at the material time. It further observed that the heirs’ claims to the plot of land formerly owned by their family had to be examined prior to the decision on the use of land by the “Syrena” company. In accordance with the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw (dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy, “the 1945 Decree”) the ownership of all land in Warsaw was transferred to the City of Warsaw. The 1945 Decree provided, in so far as relevant: “Section 5. Buildings and other objects located on the land, which is being transferred to the municipality’s ownership, remain the property of those who have owned them so far, unless specific provisions provide otherwise. ... Section 7. (1) The owner of a plot of land ... can within six months after the taking of possession of the land by the municipality file a request to be granted ... the right to a perpetual lease (wieczysta dzierżawa) with a peppercorn rent (czynsz symboliczny). ... (2) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan (plan zabudowania). ... (4) In case the request is refused, the municipality shall offer the person entitled, as long as it has spare land in its possession, a perpetual lease of land of equal value, on the same conditions, or the right to construct on such land. (5) In case no request, as provided for in paragraph (1), is filed, or the former owner is for any other reasons not granted a perpetual lease or the right to construct, the municipality is obliged to pay compensation pursuant to Article 9. Section 8. In case the former owner is not granted the right to a perpetual lease or the right to construct, all buildings located on the land shall become the property of the municipality, which is obliged to pay, pursuant to Article 9, compensation for the buildings which are fit to be used or renovated. Section 9. ... (2) The right to compensation begins to apply six months after the day of taking the land into possession by the municipality of Warsaw and expires three years after that date. ...” Pursuant to section 32 § 2 of the Law of 20 March 1950 on the Local State Administration which entered into force on 13 April 1950, the ownership of all property previously held by the local governments was transferred to the State. In 1990 the local government was re-established. According to the section 5 § 1 of the Law of 10 May 1990 the ownership of the land which had previously been held by the State Treasury and which was within the administrative territory of municipalities, was transferred to the latter. Under Article XXXIX of the Decree of 11 October 1946 introducing the Property Law (prawo rzeczowe) and the Law on Land and Mortgage Registers, the right to construct and the right to a perpetual lease could be transferred into temporary ownership (własność czasowa). Section 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates (Ustawa o gospodarce terenami w miastach i osiedlach) replaced temporary ownership with the right of perpetual use (użytkowanie wieczyste). The right of perpetual use is defined in Articles 232 et seq. of the 1964 Civil Code as amended (Kodeks Cywilny). It is an inheritable and transferable right in rem which, for 99 years, gives a person the full benefit and enjoyment of property rights attaching to land owned by the State Treasury or municipality. It has to be registered in the court land register in the same way as ownership. The transfer of that right, like the transfer of ownership, can be effected only in the form of a notarised deed, on pain of it being void ab initio. The “perpetual user” (użytkownik wieczysty) is obliged to pay the State Treasury (or the municipality, as the case may be) an annual fee which corresponds to a certain percentage of the value of the land in question. In 1997 Law on Transforming Perpetual Use Vested in Individuals into Ownership (ustawa o przekształceniu prawa użytkowania wieczystego przysługującego osobom fizycznym w prawo własności) was enacted. The law guarantees individuals who acquired perpetual use of property before 31 October 1998 the right to have that right transformed into ownership. Article 6 § 1 (6) of that law provides that individuals who acquired the right to perpetual lease under article 7 of the 1945 decree are entitled to such transformation free of charge, regardless of when they acquired their right to a perpetual lease. Requests for the transformation could have been submitted until the end of 2002. Article 35 of the Code of Administrative Procedure of 1960 lays down time-limits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. If these time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent such delays in the future. On 1 October 1995 a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) came into force. According to the provisions of section 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint about inactivity on the part of an authority obliged to issue an administrative decision. Section 26 of the Law provides: “When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.” Pursuant to section 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question. | 0 |
dev | 001-113636 | ENG | POL | CHAMBER | 2,012 | CASE OF RUSIN v. POLAND | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicant was born in 1959 and lives in Ostrów. 6. The applicant is married with three children. Prior to her application for an early-retirement pension she had been employed and paid social security contributions to the State. 7. On 13 August 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 8. Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health condition, a medical certificate issued by a specialist medical centre on 20 July 2001. The certificate stated that the child J. (born in 1988) suffered from a renal condition and scoliosis and that she was in need of her parent’s constant care. 9. On 29 August 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension as of 1 August 2001 in the net amount of 653 Polish zlotys (PLN). 10. The Social Security Board initially suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision. On 21 September 2001 the applicant resigned from her fulltime job in a private company where she had been working since 1985. Afterwards, payment of the pension was resumed. 11. On 4 June 2002 the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. On 10 July 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 12. On 26 July 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance. 13. The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights. 14. On 7 March 2003 the Rzeszow Regional Court (Sąd Okręgowy) dismissed the appeal. The Regional Court concluded on the basis of the evidence that the applicant’s child did not require her mother’s permanent care since her health condition did not significantly impair her bodily functions. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care. 15. The applicant further appealed against the first-instance judgment. 16. On 17 October 2003 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal. 17. On 17 March 2004 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant. 18. Following the social security proceedings the applicant was not ordered to return her early-retirement benefits paid by the Social Security Board, despite the revocation of her right to an earlyretirement pension. 19. The applicant submitted that after the revocation of pension on 26 July 2002 for five years she had been unsuccessfully looking for job but had received no unemployment or other benefits from the State during that time. Between May 2007 and June 2008 the applicant was offered a paid traineeship by the unemployment office in the amount of PLN 700 per month. The applicant was afterwards employed from June 2008 to June 2010. 20. The Government submitted that the applicant’s husband and two adult children were employed. They stated that in 2009 the applicant earned PLN 16,000. Moreover, the applicant and her husband owned a small farm. 21. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation. 22. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2019. 23. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region. 24. Out of all applications lodged with the Court, about twentyfour applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case. 25. One hundred-and-four applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eightyone applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements. 26. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 31-34, 15 September 2009. 27. The social security scheme for farmers is regulated by the Farmers’ Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników). 28. The reopening of the proceedings concerning the earlyretirement pension is regulated in section 114 (1) of the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych), which at the relevant time read as follows: “The right to benefits or the amount of benefits will be re-assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.” On 1 July 2004 a new subparagraph 114 (1) a was added, which reads as follows: “Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.” 29. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a second-instance court. A party had to be represented by an advocate or a legal adviser. 30. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 31. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was wellfounded the Supreme Court could also amend the impugned judgment and adjudicate on the merits. 32. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 § 3 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an age-limit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution. 33. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 § 3 of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits. 34. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted. 35. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted. | 1 |
dev | 001-91479 | ENG | MDA | CHAMBER | 2,009 | CASE OF DACIA S.R.L. v. MOLDOVA | 3 | Pecuniary and non-pecuniary damage - award | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 5. The applicant, Dacia S.R.L., is a company incorporated under the laws of the Republic of Moldova. 6. In 1997 the Moldovan Parliament enacted legislation for the privatisation of certain items of State property, including the “Dacia” hotel. On 29 January 1999 the applicant company was declared the successful bidder in the auction held for the sale of the hotel. It paid 20,150,000 Moldovan lei (MDL) (2,305,043 United States dollars at the time). On 13 September 1999 the applicant company purchased from the Chişinău municipality the 0.21 hectares of land on which the hotel was situated, for MDL 50,840 (4,395 euros (EUR) at the time). 7. According to the applicant company, in the years following the purchase of the hotel large sums of money were spent on its renovation and the purchase of new furnishings and equipment. 8. On 11 January 2003 the Prosecutor General’s Office initiated court proceedings, seeking the annulment of the hotel’s privatisation and repayment to the applicant company of the price paid. On 6 June 2003 the Economic Court of Moldova accepted the Prosecutor General’s request and annulled the privatisation of the hotel. The court ordered the return of MDL 20,150,000 to the applicant company and the return of the hotel to the State. 9. The applicant company’s appeal was left without examination by the Supreme Court of Justice on 8 July 2003 because of a failure to pay court fees in full. 10. In separate proceedings, which ended with a judgment of the Supreme Court of Justice on 19 February 2004, the sale of the land underlying the hotel was also annulled. 11. The judgment of 6 June 2003 was fully enforced in instalments in the period between 13 April and 27 October 2004. The sum of MDL 20,150,000 was the equivalent of approximately EUR 1,342,590 in October 2004. 12. The applicant company initiated court proceedings against the Government, claiming compensation for damage caused to it as a bona fide buyer of the hotel. It paid MDL 484,733 in court fees. On 10 March 2005 the Appellate Chamber of the Economic Court of Moldova rejected these claims. On 4 May 2005 the Supreme Court of Justice dismissed the applicant company’s request for a court fee waiver owing to its inability to pay. It informed the applicant company that the appeal could not be examined on account of the failure to pay the court fees in full. The new time-limit for paying the court fees was 25 May 2005; the applicant company did not meet this deadline. 13. The applicant company hired an expert to make a valuation of the current market price of the hotel and underlying land. The expert explained that he was able to make the valuation only if he had access to the hotel itself and all its documents, including documents from the State-controlled real-estate register. Since the hotel is currently owned by the State, on 9 April 2008 the applicant company sought the assistance of the Government Agent’s office in ensuring the expert’s access to the hotel and the relevant documents. In a letter dated 23 April 2008 the Government Agent informed the applicant company that it should contact the hotel’s administration and the real-estate registry. 14. On 29 April 2008 the applicant company asked the hotel’s administration to allow the expert access to the hotel. In another letter on the same day, the applicant company asked the real-estate registry to allow its expert access to the relevant documents. In a letter dated 5 May 2008 the hotel’s administration informed the applicant company that permission from the Government was necessary in order to ensure access to the hotel. In a letter dated 15 May 2008 the real-estate registry informed the applicant company that it was not authorised to grant access to the requested documents, since it “did not offer such a service”. 15. On 8 May 2008 the Supreme Court of Justice made an attachment order, prohibiting the disposal of the hotel. On the same day, the applicant company asked the Government to allow its expert access to the hotel. It received no answer. On 11 May 2008 the applicant company informed the Government Agent about the situation and asked for his assistance in obtaining access to the hotel and the relevant documents. It also noted that the refusal to grant such access might be considered as a violation of its rights guaranteed by Article 34 of the Convention. The applicant company did not receive a reply to this letter. 16. On 29 April 2008 the applicant company lodged with the Supreme Court of Justice a request for the annulment of the judgment of 6 June 2003 and subsequent related judgments against it, referring to the principal judgment as a ground for its request. The applicant company also sought the attachment of the hotel’s building, land and bank accounts pending examination of its request. 17. At the first hearing of 12 June 2008 the parties were informed of a postponement of the hearing until 3 July 2008 in view of a request by the Government’s Agent. The applicant company asked for a copy of the request, which was refused. It then asked for access to the case-file and found no request from the Government’s Agent, who had not been a party to any of the domestic proceedings in 2003 and 2005. 18. Before the hearing of 3 July 2008, one of the judges on the bench of the Supreme Court of Justice examining the case was replaced by another judge. During that hearing the Government (plaintiff in the original domestic proceedings and current owner of the “Dacia” hotel) submitted its response to the applicant company’s request of 29 April 2008. They considered, in particular, that awarding the applicant company compensation in the amount of EUR 962,660.70 would constitute sufficient just satisfaction within the meaning of Article 41 of the Convention. 19. Before the next hearing on 17 July 2008 two judges on the bench of the Supreme Court of Justice examining the case were replaced by other judges. The examination of the case started anew. On 21 July 2008 the applicant company’s lawyer examined the case file in order to determine the reasons for the three replacements of judges in the case. He found no such explanation. 20. On 24 July 2008 the Supreme Court of Justice annulled the judgments of 6 June and 27 October 2003 and of 19 February 2004 against the applicant company (see the facts of the principal judgment for more details), and ordered a full re-hearing by the Appeals Chamber of the Economic Court. The proceedings are still pending before that court. 21. On 5 November 2008 the Court asked the parties to submit additional observations by 26 November 2008, limited to the issue of the value of the Dacia hotel, and directed the Government to allow the applicant company access to the hotel and its documents. The applicant company’s expert was then given access to the hotel and its documents. The valuation submitted by the applicant company on 26 November 2008 was prepared by an expert with 30 years’ experience in intellectual property and business valuation and comprised 65 pages and a number of annexes. The final value of the hotel (MDL 98,700,000, approximately EUR 7,612,000) was calculated by using three separate methods of valuation. On 26 November 2008 the Government asked for an extension until 2 December 2008 of the time-limit for submitting their valuation. However, they did not submit any observations by that date. They sent a “preliminary report” on 5 December 2008 on the value of the Dacia hotel. According to that “preliminary report”, made on 1 December 2008, the hotel was worth MDL 29,124,000 (EUR 2,219,191). The “preliminary report” included five pages, three of which were copies of licences held by the valuer, one page listed the “conditions and disclaimers” concerning the limits of the valuer’s liability and another described the name and address of the Dacia hotel and the amount at which it had been valued. No calculations were included. At the date adoption of its judgment, the Court had not received the final report of the valuer hired by the Government. 22. Article 619 of the Civil Code reads: “(1) Default interest is payable for delayed execution of pecuniary obligations. Default interest shall be 5% above the interest rate provided for in Article 585 [National Bank of Moldova refinancing interest rate] unless the law or the contract provides otherwise. Proof that less damage has been incurred shall be admissible. (2) In non consumer-related situations default interest shall be 9% above the interest rate provided for in Article 585 unless the law or the contract provides otherwise. Proof that less damage has been incurred shall be inadmissible.” | 0 |
dev | 001-91242 | ENG | FIN | CHAMBER | 2,009 | CASE OF EERIKAINEN AND OTHERS v. FINLAND | 2 | Violation of Art. 10;Pecuniary and non-pecuniary damage - award | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 7. The first applicant was born in 1946 and lives in Kauvatsa. The second applicant was born in 1942 and was resident in Härmä at the time of his death. 8. The first applicant is a freelance journalist. In 1997 he wrote an article about criminal proceedings which were then pending before the Turunseutu District Court (käräjäoikeus, tingsrätten). Those proceedings were public in nature. A defendant, X, was charged with various counts of tax fraud and aggravated fraud for allegedly deceiving the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) and insurance companies. The article was published in issue no. 6/1997 of the magazine Alibi, and entitled: “It seemed legal, but... a woman entrepreneur cheated to obtain a pension of over 2 million marks?” (In Finnish: Näytti lailliselta, mutta... yrittäjärouva huijasi yli 2 miljoonan eläkkeen?). The article did not mention X’s name. In the magazine’s table of contents, however, her first name was mentioned. The article included a reproduction of an article which had been published eight years previously with two photographs of X. That article, written by the first applicant, had been published in another magazine and mentioned X’s full name and included two photographs of her, one taken inside her home and another in her garden. The article was about a house purchased by the applicant which turned out to be full of rising damp. This situation naturally made her extremely miserable as she had spent her money on an uninhabitable house. 9. In September 1997 X lodged a criminal complaint, and proceedings were instituted against the applicants. On 18 December 1997, however, the Espoo District Court dismissed the charges. X appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten), which upheld the judgment on 1 April 1999. X was ordered to reimburse the applicants’ legal costs. 10. Subsequently, X brought civil proceedings against the applicants before the Espoo District Court. She claimed that the said article had incriminated and insulted her and, in the alternative, that her picture had been published without her consent, causing her mental suffering. She requested compensation for non-pecuniary damage amounting to 250,000 Finnish marks (FIM) (approximately 42,047 euros (EUR)). In the alternative, she claimed compensation for the publication of her picture and non-pecuniary damages amounting to FIM 125,000 (EUR 21,023). She also claimed pecuniary damages amounting to FIM 29,234 (EUR 4,917). In a hearing before the court she claimed that publication of the article and photograph had amounted to an invasion of her privacy. 11. In its judgment of 31 March 1998 the District Court found that, given that X had been only a suspect at the time and the criminal case against her had still been pending, it had been wrongly alleged in the table of contents and in the headline of the article that she had obtained pension payments by fraud. The case thus amounted to defamation, as set out in Chapter 27 of the Penal Code (rikoslaki, strafflagen). The court found that other parts of the article were not defamatory. Under the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974), the court ordered the applicants jointly and severally to pay X FIM 80,000 (EUR 13,455) for non-pecuniary damage and FIM 27,554 (EUR 4,634) for pecuniary damage, and to pay her legal costs. Finally, it found that, having regard to the above, there was no need to adjudicate on her second claim. 12. The applicants appealed to the Helsinki Court of Appeal, asserting their right to freedom of expression. X also appealed, requesting that the amount of damages be increased. 13. On 8 December 1999, without holding an oral hearing, the appellate court quashed the judgment, reasoning, inter alia, that: “... It was clear from the text of the article that it concerned a pending public trial. X’s identity was not revealed in the headline, thus she could not be assumed to be guilty of an offence only by reading the headline. Neither was her identity disclosed in the table of contents; to identify her required reading through the article. The text of the article is not defamatory or slanderous on the grounds set out in the District Court’s judgment. Publishing an article about charges brought before a public trial is justified, even though it might cause suffering for the accused. The act did not amount to defamation ... ... the crimes allegedly committed cannot be regarded as minor, taking into account their extent, effects and social importance. An article about this kind of case, and the publication of a photo from which [X] could have been identified, is not a violation of her privacy.” 14. X applied for leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). 15. On 21 November 2000 the Supreme Court granted leave to appeal. On 26 September 2001 it issued its judgment, which became a precedent (KKO 2001:96). The Supreme Court ruled that, in line with the grounds of the Court of Appeal’s judgment, the applicants were not guilty of defamation. It found, however, that by attaching the said illustration (in Finnish: kuvitus; that is by reproducing the old article which included X’s name and photographs), the applicants had violated her right to privacy, and ordered them jointly to pay FIM 20,000 (EUR 3,364) for non-pecuniary damage together with interest from the service of the summonses in 1997 and to reimburse her legal costs. The court reasoned, inter alia, that: “... On the grounds mentioned in the Court of Appeal’s judgment, the Supreme Court considers that [the first and the second applicants] have not committed an act of defamation within the meaning of Chapter 27, Article 1 or 2 of the Penal Code as in force at the time of the act. [see paragraph 13 above] The question thus raised by this case is whether [the first and the second applicants] without a legal right through the use of a mass medium or in another similar manner have publicly spread information, an insinuation or an image depicting the private life of [X] which has been conducive to causing her damage or suffering and are thereby guilty of invasion of privacy within the meaning of Chapter 27, Article 3a, of the Penal Code as in force at the time of the publishing of the article. According to this provision of law, making public [an article that discusses] a person’s actions in public office or function, in business life, in a political or other comparable activity, is not to be considered an invasion of privacy if the reporting is necessary to address a matter of social importance. As noted in the travaux préparatoires (HE no. 84/1997 vp ...) this is relevant chiefly in domains where decision-making takes place or in which the circumstances in reality may affect the every-day life of several persons or which have relevance of principle. According to the travaux préparatoires, such domains are first and foremost the attendance to a public office or function, business life and political activity. According to the said provision, what is essential is whether there is a significant social need to discuss the acts of the person concerned by making public facts which would otherwise belong to the sphere protected by the right to respect for private life. The criminal case, which has been the object of the article published in the Alibi magazine, has concerned, inter alia, the question whether [X] in order to obtain an unlawful financial benefit, by concealing that she received her livelihood as an entrepreneur, had misled the Social Insurance Institution and the insurance companies to grant her a disability pension thereby causing them economic loss. The acts mentioned in the charge related to [X’s] actions as an entrepreneur in a relatively small cleaning firm. Although the criminal case concerned substantial financial benefits, it was not a case which, viewed on its own, was of such general public interest that there would have been grounds to reproduce, as part of an article and without [X’s] consent, another article that included her name and photograph. Although the underlying purpose of the article might have been to draw attention to the abuse of social benefits in general by using an individual case and thus to a negative social phenomenon, it was not necessary or justified to publish without authorisation an illustration revealing the identity of an individual private person charged with or convicted of such an offence and in a similar position to [X]. Thus, [the first applicant], who wrote the article in question and intentionally used as an illustration the afore-mentioned earlier published article written by him and the photograph of X in that connection, and [the second applicant], who in his capacity as the magazine’s editor-in-chief approved the publication of the article, have through their acts without a legal right by the use of a mass medium publicly spread information, an insinuation or photograph depicting the private life of [X] which was conducive to causing her damage or suffering. Whether or not the fact that [X] was recognisable was due to a mistake or other technical factor when the magazine was printed has no relevance in the legal assessment of the acts of [the first and the second applicants] since the article in question together with its illustration has been made public without seeing to and making sure that the typography of the article did not disclose [X’s] identity.” 16. Meanwhile, on 8 May 2000 the Turunseutu District Court convicted X of, inter alia, five offences of tax fraud and two offences of aggravated fraud and sentenced her to an immediate term of one year and ten months’ imprisonment. She was also ordered to pay damages. 17. On 28 June 2002 the Turku Court of Appeal upheld X’s conviction for, inter alia, tax fraud, aggravated fraud and fraud, without amending the sentence. 18. Section 10 (as amended by Act no. 969/1995, which took effect on 1 August 1995 and remained in force until 1 March 2000) of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland, Act no. 94/1919), provided: “Everyone has the right to freedom of expression. The right to freedom of expression entails the right to impart, publish and receive information, opinions and other communications without prior hindrance from anyone. More precise provisions on the exercise of the right to freedom of expression shall be prescribed by an Act of Parliament. Restrictions on pictorial programmes necessary for the protection of children may be prescribed by an Act of Parliament. Documents and recordings in the possession of the authorities are public, unless their publication has, for compelling reasons, been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.” The same provision appears in Article 12 of the current Constitution of 2000 (Act no. 731/1999). 19. Section 8 of the Constitution Act (as amended by Act no. 969/1995) corresponded to Article 10 of the current Constitution, which provides that everyone’s right to private life is guaranteed. 20. Section 39 of the Freedom of the Press Act (painovapauslaki, tryckfrihetslagen; Act no. 1/1919), as in force at the relevant time, provided that the provisions of the Tort Liability Act applied to the payment of compensation for damage caused by the contents of printed material. 21. Chapter 5, section 6, of the Tort Liability Act stipulates that damages may also be awarded for distress arising from an offence against liberty, honour or domestic harmony or from another comparable offence. Under Chapter 5, section 1, of the said Act, damages shall constitute compensation for personal injury and damage to property. Section 2 provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury, as well as loss of income and maintenance and pain and suffering. 22. Chapter 27, Article 3a, of the Penal Code, as in force at the relevant time, provided that a person who unlawfully, through the use of the mass media or in another similar manner, publicly spread information, an insinuation or an image depicting the private life of another person which was liable to cause him or her damage or suffering, should be convicted of invasion of privacy and sentenced to a maximum term of two years’ imprisonment or to a fine. A publication that discussed a person’s behaviour in public office or function, in professional life, in a political or other comparable activity, was not to be considered an invasion of privacy if the reporting was necessary to address a matter of social importance. 23. In 2000, Chapter 27, Article 3a, of the Penal Code was replaced by Chapter 24, Article 8 (Act no. 531/2000). Under the new provision on the injury of personal reputation (yksityiselämää loukkaavan tiedon levittäminen, spridande av information som kränker privatlivet), a person who unlawfully, through the use of the mass media or in another manner, publicly spreads information, an insinuation or an image of the private life of another person in such a way that the act is conducive to causing that person damage or suffering or subjecting that person to contempt, shall be convicted of injuring personal reputation. However, an act shall not constitute an injury to personal reputation if it concerns the evaluation of that person’s activities in a professional or public capacity and if it is necessary for the purpose of addressing a matter of importance to society. According to the Parliamentary Law Committee’s 2000 Report (lakivaliokunta, lagutskottet; LaVM 6/2000), the purpose of that provision is to permit the dissemination of information on the private life of such persons if the information may be relevant in assessing the performance of their functions. 24. Section 2 of the Public Nature of Court Proceedings Act (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång; Act no. 945/1984), as in force at the relevant time, provided that the name, profession and domicile of the parties and the nature of the subject matter and the time and place of a hearing were public information from the beginning of the trial at the latest. Section 3 provided that the public had the right to be present during hearings unless otherwise provided in the relevant legislation. Section 9 stated that the provisions laid down in the Openness of Government Activities Act (laki viranomaisten toiminnan julkisuudesta, lag om offentlighet i myndigheternas verksamhet: Act no. 621/1999) were applicable to trial documents. Information and documents relating to a trial are, as a rule, public once charges have been brought unless provided otherwise by an Act. 25. In a Supreme Court decision (KKO 1980 II 123) the following was noted (summary from the Yearbook): “The accused had picked up a photograph of the plaintiff from the archives of a newspaper and published it in the context of an electoral campaign without the plaintiff’s consent. He was convicted of a violation of private life and ordered, jointly with the political organisations which had acted as publishers, to pay damages for mental suffering.” 26. In June 1997 the Supreme Court delivered two decisions relating to articles which had given information on cases of arson. The first decision (KKO 1997:80) concerned a newspaper article (summary from the Supreme Court’s Yearbook): “A newspaper published an article concerning cases of arson, in which it was said that the suspect was the wife of the head of a local fire department. As it was not even alleged that the head of the fire department had any role in the events, there was no justifiable reason for publishing the information on the marriage between him and the suspect. The publisher, the editor-in-chief and the journalist who wrote the article were ordered to pay compensation for the suffering caused by the violation of the right to respect for private life.” 27. The second decision (KKO 1997:81) concerned an article published in a periodical, which was based on the afore-mentioned newspaper article (see the previous paragraph) and on the records of the pre-trial investigation and the court proceedings, but did not indicate that the newspaper article had been used as a source (summary from the Yearbook): “Compensation was ordered to be paid for the reason that the article violated the right to respect for private life. Another issue at stake in the precedent was the relevance to liability for damages and the amount of compensation in view of the fact that the information had been reported in another publication at an earlier stage.” 28. The article published in the periodical had also mentioned the name and profession of the head of the fire department, although the offence was not related to the performance of his duties. Thus, it had not been necessary to refer to his position as head of the fire department or to his marriage to the suspect in order to give an account of the offence. The fact that the information had previously been published in print did not relieve the defendants of their responsibility to ensure, before publishing the information again, that the article did not contain information insulting the persons mentioned in it. The mere fact that the interview with the head of the fire department had been published in the newspaper did not justify the conclusion that he had also consented to its publication in the periodical. Repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation. The readers of the newspaper and the periodical were partly different, and the circulation of the newspaper apparently did not entirely coincide with that of the periodical. Therefore, and considering the differences in the content and tone of the articles, the Supreme Court found it established that the article published in the periodical was conducive to causing the head of the fire department additional mental suffering. The events reported in the article did not concern the plaintiff’s conduct in the performance of his duties as head of the fire department and it had not been necessary to mention the complainant’s name and profession for the purpose of discussing a matter involving significant public interest or reporting on the offences. By associating the complainant’s name and profession with the offences in question, the article had unlawfully spread information and insinuations concerning his private life likely to cause him damage and suffering. The disclosure of the complainant’s name and the emphasis on his occupation had amounted to an insult. By again reporting on the matter two months after the events had occurred, the periodical was found to have caused the complainant additional suffering for which separate compensation was to be paid. 29. The Supreme Court’s decision of 25 June 2002 (KKO 2002:55) concerned the broadcasting of the name of a woman who, together with a person in a public position, had been a party to an assault. The court found that the facts discussed in the television programme with regard to the woman were part of her private life and enjoyed the protection of privacy. The fines imposed on her as punishment for the assault did not constitute a criminal-law sanction justifying publication of her name. 30. Another decision of 4 July 2005 (KKO 2005:82) concerned an article about a relationship between A, who worked as a press officer for a candidate in the presidential elections, and B, the ex-spouse of a TV journalist. A’s photo was included in the article. The Supreme Court, having assessed the provision on the invasion of privacy in the Penal Code in the light of this Court’s case-law, found that A did not hold a position that meant that such details of her private life were of public importance. The article had thus invaded A’s privacy. 31. In a decision of 19 December 2005 (KKO 2005:136), the Supreme Court noted that an offence is not a private matter of the offender. In principle, however, a person convicted of and sentenced for having committed an offence also enjoys the right inherent in private life to live in peace. According to the Personal Data Act, any information about the commission of an offence and the resulting sentence qualifies as “sensitive” personal data. The publicity per se of criminal proceedings and of related documents does not mean that information made public during the proceedings can be freely published as such by the media. The Supreme Court concluded that publishing the name of a person convicted of, inter alia, assault and deprivation of liberty did not invade his privacy as the person concerned had been convicted of offences of violence which had also degraded the victim’s human dignity. Furthermore, the impugned article did not include his photo. 32. The Union of Journalists in Finland (Suomen Journalistiliitto, Finlands Journalistförbund ry) publishes Guidelines for Journalists (Journalistin ohjeet, Journalistreglerna) for the purposes of self-regulation. The 1992 Guidelines were in force at the material time and provided, inter alia, that the publication of a name and other identifying information in the context of reporting on offences was justified only if a significant public interest was involved. The suspect’s identity was not usually to be published before a court hearing unless there were important reasons relating to the nature of the offence and the suspect’s position which justified publication (Article 26). 33. New Guidelines came into force in 2005, which noted that when publishing public material regard must be had to the protection of private life. The public nature of information does not necessarily mean that it may be published. Special care must be observed when discussing matters concerning a minor (Article 30). The name, photograph or other identifying facts of a convicted criminal may be published unless it is considered unjust in terms of his/her position or offence. As regards a minor or an unaccountable person information should be disclosed with restrain (Article 31). A journalist must be careful not to present information that may lead to the identification of a person in cases where he/she is only a suspect or has merely been charged (Article 32). 34. On 10 July 2003 the Committee of Ministers of the Council of Europe adopted Recommendation No. Rec(2003)13 on the provision of information through the media in relation to criminal proceedings. In point 8 of the principles appended to the recommendation, it considers as follows: “Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” 35. The commentary to the recommendation considers as follows (paragraphs 26 and 27): “Everyone has the right to the protection of private and family life under Article 8 of the European Convention on Human Rights. Principle 8 recalls this protection for suspects, the accused, convicted persons and other parties to criminal proceedings, who must not be denied this right due to their involvement in such proceedings. The mere indication of the name of the accused or convicted may constitute a sanction which is more severe than the penal sanction delivered by the criminal court. It furthermore may prejudice the reintegration into society of the person concerned. The same applies to the image of the accused or convicted. Therefore, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle. An even stronger protection is recommended to parties who are minors, to victims of criminal offences, to witnesses and to the families of suspects, the accused and convicted persons. In this respect, member states may also refer to Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure and Recommendation No. R (97) 13 concerning the intimidation of witnesses and the rights of the defence.” 36. The European Federation of Journalists submitted the following. 37. In France and Spain, there is no restriction on publishing pictures of persons subject to pending criminal proceedings, provided that the journalist, according to generally accepted procedure, clearly and explicitly mentions that the person has not yet been found guilty. 38. In Belgium, there is no restriction on pub1ishing the photograph of a person accused of a crime, unless the person himself/herself or the court explicitly expresses his or her wish not to be photographed or not to be published. In practice, publication of names and photos happens daily, with the clear mention that the person is suspected but not guilty. The Declaration of Duties and Rights of Journalists and the Code of Conduct of Journalism also impose an obligation to check the information, to respect privacy, and to correct false information if necessary. 39. Article 8 of the German Press Code provides that the press must respect the private life and intimate sphere of persons. If, however, the private behaviour of a person touches upon public interests, then it may be reported on in individual cases. Care must be taken to ensure that the privacy rights of uninvolved persons are not violated. The press must respect a person’s right to self-determination concerning information about them and guarantee editorial data protection. 40. The United Kingdom Code of Conduct sets out the basic principles of responsible independent journalism and has been the model for numerous other journalist codes. It states, among other things, that a journalist shall strive to ensure that information disseminated is honestly conveyed, accurate and fair and does nothing to intrude into a person’s private life, grief or distress unless justified by overriding public interest considerations. In addition, the Code of Practice of the Press Complaints Commission states that, in reporting on crime, relatives or friends of persons convicted or accused of crime should not generally be identified without their consent, unless they are genuinely relevant to the story. 41. There is no hard and fast rule in the Finnish Guidelines for Journalists. The 2005 Guidelines urge caution and judgment, especially when a case is only at the accusation stage. However, a public figure is less protected than an ordinary person. A politician or a business leader accused of an offence can be identified for a less serious crime. The gravity of the crime is also an obvious relevant factor. The central question is who is a public figure. There have been cases where spouses, girlfriends or boyfriends of public figures have argued that they were not, and won their case in court. Recently following a school massacre the Minister of the Interior disclosed the name of the killer in a live televised press conference, a few hours after the incident. The police also recently published the name and picture of a man accused of (and later convicted of) spreading HIV, as well as the names and pictures of two escaped convicts. The basis of the decision was public security. Many companies have their own code of conduct. According to most of the companies the name of a convicted person can be published if the sentence is two years or more in prison, that is, where the crime is serious. But this is usually restricted if publishing the name may disclose the identity of the victim (child abuse cases, for example,) or if the person convicted is a minor. | 1 |
dev | 001-100213 | ENG | MLT | ADMISSIBILITY | 2,010 | GREEN AND FARHAT v. MALTA | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicants, Ms Mary Green and Mr Ajad Farhat, are Maltese nationals who were born in 1959 and 1948 respectively and currently live in Marsa, Malta. They were represented before the Court by Dr J. Brincat, a lawyer practising in Malta. The Maltese Government (“the Government”) were represented by their Agent, Dr Silvio Camilleri, Attorney General. The facts of the case, as submitted by the parties, may be summarised as follows. 1. Background The first applicant married Mr X, a Maltese citizen, on 19 June 1978 according to the rites of the Catholic Church and in conformity with Maltese law. In 1980 she went to Libya. She converted to Islam by means of a declaration. As a result of this declaration the first marriage was deemed to be null and void and consequently she was given permission by a Libyan court to marry under the law of Libya. On 7 August 1980 she married the second applicant, according to the rites of Islam. The applicants settled in Libya where they established their matrimonial domicile and lived there, lawfully married, for twenty years. In 1994 the first applicant went to the Public Registry in Malta and filled in an application requesting registration of her wish to revert to her maiden name, in accordance with Article 4 of the Civil Code. She did not inform the Public Registry that she had divorced Mr X or that she had obtained an annulment of that marriage. On 19 May 1994 the applicant’s request was granted. In 2000 the applicants returned to Malta to take care of the first applicant’s father. The first applicant made several attempts to register her new marriage under Article 244 (1) of the Civil Code (see Relevant domestic law) in accordance with the principle of lex loci contractus. This registration would have allowed the second applicant to reside in Malta without the need for a visa. It would have granted him the status of an exempt person under the Immigration Act on the basis that he lived with and was married to a Maltese national. The first applicant based her requests on a document dated 30 January 2001 and 22 September 2002, issued by the Court of First Instance of South Tripoli. According to this document, her previous marriage had been declared null and void upon her conversion to Islam and her marriage to a Muslim man. However, the Director of the Public Registry refused to register the marriage. The first applicant had failed to prove that she had legally released herself from the obligations of her first marriage by providing a court decision demonstrating that it had been annulled or that she had divorced and that her second marriage had not been polygamous, and therefore contrary to Maltese public policy. Moreover, she had failed in the alternative to prove that she was domiciled in Libya since she had retained her Maltese citizenship and had indeed returned to Malta after twenty years. She was informed that it was necessary for her to prove that, before contracting her second marriage, she had been released from her previous marriage in accordance with the provisions of Maltese law regarding capacity to marry (see section 18 (b) of the Marriage Act). She was therefore advised to produce the exequatur of a Maltese court ordering the Director of the Public Registry to register the alleged annulment or divorce obtained, thus allowing him to register her second marriage. In the meantime the first applicant’s father passed away in 2001. However, the applicants remained in Malta to take care of the first applicant’s mother. Meanwhile, the second applicant’s visa was renewed on a concessionary basis. On 1 June 2004 the applicants instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. Invoking Articles 8 and 14 of the Convention, they claimed that the refusal to register their marriage amounted to a breach of their rights and that Maltese marriage law discriminated against Islam. They argued that marriages celebrated anywhere according to the rites of the Catholic Church were easily recognised, but not marriages contracted under other religions. Similarly, any annulment of a marriage by the Catholic Church (including the dispensation of the Holy Pontiff and the “Privilegum Paulinum”) was endorsed for Catholics under Maltese law. On 29 November 2006 the Civil Court dismissed the applicants’ claims for non-exhaustion of ordinary remedies as the first applicant had not brought an action before the Civil Court in accordance with section 33 of the Marriage Act to prove that her first marriage was null and void. However, the court considered the complaints manifestly ill-founded since she had failed to prove her domicile, which was necessary for section 33 of the Marriage Act to apply. She was a citizen of Malta and Maltese law did not recognise divorce on religious grounds. Indeed, under section 24 of the Marriage Act, a decision declaring a Catholic marriage null and void was not automatically registered. In particular, one of the prerequisites was the participation of the spouses during the proceedings. However, in the present case Mr X was totally unaware of any proceedings. Moreover, it was for the national legislation to lay down rules regarding the validity of marriages in pursuance of the State’s public policy, and, therefore, no violation of Article 8 could arise in the present case. Lastly, the court noted that the applicants had failed to prove that they had suffered discrimination vis a vis someone in an analogous situation on one of the grounds mentioned in Article 14 of the Convention. The applicants appealed. By a judgment of 13 April 2007 the Constitutional Court upheld the appeal in part. While revoking the part of the judgment dismissing the merits, it reaffirmed that the applicants had failed to make use of the ordinary remedy provided by law, namely instituting proceedings before the Civil Court in its ordinary jurisdiction, which could have ordered the registration of the marriage if the requisite criteria had been fulfilled. On 5 July 2008 Mr X, the applicant’s first husband, passed away. On the basis that there were no longer any impediments to the first applicant’s remarriage the applicants attempted to obtain a marriage licence in Malta in order to remarry there. To proceed with such a licence they allegedly were requested to provide proof of a divorce in respect of their marriage contracted in Libya. In accordance with Article 244 (1) of the Civil Code, Chapter 16 of the Laws of Malta, any marriage of a citizen of Malta drawn up or registered in a foreign country by a competent authority in that country, may, at the request of any interested person and upon the Director of the Public Registry being satisfied of the authenticity of such act, be registered in the Maltese Islands. In this respect, Article 242 of the Civil Code reads as follows: “(1) The Director shall not receive any act which is not written in clear and legible characters, or which contains abbreviations, or which may appear to him to be otherwise defective or irregular. (2) In any such case, the act shall be presented by the Director to one of the Visitors of notarial acts, who, after hearing, if necessary, the person who had made the act, shall determine the manner in which, according to law, the act is to be drawn up. (3) The Director may not refuse to receive any act which is countersigned by one of the said Visitors.” The Marriage Act 1975 (“the Act”), Chapter 255 of the Laws of Malta, applies to all marriages whether contracted in a civil or religious form. The Act, in so far as relevant reads as follows: Section 11 “(2) A marriage, whether contracted in a civil or in a religious form, shall be valid only if all the provisions of this Act applicable thereto or to marriage generally are satisfied or observed. Section 18 Section 33 A decision of a foreign court on the status of a married person or affecting such status shall be recognised for all purposes of law in Malta if the decision is given by a competent court of the country in which either of the parties to the proceedings is domiciled or of which either of such parties is a citizen.” In so far as relevant, the Marriage Act provides as follows: Section 21 “ (1) A marriage celebrated in Malta after the coming into force of this section, in accordance with the norms and formalities established by Canon Law, shall as from the moment of its celebration, be recognised and have the same civil effects as a marriage celebrated in accordance with the norms and formalities of this Act. Section 23 (1) A decision which has become executive, given by a tribunal, and declaring the nullity of a Catholic marriage shall, where one of the parties is domiciled in, or a citizen of, Malta, and subject to the provisions of section 24, be recognised and upon its registration in accordance with the said section 24, shall have effect as if it were a decision by a court and which has become res judicata. Section 24 (1) Registration of a decision as referred to in section 23 shall be effected by the Court of Appeal. ... (5) The Court of Appeal registers that decision by giving a decree declaring the decision enforceable in Malta; such decree shall not be given unless the Court of Appeal is satisfied that: (i) the Tribunal was competent to judge the case of nullity of the marriage insofar as the marriage was a Catholic marriage; and (ii) during and in the proceedings before the Tribunal there was assured to the parties the right of action and defence in a manner substantially not dissimilar to the principles of the Constitution of Malta; and (iii) there does not exist a contrary judgment binding the parties pronounced by a court, and which has become res judicata, based on the same grounds of nullity; and (iv) in the case of a marriage celebrated in Malta after 11 August 1975, there has been delivered or transmitted to the Public Registry the act of marriage laid down by this Act; and ... Section 25 A decree given by the Roman Pontiff "super matrimonio rato et non consummato", when one of the spouses is domiciled in or is a citizen of Malta, shall, subject to the provisions of section 26, be recognised and upon its registration in accordance with the said section 26, shall have effect as if it were a decision given by a court and which has become res judicata annulling a marriage on the grounds of non-consummation, in accordance with section 19A. Section 26 ... (4) (a) Registration shall be effected by an order of the Court of Appeal declaring the decree of the Roman Pontiff enforceable in Malta. (b) The Court of Appeal shall register the decree if it is satisfied that it refers to a Catholic marriage which was celebrated after the coming into force of this section and either of the spouses is domiciled in or is a citizen of Malta. Section 28 In the course of an application under sections 24 and 26, the Court of Appeal shall not go into the merits of the case leading to the decision or the decree the registration of which is demanded in the application, but shall limit itself to ascertaining if the requirements of this Act for the registration requested exist.” Malta is a party to an agreement with the Holy See on the recognition of civil effects in respect of canonical marriages and decisions of ecclesiastical authorities and tribunals on such marriages. The Marriage Act further provides that the Government may enter into such agreements with other churches, religions or denominations. Section 37 of the Marriage Act reads as follows: Section 37 (1) The Government may enter into agreements with other churches, religions or denominations regarding the recognition of marriages celebrated in accordance with the rules and norms of that church, religion or denomination, and declarations of nullity or annulment of such marriages by the organs of such church, religion or denomination having authority in accordance with its rules. (2) Such agreements shall conform substantially to the provisions of the Agreement between the Holy See and Malta.” Article 1143 of the Code of Canon Law, in so far as relevant, reads as follows: A marriage entered into by two non-baptised persons is dissolved by means of the Pauline Privilege in favour of the faith of the party who has received baptism by the very fact that a new marriage is contracted by the same party, provided that the non-baptized party departs. The non-baptized party is considered to depart if he or she does not wish to cohabit with the baptised party or to cohabit peacefully without affront to the Creator unless the baptised party, after baptism was received, has given the other a just cause for departing. In Canon Law this refers to the dissolution of a marriage between two unbaptised parties, one of whom is later baptised and seeks to marry in the church. Articles 825A to 828 of the Code of Organisation and Civil Procedure (“COCP”), Chapter 12 of the Laws of Malta, deal with the enforcement of judgments of tribunals of countries other than Malta. The provisions read as follows: Article 825A “Where regulations of the European Union provide, with regard to the matters under this title, in any manner different than in this title, the said regulations shall prevail, and the provisions of this Title shall only apply where they are not inconsistent with the provisions of such regulations or in matters not falling within the ambit of such regulations. Article 826 Saving the provisions of the British Judgments (Reciprocal Enforcement) Act, any judgment delivered by a competent court outside Malta and constituting a res judicata may be enforced by the competent court in Malta, in the same manner as judgments delivered in Malta, upon an application containing a demand that the enforcement of such judgment be ordered. Article 827 (1) The provisions of the last preceding article shall not have effect: (a) if the judgment sought to be enforced may be set aside on any of the grounds mentioned in article 811 (standard grounds for retrial); (b) in the case of a judgment by default, if the parties were not contumacious according to foreign law; (c) if the judgment contains any disposition contrary to public policy or to the internal public law of Malta. (2) For the purposes of this article, the plea to the jurisdiction of the court by which the judgment was delivered, may be raised in terms of article 811(d), even though that court may have adjudged upon a plea to its jurisdiction, in the case of any action brought against any person not subject to the jurisdiction of that court by reason of domicile or residence, unless such person had voluntarily submitted to the jurisdiction thereof.” | 0 |
dev | 001-24003 | ENG | SWE | ADMISSIBILITY | 2,004 | BERNADOTTE v. SWEDEN | 4 | Inadmissible | Christos Rozakis | The applicant, the late Sigvard Bernadotte, was a Swedish national, born in 1907 and was living in Stockholm. Following his death on 5 February 2002, his widow, Marianne, declared that she wished to pursue the application on his behalf. He is represented before the Court by Mrs Muhlenbock, a lawyer practising in Stockholm. The Government are represented by Mrs Eva Jagander of the Ministry for Foreign Affairs, as Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was son of the late Swedish King Gustav VI Adolf. By descent he was born a prince. On 8 March 1934 the applicant, without the consent of the King, entered into marriage with a woman who was not of royal descent. For this reason, on 9 March 1934, the applicant’s father, the then Crown Prince Regent Gustav Adolf, decided on the King’s behalf: “By entering into marriage without the King’s consent and with the daughter of a foreign private person, His Majesty, The Duke of Uppland, in accordance with Article 44 of the Instrument of Government and Article 5 of the Order of Succession, has forfeited his own, his children’s and his successors’ right of succession to the throne. Moreover, he has forfeited the titles and the privileges, which until now he has enjoyed in his capacity as a hereditary prince”. The members of the Government cabinet expressed their agreement with the above decision and agreed with the King’s decision that “Sigvard Oscar Fredrik for the future may use the family name Bernadotte”. It has ever since been the understanding of the Swedish Kings that the applicant thereby lost his right to the title of prince and he has been treated accordingly in the Official Yearbooks of State Officials and Nobility respectively. Since 1976 the applicant, in several petitions to the present King of Sweden, King Carl XVI Gustav, requested that his hereditary prince title be reaffirmed by the King. The applicant supplied some information about exchanges from 1997 and 1998 between his lawyer at the time and the Marshall of the Realm (riksmarskalken). This included an extract from a letter of 15 May 1997 from the Marshall stating that “the King had not found grounds for revising the interpretations and application of his predecessor’s decision in the matter. Thus, the Royal Court considers that it had finalised its examination of the case”. The most recent petition to the King, dated 1 December 2000, was rejected on 19 December 2000. The Marshall of the Realm referred to earlier exchanges in the course of which it had been stated that the King was not prepared to carry out a revision or amendment to his predecessor’s decision in the matter. In so far as the King and the Royal Court were concerned, no changes would be made in respect of applicable titles. Under Swedish law, these refusals cannot form the subject of an appeal. According to the applicant, he suffered various inconveniences as a result of the removal of his prince title and the subsequent refusals to restore his title. At the material time (1934), Article 44 of the 1809 Instrument of Government read as follows. "No prince of the Royal House, be he crown prince, hereditary prince or prince, may marry without the King’s knowledge and consent. In the event that this should occur, he has forfeited his hereditary right to the realm for his own part, that of his children and descendants." A similar provision was contained in section 5 of the 1810 Act of Succession, which provided that the same applied if a prince, with or without the knowledge and consent of the King, married a commoner (“a private man’s daughter”) of Swedish or foreign origin. Following a reform in 1937, section 5 was amended to require the King to hear the Government cabinet before consenting to the marriage of a prince. At the same time, the reference to a commoner of foreign origin was abolished, while that to a commoner of Swedish origin was retained. According to the respondent Government, the reason was that, after the First World War, the number of ruling sovereigns and royal houses and other families of equal status had been reduced. According to information supplied by the Government, the main features of the domestic law pertaining to the acquisition and loss of a name remained unchanged throughout the relevant period. In 1963 the legal provisions concerning names were brought together in one statute, the 1963 Names Act (namnlagen), later replaced by the 1982 Names Act. Under these rules, surnames were acquired at birth and could be lost only in limited circumstances, for example if it were established in paternity proceedings that a certain man was not the father of a person carrying his surname or where the person concerned was not entitled to acquire the surname in the first place or had acquired a surname that caused inconvenience to another person on account of a risk of confusion. The right to carry a first name that had been registered or approved could not be revoked. Although there was no definition of the concept of name under Swedish law, it was considered that designations other than names fell outside that concept, as they were not deemed to constitute means of personal identification. This was the case of terms that indicated a profession - for example teacher, lawyer or military, or occupational position - such as professor, judge or commander, and likewise indications of rank or title, such as assistant professor, district court judge or captain. Such designations were not afforded the legal protection applicable to names. There was no domestic legal provision regulating the use of the titles of prince and princess nor any legal protection of those titles. | 0 |
dev | 001-108877 | ENG | ROU | ADMISSIBILITY | 2,012 | CIUBOTARU AND OTHERS v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi | 1. The applicants, Mr Cristian Ciubotaru, Mr Ovidiu Ciubotaru, Mr Vasile Vâtu, Mr Vasile Călin, Ms Ana Ciubotaru, Ms Ana Romaşcu, Ms Eva Ciubotaru, Mr Aurel Călin and Ms Elena Avădanii, are Romanian nationals who were born on 15 December 1980, 1 March 1978, 27 January 1987, 3 November 1950, 18 March 1930 and on other unspecified dates and who live in Buhuşi, Romania. Romani Criss is a Romanian nongovernmental organisation located in Bucharest. They were all represented before the Court by Mr I. Lazăr, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 3 December 2002 the Bacău and Neamţ Police Departments set up an operation to capture six Roma people, including Mr Cristian and Mr Ovidiu Ciubotaru and Mr Florin Călin, who lived in the town of Buhuşi and were suspected of a number of unlawful acts, including a robbery a few days earlier. The police operation was set up on the basis of an order of 28 November 2002 issued by the Romanian General Police Department attached to the Romanian Ministry of the Interior concerning the identification and capture of, inter alia, the abovementioned individuals. The police officers were divided into six teams and instructed to surround the town in order to prevent the wanted individuals from fleeing, to identify the homes of the suspects and to descend on the suspects’ homes simultaneously. 4. On 5 December 2002 fortyfive police officers from the Bacău and Neamţ Special Intervention Units and other regular police stations gathered and descended on the town of Buhuşi. After searching the suspects’ homes, the police discovered that some of them were hiding in an abandoned house in the town. The police units surrounded the house. At this point other Roma people started gathering in the street, some of them armed with stones, wooden posts and axes, and started a violent demonstration against the police officers. A further sixty police officers were called in support as a result of the violent behaviour of the crowd. 5. The police asked the occupants of the house twice to give themselves up, and when they failed to respond the police started using tear gas to draw them out of the house. After tear gas had been used officer D.C. negotiated with the occupants of the house for approximately ten minutes, trying to persuade them to give themselves up, but one of the suspects attacked him with an axe. More tear gas was used and another attempt at negotiation was made by D.C., but the police officer was attacked once more by the occupants of the house. The police officers used tear gas for a third time and two of the applicants, Mr Cristian Ciubotaru and Mr Ovidiu Ciubotaru, as well as another suspect, Mr Florin Călin, came out of the house. Mr Ovidiu Ciubotaru and Mr Florin Călin attacked police officer D.C. with axes. Police officer D.C. and his colleague N.N. opened fire in the direction of Mr Ovidiu Ciubotaru and Mr Florin Călin. As a result, Mr Florin Călin was shot in the thorax and stomach and died at the scene. Mr Ovidiu Ciubotaru was shot in the back and taken to hospital. 6. In the course of this incident two people in the crowd were also shot. The crowd became violent and some of the people in the crowd, including Mr Gelu Ciubotaru, started attacking the police officers. The officers launched verbal warnings and fired into the air to disperse the crowd and stop the attackers. Mr Gelu Ciubotaru attacked the police officers with a wooden post and grabbed police officer C.V.S. by the neck and hit him. Consequently, officer N.N., who had also been injured by the crowd, started firing at Mr Gelu Ciubotaru’s feet and then at his upper body. Mr Gelu Ciubotaru was shot in the thorax and died at the scene. Mr Vasile Vâtu, a minor at the time of the events, was also shot in the right side of the thorax and was taken to hospital. According to the forensic report, quoted by the prosecutor at the conclusion of the criminal investigation which followed the incident, some of the parties injured in the events required the following number of days of medical care: eighteen days for Mr Ovidiu Ciubotaru, twelve to fourteen days for Mr Vasile Vâtu, twenty four to twenty six days for officer N.N., and thirtyfive to forty days for officer C.V.S. Two other officers who were part of the support group called in to help the police officers who initiated the operation were also injured: E.I. had a serious eye injury which almost caused him permanent blindness, while D.C. received a leg injury. 7. On 5 December 2002 Mr Vasile Călin, Ms Ana Romaşcu, Ms Eva Ciubotaru and Ms Ana Ciubotaru signed authorisations for Romani Criss, a Romanian nongovernmental organisation whose purpose is to defend the rights of the Roma community in Romania, to represent them before the state institutions, including, inter alia, the police, the prosecutors’ offices and the civilian and military courts in respect of the events of 5 December 2002. There is no evidence in the file that the remaining applicants signed similar authorisations. The signatures of the four applicants on the authorisations signed on 5 December 2002, on the criminal complaints lodged against the police officers involved in the events of 5 December 2002 and on the powers of attorney signed by them on 16 August 2006 authorising their lawyer Mr I. Lazăr to represent them before the Court, appear not to match. 8. Romani Criss also authorised legal representatives of its own choice to assist and represent it throughout the entire proceedings. 9. On an unspecified date in December 2002 the applicant Ana Romaşcu lodged a criminal complaint against the police officers who had shot Mr Vasile Vâtu, her son, who was a minor. Her complaint does not contain any indication that she would have liked to lodge a complaint on her own behalf. 10. On unspecified dates the applicants Cristian and Ovidiu Ciubotaru also lodged criminal complaints against the police officers involved in the events of 5 December 2002. Mr Cristian Ciubotaru argued that he had been hit several times on the head and body and Mr Ovidiu Ciubotaru stated that he had been shot four times, although neither of them was resisting arrest. The applicants’ signatures on the complaints lodged against the police officers appear not to match their signatures on the powers of attorney of 16 August 2006 authorising Mr I. Lazăr to represent them before the Court. 11. On an unspecified date Mr Vasile Călin also lodged a criminal complaint against the police officers who had shot and killed Mr Florin Călin, his son. His complaint does not contain any indication that he would have liked to complain against the police officers on his own behalf. A second power of attorney of 16 August 2006 available in the file on Mr Vasile Călin’s name authorising Mr I. Lazăr to represent him before the Court was signed by Ms Elena Avădanii. Apart from her signature, Ms Elena Avădanii’s name does not appear on any of the powers of attorney available to the file authorising Mr I. Lazăr to represent the applicants before the Court. 12. On an unspecified date Ms Eva Ciubotaru lodged a criminal complaint against the police officers who had shot and killed Mr Gelu Ciubotaru, her husband. Her complaint does not contain any indication that she would have liked to make a complaint against the police officers on her own behalf. 13. On an unspecified date the applicant Ana Ciubotaru lodged a criminal complaint against the police officers involved in the events of 5 December 2002. She stated that while she was trying to reach her dead son, Mr Gelu Ciubotaru, the police officers hit her on the back and head and pushed her into a ditch. She also stated that she was 75 years old at the time and could have not been seen as a threat by the officers. 14. Between 5 December 2002 and 28 February 2003 the domestic authorities heard victims of the events and their relatives, people who had been in the crowd, and suspected offenders, as well as other police officers who had taken part in the operation. Approximately sixtyfive people were heard by the authorities. 15. On 6 December 2002 the police officers provided the Forensic Service of the Neamţ Police Department with two axes, allegedly used by the applicants to attack them on 5 December 2002. The same axes were delivered on 13 December 2002 to the prosecutor investigating the case. 16. On 6 December 2002 the Forensic Department of the Bacău County Hospital produced a forensic expert report on the bullet wounds sustained by Mr Vasile Vâtu and Mr Ovidiu Ciubotaru and autopsy reports on the deceased, Gelu Ciubotaru and Florin Călin. According to the reports Mr Vasile Vâtu had been shot on 5 December 2002 from the right with a firearm, using balls as ammunition. Mr Ovidiu Ciubotaru had been shot twice, once in the left cheek and once in the left thigh. The wounds were not lifethreatening to any of the applicants. Furthermore, according to the autopsy reports Mr Gelu Ciubotaru had been shot twice, first in the right thigh and then in the thorax, the latter wound causing his death. Mr Florin Călin had been shot five times, the first three times in the left thigh, then once in the right thigh and lastly, once in the thorax. The wounds to his thighs had been caused by metal bullets. The wound in the thorax was the only one responsible for his death and had been caused by a rubber bullet fired at close range from a distance equal to the length of the barrel of the gun it had been fired from. 17. On 9 December 2002 the Bacău Prosecutor’s Office investigated the scene of the crime and gathered the evidence found, including stones, wooden posts or sticks, parts of the wall penetrated by bullets, traces of blood and bullet shells for further examination. 18. On 20 January 2003 the Bacău Prosecutor’s Office ordered a ballistic expert report on the weapons fired on the day of the events. 19. On 25 March 2003 Romani Criss informed the Bacău Prosecutor’s Office about the events of 5 December 2002 and complained that police officers had shot and injured members of the Roma community. On the same date they submitted testimonial evidence gathered from people who had witnessed the events. 20. The investigation of the abovementioned incident was completed when the criminal investigation was discontinued by a Bacău prosecutor’s office order of 7 July 2003. The actions of officers D.C. and N.N were investigated on accusations of the crimes of murder and causing physical injuries, as were the actions of Mr Gelu Ciubotaru, Mr Florin Călin, Mr Ovidiu Ciubotaru and Mr Cristian Ciubotaru for the crime of insulting behaviour towards a State agent. The investigating prosecutor held that the use of force by the two policemen against Mr Gelu Ciubotaru, Mr Florin Călin, Mr Ovidiu Ciubotaru and Mr Cristian Ciubotaru was justified because of the behaviour of the victims, which resulted in the policemen having to resort to legitimate self-defence. The investigating prosecutor, although he referred to Mr Vasile Vâtu’s case, did not identify the person responsible for shooting him and did not state whether or not the proceedings would be discontinued in respect of his injury. The investigation in respect of Mr Gelu Ciubotaru and Mr Florin Călin was terminated because of their deaths, and that in respect of the applicants Mr Cristian and Mr Ovidiu Ciubotaru was terminated because it was held that their behaviour did not constitute a crime. The prosecutor’s decision quotes the results of the forensic reports conducted in respect of all the victims of the incident but did not mention the evidence which led to the non-indictment conclusion. 21. On 24 July 2003 Mr Vasile Călin, the father of the deceased Florin Călin, lodged a complaint with the Bacău Prosecutor’s Office concerning unreasonable length of the criminal investigation launched in respect of the events of 5 December 2002, and challenged the outcome of the investigation. 22. The Bacău Prosecutor’s Office dismissed Mr Vasile Călin’s complaint by an order of 23 September 2003. The prosecutor’s office held that the proceedings had not been excessively lengthy, given the number of ballistic and forensic reports carried out and the large number of witnesses heard, and that his son had been killed by the police officers in self defence. 23. On 21 November 2003 Romani Criss challenged the Bacău Prosecutor’s Office decision of 7 July 2003 in so far as the decision regarding the investigated policemen was concerned on behalf of Mr Cristian Ciubotaru, Mr Ovidiu Ciubotaru, Mr Vasile Călin, Ms Ana Romaşcu, and Ms Eva Ciubotaru. 24. By an order of 3 December 2003 the Bacău Prosecutor’s Office dismissed the challenge on the ground that the police officers had acted in legitimate selfdefence. Also, in respect of Mr Vasile Vâtu the unlawful act lacked a physicalinjury element. The Prosecutor’s Office acknowledged the challenge lodged by Romani Criss, to be introduced only on behalf of Mr Vasile Călin, Ms Ana Romaşcu and Ms Eva Ciubotaru. The Prosecutor’s Office held that according to the available evidence Mr Florin Călin and Mr Ovidiu Ciubotaru were shot by C.D. and N.N. while they were preparing to hit C.D. with an axe. At the same time, Mr Vasile Vâtu could not be seen by the policemen because he was hidden behind a wall made of sawdust when he was shot in the thorax. The wound did not endanger his life. 25. On 19 December 2003 Romani Criss appealed against the Bacău Prosecutor’s Order of 7 July 2003 before the domestic courts. The appeal was also lodged on behalf of Cristian Ciubotaru, Ovidiu Ciubotaru, Ana Romaşcu, Vasile Călin and Ana Ciubotaru, but it had not been signed by those five individuals. The applicant organisation argued that according to the witness statements and the evidence available to the file the domestic authorities tried to protect the police officers, who on 5 December 2002 acted in an uncoordinated manner, misused their firearms and breached the applicable legal provisions in force at the time protecting the applicants’ right to life and their right not to be subject to inhuman and degrading treatment in a discriminatory way. 26. On 13 and 28 January 2004 respectively Ms Ana Ciubotaru and Mr Vasile Călin died. 27. By a judgement of 20 February 2004 the Bacău Court of Appeal allowed an appeal by the applicants against the prosecutor’s orders. The court dismissed the preliminary objection raised by the Prosecutor’s Office and the two accused, namely that Romani Criss did not have standing to bring proceedings before the domestic courts concerning the events of 5 December 2002. The court held that because Romani Criss considered that Roma persons had been victims of discrimination they decided to represent them before the domestic courts in accordance with the authorisations signed by some of the parties concerned on 5 December 2002. The organisation also lodged a complaint before the domestic courts on its own behalf. Taking into account the organisation’s object of activity and the provisions of section 22 of Emergency Ordinance no. 77/2003, the court considered that it could not deny in principle the organisation’s legitimate interest and its standing to bring proceedings against state bodies in order to establish whether ethnic discrimination had occurred and whether the rights of its citizens had been protected. In respect of the merits of the case the court held, inter alia, that the operation of 5 December 2002 had been a work mission and all the police officers involved had been ordered to take part in it. However, the investigation into the events had not been carried out correctly. In particular, the wounding of the police officers E.I. and D.C. was not directly relevant to the claim of selfdefence, as the two police officers previously mentioned had been wounded in the final stages of the operation, when the police were retreating from the town, while the firearms had been used by the policemen at an earlier stage of the events. Moreover, the forensic expert report carried out over the course of the investigation did not establish with certainty if the rubber bullet Mr Florin Călin had been shot with by officer D.C. could have been the only cause of death in the absence of the rest of the shots. The court considered that this was an important factor in determining the identity of the perpetrator of the killing, considering that the same person had been shot almost simultaneously by police officer N.N., using live ammunition. Furthermore, the two axes allegedly used by Mr Florin Călin and Mr Ovidiu Ciubotaru had not been forensically checked for their fingerprints. The court held that such evidence was important to determine whether the use of firearms by the officers had been justified. In addition, the investigation failed to determine the exact position of the other members of the police force and whether they could have stopped Mr Florin Călin’s attack against D.C. At the same time, the investigation had failed to establish the distance and the angle from which Mr Ovidiu Ciubotariu had been shot. The circumstances of Mr Vasile Vâtu’s shooting had also not been clarified by the investigation in view of the parties’ statements, in particular there was no lawful explanation concerning why he had been shot through a wall or precisely when he had been shot during the operation. Lastly, the file did not contain sufficient evidence concerning the reasons for the police operation to capture the applicants: in particular, the court considered that the orders to seek and capture the applicants, the documents containing the charges against them and the arrest warrants issued in their names were missing from the file. Consequently, the court decided to send the case back to the prosecutor’s office in order to supplement the criminal investigation. 28. D.C., N.N. and the Bacău Prosecutor’s Office lodged an appeal on points of law (recurs) against the judgment of 20 February 2004. They argued, inter alia, that the complaints lodged by Romani Criss before the domestic courts on behalf of the applicants contesting the prosecutor’s office’s order to discontinue the criminal investigation was not valid. In particular the authorisations signed by some of the applicants allowing Romani Criss to represent them before the courts did not comply with the formal requirements for powers of attorney provided by the applicable rules of criminal procedure. In addition, they submitted that the evidence in the file proved that the police officers had acted in selfdefence. 29. On 20 May 2004 the Forensic Department attached to the Romanian Ministry of the Interior informed the investigating authorities that the axes allegedly used by Mr Florin Călin and Mr Ovidiu Ciubotaru to attack the police officers had wooden handles which were uneven and pitted. Consequently, the Forensic Department did not have substances or a method allowing them to examine fingerprints on such surfaces. 30. At the hearings of 21 May, 24 September, 19 November and 17 December 2004 the Court of Cassation adjourned the proceedings on account of procedural errors in summoning the parties and in order to allow them to read the written submissions attached to the file. 31. At the hearing of 11 February 2005 the Court of Cassation heard oral submissions from the parties and, because it needed time to deliberate, adjourned the proceedings to 25 February, 3 March and to 8 April 2005. 32. By a final judgment of 8 April 2005 the Court of Cassation allowed the appeals on points of law by C.D., N.N. and the Prosecutor’s Office, quashed the judgment of 20 February 2004 and declared inadmissible the applicants’ and Romani Criss’s complaints against the Prosecutor Office order of 7 July 2003. It held that none of the natural persons had contested the prosecutor’s office’s order to discontinue the criminal investigation before the domestic courts. Only Mr Vasile Călin lodged a complaint against the prosecutor’s office’s order of 7 July 2003, which was dismissed on 23 September 2003. He did not challenge the latter decision before the domestic courts. Moreover, none of the applicants had personally signed the challenge lodged by Romani Criss on their behalf. In addition, the appeal lodged by Romani Criss on behalf of the applicants against the prosecutor’s office’s order for the investigation to be discontinued was invalid. The nongovernmental organisation had not been empowered by the applicants to represent them before domestic courts on the form required by the applicable rules of criminal procedure, in particular Article 222 (3) of the Romanian Code of Criminal Procedure, and therefore the organisation could not be considered to be the applicants’ representative. The applicants had not provided Romani Criss with a special and certified power of attorney as required by law. In so far as Romani Criss’s argument was concerned, that on the basis of section 22 of Emergency Ordinance no. 137/2002 it had legal standing to bring proceedings before domestic courts, the court noted that the organisation had not sustained any prejudice as a result of the incident complained of, and the police action of 5 December 2002 concerned the taking into custody of wanted individuals, and did not represent acts of discrimination as required by section 22 of Emergency Ordinance no. 137/2002. Consequently, it held that Romani Criss did not have legal standing to bring proceedings before the domestic courts. 33. The applicants lodged their application before the Court with a letter dated 26 August 2005. The initial application form attached to the letter contained the names of Mr Cristian and Mr Ovidiu Ciubotaru, Ms Ana Romaşcu with the note that she was representing Mr Vasile Vâtu, Mr Vasile Călin, Ms Ana Ciubotaru and the organisation Romani Criss. The application form was signed by Mr I. Lazăr, as the applicants’ representative. No powers of attorney were attached to the application. The applicants complained that some of them had sustained bullet wounds and some of their relatives had been killed, but none of them referred, either expressly or in substance, to any other complaints as a result of other types of injury sustained. 34. Following the Court’s request on 16 September 2005 the applicants’ representative submitted powers of attorney signed on 16 August 2006 by all the initial applicants, including Mr Vasile Călin and Ms Ana Ciubotaru. In respect of Mr Vasile Călin, Mr I. Lazăr submitted two powers of attorney bearing his name, one of them signed however by Ms Elena Avădanii, whose name does not appear on any of the other powers of attorney. Moreover, Mr Vasile Vâtu’s name and/or signature were not present on any of the powers of attorney submitted before the Court. In addition, one of the powers of attorney had been filled in and signed by Ms Eva Ciubotaru. 35. On 31 January 2007 the Court received six sets of application forms which contained complaints identical to the ones mentioned in the first application form submitted by the applicants. Each application form bears the name of a different applicant, as follows: Mr Cristian Ciubotaru, Mr Ovidiu Ciubotaru, Ms Ana Romaşcu, Mr Vasile Călin, Ms Eva Ciubotaru and the organisation Romani Criss. 36. The name of Mr Aurel Călin does not appear on any of the application forms or the powers of attorney submitted by the applicants at any stage of the proceedings before the Court. 37. Article 197 (2) and (3) of the Romanian Code of Criminal Procedure provides, inter alia, that the breach of the rules concerning the lodging of a complaint before the court renders the complaint null and void. The nullity cannot be corrected and can be examined at any stage of the proceedings as well as by the court of its own motion. 38. Article 222 (3) of the Romanian Code of Criminal Procedure provides that a complaint can be lodged by a person, either on their own behalf or through a representative authorised by a certified mandate attached to the complaint. 39. The relevant legal provisions, in particular a description of the development of the law concerning complaints against decisions of the prosecutor (Articles 278 and 2781 of the Romanian Code of Criminal Procedure introduced by Law no. 281/2003 applicable from 1 January 2004), are set forth in the judgment of Dumitru Popescu v. Romania ((no. 1), no. 49234/99, §§ 4345, 26 April 2007). 40. Section 22 (1) and (2) of Emergency Ordinance no. 137/2000 on combating discrimination provides that nongovernmental organisations involved in the protection of human rights, or justifying a legitimate interest in combating discrimination, have legal standing to initiate proceedings if the discrimination occurs in their field of activity and targets a community or a group of people. They also have legal standing in cases where discrimination targets an individual at the latter’s request. | 0 |
dev | 001-79606 | ENG | MDA | CHAMBER | 2,007 | CASE OF BISERICA ADEVARAT ORTODOXA DIN MOLDOVA v. MOLDOVA | 3 | Violation of Art. 9;Violation of P1-1;Violation of Art. 13+9;Not necessary to examine Art. 14+9;No separate issue under Art. 6 and 11;Non-pecuniary damage - financial claim;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicants joined together to form the “True Orthodox Church in Moldova” (“the Church”) and applied for registration by the Government on the basis of the Religious Denominations Act (Law no. 979-XII of 24 March 1992). When the authorities refused to register the Church by letter of 29 November 2000, the applicants initiated court proceedings. 8. On 30 August 2001 the Court of Appeal accepted their claim and ordered the Government to register the Church. The court also awarded each of the applicants 1,000 Moldovan lei (approximately 85 euros (EUR) at the time) in compensation for the non-pecuniary damage suffered. 9. On 29 May 2002 the Supreme Court of Justice upheld that judgment, finding that the Government had not submitted any evidence that the Church would harm public order, health or morals. That judgment was final and enforceable. 10. The applicants subsequently made requests for the enforcement of the final judgment. In turn, the Judgments Enforcement Department made requests to the Government to comply with the judgment, to no avail. 11. On 12 July 2002 the Religious Denominations Act was amended and the procedure for the registration of religious denominations was simplified. On the basis of these amendments, on 7 August 2002 the applicants asked the “State Organ for the Protection of Religious Denominations” to register the Church. They relied on Article 14 of the above-mentioned law (as amended on 12 July 2002, see below) and on the final judgment in their favour ordering the Church’s registration. 12. By letter of 23 August 2002 the State Service for the Protection of Religious Denominations (“the Service”) rejected that request because it “had not received any request for the registration of any religious denomination”. The Service could not register the Church until the relevant State Registry had been established and the necessary documents had been filed with it. On 22 November 2002 the applicants submitted the relevant documents to the Service. 13. On 24 August 2004 the Decisions Enforcement Department (“the Department”) sent the enforcement warrant for enforcement to the Service. By its letters of 1 and 11 November 2002 and 14 March 2003 the Department requested the Service to comply with the judgment of 30 August 2001. 14. In a letter of 14 March 2003 the Service replied to the Department that the applicants had refused to re-submit documents requested from them and to explain certain parts of the statute of the Church regarding its canonical subordination to foreign churches. 15. On 20 March 2003 an officer working for the Department found that the judgment of 30 August 2001 had not been enforced and asked the court to sanction those responsible for the non-enforcement. The officer sent additional requests to the Department and the Buiucani District Court on 16 May, 18 June, 24 October and 6 November 2003, again asking that those responsible for the non-enforcement be punished. 16. The Government made three attempts to re-open the proceedings by claiming the discovery of new and relevant information which had not been previously known. These requests were rejected by decisions of the Court of Appeal on 7 May 2003 and the Supreme Court of Justice on 1 October 2003 and 20 October 2004. 17. In June 2004 the applicants submitted a new request and a set of accompanying documents, requesting the registration of the Church. They received no reply. 18. The pecuniary part of the judgment of 30 August 2001 was enforced on 27 July 2005. 19. The relevant domestic law has been set out in the cases of Metropolitan Church of Bessarabia and Others v. Moldova (no. 45701/99, §§ 89-93, ECHR 2001XII) and Prodan v. Moldova (no. 49806/99, § 31, ECHR 2004III (extracts)). 20. In addition, the relevant provisions of the Law for the amendment of the Religious Denominations Act (no.1220, 12 July 2002) read as follows: “Article I 3. Article 14 shall have the following text: ‘Article 14. Recognition of cults. In order to be able to organise themselves and to function, a religious denomination shall submit to the State authority [dealing with] religious denominations a declaration on their functioning and organisation, annexing their statute (by-laws) for their organisation and functioning including information about the system of administration and functioning, together with the fundamental principles of its faith. The declaration mentioned [above] shall be submitted to the State authority for religious denominations, which shall make a registration in the Registry of religious denominations within 30 working days from the date of submission of the declaration.’ ... Article III (2) Requests for registration which were pending at the date of entry into force of the present Law shall be considered to be declarations within the meaning of Article 14 of the Law on Religious Denominations and shall be examined in accordance with the provisions of that Article.” | 1 |
dev | 001-72113 | ENG | CYP | CHAMBER | 2,006 | CASE OF KYRIAKIDIS AND KYRIAKIDOU v. CYPRUS | 4 | Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial awards;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 4. The applicants were born in 1952 and 1964 respectively and live in Nicosia. 5. On 22 January 1998 the applicants filed a civil action before the District Court of Nicosia against the Bank of Cyprus Ltd concerning a deposit they had allegedly made to the latter in 1993. The applicants stated that, before filing the action, they had complained to the police and to the Attorney-General of the Republic, who they maintained, refused to investigate their case. 6. The pleadings were completed on 16 November 1998 following five adjournments at the defendant’s request, with the applicants’ consent, in relation to the filing of its defence. 7. From 16 November 1998 until 24 February 2003 the case was adjourned four times at the defendant’s request and with the applicants’ consent, twice at the parties’ and once at the applicant’s request. Further, the court adjourned the case six times mainly for the purpose of dealing with other civil actions. For example the case was adjourned from 30 April 1999 until 7 October 1999 and then to 1 February 2000; from November 2000 to 26 March 2001 and from 24 September 2001 until 28 February 2002 for directions. Within this period, the court also dealt with an interlocutory application filed by the defendant in the proceedings. 8. The hearing of the case commenced on 24 February 2003 and concluded on 22 April 2003. Within this period a total of four hearing sessions were held and an interim decision was delivered. 9. On 23 May 2003 the district court delivered its judgment dismissing the applicants’ action with costs to be paid by them. 10. Article 30 (2) of the Cypriot Constitution in so far as relevant provides as follows: (2) “In the determination of his civil rights and obligations ..., every person is entitled to a ... hearing within a reasonable time by [a] ... court ...”. 11. On 30 July 2001 the Supreme Court adopted “The Rule of Judicial Practice” which provides as follows: “During the Court’s meeting of 3 July 2001 and before the Court proceeds with its judicial work, the President announced the issuing of the following Judicial Rule of practice”. The President of the Supreme Court Mr G.M. Pikis stated as follows: “With the unanimous agreement of all the Judges of the Supreme Court, the following Rule of Practice is issued: It is acknowledged that the duty for the hearing of cases within reasonable time is the individual duty of the trial judge and a collective duty of the judicial function. The establishment of rules for conducting a trial within reasonable time and the supervision of the procedures towards preventing delays is the responsibility of the Supreme Court. Its performance must be regulated in a way which secures, not only in advance but also during the course of the trial of cases, that the safeguards set by Article 30.2 of the Constitution and the principles governing the proper administration of Justice, as set out in circulars of the Supreme Court, are complied with. For achieving this purpose, the present Rule of Practice is adopted. Whenever it comes within the knowledge of the Supreme Court (either through the Registries or following representations made by any person having an interest in the trial of the case without delay) that the trial of the case is being delayed, or it appears from the arrangements made – in respect of its trial– that it is possible that the trial be delayed, or where it appears that the hearing is not conducted uninterruptedly as determined by the circulars of the Supreme Court, the Supreme Court may issue directions for preventing delays in the hearing of the case and for the uninterrupted trial of the case as it deems fit. The responsibility of observing the conduct of cases undergoing trial, for the purpose of briefing the Supreme Court of delays noted or envisaged in the trial of civil and criminal cases, shall be vested with the Registrar, who will serve at the Supreme Court. The gathering of information on this matter shall be regulated by the Chief Registrar in due course”. | 1 |
dev | 001-109815 | ENG | DEU | CHAMBER | 2,012 | CASE OF AHRENS v. GERMANY | 2 | Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life;Respect for private life) | André Potocki;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger | 5. The applicant was born in 1970 and lives in Berlin. 6. From Easter to September 2003 the applicant had a relationship with Ms P. In February 2004 Ms P. started a relationship with Mr M. In September 2004 Ms P. and Mr M. moved into a joint household. In October and November 2004 the applicant had intimate contact with Ms P. In December 2004 Ms P. informed the applicant that she was pregnant. 7. On 28 June 2005 Mr M., with the consent of Ms P., acknowledged paternity of Ms P.’s future child. On 10 August 2005 Ms P. gave birth to a daughter, R. Ms P. and Mr M. jointly exercise parental authority and are bringing up the child together. 8. On 27 October 2005 the applicant lodged an action to challenge Mr M.’s paternity, submitting a statutory declaration that he had had sexual intercourse with the child’s mother during the period of conception. Mr M. submitted in reply that he lived with the child in a social-familial relationship and that he assumed full parental responsibility for the child, even if he was not her biological father. 9. On 24 November 2005 the Tempelhof-Kreuzberg District Court (Amtsgericht) scheduled a hearing for 17 January 2006. On 13 January 2006 the District Court cancelled the hearing, as a guardian ad litem to represent the child’s interests had to be appointed. On 6 February 2006 the District Court appointed a guardian ad litem. On 21 March 2006 the guardian submitted that a loving father-child relationship existed between Mr M. and R. and that the applicant’s action ran counter to the child’s best interests. 10. On 28 March 2006, following a reminder by the applicant’s counsel, the District Court scheduled a hearing for 30 May 2006. On 27 April 2006 the District Court, following M.’s request, postponed the hearing to 6 June 2006. 11. On 6 June 2006 the District Court, having heard the applicant, Mr M. and Ms P., ordered an expert opinion on the question whether Mr M. was the child’s biological father. On 7 September 2006 the District Court requested the expert to submit information on the state of the proceedings. 12. On 4 October 2006 the expert informed the District Court that Mr M. and Ms P. had postponed several appointments for the taking of blood samples on medical grounds. Mr M. had his blood sample taken on 4 October 2006. On 2 November 2006 the expert informed the court that he had received the blood samples of Ms P. and the child. On 27 November 2006 the expert submitted his report which concluded that Mr M. was not the child’s biological father. 13. On 1 December 2006, following a reminder by the applicant’s counsel, the District Court scheduled a further hearing for 16 January 2007. On 6 February 2007 the District Court ordered an expert opinion by the same medical expert as to the applicant’s alleged paternity. 14. On 15 March 2007 the expert submitted his report which concluded that it had been proved to a probability of 99.99 % that the applicant was the child’s biological father. 15. On 12 March 2007 the District Court scheduled a hearing for 10 April 2007. 16. On 27 April 2007 the District Court delivered a judgment establishing that Mr M. was not the child’s father and that the applicant was the child’s father. The District Court found the applicant’s action admissible, as he had submitted a statutory declaration that he had had sexual intercourse with the child’s mother during the period of conception. The action was well-founded, as it had been proved by expert opinion that the applicant was the child’s biological father. The District Court considered that the applicant had not been precluded from challenging paternity under Article 1600 § 2 of the Civil Code (see relevant domestic law below), as there had been no social and family relationship between Mr M. and the child at the time of the last court hearing. It could not be assumed that Mr M. bore actual responsibility for the child. This would have required the legal father and the child to have lived together for a longer period of time, which, according to the District Court, necessitated a minimum period of approximately two years. Taking into account the constitutional right of the biological father under Article 6 § 2 of the Basic Law, it was necessary that the factual relationship between the legal father and the child enjoyed a certain stability. This stability could only be assumed after a period of two years, which had not passed in the instant case. Under these circumstances, it was not relevant that the applicant actually took care of the child together with the child’s mother. 17. On 24 August 2007 the Berlin Court of Appeal (Kammergericht) quashed the District Court’s judgment and rejected the applicant’s action. The court noted that it was undisputed between the parties that Mr M. had lived with the child and her mother since the child’s birth and that he had continued to live with them after it had been established by an expert that he was not the child’s biological father. 18. According to the Court of Appeal, the District Court had failed to recognise that the applicant did not have the right to challenge paternity because of the existence of a social and family relationship between Mr M. and the child. The Court of Appeal considered that such a relationship had not only existed at the time it decided on the appeal, but already a long time before, as Mr M. had lived together with the child and her mother in a joint household since the child’s birth. A young child could not possibly live together with another person for a period of time longer than his or her own lifetime. The legislature had not strictly defined which period of time would amount to a “longer period of time”, but had left this assessment to the courts adjudicating each individual case. 19. The period of time which was necessary to establish a social and family relationship was not absolute, but had to be assessed with regard to the circumstances of each individual case and, in particular, the child’s age. There was no doubt that a child, during the first months of his or her life, developed a social and family relationship with the persons taking care of him or her on a daily basis. During the first two years of his or her life, a child was in particular need of secure family relationships, which allowed him or her to develop further social contacts. A child’s interest in learning about its true descent could only become relevant at a more advanced age. According to the intentions of the legislature, who were guided by the Federal Constitutional Court’s case-law, external disturbances should be avoided in the child’s best interests and in the interest of the already existing family relationship. The constitutional rights of the biological father should not prevail over the equally protected rights of the legal father, if and as long as the latter assumed parental responsibility within the meaning of social parentage. Against this background, even a period of a few months which elapsed between a child’s birth and the bringing of an action to challenge paternity could be considered as a “longer period” within this specific context. 20. The Court of Appeal did not find it necessary to decide whether the period of time which had elapsed between the child’s birth and the lodging of the applicant’s action would have been sufficient to establish a social and family relationship. According to the case-law of the Federal Law Court, in cases in which the child had lived since birth without interruption together with his or her legal parents, the existence of a social-family relationship had to be assumed if the cohabitation persisted and the judge was convinced that the legal father assumed actual parental responsibility in a way which appeared to be long-lasting. It was not decisive whether the social and family relationship already existed when the action was lodged, but only whether there was a social and family relationship at the time of the last court hearing. The applicant had failed to point to any circumstances which could call into question the existence of such a relationship in the instant case. Conversely, the fact that the relationship between the legal parents had endured the crisis which had been caused by the mother’s breach of trust indicated that the relationship was particularly stable. The Court of Appeal did not allow an appeal on points of law. 21. On 20 May 2009 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint for adjudication. This decision was served on the applicant’s counsel on 3 June 2009. 22. Under Article 3 of the Basic Law, everyone is equal before the law (§ 1); men and women have equal rights (§ 2). 23. Article 6 of the Basic Law, in so far as relevant, provides: “(1) Marriage and the family shall enjoy the special protection of the State. (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall watch over them in the performance of this duty.” 24. According to Article 1592 of the Civil Code, a child’s father is either the man who on the date of the child’s birth was married to the child’s mother (no. 1), or the man who acknowledged paternity (no. 2), or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3). An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code). Paternity can only be validly acknowledged with the mother’s consent (Article 1595 § 1). 25. Paternity may be challenged within a time-limit of two years. The period commences on the date on which the entitled person learns of the circumstances that militate against the established paternity; the existence of a social and family relationship does not prevent the period from running (Article 1600b § 1). Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child’s mother during the period of conception. However, pursuant to Article 1600 § 2, the biological father has a right to challenge the paternity of the man who is the child’s legal father under Article 1592 nos. 1 or 2 only if there is no social and family relationship between the legal father and the child. A social and family relationship is considered to exist if the legal father has or had actual responsibility for the child at the relevant point in time. There is, as a rule, an assumption of actual responsibility if the legal father is married to the mother of the child or has lived together with the child in a domestic community for a long period of time (Article 1600 § 4). 26. Under Article 1598a of the Civil Code as in force since 1 April 2008, the legal father, the mother and the child can request the examination of paternity by genetic testing. The outcome of these proceedings does not change the legal status of the persons involved. However, no such right is granted to a third person alleging that he is the biological father. 27. Research undertaken by the Court in respect of twenty-six Council of Europe Member States shows that in twenty-one of those States acknowledgment of the paternity of a child born out of wedlock requires the mother’s consent. In seventeen Member States (namely Azerbaijan, Croatia, Cyprus, Estonia, France, Georgia, Ireland, Italy, Lithuania, Moldova, Romania, Russia, San Marino, Spain, Turkey, Ukraine and the United Kingdom), the presumed biological father is entitled to challenge the legal paternity of a third party established by acknowledgment. This right may be subject to certain time-limits. In fifteen States this remains the position where the legal father has lived with the child in a social and family relationship. In France and Spain, the biological father may not challenge paternity if the child has lived in a social and family relationship with the legally acknowledged father for a period of at least five or four years, respectively (la possession d’état conforme au titre). 28. By contrast, in nine Member States (Armenia, Bulgaria, Hungary, Iceland, Latvia, the Netherlands, Poland, Slovakia and Switzerland) the biological father does not have standing to challenge the paternity of the legal father established by acknowledgement. In those nine jurisdictions, the courts are not entitled to judicially consider (on the grounds of the best interests of the child or otherwise) whether the biological father should be allowed to challenge paternity. | 0 |
dev | 001-76771 | ENG | TUR | ADMISSIBILITY | 2,006 | KORDIAN v. TURKEY | 4 | Inadmissible | null | The applicant, Mr Fraydun Ahmet Kordian, has both American and Iraqi nationality and was born in 1956. He is currently detained in Turkey pending extradition to the United States to face charges of murder in the State of California. He was represented before the Court by Mr M.Bilici and Mr M. Türköz, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant fled from the United States (“US”) as he was suspected of murdering two people and attempting to murder two others, in California. On 20 October 2005 the California State Court issued an arrest warrant for the applicant. On 22 October 2005 the applicant was arrested at Istanbul Atatürk Airport, while in transit to Iraq. He was detained on the same day by the Bakırköy Magistrates Court, relying on the decision of 20 October 2005 of the California State Court. On 31 October 2005 the Ministry of Foreign Affairs sent a diplomatic note to the US authorities, informing them about the provisional detention of the applicant. On 19 December 2005 the US Embassy in Ankara submitted a diplomatic note to the Turkish Ministry of Foreign Affairs, transmitting duly certified and authenticated documents in support of the extradition request concerning the applicant. They presented the affidavit, dated 2 December 2005, of Mr Robert Grace, the Los Angeles County Deputy District Attorney, stating that his office was determined not to seek the death penalty against the applicant for the two counts of murder. The undertaking given by Mr Grace read as follows: “Kordian would face the maximum penalty of death or life imprisonment without the possibility of parole if he is convicted of more than one crime of murder in the first or second degree. Having given consideration to the facts and circumstances of the murders with which Kordian is charged, this office has determined not to seek the death penalty against the defendant. Accordingly the maximum possible punishment that could be imposed on the defendant in this case would be life imprisonment without the possibility of parole, plus monetary fines and restitution. This office is aware that this election is irrevocably binding upon us should the petition for extradition be granted in this case such that we could not later elect to pursue the death penalty against Kordian for this offence.” The affidavit was sworn before the California Superior Court Judge and certified by the Associate Director at the Office of International Affairs in the Criminal Division of the Department of Justice on 6 December 2005. Furthermore, on the same day the affidavit and its certification were sealed by the Attorney General of the US Department of Justice and ultimately by the Secretary of State. On 4 January 2006, following the questioning of the applicant and the examination of the relevant documents, the Bakırköy Assize Court prolonged the applicant’s detention on remand, as it considered that there was no clear request from the US authorities to extradite the applicant. On 6 January 2006 the applicant’s lawyer filed an objection against the remand decision. His request was dismissed by the Bakırköy Public Prosecutor. On the same day the Ministry of Justice informed the Bakırköy Public Prosecutor that, the contrary to what the court had noted in its decision of 4 January 2006, there was a clear extradition request from the US authorities concerning the applicant, in accordance with the relevant international agreement between the two countries. On 6 January 2006, following the Public Prosecutor’s request, the Bakırköy Assize Court reconsidered the applicant’s case and rectified its initial decision. It decided to detain the applicant until his extradition. On 15 February 2006 the applicant’s representative requested the Court to indicate to the Turkish Government, under Rule 39 of the Rules of Court, the suspension of his client’s extradition. On 16 February 2006 the President of the Chamber to which the case had been allocated decided to indicate to the respondent Government that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to extradite the applicant to the United States until further notice, and invited them to submit written observations on the admissibility and merits of the case. Following this Rule 39 indication, on 21 February 2006 the Ministry of Justice requested the suspension of the extradition proceedings. On 16 March 2006 and 14 April 2006, the Court received the observations of the Government and the applicant, respectively. Extradition between Turkey and the United States is governed by the “Treaty on extradition and mutual assistance in criminal matters between the United States and the Republic of Turkey”, signed at Ankara on 7 June 1979. It entered into force 1 January 1981. The relevant provisions of the Treaty provide as follows: Article 7 “Contents of the request: 1. A request relating to a person being prosecuted or who is charged with an offence, and who has yet to be convicted, shall be accompanied by the following: (a) A warrant of arrest issued by a judge or other competent judicial officer; (b) A statement of the facts of the case; (c) Such evidence as, according to the laws of the Requested Party, would justify arrest and committal for trial of the person sought if the offence had been committed in the territory of the Requested Party; (d) Evidence proving that the person sought is the person to whom the warrant of arrest refers, including information, if available, on nationality; and (e) The text of the applicable laws of the Requesting Party, including the law defining the offence, the law prescribing the punishment for the offence, and the law relating to the limitation of legal proceedings or the enforcement of the penalty for the offence. ...” Article 10 “Provisional arrest or detention: (1) In cases of urgency, either Contracting Party may apply for the provisional arrest or detention of the person sought before the request for extradition has been submitted to the Requested Party through diplomatic channels. The request for provisional arrest or detention may be made either through diplomatic channels or directly between the Department of Justice of the United States and the Ministry of Justice of Turkey. (2) The application for provisional arrest or detention shall state that a warrant of arrest or a judgment exists and that it is intended to make a request for extradition. It shall also state the offence for which extradition will be requested and when and where such offence was committed and shall give all available information concerning the description of the person sought and nationality. ... (3) The Requested Party shall make the necessary arrangements for the provisional arrest or detention and shall notify the other Party when the person sought has been arrested or detained specifying that the person sought will be released if the documents mentioned in Article 7 are not submitted within a period of 60 days from the date of arrest or detention. (4) If the documents for extradition are submitted to the executive authority of the Requested Party within the 60 day time limit, the arrest or detention shall continue until a decision on the request for extradition has been reached by the competent authorities of the Requested Party. If the request for extradition is granted, the arrest or detention may be extended to the extent permitted by the laws of the Requested Party. ...” | 0 |
dev | 001-57923 | ENG | GBR | CHAMBER | 1,995 | CASE OF McMICHAEL v. THE UNITED KINGDOM | 3 | Violation of Art. 6-1 (second applicant);Violation of Art. 8;No violation of Art. 14+6-1;No violation of Art. 14+8;Non-pecuniary damage - financial award;Lack of jurisdiction (injunction to State) | C. Russo;John Freeland | 6. The first applicant, Antony McMichael, and the second applicant, Margaret McMichael, live in Glasgow. They were born in 1938 and 1954 respectively and were married on 24 April 1990. 7. On 29 November 1987 the second applicant gave birth to a son, A. The first applicant, who was then known as Antony Dench, and the second applicant, were living together, although at that time each had their own home. At the time the second applicant expressly denied that the first applicant was A.’s father. The child’s father was not identified on the birth certificate. 8. The second applicant had a history of severe and recurrent mental illness, diagnosed as manic depressive psychosis. She had first been ill in or about 1973 and had thereafter been compulsorily admitted to psychiatric hospitals on a number of occasions. While she and A. were still in hospital after the birth, Dr R., the consultant psychiatrist who had treated her since 1985, found that she was suffering from a recurrence of her mental illness. He considered that if she were to go home with A., the child would be at risk. As a result, on 11 December 1987 the social work department of Strathclyde Regional Council ("the Council") - this being the local government body having statutory responsibilities relating to the welfare of children in Glasgow and the surrounding area - applied for and were granted an order known as a "place-of-safety order", in accordance with section 37 (2) of the Social Work (Scotland) Act 1968 ("the 1968 Act") (see paragraph 50 below for an explanation as to such orders). The effect of this order was to authorise the Council to keep A. in the hospital for a period not exceeding seven days. The second applicant was informed and advised to seek legal advice. 9. The Reporter to the Children’s Panel for Strathclyde Region, being of the view that A. might be in need of compulsory measures of care, arranged for a "children’s hearing" to be convened, in accordance with section 37 (4) of the 1968 Act (as to the functions of the Reporter and the nature of children’s hearings, see paragraphs 46, 47, 50 and 51 below). The ground of referral of the case to the children’s hearing was that "a lack of parental care [was] likely to cause [A.] unnecessary suffering or seriously to impair his health or development", this being one of the statutory grounds provided for under section 32 of the 1968 Act (see paragraph 48 below). In support of the ground of referral, the following statement of facts was given: "(1) ... (2) That the parent suffers from a major psychiatric illness. (3) That the parent refuses to take medication to stabilise her condition when not an in-patient at psychiatric hospital. (4) That the parent has required to be admitted to psychiatric hospital on emergency basis ... on 5 June 1986, 5 December 1986 and 31 December 1986. (5) That due to her psychiatric condition the parent is unlikely to be able to care adequately for the child." 10. At the children’s hearing on 17 December 1987 the chairman explained to the second applicant the reasons stated by the Reporter for the referral of the case. She indicated that she did not accept the ground of referral and, in particular, disputed paragraphs 2, 3 and 5 of the statement of facts. The children’s hearing accordingly instructed the Reporter to apply to the Sheriff Court (the local court) for a finding as to whether the ground of referral was established, in accordance with section 42 of the 1968 Act (see paragraph 54 below). The children’s hearing also issued a warrant under section 37 (4) of the 1968 Act for A.’s continued detention in a place of safety until 6 January 1988 (see paragraph 50 below). A subsequent warrant was granted by a further children’s hearing on 5 January 1988. 11. On 23 December 1987 A. was discharged from hospital and taken to foster parents at Greenock, twenty-four miles from Glasgow. He has remained with them since then. On the same day the second applicant discharged herself from hospital. Arrangements were made for her to be taken three times a week for access visits to A. at the foster home, under the supervision of the social work department. The first applicant, who also has a history of mental illness, was not included at this stage in the access arrangements. The principal reason for this was that the second applicant continued to deny that he was A.’s father and he did not himself make any claim to be the father. Other reasons were his aggressive and threatening attitude and his refusal to give information about his background. 12. The second applicant complained about the placement in Greenock and inadequacy of access arrangements. At first she accepted the exclusion of the first applicant, but she and the first applicant subsequently complained about that also. She failed to appear for four of the access visits between 31 December 1987 and 18 January 1988. 13. On 21 January 1988 the Reporter’s application for a finding on the ground of referral was heard in the Glasgow Sheriff Court. The second applicant was present and represented by a solicitor. The first applicant also attended. The Reporter led oral evidence from medical, nursery and social work witnesses, including Dr R. The first and second applicants both gave evidence. There was no documentary evidence before the court other than the ground of referral and statement of facts (referred to above in paragraph 9). At the conclusion of the hearing the Sheriff found the ground of referral established. He remitted the case to the Reporter for him to arrange a children’s hearing to dispose of the case. The second applicant did not appeal to the Court of Session (the supreme civil court in Scotland). On an application by the Reporter and after hearing submissions on behalf of the Reporter and the second applicant, the Sheriff also granted a warrant for A.’s continued detention in a place of safety for a further period not exceeding twenty-one days. 14. On 27 January 1988, the social work department held a meeting known as a "child care review", to consider the case. Both applicants were present. The consultant psychiatrist, Dr R., advised that the second applicant was seriously mentally ill but was unwilling to accept treatment. It was decided that access should be terminated, though this decision would be reviewed if the second applicant’s mental state improved. The first applicant had also requested access at the meeting, claiming for the first time that he was A.’s father. Access was refused since the second applicant continued to maintain that he was not the father. The social work department also took into account his aggressive and threatening attitude and his continuing refusal to provide information about himself. 15. On 4 February 1988 a children’s hearing was held to consider the need for compulsory measures of care for A. The second applicant attended, with the first applicant as her representative. The hearing had a number of documents before it, including a report of 28 January 1988 on the child compiled by the social work department, reviewing the history of the case and proposing that A. continue to reside in the foster home. In accordance with the relevant procedural rules (as contained in the Children’s Hearings (Scotland) Rules 1986 - "the 1986 Rules"; see paragraph 57 below), these documents were not produced to the applicants, but the chairman informed them of their substance. The children’s hearing decided that A. did need compulsory measures of care. They therefore made a supervision requirement under section 44 (1) (a) of the 1968 Act, placing A. under the supervision of the Council subject to the condition that he reside with the foster parents in Greenock (as to supervision requirements, see paragraphs 58 to 60 below). The decision was based, inter alia, on the mental health of both applicants, their aggressive and hostile behaviour and the second applicant’s refusal to seek psychiatric help and treatment. This decision did not make any provision as to access. In such circumstances the presumption is that parents will be given reasonable access, subject to section 20 (1) of the 1968 Act which empowers a local authority to deny access where necessary for the child’s welfare. 16. On 6 February 1988 the second applicant was admitted to a psychiatric hospital, initially as a voluntary patient and, as from 10 February, on an involuntary basis. She returned home in June 1988. 17. The second applicant (while in psychiatric hospital) appealed to the Sheriff Court against the decision of the children’s hearing. All the documents that had been before the children’s hearing were lodged with the Sheriff Court. It would appear that, in accordance with the normal procedure (as to which, see paragraph 61 below), they were not made available to the second applicant. She attended the appeal hearing on 29 February 1988, accompanied by two nurses. She was obviously under heavy sedation and was unrepresented. Following discussion, the Sheriff enquired whether she would prefer to ask for a review by a children’s hearing of the supervision requirement, rather than pursue her appeal. The second applicant agreed. The appeal was accordingly held to have been abandoned. 18. A review was held by the social work department on 27 April 1988. Both applicants attended, the second applicant having been allowed home on leave from the psychiatric hospital. In view of the second applicant’s improved mental state, it was decided to grant her supervised access to A. By this time, the second applicant had agreed that the first applicant was A.’s father. On 18 February 1988 his name had been added to the birth certificate. This did not, however, give him parental rights (as to which, see paragraph 43 below). At the review, the Council decided not to grant him access until he gave them information about his background, which he had so far refused to do. Visits by the second applicant to A. at the foster home, under the supervision of a social worker, began on 26 May 1988 and continued until September 1988. 19. On 24 August 1988, solicitors acting for the first applicant applied to the Scottish Legal Aid Board for legal aid for an action against the Council in the Court of Session to obtain custody of A. or, failing that, access to him. The Board refused legal aid on the basis that it was unreasonable that he should receive legal aid in the particular circumstances and that it had not been shown that there was a probable cause of action. Counsel then advised the first applicant that the proposed action was incompetent and that it would be appropriate to pursue the question of access by seeking a children’s hearing to review the supervision requirement. 20. On 20 September 1988 the social work department held a further child care review. Neither applicant attended but the second applicant was represented by a clergyman. The department had previously held meetings with the first applicant to obtain background information about him and, with his consent, made inquiries with his doctor and the police. It was decided to allow both applicants access of three supervised visits per week at a special centre and to give assistance to them in learning parenting skills. The position was to be reassessed after three months. Access at the centre began on 4 October 1988. 21. On 13 October 1988 the children’s hearing held a review of the supervision requirement. The second applicant was present and the first applicant attended as her representative. The hearing had before it a report by the social work department dated 20 September 1988, updating information on A. The report also contained a statement that the second applicant was refusing to take the medication prescribed for her, an account of the proposed arrangements for access and a recommendation that the supervision requirement should continue pending assessment of the proposed access for the next three months. In accordance with the relevant procedural rules (see paragraph 57 below), this report was not disclosed to the applicants, though the chairman informed them of its substance. The applicants had submitted a statement maintaining that in their view the ground of referral was not justified, as they had never had an opportunity to show that they could care for A. The children’s hearing decided to continue the supervision requirement and to approve the access proposals. The hearing considered that only time would show if A.’s return to the care of the applicants was a viable prospect and that the second applicant’s mental health should be closely monitored. The second applicant did not appeal to the Sheriff Court. 22. Between 4 October and 19 December 1988, the applicants made approximately twenty-three access visits to A. The social workers did not consider the visits to be a success. In reports dated 22 November 1988 by a health visitor and 23 November by a medical officer, it was stated that the applicants frequently argued before A. and displayed aggression to the staff, with the result that they were excluded from two child care centres. They appeared to be unable to accept or follow advice on child care. 23. On 19 December 1988 a child care review was held, at which the applicants were present. The meeting noted that no obvious progress had been made in the applicants’ ability to care for A. It was decided to terminate access visits in view of concern about the long-term effects on A. if access were to continue without any real prospect of his returning to the care of his natural parents. It was also decided to investigate the option of freeing A. for adoption. The applicants appealed internally to the District Manager of Social Services, who confirmed the decision by letter of 28 December 1988 in which he recommended them to obtain legal advice. 24. Following a request by the second applicant, a children’s hearing carried out a review of the supervision requirement on 20 June 1989. The second applicant was present with the first applicant as her representative. The Reporter provided the hearing with a further report by the social work department, updating the information on A. It described the problems experienced during the access period, and reported that A. was happy and developing well in his foster home and that prospective adopters were being sought. Also presented to the hearing were the documents that had been before previous hearings. The applicants asked for access to be re-established. The hearing considered that there might be a conflict of interest between the second applicant and A. They therefore adjourned the hearing to allow for the appointment of a "safeguarder", that is an independent person to represent the interests of the child (as to which, see paragraph 53 below). 25. The safeguarder, once appointed, interviewed the applicants, the social workers, the foster parents and the police. His report of 18 August 1989 stated, amongst other things, that A. was being adequately cared for by the foster parents and that it was desirable that the second applicant should obtain a doctor’s opinion on her present psychiatric condition. 26. The adjourned children’s hearing reconvened on 5 September 1989. The applicants were present, the second applicant being represented by a solicitor. In accordance with the relevant procedural rules (see paragraph 57 below), the safeguarder’s report and the other documents before the hearing were not disclosed to the applicants, but the chairman informed them of the substance. Also before the hearing were written submissions by the applicants stating their ability to care for A. and the unfairness of judging them on the basis of three months’ intensive access. The safeguarder attended the hearing and confirmed his view that A.’s best interests would be served by his remaining in care. The hearing concluded that the supervision requirement should continue and that there was nothing in what they had heard to convince them that they should grant access. They did not take up a suggestion by the second applicant’s solicitor to grant a further adjournment in order to obtain an independent psychiatric report on the second applicant. 27. The second applicant appealed to the Sheriff Court on the grounds that: (a) the applicants had not been informed of the substance of the documents produced at the hearing; (b) the refusal of access was based on inadequate information, in particular the lack of up-to-date information as to the second applicant’s mental health; and (c) the refusal to adjourn the hearing for the purpose of obtaining a psychiatric report on the second applicant’s current mental health was manifestly unreasonable. In the event ground (a) was withdrawn. At the appeal hearing on 4 October 1989 the Sheriff decided that it would have been appropriate to obtain a psychiatric report. He therefore allowed the appeal and remitted the case to the children’s hearing. 28. In the meantime, a psychiatric report, dated 29 September 1989, had been produced at the request of the second applicant’s solicitors. This report stated that the second applicant suffered from a recurrent mental illness, which was however in remission and which, if it recurred, would respond satisfactorily to treatment as in the past. The psychiatrist considered that access should be re-established and that A. could eventually be returned to the applicants. 29. A children’s hearing was held on 12 December 1989 to reconsider the case, as directed by the Sheriff (see paragraph 27 above). The hearing was adjourned at the request of the solicitor representing the second applicant, in order to allow the psychiatrist to submit a fuller report. 30. A children’s hearing was held on 9 January 1990, but neither applicant attended or was represented. The hearing was told that the second applicant had been declared insane and admitted to a psychiatric hospital. A further hearing was held on 18 January 1990. Neither applicant attended or was represented. The hearing concluded that the second applicant was not well enough to have access to A. and that they could not see any future for A. with her. A condition was added to the supervision requirement that there be no access by the second applicant. The second applicant did not appeal to the Sheriff Court. 31. On 1 February 1990 the Council lodged with the Sheriff Court a petition to free A. for adoption. 32. The applicants were married on 24 April 1990. The first applicant thereby obtained parental rights in respect of A. (as to which, see paragraphs 42 and 43 below). 33. The petition was heard between 18 June 1990 and 27 July 1990. The applicants, as parents, refused to give their consent to adoption. They were present at the hearing. The first applicant conducted his own case, whereas the second applicant was represented by a solicitor. The documentary evidence before the court had been disclosed to the applicants. Witnesses were heard. The applicants had the opportunity to cross-examine all witnesses led by the Council, as well as to lead their own evidence. 34. The Sheriff delivered his judgment on 14 October 1990, the second applicant having in the meantime been re-admitted to hospital on 12 August. He decided that the applicants were withholding their consent unreasonably and that, accordingly, their consent should be dispensed with. He therefore granted the order freeing A. for adoption. His judgment contained a detailed description of the second applicant’s history of mental illness and of the problems that had occurred during access visits. His findings included the following: "Mrs McMichael is incapable of having permanent care of the child [A.] because of the severity and unpredictability of her illness. When she is actively ill it would be unsafe for the child to be in her care. ... The natural parents have no understanding of what is meant by loving and caring for a child and have demonstrated an inability either to learn such skills, or to want to learn them. It is in the interests of the child’s welfare that he be freed for adoption. The natural parents are both emotionally and intellectually incapable of giving the child a secure and stable environment. If he were in their care he would be liable to suffer emotional deprivation and, because of their inability physically to care for him, could be in situations of danger." The Sheriff concluded: "In my view, there is no escaping from the conclusion that both these parents are withholding their agreement unreasonably. They are withholding their agreement because they are not parents who have begun to demonstrate their capacity to have custody. Mrs McMichael suffers from a grave mental illness which may at any time, unless appropriate medical treatment is taken, incapacitate her from looking after, not only a child, but herself. Even when her illness is not to the degree at which hospitalisation is required, she has been demonstrated as incapable of the most elementary physical and emotional capacities in parenting. The one capacity she does have, I accept, is the desire to be a parent, to have the child, but the accomplishment of that ambition is, I fear, demonstrated to be beyond her. The incapacity of the father to behave normally as a parent to the child is established by the evidence of Mrs [K. (the health visitor)] and Mrs [M. (from the social work department)], whose testimonies support the findings in fact I have made relating to access visits ..." 35. In December 1990 the applicants appealed to the Court of Session against the Sheriff’s decision. 36. The applicants were granted legal aid. Counsel and solicitors’ advice was that an appeal had no prospects of success at all and should be abandoned. The applicants did not accept this advice and continued with the appeal, without legal assistance. 37. The appeal was dismissed by the Court of Session on 1 November 1991. The court held that the Sheriff was justified in concluding that, because of the mental health of the second applicant and the first and second applicants’ lack of understanding how to care properly for a child, it would have been contrary to the best interests of A. to return him to the applicants’ custody. 38. In the meantime, on 18 July 1991, a children’s hearing had decided that the supervision requirement should continue. A similar decision was made subsequently by another children’s hearing on 9 June 1992. 39. At a children’s hearing held on 4 May 1993 it was announced that the foster parents with whom A. had been living since 23 December 1987 intended to adopt him. The children’s hearing decided that the supervision requirement should continue, with a condition that A. should reside with the foster parents. 40. On 25 May 1993 the application by the foster parents to adopt A. was granted by the Sheriff. The effect of the adoption order was to vest in the adoptive parents all parental rights and duties relating to A. 41. On 21 September 1993 a children’s hearing decided that the supervision requirement should be terminated, as A. had been adopted and all reports on his welfare were favourable. 42. Under Scots law the nature of the rights enjoyed by parents in relation to their children is governed by the common law. In respect of girls under 12 and boys under 14, parents enjoy, inter alia, (a) the right of tutory, which can be described as the right to administer the child’s property and to act legally on behalf of the child; (b) the right of custody, which can be described as the right of the parent to have the child living with him or her, or otherwise to negotiate the child’s residence and to control the child’s day-to-day upbringing; (c) the right to access. 43. The position as to the persons who may exercise parental rights is regulated by the Law Reform (Parent and Child) (Scotland) Act 1986 ("the 1986 Act"). In general the 1986 Act abolished the legal distinctions between children born in and out of wedlock. However, in relation to parental rights a distinction persists, as appears from section 2 (1) which provides: "(a) a child’s mother shall have parental rights whether or not she is or has been married to the child’s father; (b) a child’s father shall have parental rights only if he is married to the child’s mother or was married to her at the time of the child’s conception or subsequently." Section 2 (1) is in turn subject to section 3, which enables any person claiming an interest to make an application to court for an order relating to parental rights (subsection (1)). The court, which is bound to regard the welfare of the child as the paramount consideration, may not make such an order unless satisfied that to do so would be in the interests of the child (subsection (2)). The natural father of a child born out of wedlock (who is not automatically entitled under section 2 (1)) may obtain parental rights (including tutory, custody or access) under this procedure by applying to either the Court of Session or the local Sheriff Court. Where the mother consents, the matter will be dealt with expeditiously. 44. The arrangements in Scotland for dealing with children who may need compulsory measures of care are set out in Part III of the 1968 Act, as supplemented by subordinate legislation and, in particular, the 1986 Rules governing conduct of children’s hearings. 45. Under section 20 of the 1968 Act the local authority (in the present case, Strathclyde Regional Council) has a general responsibility for promoting social welfare in its area. More specifically, it has the duty to inquire into and tell the Reporter of cases of children who may need compulsory measures of care, to provide reports on children for children’s hearings and to implement supervision requirements imposed by children’s hearings. 46. The Reporter is appointed under section 36 of the 1968 Act by the local authority. Though employed by the local authority, he is expected to exercise his judgment independently and is separate from the local authority’s social work department. He may not be removed from office without the consent of the Secretary of State. His duties include deciding whether a case should be referred to a children’s hearing and arranging such hearings when they are necessary. 47. Children’s hearings decide whether a child requires compulsory measures of care and, if so, which measures are appropriate. Pursuant to section 34 of the 1968 Act, a children’s hearing consists of a chairman and two other members drawn from the children’s panel. The Secretary of State appoints a children’s panel for each local authority area. The members hold office for such period as the Secretary of State specifies; they may be removed by him at any time, but only with the consent of the most senior judge in Scotland, the Lord President of the Court of Session (section 33 of and Schedule 3 to the 1968 Act, and section 7 (1) of the Tribunals and Enquiries Act 1992). In practice members are initially appointed for a period of two years and are then usually reappointed for a further period, normally of five years. They would be removed only in wholly exceptional circumstances. Under domestic law a children’s hearing is regarded as a tribunal. It comes under the statutory system applicable to tribunals in Scotland (paragraph 61 of Schedule 1 to the Tribunals and Inquiries Act 1992). Its members are considered to enjoy judicial immunity from proceedings for wrongful detention and defamation, in the same way as judges of the lower courts. 48. The children’s hearing may only consider the case of a child where it has been referred to them by the Reporter and where certain "grounds of referral" are established, either by agreement with the child and his parent or by a decision of the Sheriff Court. The grounds, as set out in section 32 of the 1968 Act, include the following: "(c) lack of parental care is likely to cause him unnecessary suffering or seriously to impair his health or development." Thus, in the absence of agreement, a decision by a judge on the grounds of referral, after hearing appropriate evidence, is essential before the children’s hearing can consider the case. 49. The Sheriff, that is any judge of the local Sheriff Court, has the following main roles in the process: (a) to grant a warrant for continued detention of a child in a place of safety, pending a hearing, in certain circumstances; (b) to adjudicate on whether the grounds of referral to the children’s hearing are established, where the child or his parent does not accept them; (c) to hear appeals against decisions of children’s hearings. 50. As an urgent measure to protect a child before he or she can be brought before a children’s hearing, a person may be authorised by a judge to take a child to "a place of safety", as defined in the 1968 Act, in cases where there is believed to be lack of parental care (sections 37 (2) and 94 (1) of the 1968 Act). Such detention may not in any case last more than seven days. The Reporter must be notified immediately. If he then considers that compulsory care may be needed, he must arrange a children’s hearing to consider the case (section 37 (4)). If the children’s hearing cannot dispose of the case, they may issue a warrant, renewable once, requiring detention for up to twenty-one days (section 37 (4) and (5)). Thereafter the Reporter may ask the Sheriff for a warrant for further detention for a period of up to twenty-one days (section 37 (5A)). The child and his or her parents have a right to be heard before any such warrant is issued by a children’s hearing or a Sheriff. 51. The Reporter is under a duty to notify the parents of a child of a children’s hearing giving at least seven days’ notice. He also must provide before the first hearing a statement of the grounds of referral. He must also request from the local authority a report on the child and his or her social background, and the local authority must supply it (section 39 (4) of the 1968 Act). 52. A parent has the right to attend at all stages of a children’s hearing. "Parent" excludes the father of a child born out of wedlock but includes a person who has been granted parental rights under section 3 of the 1986 Act (sections 4 (1) and 30 (2) of the 1968 Act). A parent may be represented by any person of his or her choice (Rule 11 of the 1986 Rules). 53. Where the chairman of the children’s hearing considers that there is a conflict of interest between child and parent, he has the power to appoint a person known as a safeguarder to represent the child (section 34A of the 1968 Act). 54. At the first children’s hearing it must be ascertained if the grounds of referral are accepted by the child or his or her parent. If both child and parent accept, the hearing may proceed. If not, the hearing must direct the Reporter to apply to the Sheriff Court for a decision as to whether the grounds are established. Such application must be made within seven days and heard within twenty-eight days of its being lodged. The parents may appear as parties and be represented. The hearing is conducted in chambers, that is in private, in the interest of the child. Following the hearing, the Sheriff may either discharge the referral or, where he is satisfied that the grounds are established, remit the case to the Reporter. The Reporter will then make arrangements for a further children’s hearing for consideration and determination of the case (section 42 (6) of the 1968 Act). 55. At this stage, after discussing the case with the child, the parent or parents, any safeguarder and any representative attending the hearing, the children’s hearing must consider what arrangements would be in the best interests of the child (section 43 of the 1968 Act). They may, amongst other things, (1) decide that no further action is required and discharge the referral; (2) adjourn the case pending further investigations; (3) if they consider that the child is in need of compulsory measures of care, make a supervision requirement (as to which, see paragraph 58 below). 56. Before the conclusion of the hearing the chairman must inform the child, parent or parents, safeguarder (if any) and representatives (if attending the hearing) of the decision of the children’s hearing, the reasons for the decision, the right of the child or parent to appeal to the Sheriff against the decision and the right of the child and parent to receive a statement in writing of the reasons for the decision. Such a written statement must then be given if requested. Any parent, child or safeguarder who did not attend must be notified in writing of the decision, the right to receive a statement of reasons and the right to appeal (Rules 19 (4) and 20 of the 1986 Rules). 57. Children’s hearings are required to consider any relevant information made available to them (Rule 19 (2) (a) of the 1986 Rules). Apart from the statement of grounds of referral, this information (which would include any report, document or information submitted by the Reporter) is not usually supplied to the child or his parents. However, the chairman is required at the hearing to inform the child and his parents of the substance of such reports, documents or information if it appears to him that this is material to the manner in which the case should be disposed of and that its disclosure would not be detrimental to the interests of the child (Rule 19 (3) of the 1986 Rules). 58. Supervision requirements are the orders of the children’s hearing imposing compulsory measures of care. One kind of requirement that may be ordered is to submit to supervision in accordance with such conditions as the children’s hearing may impose, which may include a condition that the child reside in a particular place other than a residential establishment - for example, with foster parents (section 44 (1) (a) and (b) of the 1968 Act). A supervision requirement makes the local authority responsible for the care of the child in accordance with the requirement and gives them the necessary powers to exercise this responsibility. It does not, however, formally vest in them any parental rights of custody and does not take away parental rights. Those rights are subject to the supervisory requirements and, so far as inconsistent with those requirements, they cannot be exercised. Thus, the right of custody cannot be exercised where a supervision requirement has required a child to live in foster care. The Court of Session has indicated in the case of Aitken v. Aitken ([1978] Session Cases 297) that while such a supervision requirement subsists it would be possible for them to award a person custody of the child, but this award would have effect subject to the supervision requirement and the person could not exercise actual custody while the supervision requirement subsisted. As regards access, the children’s hearing is entitled to attach conditions as to access when making or continuing a supervision requirement (see Kennedy v. A. [1986] Scots Law Times 358). In the absence of any express condition, the parents will be given reasonable access. However, a local authority has the competence to terminate access where that is appropriate in pursuance of their duty under section 20 of the 1968 Act (see paragraph 45 above). The Court of Session has made it clear, in the case of Dewar v. Strathclyde Regional Council ([1984] Session Cases 102), that the courts will not adjudicate on questions of access between the parents and the local authority. If a parent is dissatisfied with the decision of a local authority as to access, it is appropriate for him or her to apply to a children’s hearing to regulate the matter by attaching a condition as to access to the supervision requirement. An appeal to the courts will then lie against the decision of the children’s hearing. 59. A parent has the right to request a review of a supervision requirement every six months after the last review (section 48 (4) of the 1968 Act) and can use this right to obtain a ruling on access. 60. The 1968 Act prescribes that a child should not continue to be subject to a supervision requirement for any longer than is necessary for his or her interest. The requirement must be reviewed by a children’s hearing - (a) at any time if the local authority consider that it should cease to have effect or be varied; (b) within one year, otherwise it will cease automatically to have effect; (c) at the request of the child or his or her parent, after the expiry of these periods - (i) three months from imposition of the requirement; (ii) three months from any variation of the requirement of review; (iii) six months from any other review (section 48 (4) of the 1968 Act). The Reporter must make the necessary arrangements for such revision hearings. On review the children’s hearing may terminate, continue or vary the requirement (sections 47 (1) and 48 of the 1968 Act). (h) Appeal against a decision of a children’s hearing 61. Within three weeks of a decision of a children’s hearing a child or parent or both may appeal against it to the Sheriff (section 49 (1) of the 1968 Act). This applies to all decisions. The Reporter has the duty to ensure that all reports and statements available to the children’s hearing along with reports of the proceedings of the children’s hearings and their reasons for their decisions are lodged with the clerk to the Sheriff Court. These documents are not made available to the parents as a matter of practice. The appeal is heard in chambers, in the interest of the child. The Sheriff must first hear the appellant or his representative and any safeguarder appointed. Where an irregularity in the conduct of the case is alleged, unless the facts are admitted by the Reporter, the Sheriff must hear evidence tendered by or on behalf of the appellant and the Reporter as to the irregularity. The Sheriff will then proceed to question, if he thinks fit, the Reporter and the authors or compilers of any reports and statements before him. He can call for further reports and statements where he thinks that this may help him. The child and parents and safeguarder are normally entitled to be present throughout. 62. The Sheriff will allow the appeal if he finds that there was a flaw in the procedure adopted by the children’s hearing, or that the children’s hearing did not give proper consideration to some factor in the case. Where he decides the appeal has failed, he confirms the decision of the children’s hearing. Where he allows the appeal, he may act as follows: (a) where the appeal is against a warrant for detention, he may recall the warrant; (b) in any other case, he has the choice of remitting the case to the children’s hearing for reconsideration or else of discharging the child from any further proceedings arising from those grounds of referral (section 49 (5) of the 1968 Act). 63. Pending an appeal, the child or his parents may make an application to a children’s hearing for suspension of the supervision requirement in question. The Reporter must then arrange for a hearing, which may grant or refuse the application (section 49 (8) of the 1968 Act). 64. The legislation governing adoption procedure is the Adoption (Scotland) Act 1978 ("the 1978 Act"). 65. Under the 1978 Act an order declaring the child free for adoption may be made by the Court of Session or Sheriff Court. The procedure of freeing for adoption makes it possible for the child to live with the prospective adopters in the period prior to adoption without the risk of his or her being reclaimed by the natural parents. Before making the order the court must be satisfied as regards each parent or guardian of the child that either (a) he or she freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order; or (b) his or her agreement to making the adoption order should be dispensed with on a number of specified grounds, which include the ground that the parent or guardian is withholding agreement unreasonably (section 16 (2) of the 1978 Act). For the purposes of the 1978 Act the natural father of a child born out of wedlock would not be a "parent" or "guardian" except where he has subsequently married the mother or has a parental-rights order in his favour. The effect of an order freeing the child for adoption is to vest parental rights and duties in the adoption agency (that is, a local authority or an approved adoption society) and to extinguish existing parental rights. After freeing for adoption, the child will normally live for a time with the prospective adopters and then they will seek an adoption order. 66. An order of the Sheriff Court freeing a child for adoption is subject to appeal to the Court of Session. On such an appeal the Court of Session can decide on the whole merits of the action. The Court of Session will normally proceed on the basis of the Sheriff’s findings of fact but is not obliged to do so. It may, where appropriate, take evidence itself or remit the case to the Sheriff with instructions as to how he should proceed. | 1 |
dev | 001-114523 | ENG | GBR | ADMISSIBILITY | 2,012 | MCGLYNN v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano | The applicant, Mr John Joseph McGlynn, is an Irish national, who was born in 1952. He is detained at HMP Woodhill, Milton Keynes. He is represented before the Court by Ms B. Goff, a lawyer practising in Bray, County Wicklow, Ireland. 1. The facts of the case, as submitted by the applicant, may be summarised as follows. 2. On the night of 14/15 October 1987, an eighty-eight year old woman, VC, was raped both vaginally and anally in the course of a burglary at her home. Soon afterwards, VC gave a statement to the police in which she stated two black men had broken into her house and she had been raped by a large black man with an ordinary English accent. She stated that she had the impression that the men were older than teenagers but could not be sure. In the course of the police investigation, semen was found on her nightdress, on a bed sheet and on swabs taken from her body. The samples were placed in storage. No-one was charged at the time of the offences and VC died in 1995. 3. The applicant is white, slightly built and has an Irish accent. He was thirty-five years of age at the time of the offences. In 2009 his DNA was found to match that found on the nightdress and bed sheet. He was arrested, charged with rape, false imprisonment, buggery and burglary, and went to trial before a judge and jury at the Aylesbury Crown Court from 1–9 June 2010. The applicant’s defence was that he had been having an affair with VC and that they had consensual sex on a number of occasions, the last being the day before the rape took place, which explained the DNA on the bed sheet and nightdress. He denied, however, that he had been responsible for the burglary and rape. 4. At the start of the trial the prosecution applied for VC’s police statement to be read to the jury under section 116 of the Criminal Justice Act 2003. The trial judge allowed the application. He considered that it was proper to have regard to the likelihood of it being possible for the defence to controvert the statement of the witness by the defendant himself giving evidence and/or calling evidence of other witnesses. He noted that, while the evidence of VC was important, and without it there would be no prosecution, it was not the sole or decisive evidence in the prosecution case. The trial judge further considered the defence complaint that they could not explore the grounds for VC’s belief that she had been raped by a black man and could not be examined as to the affair the applicant said they had been having. The trial judge took the view that these were important matters but could be addressed by an appropriate direction to the jury in his summing up. 5. After VC’s statement had been read to them, the police officer who took the statement gave live evidence to the effect that VC was well-spoken, “old school”, stoic, and prim and proper. VC had told the police officer that she had not married until she was sixty years of age, that she had been a virgin when she had married and that she and her husband had sexual intercourse infrequently. The jury also heard evidence from VC’s friends to whom she had confided that she had been raped by a black man. The friends also gave evidence that VC had been a lively, intelligent and active woman, who was involved in her local church. She had developed a tendency to be forgetful after she turned ninety. A neighbour, AB, aged seventy-four at the time of trial, also gave evidence that she and VC had met the applicant at a café. She (AB) had exchanged numbers with him. She had seen him a few times afterwards, once in the company of a black man. (The applicant denied this last part of her evidence.) They had slept together once. (The applicant maintained it was on at least six occasions.) To her knowledge, the applicant and VC had never met each other after their meeting at the café. The jury also heard expert evidence that the chances of the DNA on the bed sheet and nightdress belonging to someone other than the applicant were less than one in one billion. There was also forensic evidence that the applicant’s fingerprints had been found in seven places in VC’s home, including the window which had been forced open to obtain entry. 6. The prosecution also applied for leave to introduce the applicant’s four previous convictions for domestic burglaries, which had been committed between 1979 and 1984, on the ground that they were relevant to an important matter in issue between the defendant and the prosecution, namely whether the applicant had a propensity to burgle. The defence opposed that application, arguing that there was not a sufficient degree of similarity between the past burglaries (which had not involved targeting the elderly or any sexual offences) and the present case, where the principal charge was one of rape. The trial judge nonetheless allowed the introduction of the previous convictions, agreeing with the prosecution that the test was only whether the applicant had a propensity to burgle and whether this was an important matter in issue between the defendant and the prosecution. He was satisfied that this was the case and was further satisfied that the admission of the convictions was not so prejudicial as to outweigh its probative value. 7. The applicant gave evidence in his own defence. He said that, after meeting VC at the café, he had performed odd jobs for her, including repairing her window, which explained the fingerprints. In any event, given his previous experience of burglary, he would have known to use gloves, had he been the burglar. On two occasions VC had complained of joint or muscle pains and he had rubbed some oil on the painful areas. On a further occasion he had been helping VC move items into her bedroom. He had made a pass at her and they had proceeded to make love on the bed. In total, they had sex on about eight or nine occasions and at least twice in the bedroom. After the last occasion, on 13 October 1987, he finished his relationships with VC and AB and moved away from the area. He did so because he worked in the building industry and was obliged to move wherever there was work. 8. In respect of VC’s statement, the trial judge directed the jury in these terms: “...you should examine it with particular care, bearing well in mind that it does have certain limitations which I draw your attention to now. You have not had the opportunity of seeing or hearing [VC] in the witness box or of assessing her as a witness. When you do see and hear a witness you may get a much clearer idea of whether their evidence is honest and accurate. Her statement was not made or verified on oath and her evidence has not been tested in cross-examination, and you have not had the opportunity of seeing how her evidence would have survived some form of challenge. Her statement only forms part of the evidence and it must be considered in the light of all of the other evidence in the case. You must reach your verdict having considered all of the evidence. You should also have regard to the following discrepancies between her statement and her complaint and the prosecution evidence and the discrepancy [that] she was adamant that she was raped by a black man.” The trial judge went to outline for the jury the ways in which they could test the reliability of VC’s statement, including the circumstances in which it was made, her comments to her neighbours after the rape, her lifestyle (including her tendency, later in life, to become forgetful), whether the statement was supported by or consistent with the other evidence in the case, and whether VC had any reason to be untruthful. He also instructed them that, to find the applicant guilty, they had to be sure that VC had been wrong in thinking that a black man had been responsible. They also had to discount the possibility that VC was having a secret affair with the applicant. Finally, the trial judge reiterated that the jury had to consider the amount of difficulty involved in challenging the statement in the absence of cross-examination. 9. In respect of the applicant’s previous convictions, the jury were directed as follows: “The prosecution argue that those convictions are relevant because it establishes that the defendant has a propensity to burgle people’s houses, as happened to [VC] on the night that she was also tied up, handcuffed, raped and buggered. If you agree, then the prosecution suggest that it makes it more likely that this defendant committed the offence alleged, namely, burglary. The defendant admits those convictions. You must decide whether it establishes a propensity in him to burgle [VC]’s home, in other words a propensity to commit burglary and therefore help you as to whether he is the burglar. The defence case, as you know, is that it was not this defendant, he was not the burglar and was not at the home of [VC] on the night she was attacked, and in consequence could not and is not therefore guilty of any of these offences. ... So you must ask yourselves, does it establish the propensity that the prosecution contend for then if it does then it is a matter for you to judge how far that assists you in resolving the question of whether it was this defendant who acted as the burglar on this occasion, and whether, whilst burgling the property, it was him who tied up and sexually assaulted [VC]. Evidence of previous behaviour is only part of the evidence in the case. Its importance should not be exaggerated and it does not follow that just because the defendant behaved in a certain way in the past that he did so again on this occasion. Bad behaviour in the past cannot alone prove guilt; that is obvious.” 10. The trial judge concluded his summing up by reminding the jury, as he had done at the starting of his summing up, of the respective cases of the defence and prosecution. He first summarised the defence case and then that of the prosecution. 11. On 9 June 2010, the applicant was convicted by the jury of rape, false imprisonment, buggery and burglary. The total sentence was one of fifteen years’ imprisonment. 12. The applicant appealed against his conviction, inter alia on the ground that the trial judge erred in admitting VC’s statement and the evidence of his previous convictions. He also argued that the trial judge’s summing up had been unfair to him. On 16 March 2011 the appeal was dismissed by the Court of Appeal. 13. In respect of VC’s statement, the court concluded: “[W]e in fact agree with the [trial] judge that the complainant’s [VC’s] evidence was not the sole or decisive evidence, albeit it is true that the prosecution might not have been pursued without it. The significance of the complainant’s statement was that it established that these offences had taken place. [Counsel for the applicant] conceded that had the statement not made any identification of the persons who had committed this offence, and had it merely established that the relevant offences had been committed, then he could not sensibly have opposed it being adduced before the jury. What makes the difference, he submits, is that there was this identification and he was not able to cross-examine in relation to it. It is, we have to say, a somewhat bizarre submission, given that the identification itself is, of course, the most powerful evidence in favour of [the applicant]. It is true that the Crown was seeking to introduce the complainant’s evidence and then seeking to persuade the jury that they could be sure that she was wrong about part of it, namely the colour of the attacker and that he had an English accent. As the court noted in R v. Cairns, Zaidi & Chaudhary [2003] 1 Cr.App.R. (S) 38, there is no rule of law prohibiting the Crown from calling a particular witness in order to rely on a part only of the evidence. [Counsel] does not dispute that principle, but say that a different principle applied where the Crown is relying only on hearsay evidence. He referred us specifically to paragraph 108 of the judgment of Lord Phillips in the Horncastle case, where Lord Phillips said this, after referring to the provisions of the 2003 Act: “I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason.” [Counsel for the applicant] submits that the key here is that the Crown is not relying on the reliability of the statement. That is not entirely accurate. It is reliable, say the Crown, with respect to the fact that those offences were committed in precisely the way that the complainant alleges. What the Crown say is not reliable is the identification evidence which she provides. But the statement does not have to be reliable in every respect before it can be properly admitted. In this case, in our judgment it would have been contrary to the interests of justice to deprive the court of this statement. Indeed, it would have the effect that this defendant would effectively be immune from conviction because a witness has died, which is precisely what the 2003 Act was designed to prevent. In this case there was a strong prima facie case against the defendant on various serious charges and it would have been wrong, it seems to us, to have deprived the jury of an opportunity to consider his guilt because of the unfortunate death of the victim. Accordingly, we consider that it was entirely in accordance with the principles in Horncastle that this statement should be admitted. Insofar as it assisted the [applicant] to establish his innocence, it was in his favour.” 14. In respect of the applicant’s previous convictions, the court found that they were plainly relevant to a propensity to burgle, one of the charges on the indictment. The court did not accept that, because a more serious charge was also on the indictment, it became unfair to admit the evidence. 15. For the trial judge’s summing up, the court accepted that it might have been better if the judge, in his summary of the respective cases, had put the defence case last, but that was of no real moment. Moreover, although he had failed to refer to the fact that VC had identified her attacker as a black man with an English accent, that was plainly at the forefront of the jury’s mind; it had been a fundamental pillar of the applicant’s defence. The point had been made earlier in the summing up; it was an unfortunate oversight on the part of the trial judge that it was not referred to specifically when the summary of the respective cases had been given, but nothing more. 16. The relevant provisions of the Criminal Justice Act 2003 and the judgment of the Supreme Court in R. v. Horncastle and others [2009] UKSC 14 are set out in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 43-45 and 57-62, ECHR 2011. 17. Bad character evidence is regulated by Part 11, Chapter 1 of the Criminal Justice Act 2003. Section 98 defines evidence of a person’s bad character as: “evidence of, or of a disposition towards, misconduct on his part, other than evidence which — (a) has to do with the alleged facts of the offence with which the defendant is charged, or . (b) is evidence of misconduct in connection with the investigation or prosecution of that offence.” Section 101 allows for the admission of evidence of a defendant’s bad character. It provides: “(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if— . (a) all parties to the proceedings agree to the evidence being admissible, (b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it, (c) it is important explanatory evidence, (d) it is relevant to an important matter in issue between the defendant and the prosecution, (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, (f) it is evidence to correct a false impression given by the defendant, or. (g) the defendant has made an attack on another person’s character. (2) Sections 102 to 106 contain provision supplementing subsection (1). (3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.” Section 103, where relevant, provides: “‘Matter in issue between the defendant and the prosecution’ (1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include — (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; (b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect. (2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of— (a) an offence of the same description as the one with which he is charged, or (b) an offence of the same category as the one with which he is charged. (3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case. (4) For the purposes of subsection (2) — (a) two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms; (b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State. (5) A category prescribed by an order under subsection (4)(b) must consist of offences of the same type. (6) Only prosecution evidence is admissible under section 101(1)(d).” Section 112(1) defines “important matter” as a matter of substantial importance in the context of the case as a whole. | 0 |
dev | 001-114032 | ENG | FRA | CHAMBER | 2,012 | CASE OF C.N. AND V. v. FRANCE | 3 | Remainder inadmissible;Violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude;Article 4-2 - Compulsory labour;Forced labour);No violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude;Article 4-2 - Compulsory labour;Forced labour);Pecuniary and non-pecuniary damage - award | Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger | 5. The applicants, C.N. and V., are French nationals who were born in 1978 and 1984 respectively in Burundi. They are sisters. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. C. N. (“the first applicant”) arrived in France in 1994, at the age of sixteen. V. (“the second applicant”) and their three younger sisters arrived in France in 1995. The second applicant was ten years old at the time. Their arrival was arranged by their aunt, N., wife of Mr M., a national of Burundi. 8. The applicants left their country of origin, Burundi, following the civil war in 1993, during which their parents were purportedly killed. On a trip to Burundi, Mrs M. organised a family council. According to a record of the meeting dated 25 February 1995, it was decided to give guardianship and custody of the applicants and their younger sisters to Mr and Mrs M. The family considered that the couple, who lived in France, were the only members of the family “capable of taking care of [the applicants] and giving them a proper education and upbringing”. 9. Mr M., a former government minister of Burundi, was a UNESCO staff member and, as such, enjoyed diplomatic immunity. The spouses owned a four-bedroom detached house in Ville d’Avray in the Hauts de Seine département. They had seven children, one of whom was disabled. 10. When they arrived in France the applicants were housed in what they described as a poorly heated unconverted cellar in the basement of the house. The Government pointed out that it was not a cellar as such, but a basement room with a door opening into the garden and a window. The room contained a boiler, a washing machine and two beds. At the beginning of their stay the applicants shared the room with their three younger sisters. 11. At the same time, Mr and Mrs M. contacted an evangelical church with a view to placing the applicants’ three younger sisters with foster families, except in the school holidays. They were in fact taken in by two families in 1995 and 1996. In June 1996 two of the three sisters went to spend a few weeks with Mr and Mrs M.; the foster family, who had parental authority over them, had to take legal action to get them back in April 1997. 12. The applicants said that as soon as they arrived they had been made to do all the housework and domestic chores necessary for the upkeep of the house and the M. family of nine. They alleged that they had been used as “housemaids”. The first, older applicant said that she had to look after the family’s disabled son and do the gardening. They were not paid for their work or given any days off. 13. The applicants affirmed that they had had no access to a bathroom and only an unhygienic makeshift toilet at their disposal. The Government submitted that they were not denied access to the bathroom, but that it was limited to certain times of day. The applicants added that they were not allowed to eat with the family. They were given only pasta, rice and potatoes to eat, and occasionally leftovers from the family’s meat dishes. They had no leisure activities. 14. The second applicant was a pupil in the Ville d’Avray primary school from May 1995, then in the special general and vocational learning department of a Versailles secondary school from the start of the 1997 school year. As a non-French speaker she had had integration difficulties which she said increased her isolation. Her aunt nevertheless objected to her seeing the school psychologist as suggested by the teaching staff. Nor was the second applicant given any additional help in learning to read French, allegedly because this would have meant paying for her to have school meals. In spite of these difficulties she did well at school. When she got home from school she would have to do her homework then help her sister with the domestic chores. 15. The first applicant was never sent to school or given any vocational training. She spent all day doing housework and looking after her disabled cousin. The Government pointed out that the applicant had admitted in the course of the subsequent criminal proceedings that she had in fact refused to go to school. 16. On 19 December 1995 the Hauts de Seine welfare department submitted a report on children in danger to the Nantes public prosecutor according to which there was a risk that the children were being exploited “to do household chores among other things”. Following an investigation by the police child protection services, it was decided not to take any further action. 17. The first applicant turned eighteen on 23 March 1996. She contended that Mr and Mrs M. did nothing to legalise her situation vis-à-vis the authorities. According to the Government, her situation was not illegal because she was included in her aunt’s diplomatic passport. 18. From September 1997 the aunt refused to pay the second applicant’s bus fare to school. The applicant explained that when her uncle bought her a bus pass behind his wife’s back, her aunt got very angry and threatened to hit her. When she had no bus pass the second applicant had either to walk to school, which was a forty-five minute walk from where she lived, or to take the bus without a ticket. The applicant said that her aunt also refused to pay for her to have school meals. 19. In July 1998 the second applicant, after going several months without urgent dental treatment, had had to go to a dentist near the school at her own initiative. She had never received the orthopaedic treatment the dentist prescribed. As to the first applicant, she alleged that she had been hospitalised three times under her cousin’s name after being beaten by one of the of the boys in the family. 20. The applicants further alleged that they had been physically and verbally harassed on a daily basis by their aunt, who regularly threatened to send them back to Burundi to punish them and made disparaging remarks about their late parents. The second applicant claimed that once, when she was sick in bed, her aunt had threatened to hit her with a broomstick to make her clean the kitchen. 21. On 4 January 1999 the association “Enfance et Partage” drew the attention of the Nanterre public prosecutor’s office to the applicants’ situation, stating that the conditions they lived in – in the insalubrious, unheated basement of the M. family’s house – were contrary to human dignity, that the first applicant was used as a “housemaid” and had to look after the family’s disabled eldest son, that their aunt refused to buy the second applicant a travel card or pay for her to have school meals, and that both girls complained of ill-treatment and physical aggression by their aunt. The applicants ran away from the house the next day and were taken into the association’s care. 22. On 7 January 1999 the Nanterre public prosecutor’s office applied to the Director General of UNESCO to have Mr M.’s diplomatic immunity lifted. 23. On 27 January 1999 that request was granted, exceptionally, as part of an investigation into allegations of ill-treatment. The immunity of Mr M.’s wife was also lifted. 24. On 29 January 1999 a preliminary investigation was opened on the instructions of the Nanterre public prosecutor’s office. 25. On 2 February 1999 the police interviewed the two applicants, who confirmed the terms of the report by “Enfance et Partage”. They did, however, explain that their uncle had tried to temper his wife’s behaviour. The second applicant said that when their situation was first reported in 1995 she had not dared to tell the police the truth for fear of reprisals from her aunt. 26. That same day the association “Enfance et Partage” gave the police photos taken by the applicants in November 1998 of the basement they lived in. The photos confirmed the deplorable conditions of hygiene and insalubrity they lived in. 27. On 3 February 1999 Mr M. was interviewed by the police. He said he had done nothing wrong and that he had helped the applicants by bringing them to France. He told them that his wife, Mrs M., had left for Burundi on 15 January 1999. He also complained about an article in the press on 28 January 1999 making accusations against him and his wife. 28. The police established that, contrary to what Mr M. had told them, his wife had gone back to Burundi on 2 February 1999, a few days after the article appeared in the press. 29. Mr M. denied the investigators access to his house, alleging that his lawyer was not available. He added that renovation work was being done on the house. 30. On 16 February 1999 a judicial investigation was opened against Mr and Mrs M. for degrading treatment (Articles 225-14 and 225-15 of the Criminal Code) and against Mrs M. for wilful violence on a child under fifteen years of age, by a person in a position of authority, not entailing unfitness for work for more than eight days. An arrest warrant was issued against Mrs M. and Mr M. was placed under judicial supervision. 31. The applicants joined the proceedings as civil parties. 32. On 22 April and 3 May 1999 the applicants were heard by the investigating judge. They confirmed their previous statements and added that their situation at the home of Mr and Mrs M. had gradually deteriorated. The second applicant told the judge that at the time of the first report and investigation in 1995-1996 she had said nothing to the police because “things were not [yet] all that bad” with her aunt (a fact confirmed by the first applicant at a later hearing on 30 June 2000). The applicants emphasised the leading role played by their aunt, who had no qualms about hitting them and waking them up in the middle of the night if there was the slightest problem. The first applicant said she had even had to sleep outside the house one night. The applicants confirmed that their uncle had tried to smooth things over, but he was frequently away from home. When present he would often try to reason with his wife, and had even paid their bus fares or bought them clothes without his wife knowing. 33. On 29 April 1999 Mr M. was charged with infringement of human dignity under Articles 225-14 and 225-15 of the Criminal Code. 34. On 30 June 1999 the results of the medico-psychological examination of the two applicants ordered by the investigating judge were submitted. They revealed that the applicants showed no signs of serious psychological disorders or psychiatric decompensation, but that the psychological impact of what they had experienced was characterised by mental suffering, combined, in the case of the first applicant, with feelings of fear and a sense of abandonment, as the threat of being sent back to Burundi was synonymous in her mind with a threat of death and the abandonment of her younger sisters. As to the second applicant, the report stated that being sent back to Burundi was felt to be “even worse” than living with Mr and Mrs M. 35. On 30 June and 14 September 1999 the investigating judge noted that Mrs M. had twice failed to appear. She explained that she had been in Burundi. She was not heard until 15 June 2000. 36. Investigations carried out at the home of Mr and Mrs M. at the judge’s request revealed that the basement of the house had been completely refurbished after the applicants left. 37. On 5 February 2001 the investigating judge at the Nanterre tribunal de grande instance ordered Mrs M.’s committal for trial before the criminal court on charges of wilful violence on a child under fifteen years of age, by a person in a position of authority, not entailing unfitness for work for more than eight days (an offence punishable under Article 222-13 of the Criminal Code) in respect of the second applicant, and on charges of subjecting a person who is vulnerable or in a position of dependence to working conditions (in respect of the first applicant) or living conditions (in respect of both applicants) incompatible with human dignity (offences punishable under Articles 225-14 and 225-15 of the Criminal Code). In the same order, the investigating judge requested the termination of the proceedings against Mr M. concerning the charges of offences against human dignity. 38. On 7 February 2001 the applicants appealed against the decision to terminate that part of the proceedings. 39. On 18 December 2002 the Investigation Division of the Versailles Court of Appeal ordered further inquiries to determine the exact scope and measure of the lifting of Mr M.’s immunity by the Director General of UNESCO, and whether it applied to the preliminary investigation alone or to the proceedings as a whole. 40. On 30 April 2003 the Investigation Division of the Versailles Court of Appeal set aside the order of 5 February 2001 terminating part of the proceedings and ordered Mr M.’s committal for trial by the criminal court for having subjected the applicants, and also their three younger sisters, to treatment contrary to human dignity. As to the scope of the lifting of Mr M.’s immunity, the court found that no immunity applied, for the following reasons: “The explicit terms of the letter addressed to the court on 20 January 2003 by the Protocol Department of the Ministry of Foreign Affairs on behalf of the Minister, who has authority to interpret and measure the scope of the immunity granted to diplomats, dispel all uncertainty about the situation of Mr [M.]; the latter ceased to be a UNESCO staff member on 30 November 2001; as the deeds in question were not committed in the course of his duties, he no longer enjoys diplomatic immunity; there is accordingly no obstacle to his prosecution;” 41. Mr M. appealed against that ruling. 42. On 12 April 2005 the Criminal Division of the Court of Cassation confirmed that Mr M. did not enjoy diplomatic immunity, but set aside the Court of Appeal’s judgment of 30 April 2003 in so far as it had ordered Mr. M.’s committal for trial for offences committed against the applicants’ three sisters, as this was outside the remit of the investigating judge. 43. On 22 January 2007 the Nanterre Criminal Court rejected the objections as to admissibility raised by Mr and Mrs M. based on their diplomatic immunity. It adjourned the case to a hearing on 17 September 2007 to rule on the merits. 44. In a judgment of 17 September 2007 the Nanterre Criminal Court found Mr and Mrs M. guilty as charged. Mr M. was sentenced to twelve months’ imprisonment, suspended, and fined 10,000 euros (EUR). Mrs M. was sentenced to fifteen months’ imprisonment, suspended, and fined EUR 10,000. The couple were jointly ordered to pay the first applicant EUR 24,000 in damages, and the second applicant one symbolic euro, as she had requested. The relevant passages of the judgment read as follows: “... It appears from the information available that [the applicants], who found themselves in a situation of total dependence at the time, who were orphans and minors and whose papers had been taken away, were housed by their uncle and aunt in deplorable conditions of hygiene in an unheated, insalubrious basement; the photos adduced by counsel for the civil parties ... show the state of the place they lived in from 1995 to 1999; they had no access to the bathroom and had to fetch a pail of water from the kitchen to wash themselves, and the elder sister [the first applicant] was used as a housemaid by the couple [Mr and Mrs M.] with no day off and no pay. It is further established that they did not pay for [the second applicant’s] school meals or travel card, obliging her to walk several kilometres to school along a road through woods. It is also established that the accused refused to give them the medical treatment they needed, even though [Mr M.] had registered them with the UNESCO social security scheme. Although some of the girls’ statements indicate that the role played by [Mr M.] was a rather passive one, probably to avoid having to stand up to his wife’s strong character, he could not have been unaware of the difference in the way his nieces and his own children were treated. His frequent absences from home could not have made him unaware of the situation. In addition, he refused to let the police take photos of the basement, and then took pains to have it very comfortably refurbished when released from police custody. That being so, the actus reus and mens rea of the offence against human dignity in respect of the two accused are made out and they must be convicted.” 45. Mr and Mrs M. appealed against that judgment on 24 and 25 September 2007. 46. On 29 June 2009 the Versailles Court of Appeal set aside the judgment on the charge of subjecting several vulnerable people, including at least one minor, to indecent living and working conditions, acquitted the defendants of that charge and dismissed the applicants’ claims for compensation for the damage suffered in respect of that charge. However, it upheld the guilty finding against Mrs M. on the charge of aggravated wilful violence against the second applicant. She was fined EUR 1,500 and ordered to pay one euro in respect of non-pecuniary damage. 47. The relevant passages of the judgment read as follows: “The charge of subjecting several vulnerable people, including at least one minor, to indecent living and working conditions: It is not disputed that [Mrs M.] went to fetch her nieces at a time when a civil war was raging in Burundi that left 250,000 people dead and orphaned about 50,000 children; ... the elements of the proceedings show that [Mr and Mrs M.] paid their nieces’ fare from Burundi to France; this shows that their concern was to protect these members of their family by placing the children out of harm’s way; ... Under Article 225-14 of the Criminal Code in force at the material time, offences against human dignity were characterised by the fact of abusing a person’s vulnerability or situation of dependence to subject them to working or living conditions incompatible with human dignity, and were punishable by two years’ imprisonment and a fine of 500,000 francs (FRF); the legislation now in force punishes such offences more severely and gives them a broader definition; ... the new, harsher law cannot be applied retroactively; In the instant case, while the living and domestic working conditions were poor, uncomfortable and blameworthy, they cannot be qualified as degrading in the context and the circumstances of family solidarity with no intention of economic gain or of exploiting another’s work; the living and working conditions the defendants gave their nieces were not intended to debase them as human beings or to violate their fundamental rights, but obeyed a duty to help them; ... [Mr and Mrs M.] cannot be blamed for not having asked their own children, who shared their rooms, ... to give up their comfort; and they cannot reasonably be blamed for giving more to their own children than to their nieces; ... The case materials show that the boiler which heated the house was in the basement where the complainants lived and the temperature recorded in their room during the investigation was in excess of 20oC; As stated by the defendants’ daughter ... and confirmed by [the second applicant], the aunt had not formally denied them access to the bathroom, but simply wanted to rationalise its use because of the large number of people who had to use it; ... ... even though more could have been done to secure [the first applicant’s] integration, [Mrs M.] did call the welfare services for help; the fact that [the first applicant], who did not speak French and did not want to go to school, was required to play an active part in the housework as the eldest sister, even without pay, did not amount to working conditions incompatible with human dignity, or slave labour, or violation of any fundamental personal rights, but rather to repayment for her having been permanently taken into the home and care of an already large family; there is no evidence in the case file that [Mr and Mrs M.] stood to make any financial gain by taking their nieces into their home and care, for they were an extra financial burden for them, taken on out of moral obligation; According to the testimony, the living and working conditions were compatible with [the applicants’] human dignity; and it has not been established that the defendants took advantage of the vulnerability of their orphaned nieces or the fact that they were dependent on them; Therefore, as the mens rea of the charge of subjecting several vulnerable people, including at least one minor, to indecent living and working conditions has not been made out, the constituent elements of the offence have not been established and the judgment in respect of this charge must be set aside ... The charges against [Mrs M.] of wilful violence with two aggravating circumstances on [the second applicant], a child under 15 years of age, by a person in a position of authority: [The second applicant] told the police that her aunt hit her when she asked for a travel card or when her uncle bought her one ...; she also alleged that she was slapped when she accidentally dropped a plate; on one occasion her aunt allegedly threatened to hit her with a broom and on another occasion she violently scratched her hand; ... There is no doubt that [the second applicant] was under fifteen years of age between January 1995 and 10 December 1998, and that she was an orphan under the authority of her aunt, who had taken her in; the investigation established that [Mrs M.] shouted at [the second applicant], scolded her and threatened to send her back to Africa; The facts are established ...; the charge is made out in all its elements ... ; the judgment convicting [Mrs M.] of aggravated violence must be upheld ...” 48. The applicants appealed against that judgment on 3 July 2009. Mrs M. also appealed. The Principal Public Prosecutor did not appeal. 49. On 23 June 2010 the Criminal Division of the Court of Cassation rejected the appeals lodged by the applicants and Mrs M. The relevant passage from the judgment reads as follows: “The terms of the impugned judgment place the Court of Cassation in a position to affirm that the Court of Appeal, for reasons which are neither insufficient nor contradictory and which address the essential grounds raised in the pleadings submitted to it, stated the reasons for its decision that, in the light of the evidence before it, the charge of subjecting vulnerable or dependent people, including at least one minor, to living or working conditions incompatible with human dignity had not been made out against the accused, and had thus justified its decision dismissing the claims of the civil parties. ...” “Abusing a person’s vulnerable or dependent situation to obtain the performance of unpaid services or services against which a payment is made which clearly bears no relation to the amount of work performed is punished by two years’ imprisonment and by a fine of 500,000 francs.” “Abusing a person’s vulnerable or dependent situation by subjecting him or her to working or living conditions incompatible with human dignity is punished by two years’ imprisonment and by a fine of 500,000 francs.” “The offences under articles 225-13 and 225-14 are punished by five years’ imprisonment and by a fine of 1,000,000 francs when they are committed against more than one person.” “Obtaining the performance of unpaid services or services against which a payment is made which clearly bears no relation to the amount of work performed from a person whose vulnerability or dependence is obvious or known to the offender is punished by five years’ imprisonment and by a fine of 150,000 euros.” “Subjecting a person whose vulnerability or dependence is obvious or known to the offender to working or living conditions incompatible with human dignity is punished by five years’ imprisonment and by a fine of 150,000 euros.” “The offences under articles 225-13 and 225-14 are punished by seven years’ imprisonment and by a fine of 200,000 euros when they are committed against more than one person. Where they are committed against a minor, they are punished by seven years’ imprisonment and by a fine of 200,000 euros. Where they are committed against two or more people, one or more of whom are minors, they are punished by 10 years’ imprisonment and by a fine of 300,000 euros.” “For the application of articles 225-13 and 225-14, minors or people who have been victims of the acts described by these articles upon their arrival on French national territory are considered to be vulnerable or in a situation of dependence.” 50. Court of Cassation, appeal no. 08-80787, 13 January 2009: “... As to the single ground for appeal based on the violation of Article 4 of the European Court of Human Rights, and of Articles 225-14 of the Criminal Code, 1382 of the Civil Code, 2, 591 and 593 of the Code of Criminal Procedure; In so far as the judgment acquitted Affiba Z... of the charge of subjecting a vulnerable or dependent person to working or living conditions incompatible with human dignity; ... Considering that according to the case file Affiba Z..., who employed and housed Marthe X..., who was born on 22 March 1979 in Côte-d’Ivoire, from December 1994, the date of her illegal arrival in France at the age of 15 and a half, until 2000, was sent before the criminal court on charges of aiding unlawful entry and residence, employing an alien with no work permit, obtaining unpaid services from a vulnerable person and subjecting that person to working and living conditions incompatible with human dignity; that the impugned judgment, ruling on the appeals lodged by the accused, the civil party and the public prosecutor, upheld the judgment in so far as it found Affiba Z... guilty of the first three charges and acquitted her of the last charge; Considering that, for the reasons given and adopted, while Marthe X..., whose passport Affiba Z... took from her, had been made to do domestic chores on a permanent basis, with no holidays, in exchange for a little pocket money or subsidies paid in Côte-d’Ivoire, the judgment, in upholding the acquittal, took into account that the young woman had been housed in the same conditions as the family and the accused had shown true affection towards her, and the judges concluded that there had been no offence against human dignity; However, in so ruling when all forced labour is incompatible with human dignity, the Court of Appeal failed to draw the legal conclusions of its own findings and to justify its decision vis-à-vis the above-mentioned texts; ... Quashes the above judgment of the Paris Court of Appeal ... in respect of the civil action ...” 51. The Court refers to paragraphs 49 to 51 of the Siliadin v. France judgment (no. 73316/01, ECHR 2005VII) and to paragraphs 137 to 174 of the Rantsev v. Cyprus and Russia judgment (no. 25965/04, ECHR 2010 (extracts)), which present the relevant provisions of the international conventions concerning forced labour, servitude, slavery and human trafficking (Geneva Convention of 25 September 1926 prohibiting slavery; Convention no. 29 of the International Labour Organisation (ILO) of 28 June 1930, on forced labour; Supplementary Convention on the Abolition of Slavery of 30 April 1956; Convention on the Rights of the Child of 20 November 1989; Additional Protocol to the United Nations Convention against Transnational Organised Crime, known as the “Palermo Protocol”, of December 2000; Council of Europe Convention on action against trafficking in human beings, of 16 May 2005) and the relevant extracts from the Council of Europe’s work on the subject (Recommendations 1523 of 26 June 2001 and 1623 of 22 June 2004 of the Parliamentary Assembly, explanatory report of the Council of Europe Convention on action against trafficking in human beings). 52. The following extracts from “The cost of coercion: global report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work”, adopted by the International Labour Conference in 1999: “24. The ILO’s definition of forced labour comprises two basic elements: the work or service is exacted under the menace of a penalty and it is undertaken involuntarily. The work of the ILO supervisory bodies has served to clarify both of these elements. The penalty does not need to be in the form of penal sanctions, but may also take the form of a loss of rights and privileges. Moreover, the menace of a penalty can take many different forms. Arguably, its most extreme form involves physical violence or restraint, or even death threats addressed to the victim or relatives. There can also be subtler forms of menace, sometimes of a psychological nature. Situations examined by the ILO have included threats to denounce victims to the police or immigration authorities when their employment status is illegal, or denunciation to village elders in the case of girls forced to prostitute themselves in distant cities. Other penalties can be of a financial nature, including economic penalties linked to debts. Employers sometimes also require workers to hand over their identity papers, and may use the threat of confiscation of these documents in order to exact forced labour. 25. As regards “voluntary offer”, the ILO supervisory bodies have touched on a range of aspects including: the form and subject matter of consent; the role of external constraints or indirect coercion; and the possibility of revoking freely-given consent. Here too, there can be many subtle forms of coercion. Many victims enter forced labour situations initially out of their own choice, albeit through fraud and deception, only to discover later that they are not free to withdraw their labour, owing to legal, physical or psychological coercion. Initial consent may be considered irrelevant when deception or fraud has been used to obtain it.” | 1 |
dev | 001-58071 | ENG | GRC | CHAMBER | 1,996 | CASE OF MANOUSSAKIS AND OTHERS v. GREECE | 2 | Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | John Freeland;N. Valticos | 6. The applicants are all Jehovah’s Witnesses and live in Crete. 7. On 30 March 1983 Mr Manoussakis rented under a private agreement a room measuring 88 square metres in a building located in the Ghazi district of Heraklion (Crete). The agreement specified that the room would be used "for all kinds of meetings, weddings, etc. of Jehovah’s Witnesses". 8. On 2 June 1983 he laid a complaint against persons unknown at Heraklion police station because the day before the windows of the room had been broken by unidentified persons. On 26 September 1983 he laid a further complaint concerning a similar incident that occurred on 23 September. 9. By an application of 28 June 1983 lodged with the Minister of Education and Religious Affairs the applicants requested an authorisation to use the room as a place of worship. On the same day they went to the chairman of Ghazi District Council to ask him to certify their signatures on the application. He refused, however, on the grounds that the applicants did not reside in his district and that they had failed to show him the document bearing their signatures. Following the intervention of the prefect of Heraklion, the Deputy Minister of the Interior and the Speaker of the Greek Parliament, the chairman withdrew his opposition and agreed to certify the signatures on a new application lodged on 18 October 1983. 10. On 30 July 1983 the Ghazi Orthodox Parish Church notified the Heraklion police authorities that the room was being used as an unauthorised place of worship for Jehovah’s Witnesses and informed them of the applications made by the applicants to the Minister. The church authorities asked the police to carry out an inspection of the premises, to take punitive measures against those responsible and above all to prohibit any further meetings until the Minister had granted the authorisation in question. 11. The applicants received five letters from the Ministry of Education and Religious Affairs, dated 25 November 1983 and 17 February, 17 April, 17 June, 16 August and 10 December 1984, informing them that it was not yet in a position to take a decision because it had not received all the necessary information from the other departments concerned. 12. On 3 March 1986 the Heraklion public prosecutor’s office instituted criminal proceedings against the applicants under section 1 of Law no. 1363/1938 (anagastikos nomos), as amended by Law no. 1672/1939 (see paragraph 21 below). In particular they were accused of having "established and operated a place of worship for religious meetings and ceremonies of followers of another denomination and, in particular, of the Jehovah’s Witnesses’ denomination without authorisation from the recognised ecclesiastical authorities and the Minister of Education and Religious Affairs, such authorisation being required for the construction and operation of a church of any faith". 13. On 6 October 1987 the Heraklion Criminal Court sitting at first instance and composed of a single judge (Monomeles Plimmeliodikeio) acquitted the applicants on the ground that "in the absence of any acts of proselytism, followers of any faith are free to meet even if they do not have the requisite authorisation". 14. The Heraklion public prosecutor’s office took the view that the Criminal Court had incorrectly assessed the facts and accordingly lodged an appeal against the judgment of 6 October 1987. 15. On 15 February 1990 the Heraklion Criminal Court sitting on appeal and composed of three judges (Trimeles Plimmeliodikeio), sentenced each of the accused to three months’ imprisonment convertible into a pecuniary penalty of 400 drachmas per day of detention, and fined them 20,000 drachmas each. It noted as follows: "... the accused had converted the room that they had rented into a place of worship, in other words a small temple intended to serve as a place of devotion for a limited circle of persons as opposed to a public building in which everyone without distinction is free to worship God. Thus they established this place on 30 July 1983 and made it accessible ... to others, in particular, their fellow Jehovah’s Witnesses from the region (limited circle of persons), without the authorisation of the recognised ecclesiastical authority and of the Ministry of Education and Religious Affairs. At this place they worshipped God by engaging in acts of prayer and devotion (preaching, reading of the scriptures, praising and prayers) and did not confine themselves to the mere holding of meetings for followers and the reading of the gospel ..." 16. On 5 March 1990 the applicants appealed on points of law. They argued, inter alia, that the provisions of section 1 of Law no. 1363/1938, in particular the obligation to seek an authorisation to establish a place of worship, were contrary to Articles 11 and 13 of the Greek Constitution and to Articles 9 and 11 of the European Convention (art. 9, art. 11). 17. In a judgment of 19 March 1991 the Court of Cassation dismissed their appeal on the following grounds: "The provisions of section 1 of Law no. 1363/1938 and of the royal decree of 20 May/2 June 1939 implementing that Law are contrary neither to Article 11 nor to Article 13 of the 1975 Constitution, for the right to freedom of worship is not unlimited and may be subject to control. The exercise of this right is subject to certain conditions set down in the Constitution and at law: it must be a known religion, not a secret religion; there must be no prejudice to public order or morals; neither must there be any acts of proselytism, such acts being expressly prohibited in the second and third sentences of Article 13 para. 2 of the Constitution. These provisions are, moreover, not contrary to the Convention for the Protection of Human Rights and Fundamental Freedoms ..., Article 9 (art. 9) of which guarantees freedom of religion but Article 9 para. 2 (art. 9-2) of which authorises such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights of others. The said provisions ..., which empower the Minister of Education and Religious Affairs, who has responsibility for all denominations and faiths, to investigate whether the above-mentioned conditions are met, are contrary neither to the 1975 Constitution nor to Article 9 of the Convention (art. 9), which do not in any way prohibit investigations of this type; the purpose of such investigations is moreover merely to ensure that the statutory conditions necessary to grant authorisation are met; if these conditions are met, the Minister is obliged to grant the requested authorisation." 18. According to the dissenting opinion of one of its members, the Court of Cassation ought to have quashed the impugned judgment since the applicants could not be accused of a punishable offence as section 1 of the Law was contrary to Article 13 of the 1975 Constitution. 19. On 20 September 1993 the Heraklion police placed seals on the front door of the room rented by the applicants. 20. The relevant Articles of the 1975 Constitution read as follows: "1. The dominant religion in Greece is that of the Christian Eastern Orthodox Church. The Greek Orthodox Church, which recognises as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it (omodoxi), immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions. It is autocephalous and is administered by the Holy Synod, composed of all the bishops in office, and by the standing Holy Synod, which is an emanation of it constituted as laid down in the Charter of the Church and in accordance with the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1928. 2. The ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph. 3. The text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the autocephalous Greek Church and the Great Christian Church at Constantinople." "1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs. 2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited. 3. The ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion. 4. No one may be exempted from discharging his obligations to the State or refuse to comply with the law by reason of his religious convictions. 5. No oath may be required other than under a law which also determines the form of it." 21. Section 1 of Law no. 1363/1938 (as amended by Law no. 1672/1939) provides: "The construction and operation of temples of any denomination whatsoever shall be subject to authorisation by the recognized ecclesiastical authority and the Ministry of Education and Religious Affairs. This authorisation shall be granted on the terms and conditions specified by royal decree to be adopted on a proposal by the Minister of Education and Religious Affairs. As of publication of the royal decree referred to in the preceding paragraph, temples or other places of worship which are set up or operated without complying with the decree ... shall be closed and placed under seal by the police and use thereof shall be prohibited; persons who have set up or operated such places of worship shall be fined 50,000 drachmas and sentenced to a non-convertible term of between two and six months’ imprisonment. ... The term "temple" as referred to in this Law ... shall mean any type of building open to the public for the purpose of divine worship (parish or otherwise, chapels and altars)." 22. The Court of Cassation has held that the expression "place of worship" within the meaning of these provisions refers to a "temple of a relatively small size, established in a private building and intended to be used for divine worship by a limited circle of persons as opposed to a building open to the public for the worship of God by everyone without distinction. By operation of a temple or a place of worship under the same provisions is meant the actions by which the temple or place of worship are made accessible to others for the purpose of worshipping God" (judgment no. 1107/1985, Pinika Khronika, vol. 56, 1986). 23. Section 1 (3) of the royal decree of 20 May/2 June 1939 provides that it is for the Minister of Education and Religious Affairs to verify whether there are "essential reasons" warranting the authorisation to build or operate a place of worship. To this end the persons concerned must submit through their priest an application giving their addresses and bearing their signatures certified by the mayor or the chairman of the district council of their place of residence. More specifically, section 1 of the decree provides as follows: "1. In order to obtain an authorisation for the construction or operation of temples not subject to the legislation on temples and priests of parishes belonging to the Greek Orthodox Church, within the meaning of section 1 of the Law (1672/1939), the following steps must be completed: (a) An application shall be submitted by at least fifty families, from more or less the same neighbourhood and living in an area at a great distance from a temple of the same denomination, it being assumed that the distance makes it difficult for them to observe their religious duties. The requirement of fifty families shall not apply to suburbs or villages. (b) The application shall be addressed to the local ecclesiastical authorities and must be signed by the heads of the families, who shall indicate their addresses. The authenticity of their signatures shall be certified by the local police authority, which following an inquiry on the ground shall attest that the conditions referred to in the preceding sub-paragraph are satisfied ... (c) The local police authority shall issue a reasoned opinion on the application. It shall then transmit the application, with its opinion, to the Ministry of Education and Religious Affairs, which may accept or reject the application according to whether it considers that the construction or use of a new temple is justified or whether the provisions of the present decree have been complied with. 2. ... 3. The provisions of paragraph 1 (a)-(b) above shall not apply to the issue of an authorisation for the construction or operation of a place of worship. It shall be for the Minister of Education and Religious Affairs to determine whether there are essential reasons warranting such authorisation. In this connection the persons concerned shall address to the Ministry of Education and Religious Affairs through their priest a signed application, the authenticity of the signatures being certified by the mayor or the chairman of the district council. The application shall also indicate the addresses of the persons concerned ..." 24. The Government communicated to the Court a series of judgments by the Supreme Administrative Court concerning the authorisation to construct or operate temples or places of worship. It appears from these judgments that the Supreme Administrative Court has on several occasions quashed decisions of the Minister of Education and Religious Affairs refusing such authorisation on the ground that Jehovah’s Witnesses in general engaged in proselytism (judgment no. 2484/1980); or that some of those seeking the authorisation had been prosecuted for proselytism (judgment no. 4260/1985); or again because there was an Orthodox church close to the proposed place of worship (4km in the same town) (judgment no. 4636/1977) and the limited number of Jehovah’s Witnesses (8) compared to the total population (938) (judgment no.381/1980). 25. The Supreme Administrative Court has also held that the requirement that the signatures be certified by the relevant municipal authority (royal decree of 20 May/2 June 1939 - see paragraph 23 above) does not constitute a restriction on the right to freedom of religion guaranteed under the Greek Constitution and the European Convention (judgment no. 4305/1986). On the other hand, failure to comply with that requirement justifies a refusal to grant the authorisation (judgment no. 1211/1986). Finally the silence of the Minister of Education and Religious Affairs for more than three months following the lodging of an application constitutes failure on the part of the authorities to give a decision as required by law and amounts to an implied rejection, which may be challenged by an application for judicial review (judgment no. 3456/1985). Authorisation by the local Metropolitan is required only for the construction or operation of temples and not for other places of worship. 26. In its judgment (no. 721/1969) of 4 February 1969 the Supreme Administrative Court sitting in plenary session stated that Article 13 of the Constitution did not preclude prior verification by the administrative authorities that the conditions laid down by that Article for the practice of a faith were satisfied. However, that verification is of a purely declaratory nature. The grant of the authorisation may not be withheld where those conditions are satisfied and the authorities have no discretionary power in this respect. The prior authorisation of the local Metropolitan for the construction of a temple (see paragraph 25 above) is not an "enforceable administrative decision", but a "preliminary finding" by a representative of the dominant religion who is familiar with the true position regarding religious practice in the locality. The decision rests with the Minister of Education and Religious Affairs who may decide to disregard the Metropolitan’s assessment if he considers that it is not supported by reasons in conformity with the law. The Supreme Administrative Court subsequently confirmed this case-law holding, inter alia, that the "authorisation" of the local Metropolitan was a mere opinion which did not bind the Minister of Education and Religious Affairs (judgment no. 1444/1991 of 28 January 1991). 27. Sections 45, 46 and 50 of Presidential Decree no. 18/1989 codifying the legislative provisions on the Supreme Administrative Court of 30 December/9 January 1989 govern applications for judicial review of acts or omissions by the administrative authorities: Acts which may be challenged "1. An application for judicial review alleging ultra vires or unlawful action is available only in respect of enforceable decisions of the administrative authorities and public-law legal persons and against which no appeal lies to another court. ... 4. Where the law requires an authority to settle a specific question by issuing an enforceable decision subject to the provisions of paragraph 1, an application for judicial review is admissible even in respect of the said authority’s failure to issue such decision. The authority shall be presumed to refuse the measure either when any specific time-limit prescribed by the law expires or after three months have elapsed from the lodging of the application with the authority, which is required to issue an acknowledgment of receipt ... indicating the date of receipt. Applications for judicial review lodged before the above time-limits shall be inadmissible. An application for judicial review validly lodged against an implied refusal [on the part of the authorities] is deemed also to contest any negative decision that may subsequently be taken by the authorities. Such decision may however be challenged separately. ..." Time-limit "1. Except as otherwise provided, an application forjudicial review must be made within sixty days of the dayfollowing the date of notification of the impugned decision orthe date of publication ..., or, otherwise, of the dayfollowing the day on which the applicant acquired knowledge ofthe decision. In the cases provided for in paragraphs 2, 3and 4 of section 45, time begins to run when the time-limitsprescribed in those provisions have expired. ..." Consequences of the decision "1. The decision allowing an application for judicial review shall declare the impugned measure void, which entails its general nullity, whether it is a general or individual measure. 2. The rejection of an application does not preclude the lodging of a new application against the same measure by another person with locus standi. 3. In the case of failure to take action, where the Supreme Administrative Court allows the application, it shall refer the case back to the relevant authority so that it can take the action incumbent on it." | 1 |
dev | 001-91123 | ENG | NLD | ADMISSIBILITY | 2,009 | W. v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | The applicant, Mr W., is a Dutch national who was born in 1991 and lives in Heerlen. He was represented before the Court by Mr C. Ingelse, a lawyer practising in Maastricht. , may be summarised as follows. On 15 February 2007 the Juvenile Judge (kinderrechter) for criminal cases of the Maastricht Regional Court (rechtbank) found the applicant guilty of causing bodily harm (mishandeling). The applicant was sentenced to a suspended term of juvenile detention (voorwaardelijke jeugddetentie), a community service order (werkstraf) of 30 hours and a training order (leerstraf) of 20 hours. In view of the applicant’s conviction, and pursuant to article 2 paragraph 1 of the DNA Testing (Convicted Persons) Act (Wet DNA-onderzoek bij veroordeelden; “the Act”), the public prosecutor, on 7 June 2007, ordered that cellular material be taken from the applicant in order for his DNA profile to be determined. A mouth swab was taken from the applicant on 18 July 2007. On 31 July 2007 the applicant, pursuant to article 7 of the Act, lodged an objection (bezwaarschrift) against the decision to have his DNA profile determined and processed, i.e. entered into a national DNA database. He submitted that, in accordance with Article 8 of the Convention and Article 40 of the Convention on the Rights of the Child of 20 November 1989, the personal interests of a minor should be balanced against the general interests of society when it was being considered whether to apply the Act to that minor, and within that balancing exercise the interests of the minor should be the primary consideration pursuant to Article 3 of the Convention on the Rights of the Child. The applicant submitted that regard should be had to the age of the convicted person at the time of the commission of the crime, the seriousness of the offence, the circumstances under which the offence had been committed, the risk of the convicted person reoffending and other personal circumstances of the convicted person. The applicant further argued that the public prosecutor had failed to strike a proper balance of the interests involved. In particular, the public prosecutor had failed to take into account that the applicant had only been 15 years old when he committed the offence, that the offence had consisted of the administration of one blow with his fist, that the applicant was performing well at school and that he showed no risk at all of reoffending. The applicant also claimed that the storage of his DNA profile would not be beneficial for the possible detection, prevention or conviction of future crimes committed by him and that the exception contained in article 2 paragraph 1 sub b of the Act (see below) should therefore apply. On 2 November 2007 the Maastricht Regional Court, having heard the public prosecutor and counsel for the applicant in camera, dismissed the applicant’s objection. It considered that, if all requirements stipulated in the Act had been met, the public prosecutor was obliged to collect a DNA sample from the applicant regardless of the fact that he was a minor. As regards the applicant’s claim of a violation of Article 8 of the Convention, the Regional Court referred to the parliamentary discussions (parlementaire behandeling) on the adoption of the Act, which had concluded that the Act did not breach fundamental rights enshrined in the Constitution and international treaties. The Regional Court adopted these conclusions and the Article 8 argument was accordingly dismissed. The Regional Court further noted that the Convention on the Rights of the Child had not featured in the parliamentary discussions. Being of the view that the determination and processing of the DNA profile of a minor could adversely affect that minor’s interests, the Regional Court considered that it ought to interpret the provisions of the Act in the light of the text and aim of the Convention on the Rights of the Child. With reference to Article 3 of that Convention, it found that where the determination and processing of a minor’s DNA profile were concerned, the interests of the minor and the general interests of the State in the prevention and detection of crime should be weighed against each other. The Regional Court went on to observe that it appeared from the file that the applicant had severely injured his victim, that he had already performed 20 hours of community service to avoid criminal prosecution relating to an earlier charge of causing bodily harm, and that at the hearing the public prosecutor had disclosed that the applicant had in the meantime been apprehended on suspicion of attempted manslaughter. The Regional Court held that in these circumstances the interests of the State outweighed those of the applicant. It further considered that the determination and processing of the applicant’s DNA profile would not result in any adverse effects for the applicant relating to his young age since the DNA database was not public and stringent criteria on access to it were in place. No appeal lay against the decision of the Regional Court. The statutory maximum prison sentence for the offence of assault causing bodily harm is two years (article 300 paragraph 1 of the Criminal Code, Wetboek van Strafrecht). In the event that grievous bodily harm is caused, the statutory maximum prison sentence is four years (article 300 paragraph 2 of the Criminal Code). The DNA Testing (Convicted Persons) Act entered into force on 1 February 2005. Article 2 paragraph 1 of the Act requires the public prosecutor at the Regional Court that has given judgment at first instance to order that a sample of cellular material be taken from, inter alia, a person who has been convicted of one of the offences listed in article 67 paragraph 1 sub b of the Code of Criminal Procedure (Wetboek van Strafvordering). Assault causing bodily harm is one of those offences. According to the explanatory memorandum to the Act (Memorie van Toelichting; House of Representatives, no. 28,685, 2002-03 session, no. 3), the seriousness of the offence(s) involved justifies determining and processing a DNA profile of the convicted person in order to contribute to the detection, prosecution and trial of criminal offences committed by him or her and, if possible, to prevent him or her from again committing criminal offences. Paragraph 1 sub b of article 2 of the Act sets out two exceptions. No order for sample collection will be made if, in view of the nature of the offence or the special circumstances under which it was committed, it may reasonably be assumed that the determination and processing of the DNA profile will not be of significance for the prevention, detection, prosecution and trial of criminal offences committed by the person in question. It appears from the explanatory memorandum to this provision that the first exception of paragraph 1 sub b, relating to the nature of the offence, may apply when a person has been convicted of a crime for the solution of which DNA investigations can play no meaningful role – perjury or forgery, for instance. The second exception, relating to the special circumstances under which the offence was committed, may apply to a convicted person who is most unlikely previously to have committed an offence in respect of which DNA investigation might be of use and who will not be able to do so in the future, for example due to serious physical injury or in the case of a woman who has never had any dealings with the law and who, after having been ill-treated by her husband for years, finally inflicts grievous bodily harm on him or kills him. Article 2 paragraph 5 of the Act stipulates that DNA profiles are only to be processed for the purpose of the prevention, detection, prosecution and trial of criminal offences. It further states that rules as to the processing of DNA profiles and cellular material are to be laid down by Order in Council (algemene maatregel van bestuur), after the Dutch Data Protection Agency (College Bescherming Persoonsgegevens) has been heard. The rules in question have been set out in the DNA (Criminal Cases) Tests Decree (Besluit DNA-onderzoek in strafzaken). It regulates how and by whom samples are to be taken; how they are to be kept, sealed and identified; how and by whom the DNA profile is to be drawn up; and which authorities are allowed to make use of the data stored in the DNA database. The Decree further lays down rules on the duration of the retention of a DNA profile and cellular material. This depends on the offence of which the individual concerned has been convicted. The data of persons convicted of an offence carrying a statutory maximum sentence of six years or more is retained for thirty years. For less serious offences carrying sentences of up to six years, cellular material and DNA profiles may be retained for a maximum period of twenty years. The individual concerned may lodge an objection against the determination and processing of his or her DNA profile with the Regional Court within 14 days after the sample has been taken or after he or she has been served with the notification, required by article 6 paragraph 3 of the Act, that sufficient cellular material has been collected for a DNA profile to be determined and processed (article 7 paragraph 1). The documents relating to the enactment of the Act contain no references to the Convention on the Rights of the Child. However, in a parliamentary discussion which took place on 18 March 2004 the Minister of Justice said that he saw no reason to exempt juveniles from the application of the Act or to establish a different regulation for them, since the chance of a convicted person reoffending was no less in the case of a minor than in that of an adult (Handelingen Tweede Kamer – Records of the House of Representatives – 18 March 2004, p. 60-3933-3934). The compatibility of the Act with the Convention on the Rights of the Child was discussed in the House of Representatives when, in 2005, a number of amendments – not relevant to the present case – to the Act were proposed. On that occasion the Minister of Justice replied to written questions of Members of Parliament that the Convention on the Rights of the Child intended for juvenile criminal law to provide an educational perspective in which the reaction to the commission of criminal offences by juveniles ought to be based on rehabilitation, the offering of a second chance and correction of, or compensation for, a failed upbringing. According to the Minister, the taking of cellular material for the purpose of DNA investigation was not contrary to those principles. On the contrary, he considered that the processing of their DNA profile in the national database could contribute to their social rehabilitation. He therefore saw no need to amend the Act in this context (Kamerstukken (Parliamentary Documents), 2005-2006, 26,271, nr. 36, p. 16). After the entry into force of the Act, different Regional Courts reached different decisions on objections lodged by minors against the determination and processing of their DNA profiles. Whereas some Regional Courts considered that the full application of the Act to persons who had been underage when convicted sat ill with the Convention on the Rights of the Child in view of its stigmatising effect, others found that DNA testing following a conviction was not detrimental to a child’s feelings of dignity and self-worth and did not stand in the way of the child’s reintegration into society. One Regional Court subscribing to this latter view considered that application of the Act to a minor did not entail adverse consequences since information relating to the determination and processing of a DNA profile was not public and would only be used in a specific criminal case; the DNA profile was stored in the DNA database anonymously and coded; and the minor would subsequently not be confronted with his DNA profile unless it appeared – as a result of a comparison of his or her DNA profile with DNA profiles of traces found in unsolved criminal cases – that he or she had previously committed one or more offences or committed another offence in the future. It was concluded that no stigmatising affect attached to the processing of DNA profiles and cellular material of juveniles. Moreover, to the extent that the Act aimed at dissuading convicted persons from reoffending, the processing of their DNA profile in the DNA database might have a preventive effect on the behaviour of minors (Rotterdam Regional Court, 17 November 2005, Landelijk Jurisprudentienummer – National Case-law (database) number, “LJN” – AU7070). In view of the differing decisions taken by different Regional Courts, the Procurator General at the Supreme Court (Hoge Raad) lodged an appeal in cassation with that court in the interest of the law (cassatie in het belang der wet) in two cases (not including the present one). In its judgment of 13 May 2008 (LJN BC8231), in which it had regard to the explanatory memorandum to the Act and the parliamentary discussions on the adoption of the Act, the Supreme Court considered that the basic premise of the text, goal as well as the tenor of the Act was that cellular material be taken from every convicted person within the meaning of article 2 paragraph 1 of the Act. The Act did not differentiate between underage and adult convicts and the system of the Act did not allow for any further balancing of interests. The public prosecutor was obliged to issue an order for cellular material to be taken unless one of the exceptions set out in paragraph 1 of article 2 applied. The Supreme Court concluded that the system, as intended by the legislator, of a wide opportunity for the taking of cellular material with only two exceptions that were to be narrowly interpreted, did not provide room for a generic exception for minors. Moreover, such a generic exception could also not be derived from the Convention on the Rights of the Child. | 0 |
dev | 001-61556 | ENG | TUR | CHAMBER | 2,003 | CASE OF UKUNC AND GUNES v. TURKEY | 4 | Violation of Art. 6-1;Not necessary to examine Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Ireneu Cabral Barreto | 9. The applicants, Volkan Ükünç and Deniz Güneş, are Turkish nationals. They were both born in 1980 and live in Edirne, Turkey. 10. On 8 February 1996 the applicants were taken into custody by the Edirne Anti-Terror Branch on suspicion of being members of an illegal organisation, namely, the DHKP-C (Revolutionary People's Liberation Party-Front). The applicants were kept in custody until 12 February 1996. They were interrogated by the police on 10 February 1996 in the absence of their lawyers. 11. On 12 February 1996 the applicants were brought before the Public Prosecutor and then before a judge. On both occasions they repeated their statements of 10 February 1996. The applicants were released on the same day. They were not represented by lawyers. 12. On 11 March 1996 the public prosecutor at the Istanbul State Security Court filed an indictment with the court and accused the applicants and three other co-accused of aiding and abetting an illegal terrorist organisation and requested the court to apply Article 169 of the Turkish Criminal Code and section 5 of Law No. 3713 (the Prevention of Terrorism Act 1991 as amended). 13. On 17 April 1996 the Edirne Assize Court requested the applicants' observations on the charges against them for submission to the Istanbul State Security Court. According to the minutes of the hearing which took place before the Edirne Assize Court, the applicants did not want to be represented by lawyers. They challenged for the first time the authenticity of the statements which they gave to the police, to the public prosecutor and to the judge. 14. On 21 May 1996 the applicants requested the Istanbul State Security Court not to require them to appear at any of the hearings since they had to attend school. This request was upheld by the court and the applicants were legally represented by four lawyers in their absence in subsequent hearings. 15. On 8 April 1997 the Istanbul State Security Court found the applicants guilty of aiding and abetting the DHKP-C, and sentenced them to two years and six months' imprisonment. The court pointed out that the applicants' defence statement to the Edirne Assize Court alleging that they had been forced to repeat the prepared confession statements when brought before the public prosecutor and the judge on 12 February 1996 was unconvincing. The court concluded that the applicants aided and abetted the DHKP-C by painting a slogan on a wall, distributing publications supporting DHKP-C and putting up a placard in the entrance of a shop. 16. The applicants appealed on the ground that they were convicted on the basis of the statements they had given under duress and that there was, therefore, no concrete evidence on which they could be convicted. 17. On 9 December 1997 the Court of Cassation dismissed the appeal lodged by the applicants and upheld the State Security Court's decision. The Cassation Court noted in its decision that the applicants' lawyers, despite having requested the Cassation Court to hold an appeal hearing, did not attend the hearing. 18. In accordance with established practice, the judgment of the Court of Cassation of 9 December 1997 was sent to the Istanbul State Security Court and deposited with that court's Registry on 5 January 1998. 19. The applicants claim that they became aware of the decision on 4 March 1998. 20. On 9 March 1998 the applicants applied for rectification of the Court of Cassation's decision on the ground that the preliminary investigation was unlawful having been conducted without their lawyer being present and given that they were minors at the date of the offences. The applicants' rectification request was rejected on 22 May 1998. 21. The Court refers to the overview of the domestic law derived from previous submissions in other cases, in particular Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003). | 1 |
dev | 001-91995 | ENG | RUS | CHAMBER | 2,009 | CASE OF KRAVCHENKO v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 6;Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 5. The applicant was born in 1960 and lives in Voronezh. 6. In August 1998 the applicant deposited 40,000 US dollars (USD) for three months with a private bank “SBS-AGRO” (hereafter – “the Bank”). Following the Bank’s refusal to return the deposit, the applicant sued the Bank for the deposit, interest and compensation for non-pecuniary damage. According to the Government, the Bank’s refusal to return the deposit was caused by a major financial crisis which had occurred in the Russian Federation in the summer of 1998 and which had led to the Bank’s inability to return money to its more than 1.2 million creditors. 7. In September 1998 the Central Bank of Russia adopted a programme aimed at the protection of deposits made by private individuals with private banks. In line with measures adopted, the Bank signed an agreement with the Russian Savings Bank. Under the terms of the agreement, the Bank transferred its liabilities to the Russian Savings Bank which, in its turn, undertook to repay deposits made in US dollars at the exchange rate of 9.33 Russian roubles for 1 US dollar. On 28 December 1998 the Bank, through a division of the Russian Savings Bank, paid the applicant 373,204 Russian roubles (RUB). 8. On 10 March 1999 the Zheleznodorozhniy District Court of Voronezh found that the applicant had not consented to the liability transfer. However, taking into account that he had already been repaid a part of the deposit, the District Court ordered that the Bank should repay the applicant USD 30,919.40 and that it should also pay him annual interest starting from the date of the pronouncement of the judgment. The District Court dismissed the claim for compensation for non-pecuniary damage. The judgment was not appealed against and became final on 22 March 1999. A month later the Moscow bailiffs’ office instituted enforcement proceedings. 9. On an unspecified date the Presidium of the Voronezh Regional Court, acting on an application for a supervisory review, quashed the judgment of 10 March 1999 and sent the case for a fresh examination. 10. On 29 February 2000, following the re-examination of the applicant’s action, the Zheleznodorozhniy District Court awarded him USD 20,841.68 in main debt, interest thereon and USD 2,853.73 in compensation for damage. That judgment was not appealed against and became final. 11. By the end of March 1999 over 2,000 enforcement claims were pending against the Bank, with an additional 70-80 claims added every week. 12. On 16 August and 15 September 1999 the Central Bank of Russia declared a moratorium until 17 November 1999 on the execution of all creditors’ demands against the Bank. On 16 November 1999 the management of the Bank was taken over temporarily by the “Agency on Restructuring of Lending Agencies” (hereafter – “the ARKO”), set up by the State in accordance with the Law on Restructuring of Lending Agencies (hereafter - “the Law”). On 16 November 1999, in accordance with the Law, a moratorium was set for enforcement of all creditors’ demands against the Bank for a year. This period was prolonged by the ARKO on 17 November 2000 for another six months, until 17 May 2001. 13. On 8 May 2001 the Moscow Commercial Court had approved the text of a tripartite friendly settlement involving the Association of the Bank’s Creditors, the Bank and the ARKO. The text of the friendly settlement was adopted at the general meeting of the Association of Creditors on 9 February 2001 by a majority of votes. The friendly settlement substantially limited the Bank’s liability to its creditors. 14. On 3 July 2001 the Constitutional Court found unconstitutional the legislative provision that allowed the ARKO unilaterally to extend the moratorium for another six months, and ruled that such decisions should be subject to judicial control. 15. Seven days later the Basmanniy District Court of Moscow ordered that the bailiffs should discontinue the consolidated enforcement proceedings against the Bank in respect of liabilities which had arisen before 16 November 1999. 16. On 23 July 2001 the Moscow bailiffs’ office discontinued the consolidated enforcement proceeding against the Bank and returned writs of execution to the courts which had issued them. On 29 September 2001 the bailiffs informed the applicant that the enforcement proceedings against the Bank had been discontinued. 17. The applicant asked the ARKO to confirm that he had been recognised as a creditor of the Bank and to inform him about future meetings of the Bank’s creditors. On 11 September 2001 the ARKO notified the applicant that he had not been registered as a creditor of the Bank. The ARKO requested the applicant to send the documents showing the Bank’s liability to him. The applicant fulfilled the ARKO’s request. 18. On an unspecified date the applicant sued the ARKO and the Central Bank of Russia for damages. He claimed that the ARKO had not recognised him as a creditor of the Bank, that he had not participated in the friendly-settlement negotiations and that he had not been able to recover his money from the Bank. The applicant insisted that the respondents should repay him the Bank’s debt. 19. On 17 December 2001 the Zheleznodorozhniy District Court held that the Central Bank and ARKO were responsible for the applicant’s inability to obtain payment of the judgment debt and that the refusal to recognise the applicant as a Bank’s creditor was unlawful. The District Court ordered that the ARKO should repay the applicant USD 30,919.40 of the Bank’s debt. 20. On 9 January 2002 the ARKO informed the applicant that he had been registered as the creditor of the Bank and the terms of the friendly settlement of 8 May 2001 were applicable to him although he had not been able to negotiate them. The applicant was also informed that according to the terms of the friendly settlement he would not be paid the judgment debt. 21. On 19 February 2002 the Voronezh Regional Court upheld the judgment of 17 December 2001. The Regional Court again confirmed that the terms of the friendly settlement could not be applied to the applicant and the fact that the draft of the settlement had been published in the press did not imply that the applicant had agreed to the terms of that document. 22. According to the Government, the applicant applied for a supervisory review of the judgments of 17 December 2001 and 19 February 2002. It appears from the case file that the Voronezh Regional Prosecutor lodged an application for a supervisory review, arguing that the judgment of 17 December 2001, upheld on appeal on 19 February 2002, was erroneous in that the applicant’s claims had been accepted. The prosecutor submitted that the terms of the friendly settlement should have been applied to the applicant’s claims against the Bank and thus his action against the ARKO should have been dismissed. 23. On 15 May 2002 the Presidium of the Voronezh Regional Court, by way of supervisory-review proceedings, quashed the judgments of 17 December 2001 and 19 February 2002 and remitted the case for a fresh examination. The Presidium noted that the District and Regional courts erred in assessing the facts of the case and that the terms of the friendly settlement should be applicable to the applicant because the information about the general assembly of the Bank’s creditors and the draft of the friendly settlement had been published in the press. 24. On 2 July 2003 the Zheleznodorozhniy District Court made a new judgment in the applicant’s favour and awarded him USD 30,919.40, relying on the same line of arguments as in its previous judgment of 17 December 2001 and citing the case-law of the European Court of Human Rights. That judgment was also quashed on appeal by the Voronezh Regional Court. The case was again sent for re-examination on 13 November 2003. 25. On 20 December 2004 the Zheleznodorozhniy District Court of Voronezh again issued the judgment in the applicant’s favour, although reducing the amount of the award to USD 20.841,68. The judgment was quashed by the Voronezh Regional Court and the proceedings were discontinued because the ARKO had ceased to exist as a legal entity. | 1 |
dev | 001-105985 | ENG | CZE | ADMISSIBILITY | 2,011 | POLEDNOVÁ v. THE CZECH REPUBLIC | 3 | Inadmissible | Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger | The applicant, Ms Ludmila Polednová, is a Czech national who was born in 1921 and lives in Plzeň. She was represented before the Court by Mr V. Kovář, of the Czech Bar. The respondent Government were represented by their Agent, Mr V. A. Schorm. The facts of the case, as submitted by the parties, may be summarised as follows. After the communist coup in February 1948, a number of political trials were conducted in former Czechoslovakia in order to consolidate the power of the Communist party and eliminate opponents of the new totalitarian regime. The State Court (Státní soud) and State Prosecutor’s Office were created for this purpose by a special law and subject to direct political control by the party. The most important trial was the 1950 trial of Ms Milada Horáková and other opponents of the communist regime for high treason and espionage, and the applicant was appointed to act as a member of the prosecutorial steering group. It was later established that the trial had been manipulated in that the issues of guilt and sentencing had been decided on by the political authorities well in advance of the trial and that the defendants had been compelled, by means of inhuman investigation techniques, to admit to offences they had not committed. The trial culminated in a State Court judgment of 8 June 1950 by which four of the defendants were sentenced to death and the others received lengthy prison sentences. After having their appeal dismissed on 24 June 1950 by the Supreme Court (Nejvyšší soud), the four persons sentenced to death were executed on 27 June 1950. On 30 June 1968, in a climate of political détente, the Presidium of the Supreme Court quashed the convictions of 8 and 24 June 1950 following an appeal in the interests of the law lodged on behalf of those convicted. On this occasion it was found that the investigation had been carried out, using illegal methods, by investigators of the Ministry of the Interior and not by the investigating judge. It was also found that many legal provisions (in particular those of the 1983 Code of Criminal Procedure (Law no. 119/1873)) had been infringed during the trial, that the facts had not been sufficiently established, that numerous pieces of evidence had been omitted, that the defendants’ actions had been partly incited by the State Security Service and that all the relevant authorities had single-mindedly focused on fabricated charges aimed at eliminating the so-called “class enemies”. The Supreme Court therefore ordered the competent prosecutor to re-examine the case; consequently, evidence was heard from several persons who had participated in the trial with Milada Horáková. It appears from a statement made in April 1969 by one of the defendants sentenced to life imprisonment that the accused had been forced, through physical and psychological coercion, to learn their statements of evidence, which had been written beforehand, off by heart; that the confrontations at the hearing had been previously prepared in minute detail and that the minutes of the hearing had in fact been a script which determined the exact questions to be asked by the prosecutors and the answers that the defendants were expected to provide. This witness also reported that the applicant had displayed a hard and pitiless attitude. Renewed consolidation of the communist regime in the 1970s meant that there was no further interest in investigating the case and it was discontinued in 1975 because the criminal prosecution was time-barred. The case was not definitively settled until after the collapse of the communist regime in November 1989. On 29 June 1990 the Prosecutor General ruled that there was no case to answer in respect of all those charged. Referring to the judgment of 30 June 1968, he found that they had been wrongfully convicted of actions which were in accordance with the principles of a democratic society and that the criminal proceedings had been designed, for political ends, to arbitrarily eliminate opponents of the totalitarian dictatorship under the communist regime. On 8 September 2005 the police questioned the applicant about her participation in the trial of Milada Horáková and others. She claimed to be unable to remember certain facts and stated that at the time she had been convinced, having trusted the judgment of the other, more experienced prosecutors and judges, that the activity concerned was designed to undermine the Republic. On 6 October 2005 criminal proceedings were instituted against the applicant for acting as an accessory to murder (účastenství na vraždě). She was accused of having acted as a prosecutor in the political trial of Milada Horáková and others in 1950. On 13 October 2005 the applicant appealed against this decision, arguing that the authorities had not specified which of her acts or omissions constituted the offence in question, for which mens rea was required. She emphasised that the situation of that time should not be viewed emotionally merely because mindsets had changed since then, and that it would have to be proved that she had committed a criminal offence under the law applicable at the material time. According to the applicant, the decision to open the above-mentioned proceedings was set aside following her complaint, and the police were ordered to reinvestigate the case. She submitted that as soon as the police knew that a prosecution for acting as accessory to murder would be time-barred, new criminal proceedings were brought against her in January 2007 for the offence of murder. It is clear from the case file, however, that the new decision to bring criminal proceedings, taken by the police on 8 January 2007, still concerned the offence of acting as an accessory to murder under the 1961 Criminal Code (Law no. 140/1961). The applicant appealed against this decision, claiming that at the time of the trial she had been a mere student, answering to a higher-ranking prosecutor, and that she had not been able to work independently. She claimed that the charge she was facing was imprecise and did not specify either her intention to commit the offence or in what way she had broken the laws of the time. She also maintained that she had not participated in the investigation and that the investigation file had convinced her of the guilt of the defendants, who had spontaneously confessed during the hearing. She felt it normal to have been present at preparatory meetings, as they were preparing for a public trial, and stated that she had followed the instructions of her supervisors. During her questioning by the police on 1 March 2007 the applicant exercised her right to silence. On 19 April 2007 the applicant’s lawyer inspected the file, added some press cuttings from the time of the events and requested that the case be discontinued on the grounds of lack of evidence indicating that her client was guilty. She subsequently asked that the evidence be supplemented by any that might prove the applicant’s intention to commit the crime in question and expressed surprise at the fact that proceedings had been brought only in 2005, when all of the other participants were deceased. On 12 July 2007 the prosecutor allegedly informed the applicant, before formally charging her and without further explanation, that her acts were henceforth to be classified as murder committed as a joint principal (trestný čin vraždy ve spolupachatelství). In September 2007 the applicant submitted documents to the court attesting to the fact that, having been in her first year of legal studies at university at the time of the trial, she had been under the instructions of her supervisors and could in no way influence the course of events. She also argued that the provisions of the 1873 Code of Criminal Procedure that she was accused of having infringed were very general and concerned only the due diligence of the proceedings, and that the charge against her was not founded on any actual responsibility on her part. On 10 October 2007 the applicant requested that the hearing be held without her attendance, for health reasons, and exercised her right to silence on the ground that she had already communicated her comments to the authorities. Between 16 and 18 October 2007 the Prague Municipal Court (Městský soud) held the hearing in the absence of the applicant, who was represented by a lawyer. Her deposition was read out, along with many other written documents, and audio and visual recordings of the trial were projected. In response to counsel for the applicant’s objection that the defence had not yet had the possibility of giving their views on the charge and the evidence read out in court, the court observed that, according to Article 214 of the Code of Criminal Procedure, that right was reserved solely for the defendant herself. At the end of the hearing the applicant’s lawyer did not file a motion to submit additional evidence and delivered a closing address, noting that the criminal proceedings could have been instituted at the time of the judgment of 30 July 1968 and that the proceedings brought against the applicant, as the sole survivor, were possible at present only because the limitation period had been changed after 1989. The lawyer admitted that her client had, in participating in the trial, shown her loyalty to the communist regime, but emphasised that at the material time the Communist Party, together with the KGB, had run everything, and that the psychosis in society had turned into a general acceptance of breaking the law. However, the prosecution had not presented any real evidence proving the criminal responsibility of the applicant. Indeed, having had no legal training at the time, she had not been in a position to understand the shortcomings of the trial, particularly since the State Prosecutor’s Office had been directly run by the Ministry of Justice, and had been in no position to influence or change the course of the trial. By taking part in the drafting of the charges and the assessment of the trial the applicant had merely been following the orders of her more experienced supervisors and she had not proposed a sentence in her written submissions. Moreover, no minutes existed from any political meeting bearing the applicant’s signature as a sign of her attendance. On 1 November 2007 Prague Municipal Court found the applicant guilty of murder under Article 219 of the 1961 Criminal Code (in force at the time of the judgment), committed jointly with the other prosecutors and judges involved in the aforementioned trial and since deceased, and sentenced her to eight years’ imprisonment. The court considered it to be proven that, having participated in the trial in 1950 of Milada Horáková and others as a member of the prosecution, the applicant had acted in breach of the 1873 Code of Criminal Procedure in force at the time, as she had been aware of the fact that the questions of guilt and sentencing had been decided on by the political authorities well in advance of the trial, which she knew had been designed only to confer an appearance of legality on the physical elimination of the defendants. The court held that the applicant’s defence, submitted by her lawyer in court, had been refuted by the evidence taken. Among this evidence, in particular, were written documents bearing witness to the fact that the trial had been prepared by the Ministries of Justice and the Interior with the help of the State Security Service and a group of prosecutors within which the applicant, having already proven herself during other political trials, had acted as a “people’s prosecutor”. They showed that the scripted trial and the minutes had been prepared in advance by the Ministry of the Interior, that the case file of the prosecution had been subject to political approval, that counsel for the defence, the prosecutors and the judges had been instructed by the Ministry of Justice as to how the trial should unfold and that political meetings at which the applicant had been present had taken place every day after the hearing. The file also contained a written assessment of the trial, signed by the applicant, which emphasised the importance of the political investigations and commended the very good cooperation with the State Security Service. The Municipal Court also had at its disposal an appeal in the interests of the law lodged on behalf of the defendants in July 1968, which had led to a Supreme Court judgment on 30 July 1968. The court considered that this evidence proved that the 1950 trial had been manipulated to the point where it amounted in fact to a quadruple murder carried out through the justice system and that the applicant had made a significant contribution to it by failing to comply with, among other provisions, Articles 3, 30 and 34 of the Code of Criminal Procedure of the time relating to the authorities’ obligation to look for incriminating and exonerating evidence, to protect the interests of the State and to establish the truth by all available methods. The Municipal Court held that, at the time, the applicant should have known that the death sentences imposed had not been a legal measure and that, jointly with others, she had contributed to conferring an appearance of legality on the political trial in question, and consequently to the murder of four people on the basis of their political beliefs. Given that under the 1852 Criminal Code, which had been in force at the time of the offence, murder was punishable by the death penalty, the court held that the charges against the applicant should be classified as murder under Article 219 of the 1961 Criminal Code, which was more favourable to her. Although the Code provided for a twenty-year limitation period, it was also necessary to take into account section 5 of Law no. 198/1993 on the Illegality of the Communist Regime, which suspended the limitation period between 25 February 1948 and 29 December 1989 when political motives incompatible with the fundamental principles of a democratic legal system had thwarted a conviction or acquittal. In the present case, therefore, the offences with which the applicant was charged were not time-barred. Taking into account the extenuating circumstances (the applicant’s subordinate status and her law-abiding life), the amount of time that had passed since the offence had been committed and since she could have first been prosecuted, her age, the state of her health and her degree of involvement in the offence (less than that of the renowned judges and prosecutors), the court imposed a lesser sentence on the applicant than the normal minimum. The applicant lodged an appeal, arguing that under the original legislation, which was more favourable to her, the offence was time-barred (as in a similar case concerning the prosecutor K.V. which ended with the charges being dropped). She also complained that the rights of the defence had not been respected, alleging that the court had not taken into account the closing address of her lawyer, who, moreover had not been given the opportunity to comment on the criminal charge or the evidence, and that the court had not responded to the submissions of the defence in any way. Furthermore, she deemed evidence consisting of an anonymous letter from a former prison guard, which had prejudiced her in the eyes of the court and the public, to be illegal. In her opinion, there was no evidence to prove that she had intentionally participated in the murder of four people based on their political beliefs, that she had knowingly been part of a plan designed to eliminate enemies of the regime regardless of the established facts, that she should have known that the judges had been influenced or that she had taken part in meetings with the political authorities. The applicant criticised the court for not taking into account the fact that, at the time of the events, she had only completed one year of preparatory legal studies and had been a first-year law student, which did not enable her to understand all of the circumstances surrounding the trial, let alone any potential political manipulations. In a judgment of 4 February 2008 delivered in closed court, the Prague High Court (Vrchní soud) quashed the Municipal Court’s judgment on appeal and discontinued the proceedings on the ground that the limitation period had expired. The court observed firstly that no significant procedural defects had occurred in the proceedings before the Municipal Court, that all the evidence necessary in order to elucidate the facts had been properly taken and decided on by the judges and that the court had explained its reasoning as well as the elements supporting its findings. The High Court did not therefore agree with the applicant’s opinion that her guilt had not been proven and found it established that the questions of guilt and sentencing had been decided on before the trial had even begun, that the applicant had taken part in it as a “people’s prosecutor” even though she had not yet finished her studies at university and that she must have been aware, at least broadly, that the provisions of the Code of Criminal Procedure of the time were being breached. The court also rejected her submission that the rights of the defence had not been respected. In this regard it noted that when defendants waived their right to appear before the court, they also waived the right to comment on the evidence taken. Furthermore, when a defendant was not present at the hearing but his or her lawyer was, the right to comment on the evidence and the charges was exercised through the closing address, which was what had happened in this case. The High Court nonetheless held that the Municipal Court had not given the aforementioned correctly established facts the appropriate legal classification. It did not accept the Municipal Court’s opinion that the 1961 Criminal Code was more lenient than the 1852 Code, applicable at the material time. Taking into account, in the light of the principle of individual criminal responsibility, the ancillary and limited role of the applicant, the court held that she could not be considered as having committed murder as a joint principal. The court remarked in this regard that the political system of the time had created a mechanism which fabricated political trials and was operated by political leaders (in particular the secretariat of the Communist Party), the security services (the State Security Service and Soviet advisers) and the judicial service; judgments were therefore predetermined. Thus, in the chain of command of those who had participated in the trial of Milada Horáková and others, the prosecutors had played a part which was key to the trial but not decisive for its outcome, and the applicant had been at the end of this chain. An objective assessment of her role therefore led to classifying her actions not as murder committed as a joint principal but rather as acting as an accessory to judicial murder, as in the preliminary proceedings. Under Article 137 of the 1852 Code, such acts could be classified only as indirect participation in ordinary murder, carrying a sentence of five to ten years in prison and with a five-year limitation period. In these circumstances, even having regard to section 5 of Law no. 198/1993, the limitation period had expired on 30 December 1994, and since the proceedings in question had been brought after that date there was no case to answer. An appeal on points of law against the High Court’s ruling was lodged by the Supreme Prosecutor, who argued that the present case did not concern indirect participation in murder, but murder committed jointly, an offence which, under the 1852 Code, was punishable by the death penalty and not subject to a limitation period. In the prosecutor’s opinion it was therefore necessary to apply the 1961 Criminal Code, which was more lenient as it did not provide for the death penalty and fixed the limitation period at twenty years. Under section 5 of Law no. 198/1993, the limitation period therefore ran from 30 December 1989 to 30 December 2009. The applicant objected to the grounds of the appeal and consented to it being heard in camera. Nonetheless, on 4 June 2008 a public hearing took place before the Supreme Court, in the absence of the applicant, who was represented by her lawyer. The latter commented on the appeal, without requesting leave to add to the evidence, and asked the court to uphold the finding that there was no case to answer for lack of evidence proving that his client had been aware of the manipulation and that she had intended to infringe the procedural provisions. After this hearing, the Supreme Court quashed the judgment of 4 February 2008 and ordered the High Court to give a new decision, respecting its binding legal opinion. In the Supreme Court’s opinion, to find the correct legal classification in this case, it was necessary to compare the applicant’s involvement in the trial with the immutable ethical standards required of a prosecutor. In this regard, the court referred to its decision no. 7 Tz 179/99 of 7 December 1999 which defined the conditions in which a judge could be held criminally responsible for the murder of innocent people sentenced to death. In view of these principles, applicable mutatis mutandis to prosecutors, the actions of the applicant, who had taken part in the fraudulent manipulation of legal proceedings designed to eliminate opponents of the communist regime, had been completely unethical. As the Municipal Court had established, the case was about a political trial the outcome of which had been decided in advance by the political organ of the Communist Party together with the State Security Service. All those who had agreed to take part as judges and prosecutors were in a similar position, that of key enforcers of the will of a political organ, and there was no convincing reason for differentiating between them in terms of criminal responsibility. The fact that the applicant had been chosen after having proved herself in other political trials, had been a member of the main group of prosecutors which had prepared the prosecution, had taken part in the political meetings and delivered the prosecutor’s closing address, had signed the assessment of the trial and had taken part in the execution of those convicted showed to what extent she had identified with the aim of the trial, namely the physical elimination of innocent victims. Given that the trial, ending in the sentencing to death and execution of the defendants, had constituted the murder mechanism, it was correct to conclude that the applicant, as a prosecutor, had actively participated in the joint commission of the murder and had thus committed a crime which, according to Article 136 of the 1852 Criminal Code, was punishable by death and hence had no limitation period. It was the Supreme Court’s opinion that the High Court’s decision was therefore founded on an erroneous legal assessment of the facts and that the conditions for finding that there was no case to answer had not been met. Given that the 1961 Criminal Code, which was more favourable to the applicant, provided for a limitation period of twenty years (suspended between 25 February 1948 and 29 December 1989), the proceedings in the instant case were not time-barred. Having agreed to the applicant’s request that the hearing, planned for 29 July 2008, be postponed, the Prague High Court held a public hearing on 9 September 2008 in the courtroom of the Regional Court of Plzeň, the city where the applicant resided. The latter attended the hearing with her lawyer and commented on her case by describing her childhood and her experience of the war and by maintaining that her participation in the trial of Milada Horáková had been presented to her as an opportunity to work with and learn from some excellent lawyers. She had not been aware of any manipulation having occurred, had never spoken to the defendants and had trusted the judgment of those more experienced than herself. At the end of the hearing, the Prague High Court quashed the Municipal Court’s judgment of 1 November 2007 and found the applicant guilty of ordinary murder as a direct participant within the meaning of Article 136 (a) of the 1852 Code of Criminal Procedure, for which she was sentenced to six years’ imprisonment. After reiterating its previous findings on the absence of irregularities in the proceedings before the Municipal Court, the High Court, bound by the legal opinion of the Supreme Court and its reasoning regarding the responsibility of the applicant, concluded that the latter had been directly involved in the murder by having participated in a trial breaching Articles 3, 30, 34 and others of the 1873 Code of Criminal Procedure, breaches of which she must at least have been broadly aware. Under the 1852 Criminal Code the offence had no limitation period, whilst the 1961 Criminal Code provided for a limitation period of twenty years (suspended between 25 February 1948 and 29 December 1989, by virtue of section 5 of Law no. 198/1993). The criminal proceedings were therefore not time-barred in either case at the time of their instigation in 2005. Given that under the 1852 Code the above-mentioned offence carried a maximum sentence of twenty years’ imprisonment when at least twenty years had passed since the events, whereas the 1961 Criminal Code provided for a life sentence, it made sense to sentence the applicant under the 1852 Code. In doing so the High Court took into account the extenuating circumstances (the applicant’s law-abiding life, the fact that she had committed the offence de facto by obeying orders, the amount of time that had passed since the offence had been committed, the age and health of the applicant and the part she had played in the trial), and determined that the sentence should be shorter than the normal minimum. On 14 October 2008 the applicant lodged an appeal on points of law with the Supreme Court, complaining of the media uproar, the defence’s inability to comment on the evidence taken, the court’s reading of an anonymous letter from a former prison guard supposedly describing her behaviour during the execution of those convicted, and the application of the principle of collective guilt (without distinguishing between people according to their function and their ranking in the hierarchy). She submitted that the guilty verdict against her was contrary to Article 4 § 3 of the Charter of Fundamental Rights and Basic Freedoms (hereinafter “the Charter”) since an analogous case against K.V., a former military prosecutor, had been discontinued on 15 January 2002 because it was time-barred, a decision upheld by the Supreme Court on 12 June 2002. She also argued that the verdict had relied on a mere moral conviction, as a substitute for the lack of evidence refuting her defence; however the case had to be approached not solely from a moral and ethical perspective, but also from a legal one. Finally, the applicant submitted that it was unacceptable and against the principle of independence of the courts that the High Court, bound by the Supreme Court’s legal opinion, should have been influenced, in this regard, in establishing the facts and examining the evidence. After a request by the applicant that her appeal be considered by a different panel to the one having already ruled on the appeal lodged by the Supreme Public Prosecutor, it was decided on 5 March 2009 that the panel would not withdraw from examining the case. On 19 March 2009, after a session held in camera (to which the applicant had consented), the Supreme Court dismissed the appeal for lack of grounds. It noted firstly that in its judgment of 4 June 2008 it had given the High Court no instructions as to the establishment of the facts or the assessment of the evidence, having limited itself to commenting on the legal assessment of the established facts and the application of the 1852 Criminal Code. This assessment had in no way been influenced by the media coverage of the criminal proceedings or by the reading of the anonymous letter, on which the Municipal Court had in any case not relied in its findings. The Supreme Court also rejected the argument relating to collective guilt, finding that it was only in cases where justice functioned normally that there was cause to distinguish between judges and prosecutors. However, given that in the trial of Milada Horáková and others the judges and prosecutors had all contributed to the pursuit of a political objective, which was to physically eliminate the victims, by conferring an appearance of legality on it, the responsibility borne by the applicant, although less than that of the judges, was not so different that it was incomparable. The court went on to find that the objection that the applicant’s criminal responsibility was based solely on ethical or moral failings was unfounded, stating that the applicant had been responsible for illegal conduct which infringed the provisions of the 1873 Code of Criminal Procedure. Concerning the violation of Article 4 § 3 of the Charter alleged by the applicant with reference to the K.V. case, the Supreme Court stated that it was not its place to assess the judgment in a case concerning a different defendant, different facts and different criminal legislation, when the binding nature of the judgment referred to was limited to the case in question. The fact that the Supreme Court had not taken this decision into account in the applicant’s case could not amount to a breach of Article 4 § 3 of the Charter, which in any case was not applicable to specific judicial decisions. In March 2009 the applicant began to serve her prison sentence. On 27 April 2009 the applicant challenged the Supreme Court’s decisions of 4 June 2008 and 19 March 2009, as well as the High Court’s judgment of 9 September 2008, in a constitutional appeal in which she relied on Articles 4 § 3, 10 and 36-40 of the Charter. She complained of the application of the principle of collective guilt and the admission into evidence of the defamatory anonymous letter. She also argued that the contested judgments had not specified which evidence was meant to have proved that she had been aware that the trial had been manipulated, and that it was not possible to commit murder either through ethical or moral failings or by infringing the provisions of the Code of Criminal Procedure. She further complained of the fact that the Supreme Court, in its decision of 4 June 2008, had given instructions to the High Court regarding the assessment of evidence and of the High Court’s subsequent failure to further investigate the case or hear evidence from the applicant, allowing her only a closing address. Referring once again to the K.V. case, the applicant objected to the courts’ findings as to which legislation was more favourable to her. Finally, she questioned the reasons for not having initiated proceedings earlier, when other participants in the trial would still have been alive and when she could have more actively defended herself. She believed that the courts had been influenced in the instant case by the objective of convicting her, as she was the last survivor of the trial in question. On 16 July 2009 the Constitutional Court (Ústavní soud) dismissed the appeal as manifestly ill-founded in that the applicant had failed to prove that there had been a violation of her fundamental rights. It found firstly that the applicant’s claims before the court were identical to those which had been put forward in her appeal on points of law, on which the Supreme Court had duly ruled; the applicant was therefore just pursuing the same claim and was treating the Constitutional Court as a court of fourth instance. Agreeing with the other courts’ view that there was no need to differentiate, for the purposes of criminal responsibility, between the different persons who had taken part in the trial, the Court noted that the other courts had nonetheless considered the applicant’s individual conduct. The decisive legal findings had been reached on the basis of facts which had been established by the Municipal Court with the help of numerous items of written evidence, as stated in its judgment. These documents, the authenticity of which had not been challenged by the applicant, named the applicant as having taken part in the political meetings and included an assessment of the trial signed by her. In response to the applicant’s claim that the High Court had not accepted her deposition, the Constitutional Court referred to the courts’ reasoning regarding the consequences of the applicant’s request that the hearing in the court of first instance take place without her. It also noted that the High Court had adequately considered the closing address made for the applicant and that therefore her right to address the court had not been infringed. Moreover, the Municipal Court had no obligation to approve every motion to take evidence. Concerning the anonymous letter, the Constitutional Court found that it was unnecessary evidence as the courts had not based their decisions on it and thus had not had to assess it. The applicant’s allegations about the influence of the media on the outcome of the proceedings were described as vague and hypothetical. The Constitutional Court also upheld the Supreme Court’s decision of 4 June 2008, in which the latter had merely expressed its opinion on the correct legal classification of the facts which had been established up until that time. The decision had therefore not bound the High Court in any way in terms of the facts. Concerning the applicant’s claims that she could not have committed murder, the court referred to the findings of the lower courts according to which the applicant had misused her role as a prosecutor and had not fulfilled it in accordance with the legal provisions, and had thus actively participated in the murder as a joint principal. The Constitutional Court also considered it impossible to interpret Article 136 of the 1852 Criminal Code as not applying to certain methods of committing murder, such as a manipulated trial infringing the procedural provisions; such an interpretation would guarantee impunity for murders committed through manipulated trials, which would be tantamount to the State renouncing the protection of life. In the Constitutional Court’s opinion, the courts had, moreover, sufficiently explained why they had considered the 1852 Criminal Code to be more favourable to the applicant, even with regard to limitation periods. From a constitutional perspective it was irrelevant that the criminal proceedings against K.V. had led to a different result; as the Supreme Court had already stated, Article 4 § 3 of the Charter could not be relied on in that context. Finally, the question of why the criminal proceedings had not been brought earlier was considered to be speculative and abstract. The Constitutional Court therefore held that the interpretation and application of the law by the courts and their conduct of the proceedings had not exceeded the limits of constitutionality. On 24 February 2010 the Hradec Králové Regional Court (Krajský soud) decided of its own motion that three presidential amnesties, from 1953, 1955 and 1990, were applicable to the applicant, each of which took two years off her prison sentence. However, this decision was set aside on 24 March 2010 by the Prague High Court, which ruled that only the 1953 and 1990 amnesties were applicable to the applicant and that it was appropriate to grant her a pardon in respect of three years of her sentence in total. In this decision, the High Court referred to other criminal cases where it had been established that the 1955 amnesty did not apply to persons convicted of murder. On 2 March 2010 the applicant’s lawyer was informed that the Supreme Public Prosecutor had not agreed to her request that an appeal in the interests of the law be lodged on her behalf. On 21 December 2010 the President of the Czech Republic pardoned the applicant in respect of the rest of her sentence. She was released the same day. Article 2 guaranteed the right to individual liberty and no one was to be deprived of that liberty except by law. Article 3 § 1 provided that no one could have proceedings brought against him or her except in cases provided for by the law, and only by a court or authority competent under the law and in accordance with a procedure prescribed by law. Under Article 36, all holders of public authority had to conform to the laws and regulations of the people’s democratic regime during the exercise of their functions and powers; any agent of the public authorities failing to fulfil this obligation was to be punished by law. Under Article 134, any person who acted against another with the intention of causing his or her death and in a way which led to his or her death was guilty of murder. According to Article 136 (a), the death penalty was to be imposed not only on the person who carried out the murder, but also on any person who had ordered it, had laid hands on the victim during the murder or had acted as a joint principal during it. Article 137 provided for sentences for accomplices to and indirect participants in the murder. Under Article 231, offences punishable by the death penalty were not subject to limitation. However, where the offence had been committed twenty years before the criminal proceedings were brought, this provision stipulated that the accused could only receive a sentence of between ten and twenty years’ imprisonment. Article 3 required the competent criminal authorities to duly consider all the circumstances which might incriminate the accused as well as those relevant to his or her defence, and to inform the accused of his or her rights. Pursuant to Article 30, members of the prosecution were required, within their areas of competence, to defend the well-being of the State and act independently of the courts. Under Article 34, prosecutors were required to prosecute of their own motion all offences brought to their attention and to ensure that the investigation was carried out before the competent court and that the persons responsible were punished. They also had to ensure that all methods capable of leading to the discovery of the truth were correctly employed. They had the right to consult files, obtain information about the progress of investigations and formulate appropriate proposals. If they noticed any irregularities or delays they were required to take measures provided by law to remedy them. Article 4 § 3 provides that any statutory restriction of the fundamental rights and freedoms must apply equally to all cases meeting the conditions laid down. Under Article 10 § 1, everybody is entitled to respect for his or her human dignity, personal integrity and good reputation, and to the protection of his or her name. Articles 36 to 40 guarantee the right to an independent and impartial court, a fair and public trial held without unnecessary delay, the rights of the defence and the principles of the presumption of innocence and of penalties being strictly defined by law. Article 214 provides that, after taking each item of evidence, the judge must ask the defendant if he or she wishes to comment on it. The defendant’s comments must appear in the minutes of the proceedings. Under section 5, the limitation period for prosecuting offences is suspended between 25 February 1948 and 29 December 1989 if a legally effective conviction or acquittal did not take place owing to political motives incompatible with the fundamental principles of a democratic legal system. In this decision, the Supreme Court considered the possibility of prosecuting a State Court judge, who had sentenced innocent people to death in another political trial in the 1950s, for murder. Noting that, at the time of the trial, the Constitution and laws in force had established rules aimed at ensuring that judges could decide in an independent, impartial and fair manner, the Supreme Court held: “Even if we must take into account the departure, in reality, of judicial practice from these principles due to the external influence of the executive bodies and the prosecution, it is unacceptable to conclude that judges did not bear responsibility for their decisions. Being in the role of a judge is never purely a matter of applying the law ... but is based first and foremost on ethics. This ethical basis is characterised by certain immutable ethical standards ... even though they are not codified. In order for a judgment to be fair ... and constitute an act of justice, certain principles, which must be respected regardless of the external political situation, must incontestably form part of these unwritten rules. Whilst recognising that the notion of justice is always, in some way, dependent on the conditions of the historical context or the time, the Supreme Court remains nonetheless convinced that, at the very least, certain fundamental ethical requirements can be formulated, applicable to the notions of justice and fair judgment that are not subject to such temporal conditions. To be considered fair, a sentence must at the very least fulfil the requirement of punishing the convicted person for an offence actually carried out by them. The judgment must truly be the result of the trial preceding it. The proceedings leading up to the judgment must not be mere formal, insignificant precursors to a predetermined decision. The judgment must genuinely result from the court’s work and not be imposed from the outside, in other words by institutions outside the judicial system such as political bodies, the executive, etc. The court’s decision-making process must involve distancing itself from any vested interests in the outcome of the proceedings, including political interests. The judgment must not have the sole objective of becoming a tool in the political struggle conducted by one part of society against the other. It must not be a simple act of elimination of individuals or groups of individuals in the context of such a struggle. The value of these rules lies in the fact that if judges do not abide by them, they deeply betray the fundamental ethical principles of their vocation, regardless of the reason, even if for example they have succumbed to political influence. If, when making their decision, judges are exposed to influences that are contextual or specific to the time, they must not forget that this decision must stand even after those influences are gone. Judges must be aware that, even later, their decisions must fulfil the fundamental requirements of justice. If a person’s life is taken as a result of a decision sentencing him or her to death, the question is: when does that judgment constitute a criminal offence, when is it an abuse of power by the judge, and when is it what is known as judicial murder? Although this question is very difficult to answer, it is not impossible. We must first identify a certain hierarchy of the unlawful elements in the judgment. There can be times when a judgment is the result of proceedings which have been duly conducted and are based on the assessment of concrete evidence, the issue of guilt or innocence having simply been the subject of differing opinions throughout the various judicial proceedings. At other times, a judgment may be the result of irregular proceedings where there was insufficient evidence. However these are irregularities which, in substance, testify only to poor decision-making, with no actual intent on the part of the judge to harm the accused. A judgment of this kind is still the result of justice that functions normally. There can also be cases where a judgment is vitiated because the judge intended to harm the accused or favour someone, but where the judgment was delivered following a trial conducted according to the requirements of proper legal proceedings. Here, the irregular judgment constitutes a substantive breach of the principles of impartiality and objectivity required for exercising the duties of a judge. The most serious case is that of a judgment given in circumstances devoid of those immutable ethical attributes inherent in the duties of a judge, in particular because (a) there was premeditated intent to physically eliminate a person; (b) the judgment was chosen as the tool with which to physically eliminate that person; (c) the judge identified with that aim of the judgment, regardless of the reason; (d) the judge subordinated the way in which he or she conducted the proceedings or participated in the decisions to the objective of delivering, as planned, a judgment amounting to murder; (e) the judge sentenced or participated in the sentencing of the accused with no heed to the course or outcome of the trial; in reality, the results of the proceedings were not a criterion in determining the judgment – on the contrary, the proceedings were adapted to the objective of securing a conviction which amounted to murder; and (f) the accused had no real chance of reversing the premeditated intention to eliminate him, even if, to an outside observer, the proceedings might have given the impression that their content had led to the judgment (for example if the accused had been coerced into confessing). In these circumstances, the decision to sentence someone can be regarded as a necessary and irreplaceable part of a lethal mechanism. The issue here is not one of a mere abuse of power on the judges part, but of murder. That is what is meant in legal terms by judicial murder. The sentencing here is an act that is totally estranged from the ethical foundations on which the duties of a judge rest. It is thus apparent that in order to decide whether, in the case of a judge, there has been an abuse of power or judicial murder, it is not sufficient to examine the sentence solely in the light of whether or not it is in accordance with the law as a normative act of public authority. The issue can be properly and convincingly resolved only if the sentence is scrutinised in the light of the criteria stemming from the ethical foundations of the office of a judge. ... It is clear from the circumstances surrounding the adoption of the judgment in case no. 1 Ts II 57/51 of the former State Court that in determining the case, the accused had betrayed the ethics of the judicial decision-making process in an extremely serious way. The judgment had not been an act of justice but an act of elimination of the persons convicted by it. That act of elimination had only the appearance of a judgment; in terms of its content and values, it had nothing to do with justice. It was a case of the person adopting the judgment not being, in reality, the judge in the case but an assistant to or joint principal with those who, at the time, determined that the objective of the trial would be the physical elimination of the accused. Thus, it would not do to exclude one of the forms of criminal responsibility of a person accused of murder. The accused cannot exonerate him or herself from that responsibility by referring to the responsibility of others who may have also participated in the physical elimination of those convicted. ...” In this decision, the Supreme Court dismissed an appeal on points of law lodged by the Supreme Public Prosecutor to the detriment of the person concerned, K.V. In a judgment of the Prague Municipal Court, K.V. had been found guilty of murder under Article 219 § 1 of the 1961 Criminal Code for having contributed, as a military prosecutor and subsequently an investigating judge, to the unjust conviction in 1949 of General H.P., who received the death sentence. K.V. had been accused of, among other things, forging parts of the case file, distorting the minutes of the proceedings, leading the investigation in a way that was not objective and was influenced by Soviet advisers, and proposing the death penalty. Following K.V.’s appeal, the High Court had nonetheless classified the same facts as participation in ordinary murder within the meaning of Article 414 § 4 of the Military Criminal Code in force at the material time, an offence for which that law provided a limitation period of five years. The High Court had therefore concluded that, even taking section 5 of Law no. 198/1993 into account, the limitation period had expired before criminal proceedings had been instituted against K.V. on 9 March 1998. The Supreme Court noted that the Municipal Court and the High Court had relied on the same facts and that the significant difference in their legal assessment of those facts was due to the importance and gravity attached to the forging of parts of the case file. Therefore, after having freely assessed the evidence before them, the two courts had come to different legal conclusions based on the same description of the facts. In examining the lawfulness of the legal classification decided on by the High Court, from the point of view of the legal assessment of the facts, and noting that it was not its place to interfere in the appellate court’s procedural assessment of the evidence, the Supreme Court found that the said classification corresponded to the facts described. Consequently, the Supreme Public Prosecutor’s appeal on points of law was dismissed as manifestly ill-founded. | 0 |
dev | 001-22953 | ENG | POL | ADMISSIBILITY | 2,001 | MOCHEJSKI v. POLAND | 4 | Inadmissible | Georg Ress | The applicant is a Polish national, born in 1948. He is a lawyer and lives in Warsaw. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 July 1993 the applicant filed with the Warsaw District Court (Sąd Rejonowy) an action against the Ministry of Foreign Affairs for which he used to work as a vice-consul at the Polish Consulate General in New York until 31 August 1992. He claimed compensation for the airplane tickets he had purchased for himself and his family in order to return from New York to Poland. On 5 August 1993 the applicant’s case was transferred to the Second Civil Section of the Warsaw District Court. On 2 December 1993 the Second Civil Section decided that the case should be transmitted to the Labour Section of the Warsaw District Court as it concerned a claim based on labour law. On 23 March 1994 the case was received by the registry of the Labour Section. The first hearing was fixed for 23 June 1994. On 22 June 1994 the defendant requested the court to postpone the hearing as its counsel was on leave and the applicant’s written submissions were extensive. During the hearing held on 23 June 1994 the court decided to adjourn it until 6 October 1994. On 6 October 1994 the hearing was adjourned until 12 January 1995 as the presiding judge was on sick leave. On 17 October 1994 the court requested the defendant to submit a reply to the applicant’s statement of claim. During the hearing held on 12 January 1995 the court decided that a certain M.B., an employee of the defendant, should be heard as a witness and adjourned the hearing until 20 April 1995. At the same time the court instructed the defendant to provide it with the address of M.B. On 24 January 1995 the defendant informed the court that M.B. was living in New York where he had been appointed as a consul at the Consulate General of the Republic of Poland. The hearing held on 20 April 1995 was adjourned as the witness M.B. was not present. On 11 September 1995 and 11 October 1996 the District Court requested the Department of International Law of the Ministry of Justice to take evidence from M.B. In a letter of 15 January 1997 the Ministry of Justice informed the President of the District Court that it faced difficulties in taking evidence from M.B. It also advised the President that he might wish to prepare another request for taking evidence from that witness and submit it directly to the concerned Polish diplomatic mission in the United States. On 9 July 1997 the District Court again requested the Ministry of Justice to assist it in taking evidence from M.B. On 22 July 1997 the defendant submitted a duly certified written statement made by M.B. On an unspecified date in 1997 M.B. returned to Warsaw, where he continued to work for the defendant. The next hearing held on 10 December 1997 at 11 a.m. was adjourned after the counsel for the defendant informed the court that M.B. could not attend since he was on vacation outside Warsaw. The applicant submits that in the afternoon of that day he made a phone call to M.B. who was in his office in Warsaw and who informed him that although formally he was on leave, he had nevertheless come to work on that day. The hearing held on 8 April 1998 was adjourned after the court took evidence from M.B. and requested the applicant to submit copies of insurance policies which he had purchased before his departure from the United States. The hearing held on 25 May 1998 was adjourned due to the illness of the presiding judge. On 28 September 1998 the last hearing before the first-instance court took place. On 5 October 1998 the Warsaw District Court delivered a judgment dismissing the applicant’s action. On 3 November 1998 the applicant was served with the reasoned judgment of the District Court. On 4 November 1998 the applicant lodged with the Warsaw Regional Court an appeal against the judgment of the District Court. On 10 November 1998 the applicant’s appeal was transmitted to the defendant. On 5 January 1999 the defendant submitted to the Warsaw Regional Court its reply. On 7 January 1999 the Regional Court held a hearing. On 21 January 1999 the court delivered a judgment in which it awarded the applicant USD 1,789 together with interest and dismissed the remaining part of his claim. On 22 April 1999 the applicant lodged with the Supreme Court (Sąd Najwyższy) a cassation appeal. On 22 July 1999 the Supreme Court rejected the appeal because such a remedy was not provided in the applicant’s case since his claim was below the PLN 5,000 threshold set by the legislation for cassation appeals. In addition, the court observed that the cassation appeal had been lodged by the applicant instead of qualified counsel. On 31 December 1999 the applicant lodged with the Supreme Court a further appeal challenging the decision rejecting his cassation appeal. On 23 March 2000 the Supreme Court rejected the appeal because such a remedy was not provided by law. | 0 |
dev | 001-98832 | ENG | RUS | CHAMBER | 2,010 | CASE OF KHAYDAROV v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 3 (in case of extradition to Tajikistan);Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 5. The applicant was born in 1958 and lives in Dushanbe, Tajikistan. He is currently detained in a remand prison in Moscow. 6. In May 1992 a civil war erupted in Tajikistan when ethnic groups under-represented in the ruling elite rose up against the national government of President Nabiyev. Politically, the discontented groups were represented by liberal democratic reformists and Islamists, who fought together and later organised themselves under the banner of the United Tajik Opposition (“UTO”). By June 1997 fifty to one hundred thousand people had been killed. On 27 June 1997 a peace agreement was signed by President Rakhmonov and the UTO leader. However, in August 1997 fighting again erupted in several regions of Tajikistan, incited by an opposition group. Government forces retaliated and drove the armed faction of the opposition group to seek sanctuary in Uzbekistan. 7. The applicant, an ethnic Uzbek, lived in the village of Tajikistan in the Shakhrinavskiy District of Tajikistan. The village was mainly populated by ethnic Uzbeks. In the late 1990s large-scale persecution of ethnic Uzbeks commenced in Tajikistan. There were several armed attacks on the applicant's village; some of his acquaintances were killed. 8. The local administration of the applicant's village decided to create a number of checkpoints on the way to the village to protect the inhabitants and provided those who manned those checkpoints with firearms. The applicant himself was not given any firearms. 9. In August 1997 the village was attacked once again; after that, several members of the local militia and the applicant fled to Uzbekistan. 10. In February 1998 the applicant moved to Russia. 11. On several occasions the applicant travelled from Russia to Tajikistan. He obtained internal Tajik identity papers and a foreign passport in 2002 and 2004 respectively. His last visit to Tajikistan took place in September 2005. 12. On 6 February 2001 the Tajik Prosecutor General's Office instituted criminal proceedings against Mr M., a fellow villager of the applicant who had participated in the militia and fled to Uzbekistan in August 1997, charging him with banditry and organisation of an illegal armed group. The applicant was listed as one of the members of the group. 13. On 16 January 2006 the Tajik Prosecutor General's Office decided to bring charges against the applicant, stating that in August 1997 he had been a member of Mr M.'s illegal armed group and that such actions constituted an act of banditry punishable under Article 74 of the Tajik Criminal Code. It was also decided that the applicant should be put on a wanted list. 14. On 17 February 2006 the Tajik Prosecutor General's Office decided, in the absence of the applicant, to place him in custody. 15. On 15 April 2006 the applicant was put on an international wanted list. 16. On 19 July 2006 the investigation in the applicant's case was suspended as the applicant was at large. 17. On 13 March 2008 the Tajik Prosecutor General's Office severed the applicant's case from Mr M.'s criminal case. The decision read, in so far as relevant, as follows: “At the beginning of August 1997 [Mr M.], taking advantage of the unstable situation in Tajikistan, created an illegal armed group to attack legal entities and private individuals; the group was active until the end of August 1997. ... At the beginning of August 1997 Mr Khaydarov was a voluntary member of the illegal armed group and participated in armed hostilities. On 9 and 10 August 1997, after officers of law-enforcement agencies had entered the territory of the Shakhrinavskiy District, Mr M.'s armed group fled the district territory and left Tajikistan.” 18. On 18 April 2008 the Tajik Prosecutor General's Office sent a request for the applicant's extradition to the Russian Prosecutor General's Office, stating that in August 1997 the applicant had been a member of Mr M.'s illegal armed group. 19. On 24 April 2008 the Russian Prosecutor General's Office received a request by the Tajik Prosecutor General's Office to extradite the applicant. 20. On 13 June 2008 the Tajik Prosecutor General's Office sent the Russian Prosecutor General's Office additional documents stating that the applicant had participated in Mr M.'s group which had fought the government troops, and that he had borne arms and had manned the checkpoint in the village of Tajikistan. 21. On 20 November 2008 the Russian Prosecutor General's Office ordered the applicant's extradition to Tajikistan. The decision read, inter alia, as follows: “The actions of [Mr] M. Khaydarov are punishable under the Russian criminal law and correspond to Article 209 § 2 of the Russian Criminal Code (participation in a gang), which provides for a sanction in a form of imprisonment for more than one year. ... No [legal] impediments to [Mr] M. Khaydarov's extradition under treaties and Russian laws have been established.” 22. On 3 December 2008 the applicant was notified of the extradition order of 20 November 2008. 23. The applicant and his counsel lodged appeals against the decision of 20 November 2008 on 4 and 5 December 2008 respectively. In his appeal the applicant alleged that he was being persecuted in Tajikistan for political reasons related to the civil war. 24. On 23 December 2008 the Moscow City Court, at the applicant's counsel's request, included in the case file reports by international NGOs on the political climate in Tajikistan and postponed the examination of the appeals because the applicant's appeal against the refusal to grant his asylum request had not yet been examined. 25. On 21 January 2009 the Moscow City Court again postponed the hearing pending examination of the appeal against the refusal to grant the applicant asylum and requested additional documents from the Russian Prosecutor General's Office concerning the charges brought against the applicant in Tajikistan. 26. On 4 February 2009 the Moscow City Court sent requests for information to the Russian and Tajik Ministries of Foreign Affairs concerning the applicant's allegations of a risk of ill-treatment, as well as to the Russian Prosecutor General's Office concerning the possibility of amnesty being granted to the applicant in Tajikistan, and postponed a hearing on the appeal against the extradition order pending the completion of the asylum proceedings. 27. On 17 February 2009 the Russian Prosecutor General's Office informed the City Court that the applicant could not benefit from acts of amnesty in Tajikistan. 28. On 26 February and 12 March 2009 the Moscow City Court again sent requests for information concerning the applicant's allegations of a risk of ill-treatment to the Russian and Tajik Ministries of Foreign Affairs. 29. On 27 February 2009 the Moscow City Court again postponed a hearing. 30. On 24 March 2009 the Russian Ministry of Foreign Affairs informed the Moscow City Court that it had no information concerning any political motives for the applicant's prosecution and noted that Tajikistan had ratified nearly every major international human-rights instrument, including the International Covenant on Civil and Political Rights (ICCPR) and the United Nations (UN) Convention against Torture. 31. On 1 April 2009 the Moscow City Court questioned Ms Ryabinina, a member of the Expert Council for the Russian Ombudsman, who stated that torture and ill-treatment were frequently practised in Tajikistan. 32. On the same day the Moscow City Court dismissed at first instance the appeals lodged by the applicant and his counsel against the extradition order of 20 November 2008. The court reasoned, in particular, that the applicant had voluntarily left Tajikistan in 1997 and had been able to freely enter the country since then, that the Tajik Prosecutor General's Office had guaranteed that the applicant had not been prosecuted for political or religious reasons, and that Tajikistan had ratified nearly every major international human-rights instrument. The applicant's allegation that he had been prosecuted in relation to the civil war remained unanswered. 33. On 6 April 2009 the applicant's counsel appealed against the Moscow City Court's judgment. 34. On 10 April 2009 the Tajik Prosecutor General's Office informed the Russian Prosecutor General's Office of the following: “The criminal proceedings against [Mr] Khaydarov are not inspired by any political motives and the Tajik Prosecutor General's Office guarantees that [Mr] Khaydarov will be prosecuted only in respect of the act he was charged with; he will be able to freely leave the territory of Tajikistan after completion of the court proceedings and having served any sentence; he will not be extradited to a third State without the Russian authorities' consent and will not be persecuted on political and religious grounds.” 35. On 14 May 2009 the Supreme Court of Russia (“the Supreme Court”) quashed the judgment of 1 April 2009 because the Moscow City Court had failed to thoroughly examine the applicant's counsel's claim that the crime that the applicant had been charged with was of a political nature. Moreover, the Supreme Court stated that the Russian Office of the United Nations High Commissioner for Refugees (UNHCR) had confirmed that the applicant's fears of political persecution had been well-founded. The case file was returned to the Moscow City Court for a fresh examination. 36. On 26 May 2009 the Tajik Prosecutor General's Office informed the Russian Prosecutor General's Office that Tajikistan had ratified the UN Convention against Torture. 37. On 3 June 2009 the Moscow City Court re-examined the appeals against the extradition order and upheld it. It reasoned that the applicant was a Tajikistani national, held no refugee status and, according to the Tajik Prosecutor General's Office, had not been prosecuted for political or religious reasons. The court also pointed out that the applicant had applied for temporary asylum only on 6 April 2009 and concluded that his application could not impede the examination of the appeals against the extradition order. It further referred to the guarantees of 10 April and 26 May 2009 provided by the Tajik Prosecutor General's Office that the applicant would not be persecuted on political and religious grounds and dismissed the report by Ms Ryabinina as unsubstantiated, arguing that the assurances in question sufficed to exclude the risk of ill-treatment in the applicant's case. The applicant's allegations that the criminal proceedings against him had been linked to the events surrounding the civil war remained unanswered. 38. On 30 July 2009 the Supreme Court upheld the Moscow City Court's decision of 3 June 2009. It reasoned that Tajikistan had ratified the UN Convention against Torture and referred to the guarantees given by the Tajik Prosecutor General's Office. On the same date the extradition order became final. 39. On 17 June 2008 the applicant applied to the Moscow Office of the Federal Migration Service (“the Moscow FMS”) for asylum, claiming that the Tajik authorities had persecuted him on the ground of his ethnic origin. 40. On 6 October 2008 the asylum request was dismissed; on 1 November 2008 the applicant was notified accordingly. 41. On 28 January 2009 the Zamoskvoretskiy District Court of Moscow dismissed an appeal by the applicant against the decision by the Moscow FMS. 42. On 26 March 2009 the Moscow City Court upheld the judgment of 28 January 2009 on appeal. 43. On 6 May 2009 the UN High Commissioner for Refugees declared the applicant a person requiring international protection. 44. On 22 September 2009 the Moscow FMS rejected the applicant's request for temporary asylum and notified him accordingly on 5 October 2009. 45. The applicant appealed against the refusal of 22 September 2009 to the Federal Migration Service of Russia (“the Russian FMS”). 46. On 13 November 2009 the Russian Office of the UNHCR sent the Russian FMS a report in support of the applicant's request for temporary asylum, stating that he ran a real risk of being ill-treated in Tajikistan. The report read, in particular, as follows: “Mr Khaydarov's allegations [of a risk of ill-treatment] are supported by numerous documents concerning the events of 1997-98 in Tajikistan. ... [E]thnic Uzbeks were subjected to oppression and persecution; in particular, there were reports of numerous killings of civilians before and during the armed conflict in August 1997, which led to a mass exodus of ethnic Uzbeks from northern areas of Tajikistan, in particular to Uzbekistan. Having examined Mr Khaydarov's application and having assessed his fears regarding his return to [Tajikistan], the UNHCR has established that Mr Khaydarov's application and his fears of being subjected to persecution, on the grounds of political convictions attributed to him, in the form of arrest, torture with a view to obtaining a self-incriminating deposition, unlawful and unfair trial and lengthy imprisonment for acts that he had not committed are well-founded. ... There are strong reasons to believe that the criminal proceedings against the applicant instituted by the Tajik authorities amount to persecution on the grounds of political views attributed to the applicant, since [the Tajik authorities] associate the applicant with anti-governmental activities because he had been a member of militia groups suspected of involvement in the armed conflict of August 1997. ... The UNHCR considers that there are serious concerns that Mr Khaydarov will be subjected to torture and other violations of basic human rights, which mean that there is an even greater risk of his being persecuted on the grounds of political views attributed to him. ...[Mr Khaydarov's] case corresponds to the definition of a 'refugee' within the meaning of the 1951 United Nations Convention Relating to the Status of Refugees and the Russian Refugees Act. ... Mr Khaydarov is charged with ... banditry. However, it is noteworthy that the criminal case in which Mr Khaydarov is charged was opened in 2001 and the preliminary investigation concerning Mr Khaydarov was suspended in 2006, which shows that during such a lengthy period of investigation no proof of his guilt had been found and that the requesting State has no such proof. The Tajik authorities have not provided a single piece of factual evidence of Mr Khaydarov's criminal activity in his country of origin, and the documents provided by the Tajik counterparty as a basis for extradition are contradictory. ... [t]he UNHCR concludes that there is no reliable evidence of the fact that Mr Khaydarov committed criminal acts, such as banditry, while in Tajik territory.” 47. On 17 April 2008 the applicant was arrested in Moscow as a person wanted by the Tajik authorities. Upon his arrest the applicant learned for the first time that there had been criminal proceedings against him. On the same date the Tajik Ministry of the Interior requested the Russian police to keep the applicant in custody pursuant to the Minsk Convention. 48. The applicant was then placed in remand prison IZ-77/4 in Moscow. 49. On 19 April 2008 the Taganskiy District Court of Moscow ordered the applicant's placement in custody pending extradition pursuant to Articles 97, 99 and 108 and Article 466 § 1 of the Russian Code of Criminal Procedure (CCP). The court stated that on 19 July 2006 the applicant had been put on a wanted list and that he had no permanent place of residence in Russia and concluded that, if not in custody, he could escape and impede his extradition to Tajikistan. The term of the detention was not specified. 50. On 18 June 2008 the Taganskiy District Court again ordered the applicant's placement in custody pursuant to Articles 108 and 466 of the CCP for an unspecified period of time. The court reasoned that less severe preventive measures could not be applied because the applicant had been at large since 1996, was a Tajikistani national, had no registered place of residence in Russia and was charged with a crime that was punishable by imprisonment for more than two years. 51. On 6 October 2008 the applicant's counsel applied to the governor of remand prison IZ-77/4 for the applicant's release, claiming that the maximum detention period permitted by domestic law had expired. On 16 October 2008 the governor of the remand prison replied that the applicant had not appealed against the decision of 18 June 2008 authorising his detention and that the question of his release should be decided upon by the Russian Prosecutor General's Office. 52. On 1 December 2008 the applicant's counsel complained to the Babushkinskiy District Court of Moscow that the applicant's detention was unlawful. 53. On 10 December 2008 the Babushkinskiy District Court informed the applicant's counsel that it had no jurisdiction to examine the complaint. 54. On 23 January 2009 the applicant's counsel complained to the Tverskoy District Court of Moscow, under Article 125 of the CCP, that the Russian Prosecutor General's Office had unlawfully failed to apply for an extension of the term of the applicant's detention as required by Article 109 of the CCP. On 27 January 2009 the President of the Tverskoy District Court returned the complaint for elimination of discrepancies. 55. On 4 May 2009 the applicant's counsel lodged another complaint under Article 125 of the CCP with the Zamoskvoretskiy District Court of Moscow, alleging inaction on the part of the Russian Prosecutor General's Office. 56. On 7 May 2009 the Zamoskvoretskiy District Court refused to examine the applicant's complaint of 4 May 2009 for the reason that its subject matter did not fall within the ambit of Article 125 of the CCP. 57. On 14 May 2009 the Supreme Court ruled that the preventive measure applied to the applicant should remain unvaried until 4 June 2009. 58. On 3 June 2009 the Moscow City Court ruled that the preventive measure applied to the applicant should remain unvaried. 59. On 27 July 2009 the Moscow City Court quashed the decision of the Zamoskvoretskiy District Court of 7 May 2009 and remitted the matter to the first-instance court for a fresh examination. 60. On 4 September 2009 the Zamoskvoretskiy District Court again dismissed the applicant's complaint, arguing that Article 125 of the CCP was inapplicable since there had been no criminal proceedings pending against the applicant in Russia. It reasoned as follows: “The [applicant's] requests to declare unlawful the inaction of the Moscow prosecutor's office on account of its failure to perform its function of supervising compliance with the law in custodial institutions could not be examined under Article 125 of the CCP because the prosecutors' supervision of the custodial system is not related to the criminal proceedings against [Mr] Khaydarov. Acts and inaction of agents of the prosecutor's office can be challenged by way of another procedure which is not provided for in Article 125 of the CCP. The request for extension of the term of custodial detention is an exclusive right of the competent bodies and a court is not entitled to impel [those bodies] to bring such requests.” 61. On 11 September 2009 the applicant's counsel appealed against the decision of 4 September 2009. 62. On 14 September 2009 the applicant's counsel complained to the Taganskiy District Court that the applicant's detention was unlawful. Referring to Article 5 § 4 of the Convention, she argued that Article 109 of the CCP had been breached in the applicant's case as his term of detention had not been extended and that there had been no judicial review of the lawfulness of the detention. 63. On 16 September 2009 a judge of the Taganskiy District Court sent the applicant's counsel a letter explaining that it was open to the applicant to appeal against the decision on choosing the preventive measure and that there were no other avenues of complaining of the alleged unlawfulness of detention. 64. On 5 October 2009 the applicant's counsel appealed against the refusal to examine her complaint. On 13 October 2009 the judge of the Taganskiy District Court sent her a letter explaining that the previous letter could not be appealed against. 65. On 26 October 2009 the Moscow City Court dismissed the appeal against the decision of 4 September 2009. 66. On 8 December 2009 the applicant's counsel requested the Russian Prosecutor General's Office to release the applicant. 67. Chapter 13 of the CCP governs the application of preventive measures. Preventive measures may be applied to a suspect or a person charged with an offence where it is probable that the person in question might abscond, continue to be engaged in criminal activities, threaten witnesses or impede the investigation (Article 97). When deciding on the necessity to apply a preventive measure, it is necessary to take into account the gravity of the charges and the various personal details of the person concerned (Article 99). Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years' imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A request for placement in custody should be lodged by a prosecutor (or an investigator or inquirer with a prosecutor's prior approval) (Article 108 § 3). The request should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge's decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime cannot exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level further to a request lodged by a prosecutor (or an investigator or inquirer with a prosecutor's prior approval) (Article 109 § 2). Further extensions up to twelve months may be granted on an investigator's request approved by a prosecutor of the Russian Federation only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). 68. Chapter 16 of the CCP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual's access to court” may be subject to judicial review (Article 125). 69. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy is to decide on the preventive measure in respect of the person whose extradition is sought. The preventive measure is to be applied in accordance with the established procedure (Article 466 § 1). 70. Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its settled case-law to the effect that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 71. In the Constitutional Court's view, the absence of specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is, the procedure laid down in the CCP. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Preventive measures”), which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests. 72. The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCP or in excess of the time-limits fixed in the Code. 73. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure. 74. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition. 75. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of the courts of general jurisdiction. 76. The Constitutional Court reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention as such, in that it required a court to examine whether the arrest was lawful and justified. 77. The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours, on the basis of a request for his or her extradition, without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in the Code. 78. Recommendation No. R (98) 13 of the Council of Europe Committee of Ministers to Member States on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights reads as follows: “... Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request, as recommended, among others, in Council of Europe Recommendation No. R (81) 16 of the Committee of Ministers... 1. An effective remedy before a national authority should be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment. 2. In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when: ... 2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief; ... 2.4. the execution of the expulsion order is suspended until a decision under 2.2 is taken.” 79. The Council of Europe Commissioner for Human Rights issued a Recommendation (CommDH(2001)19) on 19 September 2001 concerning the rights of aliens wishing to enter a Council of Europe Member State and the enforcement of expulsion orders, part of which reads as follows: “11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.” 80. For other relevant documents, see the Court's judgment in the case of Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 36-38, ECHR 2007V. 81. When performing actions requested under the Minsk Convention, to which Russia and Tajikistan are parties, a requested official body applies its country's domestic laws (Article 8 § 1). 82. Upon receipt of a request for extradition, the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60). 83. The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3). 84. A person detained pending extradition pursuant to Article 61 § 1 of the Minsk Convention must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within forty days from the date of placement in custody (Article 62 § 1). 85. Conclusions and Recommendations: Tajikistan, issued by the UN Committee against Torture on 7 December 2006 (CAT/C/TJK/CO/1), refer to the following areas of concern regarding the human-rights situation in the country: “The definition of torture provided in domestic law ... is not fully in conformity with the definition in article 1 of the Convention, particularly regarding purposes of torture and its applicability to all public officials and others acting in an official capacity. ... There are numerous allegations concerning the widespread routine use of torture and ill-treatment by law enforcement and investigative personnel, particularly to extract confessions to be used in criminal proceedings. Further, there is an absence of preventive measures to ensure effective protection of all members of society from torture and ill treatment. ... The Committee is also concerned at: (a) The lack of a legal obligation to register detainees immediately upon loss of liberty, including before their formal arrest and arraignment on charges, the absence of adequate records regarding the arrest and detention of persons, and the lack of regular independent medical examinations; (b) Numerous and continuing reports of hampered access to legal counsel, independent medical expertise and contacts with relatives in the period immediately following arrest, due to current legislation and actual practice allowing a delay before registration of an arrest and conditioning access on the permission or request of officials; (c) Reports that unlawful restrictions of access to lawyers, doctors and family by State agents are not investigated or perpetrators duly punished; (d) The lack of fundamental guarantees to ensure judicial supervision of detentions, as the Procuracy is also empowered to exercise such oversight; (e) The extensive resort to pretrial detention that may last up to 15 months; and (f) The high number of deaths in custody. ... There are continuing and reliable allegations concerning the frequent use of interrogation methods that are prohibited by the Convention by both law enforcement officials and investigative bodies. ... There are reports that there is no systematic review of all places of detention, by national or international monitors, and that regular and unannounced access to such places is not permitted.” 86. Minority Rights Group International in its document “Tajikistan: Overview”, updated in January 2008, describes the situation of the Uzbek minority in Tajikistan as follows: “The situation in Tajikistan is similar in many respects to that of its neighbours. ... Since independence, Tajiks have attempted to assert their dominance by linguistic and other preferences that tend to discriminate against and exclude minorities, often leading to resentment or even an exodus. While they were close to a quarter of the population at the time of independence, many Uzbeks fled during the period of the civil war. They remain the largest minority at over 15 percent of the population according to a 2000 census, and are concentrated in areas usually associated with opposition to the government. This has led to a general distrust of Uzbeks, and in turn discriminatory treatment towards them in many institutions of the state. Once again, oppressive measures have been presented as necessary in the name of the fight against 'terror' and 'separatism'. The degree of under-representation of minorities in public life is startling: only two members of Parliament are Uzbeks, despite this minority's very substantial numbers. ... Despite constitutional provisions that initially appear to guarantee the use of minority languages, and despite the large percentage of minorities in the country, in particular Uzbeks, minorities are largely excluded from employment in public service.” 87. The World Report Chapter: Tajikistan by Human Rights Watch, released in January 2009, describes the human-rights situation in the country as follows: “Tajikistan's definition of torture does not comply fully with the UN Committee Against Torture's recommendations to the country in December 2006. In a positive move, in March 2008 the Criminal Procedure Code was amended to make evidence obtained under torture inadmissible in court proceedings. Experts agree that in most cases there is impunity for rampant torture in Tajikistan. In one of the few cases that reached the courts, two policemen in Khatlon province were convicted in August 2008 for ill-treating minors; one of the two received a fouryear prison sentence, and the other a suspended sentence. NGOs and local media reported at least three deaths in custody in 2008, including the death from cancer of the ex-deputy chair of the Party of Islamic Revival Shamsiddin Shamsiddinov. The party alleged his arrest in 2003 was politically motivated and claimed that his life could have been saved had he been allowed to undergo surgery. In an April 1, 2008 decision (Rakhmatov et al. v. Tajikistan) the UN Human Rights Committee found that Tajikistan violated the rights, including freedom from torture, of five applicants, two of them minors when they were arrested. Tajikistan failed to cooperate with the committee's consideration of the complaint. Similar violations were established in an October 30, 2008 decision (Khuseynov and Butaev v. Tajikistan).” 88. The 2009 US Department of State Country Report on Human Rights Practices, released on 11 March 2010, provides the following information in relation to Tajikistan: “The government's human rights record remained poor, and corruption continued to hamper democratic and social reform. The following human rights problems were reported: ... torture and abuse of detainees and other persons by security forces; impunity of security forces; denial of right to fair trial; harsh and life-threatening prison conditions; prohibition of international monitor access to prisons; ... The law prohibits [cruel, inhumane or degrading treatment or punishment], but some security officials used beatings or other forms of coercion to extract confessions during interrogations, although the practice was not systematic. Officials did not grant sufficient access to information to allow human rights organizations to investigate claims of torture. ... The Ministry of Justice (MOJ) continued to deny access to prisons or detention facilities to representatives of the international community and civil society seeking to investigate claims of harsh treatment or conditions. Some foreign diplomatic missions and NGOs were given access to implement assistance programs or carry out consular functions, but their representatives were limited to administrative or medical sections, and MOJ personnel accompanied them. The government did not sign an agreement with the International Committee of the Red Cross (ICRC) to allow free and unhindered access to prisons and detention centres, and the ICRC's international monitoring staff has not returned to the country since 2007. Detainees and inmates described harsh and life-threatening prison conditions, including extreme overcrowding and unsanitary conditions. Disease and hunger were serious problems, but outside observers were unable to assess accurately the extent of the problems because authorities did not allow access to prisons. Organizations such as the UN Human Rights Council reported that infection rates of tuberculosis and HIV were significant and that the quality of medical treatment was poor. ... Victims of police abuse may submit a formal complaint in writing to the officer's superior or the Office of the Ombudsman. Most victims chose to remain silent rather than risking retaliation by the authorities. ... Trials are public, except in cases involving national security. There is a presumption of innocence by law, but in practice defendants were presumed guilty. ... In national security cases, a panel consisting of a presiding judge and two 'people's assessors' determines the guilt or innocence of the accused. Qualifications of the assessors and how those qualifications are determined are not known, but their role is passive, and the presiding judge dominates the proceedings. ... Authorities claimed that there were no political prisoners and that they did not make any politically motivated arrests. Opposition parties and local observers claimed the government selectively prosecuted political opponents. There was no reliable estimate of the number of political prisoners, but former opposition leaders claimed there were several hundred such prisoners held in the country, including former fighters of the UTO.” | 1 |
dev | 001-88767 | ENG | DNK | ADMISSIBILITY | 2,008 | GAVRIC v. DENMARK | 4 | Inadmissible | Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva | The applicant, Milorad Gavric, is a Danish national who was born in 1947 and lives in Fuglebjerg. He was represented before the Court by Mr Tyge Trier, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mrs Nina HolstChristensen, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was employed as an abattoir worker. On 26 October 1992 he sustained an injury while transporting slaughtered pigs to a cooling room on devices called “Christmas trees”. The transportation took place by pushing the devices along a rail system in the ceiling. While pushing, suddenly the applicant suffered intense back pains. He went to see a doctor on 2 November 1992 and went on sick leave from 20 November 1992. On 29 December 1992 his employer notified the Danish Working Environment Authority (Arbejdstilsynet). On 28 January 1993 the applicant’s insurance company filed a claim about the incident with the National Board of Industrial Injuries (Arbejdsskadestyrelsen) and on 26 March 1993, the applicant submitted a form, in which he provided a summary of the accident. He specified that while pushing the devices along the rail system, he had reached for a switch and accordingly had to give an extra push, whereby he strained his back and fell to his knees due to sharp pains. He replied in the negative to a question on the form as to whether he slipped, fell or stumbled. On 4 May 1993 the applicant’s request for compensation was refused by the National Board of Industrial Injuries on the grounds that the injury could not be recognised as an industrial injury under section 9, subsection 1(i) and (ii) of the Act on Protection against the Consequences of Industrial Injuries (Arbejdsskadeforsikringsloven) then applicable. In October and December 1993 the applicant appealed against the decision to the Social Appeals Board (Den Sociale Ankestyrelse). In addition, on 17 January 1994 he requested that the National Board of Industrial Injuries reopen the case. Later, during the proceedings he submitted a statement of 13 October 1994 by a medical expert, to whom the applicant had explained that, on the day of the accident, he slipped on the greasy floor, lost his balance, and fell on his knees. In that connection he suddenly felt the sharp pain in his back. The applicant’s request was refused on 9 November 1994. On 5 December 1994 the applicant appealed against that decision to the Social Appeals Board, which on 15 February 1995 upheld the parts of the decisions of the National Board of Industrial Injuries of 4 May 1993 and 9 November 1994 concerning section 9, subsection 1(i) of the Act on Protection against the Consequences of Industrial Injuries then applicable. At the same time, the Social Appeals Board remitted the part of the case that related to section 9, subsection 1(ii) of the Act on Protection against the Consequences of Industrial Injuries then applicable to the National Board of Industrial Injuries, requesting the Board to obtain further information with a view to determining whether the incident could be recognised as having caused a short-term injury. On 9 November 1995 the National Board of Industrial Industries decided that the incident of 26 October 1992 could not be recognised as having caused a short-term injury under section 9, subsection 1(ii) of the said Act. On 7 December 1995 the applicant appealed against this decision to the Social Appeals Board, which upheld it on 13 September 1996. On 11 June 1997 the applicant brought the case before the High Court of Eastern Denmark (Østre Landsret). The pre-trial proceedings lasted from 11 June 1997 until 30 June 2000. During this period the applicant requested seven times, and was granted, an extension of a time limit set by the High Court. The case was brought before the Medico-Legal Council (Retslægerådet), which delivered an opinion and a supplementary opinion. On 30 June 2000 the High Court closed the pretrial proceedings and offered to schedule the trial in August or September 2000. This was refused by the applicant, and the trial was then initially scheduled for 22 March 2001. Due to rescheduling, however, the trial was ultimately conducted on 6 December 2000. The applicant and two witnesses were heard and substantial documentary material was submitted. A judgment was passed in favour of the Social Appeals Board on 18 January 2001. The applicant was ordered to pay costs to the opponent party amounting to a total of 15,000 Danish kroner (DKK) (approximately 2,000 euros (EUR)). On 6 February 2001 the applicant appealed against the judgment to the Supreme Court (Højesteret). He stated that he wanted further witness testimony and reserved the right to put supplementary questions to the Medico-Legal Council. Before the Supreme Court the pre-trial proceedings lasted from 6 February 2001 until 12 December 2005. The trial was held on the latter date. During this period, the applicant requested fifteen times, and was granted, an extension of a time limit set by the Supreme Court and three times the applicant and the Social Appeal Board jointly were granted an extension of a time limit. The case was brought before the Danish National Institute for Occupational Health (Arbejdsmiljøinstitutet) and once again before the Medico Legal Council. The trial took place as scheduled on 12 December 2005 and by judgment of 19 December 2005 the Supreme Court upheld the High Court’s judgment. The applicant was ordered to pay costs to the opponent party amounting to DKK 75,000 (approximately EUR 10,000). With regard to civil proceedings the Administration of Justice Act reads in as far as relevant: (1) The losing party shall compensate the opponent for the expenses inflicted on the opponent by the proceedings, unless otherwise agreed by the parties. (2) The court may decide that the losing party shall not or shall only partially compensate the opponent for the expenses inflicted if particular reasons make it appropriate. (3)... Thus, although Danish law does not refer to a remedy specifically designed or developed to provide redress in respect of complaints about an excessive length of civil proceedings, accordingly to domestic case-law, in civil proceedings initiated by an individual against or involving Government Institutions, if the courts, having examined a length of proceedings complaint, finds a violation, they may grant redress therefore by, for example, exempting the individual from paying legal costs or by deciding that expenses and fees shall be covered by the Treasury (see, inter alia, Kirsten Norman v. Denmark (dec.), no. 44704/98, 14 June 2001). To illustrate that section 312, subsection 2 of the Administration of Justice Act is an effective remedy for providing adequate redress for a violation of Article 6 § 1 of the Convention in civil lawsuits of this nature, the Government referred to the decision of the Supreme Court of 24 April 2003 published in the Weekly Law Review (Ugeskrift for Retsvæsen) 2003, page 1550 (U 2003.1550 H). In that case the Supreme Court upheld a High Court judgment in a case filed by a child and its parents against a County Council. Even though the plaintiffs lost the case, the Supreme Court, taking into account the extraordinary length of the legal proceedings, invoked section 312, subsection 2 and exempted the plaintiffs from compensating the County Council for its legal costs. When doing so the Supreme Court explicitly referred to Article 6 of the Convention. | 0 |
dev | 001-100481 | ENG | RUS | CHAMBER | 2,010 | CASE OF ALEKSANDR LEONIDOVICH IVANOV v. RUSSIA | 4 | Violation of Art. 3 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 5. The applicant was born in 1981 and is serving a prison term in the Ryazan Region. 6. The applicant was a student of a State University, which trained law enforcement officers. On 3 March 2001 the applicant was arrested on suspicion of murder. By a judgment of 23 April 2002, the Omsk Regional Court convicted the applicant of theft and murder, and sentenced him to seventeen years' imprisonment. On 10 April 2003 the Supreme Court of the Russian Federation upheld the judgment. 7. From 5 to 13 March 2001 the applicant was detained in a temporary detention centre in the town of Omsk. From 14 March 2001 to 10 June 2003 the applicant was detained in Omsk remand centre no. 55/1. 8. According to the applicant, he was kept in the remand centre in cell no. 163 (designed for eight persons) together with at least twenty other inmates. Owing to an insufficient number of beds, they had to sleep in shifts. The cell windows were covered with metal shutters that barred access to natural light and air. In 2003 the applicant was kept in the cell together with eight to ten other persons. 9. The applicant subsequently indicated that in 2001-02 he had been afforded less than two square metres of living space in the cell. The toilet was not separated from the living area. In the absence of any ventilation, the smell spread into the cell. He also alleged that on the days of court hearings in April 2001 he had to get up at 4 a.m. and was taken back at 8 p.m. without any food or drink. 10. The applicant was kept in the remand centre from 15 March 2001 to 10 June 2003. The applicant was placed in cell no. 163, which measured twenty-one square metres and had five beds. This cell was assigned to former law enforcement officers, who had to be kept separately from the other (potentially hostile) detainees. With reference to certificates issued in February 2008 by the acting director of the remand centre, the Government stated that this cell had accommodated three to five detainees during the relevant periods. In support of the above, the Government enclosed statements made in 2008 by three officers serving in the remand centre, who confirmed that the above information was correct and that the conditions of the applicant's detention during the relevant periods had been appropriate. The Government also enclosed a statement made in 2008 by a convict who had been detained in cell no. 163 from April to July 2001. This person stated that during that period there had been five beds and only four detainees and that the material conditions had been acceptable. A similar statement was made in 2008 by another detainee who had been kept in that cell from December 2002 to February 2003. 11. From 30 August to 4 September 2002 the applicant was also kept in cell no. 53, which measured 4.8 square metres and had one bed. 12. According to the Government, the applicant was provided with an individual bed and bedding in both cells. He had access to a shower once a week. He had daily outdoor walks. The metal shutters on the cell window(s) were aimed at preventing inter-cell communication and did not impede access to natural light. The works for removing the shutters were carried out between November 2002 and March 2003. 13. On the days when investigative measures were carried out or hearings were held (June 2001 – September 2002), the applicant had had to get up 6 a.m. and was taken back to the cell before 10 p.m. On those days, he had been fed and had also been able to take food bought by him or received from next of kin. 14. As can be seen from the certificate submitted by the Government, the cell record cards for October 2000 – October 2002 were destroyed on 8 August 2004 after the expiry of the one-year retention period. The registers concerning the population of the remand centre between July 2001 and December 2003 were destroyed on 30 August 2004 after the expiry of the one-year retention period. 15. The following data is given on one of the certificates submitted by the director of the remand centre. The “maximum design capacity” of the remand centre was 1,025 detainees. Between December 2002 and 2004 the design capacity went up to 1,515 detainees owing to the construction of new buildings. As can be seen from another certificate, in 2001 the remand centre accommodated an average of 2,685 persons (to 2,887 beds); in 2002 the figure was 1,999 persons (to 2,305 beds) and in 2003 there were 1,905 persons (to 2,305 beds). 16. The applicant complained to the prosecutor's office of the Omsk Region alleging that he had been ill-treated at the temporary detention centre and that his state of health had deteriorated while in detention. On 11 April 2001 the prosecutor's office rejected his complaints as unfounded. By a letter of 18 December 2003, the prosecutor's office rejected the applicant's further complaint concerning conditions of detention and stated, in particular, that his state of health had been satisfactory, except for a slight deterioration of his eyesight. 17. In February 2004 the applicant complained to the Regional Department for the Execution of Sentences about the allegedly degrading conditions of his detention, referring in particular to the overpopulation in the remand centre and lack of access to natural light and airflow in the cells. By a letter of 2 March 2004, the Penitentiary Office acknowledged the overpopulation problem in “certain cells” in the remand centre in 2001 and 2002 and stated that in 1999 the metal shutters had been partly removed from the cell windows and had been completed removed in March 2003. | 1 |
dev | 001-107705 | ENG | SVN | CHAMBER | 2,011 | CASE OF V. v. SLOVENIA | 4 | No violation of Art. 8 | Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert | 5. The first applicant has four children from previous relationships; one of them is a girl, X, born in October 1995, whose biological father’s identity remains unconfirmed. The other three daughters are grown up. They have never lived with the applicants. 6. The applicants have been in a relationship since 1999 and were married in May 2004. In December 2001 twins, a girl W and a boy Y, were born to the applicants. On 5 May 2003, W died in suspicious circumstances. The autopsy report showed that she had several bone fractures and had sustained severe injuries to her internal organs. On 28 September 2009, the first applicant was found guilty of continuously causing severe bodily harm to W and of negligent manslaughter of W. She was sentenced to eight years and six months in prison. The second applicant was found guilty of negligent manslaughter of W and was sentenced to three years in prison. The Higher Court confirmed the verdict and the proceedings are currently pending before the Supreme Court following the request for protection of legality (extraordinary remedy) lodged by the applicants. The first applicant started serving her sentence on 8 October 2010. The second applicant has a serious heart condition and his prison sentence has been temporarily suspended. 7. On 14 May 2003, following W’s death, a social worker from the Maribor Welfare Authority (hereinafter referred to as “the Maribor Authority”) called the applicants and asked them to bring X and Y, who both lived with the applicants, to the paediatric hospital for examination. The children stayed in the hospital until 2 June 2003. In the meantime, it was established that X was traumatised by the death of W and that Y had delayed psychophysical development. Measures were taken by the social workers to find a suitable foster family that would receive X and Y. 8. Following several meetings with the applicants and in view of psychological reports prepared during X’s and Y’s hospitalisation, the Maribor Authority, on 2 June 2003, issued an emergency care order removing Y, then two years old, from the applicants and X, then seven years old, from the first applicant, and placing them in foster care. In the emergency care order, the Maribor Authority referred to suspicious circumstances of W’s death and found that there were indications of possible domestic violence and neglect. It also noted that the applicants had not been critical of their situation and that X and Y would have been at risk if left at home. The order stated that contact between the applicants and Y as well as between the first applicant and X be allowed for one hour every two weeks under supervision, beginning on 25 June 2003. 9. On 3 June 2003, presumably before the children were taken to the foster home, the Maribor Administrative Unit issued a decision allowing the enforcement of the Maribor Authority’s emergency care order. The applicants were verbally informed of the order on the same day. They received it in writing on 4 June 2003. 10. On 17 June 2003 the applicants appealed against the emergency care order stating, inter alia, that a medical examination had not shown any signs of maltreatment, that no measures had previously been taken against them by the Maribor Authority and that they had taken proper care of X and Y. They also submitted that three of the first applicant’s children had been successful in school and were now already grown up, and also that X had no learning difficulties. Their appeal was dismissed by the Ministry for Labour, Family and Social Affairs (hereinafter referred to as “the Ministry”) on 20 October 2003. 11. The applicants challenged that decision before the Administrative Court. The latter, relying on the Maribor Authority’s findings, rejected their claim on 16 March 2004. It found that the procedure had been conducted properly. 12. In the meantime, the Maribor Authority established an internal expert panel consisting of three employees, namely a sociologist, a lawyer and a social worker (hereinafter referred to as “the Maribor panel”). It also obtained a psychological report concerning X and Y. After each contact between the applicants and the children took place, a record was made by the social workers. The applicants were offered counselling, which they refused. On 4 December 2003 a hearing was held before the Maribor Authority, at which the applicants were present. On 18 December 2003 the Maribor Authority issued an ordinary care order, by which Y was removed from the applicants, X was removed from the first applicant, and both were placed in foster care. At the same time, the Maribor Authority set out contact arrangements, stating that the applicants could see Y and the first applicant could see X under the Maribor Authority’s supervision for one hour every two weeks. It found that the children were living under psychological pressure and were neglected, in that they did not have a proper behaviour model at home. Y needed more support to catch up in his development and X needed therapy due to being under severe psychological pressure. Her psychological needs were entirely ignored by her mother, who was extremely egocentric. The applicants were advised to undergo parenting counselling. 13. The applicants appealed against the care order. On 13 August 2004 the Ministry dismissed their appeal, by which the order became enforceable. 14. The applicants challenged this decision in a claim before the Administrative Court. On 5 July 2005 the court issued a judgment rejecting their claim. 15. On a further appeal the Supreme Court, on 16 November 2005, quashed the Administrative Court’s judgment and ordered a re-examination of the case in so far as the removal of the children and their placement into foster care were concerned. They found that a removal order could only be issued if supported by a report from an independent expert. In the instant case, however, the psychologist who had drawn up the report was an employee of the Maribor Authority. 16. Subsequently, the Administrative Court again considered the case and quashed the Ministry’s decision on 17 January 2006. It ordered that an independent expert be appointed and that the applicants’ ability to ensure the normal mental and physical development of X and Y, which was crucial for the care order, be further assessed. On 9 March 2006 the Ministry ordered the Maribor Authority to re-examine the case. 17. On 23 March 2006, following the quashing of the ordinary care order by the Ministry, the Maribor Authority issued a new emergency care order, by which the children were to remain in the foster home. In the written grounds, it stated that the reason for re-examination of the matter concerning the ordinary care order was the fact that no independent expert had been appointed and that the higher courts had given no indication that the children should be returned to their parents. In addition, the Maribor Authority referred to the fact that an indictment had been lodged against the applicants, alleging that they had caused the death of W by negligence, which would have in itself been a sufficient reason for taking their remaining minor children into public care. The order did not set out any new contact arrangements, as this issue was pending before the Maribor District Court (see paragraph 43 below). 18. The applicants appealed against the emergency removal, on the grounds that it was unjustified. The appeal was rejected by the Ministry, which found that there were sufficient grounds for emergency placement of the children in foster care. On 23 August 2006 the applicants lodged a claim with the Administrative Court, which was rejected on 13 March 2007, as the court agreed that the facts as established by the Maribor Authority and its panel were sufficient to justify the emergency placement of the children in foster care pending the outcome of the proceedings concerning the ordinary care order. 19. In the meantime, on 14 April 2006, the Maribor Authority appointed a forensic expert in psychology to draw up a report on the applicants’ capacity for parenting. He submitted his report on 10 September 2006. On the basis of the examination of the applicants, Y and X, the first applicant’s other daughters, the social workers and neighbours, and having regard to the circumstances surrounding W’s death, the expert found that Y’s and X’s psychophysical development would be at a serious risk if they stayed with the applicants, who were unable to satisfy their basic needs. It found that the second applicant was passive and as such unable to take an active role in the family, and that the first applicant had developed an “emotionally unstable personality disorder with querulous and socially inadaptable behaviour”. He also found that the contact should certainly not be extended and that the applicants should be given clear limits as regards their contact with Y and X. 20. On 13 October 2006 a hearing was held before the Maribor Authority, at which the applicants were present. 21. On 11 January 2007 the Ministry allowed the applicants’ request for a change of venue. The case concerning the care order was consequently allocated to the Ptuj Welfare Authority (hereinafter referred to as the “Ptuj Authority”), which appointed their internal expert panel (hereinafter referred to as the “Ptuj panel”) on 25 April 2007. After the change of venue, the Maribor Authority regularly reported to the Ptuj Authority on the contact between the applicants and the children. 22. On 20 June 2007, on the basis of the reports collected so far, the Ptuj panel issued an opinion that the applicants were unfit parents. It also noted that the children could potentially be returned to their parents if the latter underwent appropriate therapy. 23. A hearing was held on 19 July 2007 before the Ptuj Authority, which allowed the evidence proposed by the applicants - an opinion of another independent expert, reports from the primary school, an interview with X -and ordered a home visit to be carried out. An interview was also held with the applicants, foster parents and a social worker with responsibility in the case. 24. The expert in psychology requested by the applicants was appointed on 20 July 2007. She was asked to assess the applicants’ capacity for parenting, whether the return of the children would be in the latter’s interest, and what the children’s wishes were. On 26 July 2007 additional questions proposed by the applicants were forwarded to the expert for reply. Subsequently, a forensic expert in psychiatry was also requested to prepare a report. 25. On 14 December 2007 the expert in psychology submitted her report. She concluded that the applicants were unable to take proper care of X and Y, and that it was in the children’s interest to stay with the foster family. She also noted that contact should continue to be supervised and should not be extended. According to the opinion of the psychiatrist, both applicants had a personality disorder although the first applicant’s disorder was particularly severe. The report suggested that the normal development of the children was likely to be jeopardised if they returned to their primary family. 26. On 3 January 2008 the Ptuj panel, on the basis of the new expert reports, issued another report proposing that a care order be issued and that the children remain in foster care. The Ptuj panel also took into account the social workers’ reports drawn up after each contact between the applicants and the children, and noted that the applicants had not improved their behaviour towards the children, despite being constantly provided with advice in this respect. 27. On 12 March 2008 a hearing was held before the Ptuj Authority at which the applicants, who contested the experts’ reports and the report by the Ptuj panel, were also present. 28. On 19 May 2008 the Ptuj Authority, having regard to the evidence obtained in the proceedings, delivered a care order by which it decided that Y and X should be taken from the first applicant and Y should also be taken from the second applicant. Both should remain in foster care. It proposed that the parents undergo appropriate therapy, after which their parenting ability would be examined again. 29. The applicants lodged an appeal with the Ministry, which was dismissed. At that point the second ordinary care order become enforceable and replaced the emergency order of 23 March 2006. 30. On 18 December 2009 the applicants challenged this decision before the Administrative Court. 31. On 5 July 2010 the Administrative Court delivered a judgment rejecting the applicants’ claim. The court, having regard to the evidence collected in the administrative proceedings, concurred with the findings of the administrative authorities and rejected the applicants’ claim. The applicants did not appeal. 32. During the proceedings the applicants five times requested access to the Maribor Authority’s file, which was granted. 33. On 19 September 2005 the applicants requested the Maribor Authority to initiate proceedings for the return of the children. They stated that no measures had been taken with a view to reuniting the family; in particular, that a “project group”, including them, should have been set up and had not been. It should also have included X and Y and the foster parents and should have aimed to draw up a schedule for the return of the children, as stipulated in the domestic law. 34. On 1 December 2005 the Maribor Authority dismissed the request as essentially the same as the issue of the children’s care and contact, which had already been decided by the decision of 18 December 2003, which was enforceable. 35. On 24 July 2006 the Ministry dismissed an appeal by the applicants. However, on 23 February 2007 the Administrative Court quashed that decision and ordered a re-examination of the case, finding that the applicants’ request concerning the implementation of the foster care and the proceedings concerning the taking of the children were two separate issues with different legal bases. 36. On 8 June 2007 the applicants attended a meeting with the Maribor Authority, where they were invited to explain their request. On 31 July 2007 the Maribor Authority discontinued the proceedings. The applicants appealed, stating that the Maribor Authority had conducted proceedings arbitrarily and it should have invited them formally and in writing to correct the request if it considered it incomplete. On 15 November 2007 the Ministry set aside the Maribor Authority’s decision of 31 July 2007, finding that the applicants had never withdrawn their request and that the Maribor Authority should therefore have decided on it. However, it stressed that although this was a separate request it was nevertheless connected to the issue of the taking of the children and should be decided at the same time. Consequently, the Ptuj Authority decided the issue in its decision of 19 May 2008, by which the children were to remain in foster care. The applicants’ appeal and a claim to the Administrative Court was rejected (see paragraphs 28 to 31 above). 37. The Maribor Authority has remained responsible for the contact arrangements, counselling and monitoring of the children’s foster care. It set out contact arrangements in its emergency order of 2 June 2003 and then in its ordinary care order of 18 December 2003. The applicants were allowed to see X and Y under the Authority’s supervision for one hour every two weeks (see paragraphs 8 and 12 above). On 23 December 2003 the applicants requested contact with X and Y during weekends. This was rejected by the Maribor Authority as in breach of the valid decision on contact arrangements. On 19 August 2005 the applicants requested that their contact take place out of doors and to have X and Y at home at weekends. The latter request was transferred to the Maribor District Court on 28 August 2005 (see paragraph 43 below). 38. After the children were taken into foster care, reports were regularly prepared by social workers indicating several problems which occurred during the visits, in particular due to the first applicants’ abrupt behaviour and the pressure she put on the children as regards their behaviour towards her, in particular on X, whom she pressured, among other things, to write requests to return home. The first applicant was intensively involved in the organisation of the leisure activities and schooling of X and problems regularly occurred in this respect as well. On 3 October 2003 the Maribor Authority also decided that the first applicant should not have telephone conversations with X, to whom she had given a mobile phone and made frequent calls, as this was causing X a lot of stress. During the first years after the children were taken into foster care the applicants often tried to approach them at the foster parents’ home or at school, for which reason a restraining order was requested by the Maribor Authority. In 2005 the Maribor Authority prepared a care plan, which included steps planned with a view to possible family reunification, such as assistance in order to improve contact, the applicants’ attendance at special counselling and therapy sessions and attention to be given to the children’s wishes as well as regular reviews of the situation with reunification in mind. The plan also noted that the return would depend on whether the applicants would be sentenced in the criminal proceedings. 39. The Maribor Authority regularly organised thematic meetings at which social workers discussed the situation regarding X and Y. The applicants had been regularly (often monthly and occasionally weekly) invited to discuss issues relating to X and Y as well as to attend consultations. The reports drawn up during or after these meetings indicated that the applicants did not have a constructive attitude and were unwilling to undergo therapy. 40. In addition to the above meeting, the “individual project group” was set up in 2005 and has held meetings since then. The applicants, foster parents and social workers dealing with the case were usually invited to these meetings, where they discussed issues relating to the day-to-day life of the children and the applicants’ parenting and visiting arrangements. 41. The reports of the meetings between the applicants and the social workers show that both applicants were involved in contact arrangements and had the opportunity to express their opinion as regards X and Y. The reports also indicate that the applicants were normally also able to have contact with the children on special occasions such as birthdays, Y’s first communion and the applicants’ marriage ceremony. 42. It would appear that during the last two years or so the contact between the applicants and the children has improved and is now no longer being supervised. At the meeting of the “individual project group” held on 24 August 2010, at which the applicants were present, the following was agreed: contact would take place every two weeks, namely once on Sunday (from 10 a.m. to 7 p.m., with the applicants picking up and returning the children) and once on Wednesday (from 2 p.m. to 6 p.m., with a social worker bringing the children to the applicants’ home and picking them up at the end of the visit). According to the information supplied by the applicants following the first applicant’s incarceration, the second applicant takes Y and X from the foster family and spends a day with them every two weeks. The Maribor Authority’s report of 23 November 2010 also indicates that during each meeting the second applicant takes Y and X to visit the first applicant in prison and afterwards spends the rest of the day with them. The latter report also noted that Y expressed the wish to visit the first applicant once a month and the second applicant twice a month, and did not wish to visit the applicants without the presence of X. Likewise, X stressed in her letter to the first applicant dated 5 January 2011 that she wished to have contact with her no more than once a month. 43. On 28 August 2005 the Maribor Authority forwarded to the Maribor District Court the applicants’ request of 19 August 2005 for extended contact with X and Y (see paragraph 37 above). The court held two hearings and appointed an expert in psychology. The court regularly inquired about the progress of the criminal proceedings against the applicants: the latest inquiry was made on 18 January 2010. The proceedings appear still to be pending. 44. The relevant provisions of the Slovenian Constitution read as follows: “... The state shall protect the family, motherhood, fatherhood, children and young people, and shall create the necessary conditions for such protection.” “Parents have the right and duty to maintain, educate and raise their children. This right and duty may be revoked or restricted only for such reasons as are provided by law in order to protect the child’s interests. ...” 45. The Constitutional Court Act (Official Gazette no. 64/2007 – official consolidated version) provides in so far as relevant: “(1) A constitutional appeal alleging a violation of human rights or fundamental freedoms may, under the conditions determined by this Act, be lodged against individual acts by which state authorities, local authorities, or holders of public power have decided on rights, obligations, or legal interests of individuals or legal entities. ...” 46. Relevant provisions concerning removal of children and foster care are included in the Marriage and Family Relations Act ( Official Gazette no. 69/2004 - official consolidated version, hereinafter referred to as “the Family Act”). They read as follows: “(1) A welfare authority can remove a child from his or her parents and place him or her in the care of foster parents or an institution, if the parents have neglected him or her or if this is necessary for other reasons for the protection of the child’s interest. (2) The removal of the child does not affect the other rights and responsibilities of the parents. (3) The welfare authority is responsible for the monitoring of the implementation of the above measure.” (1) A welfare authority can place a child in foster care if he or she does not have his or her own family or cannot live with his or her own family for different reasons or if his or her physical and psychological development is at risk at home. ...” “Following the placement of a child in foster care, the welfare authority must strive to eliminate the reasons which led to the removal.” 47. Furthermore, section 88 of the Social Security Act (Official Gazette no. 3/2007 - official consolidated version) provides, in so far as relevant, as follows: “When welfare authorities deal with the administrative matters concerning rights and interest of children according to sections 105, 106, 114, 120 and 121 of the Family Act, they shall, before taking any decision, ... obtain a report from an internal expert panel (strokovna komisija) and hold a hearing. The panel referred to in the preceding paragraph is formed by the expert council of the welfare authority ...” 48. The Administrative Disputes Act (Official Gazette no. 105/2006) provides in its section 83 grounds on which an appeal on points of law can be lodged with the Supreme Court. The grounds are provided as alternatives. The relevant text reads as follows: (1) A judgment of a first-instance court can be challenged by an appeal on points of law, which shall be lodged thirty days of the service of the judgment on the party. (2) The appeal on points of law is admissible if: ... 2. it concerns an important legal questions ...; 3. it the impugned decision has serious consequences for the party; ...” 49. As regards the contact rights of parents and estranged children, the old section 106 of the Family Act (in force until 1 May 2004) provided that the parent who did not live with his or her child had a right to have contact with him or her unless the Welfare Authority decided otherwise. 50. However, the Constitutional Court set aside this provision in its decision no. U-I-312/00 delivered on 23 April 2003. This decision was primarily concerned with the contact rights of parents who did not live together but had never been married, and therefore the issue of contact arrangements could not have been part of divorce proceedings before a court. The Constitutional Court found that the system whereby the welfare authorities decided on contact arrangements was unconstitutional in that it did not provide for the same level of protection of the children’s rights to participate in the proceedings as would have been provided by way of court proceedings. The Constitutional Court however noted that the system was not problematic in respect of the protection of the parents’ rights of participation. Parents were able to be sufficiently involved in administrative proceedings by having the right to express their opinion, to request evidence, to comment on submissions by other participants, to participate in the hearing and to lodge appeals. Because it was determined that there was insufficient protection for children’s rights, the Constitutional Court ordered that new legislation should be adopted within a year with a view to transferring matters concerning contact arrangements to courts. 51. As a result of the above Constitutional Court’s decision, an amendment to the Family Act (Official Gazette no. 16/2004) was adopted and entered into force on 1 May 2004. According to the transitional provision, proceedings instituted before the entry into force of the amendment were to be completed before the administrative authorities. However, the requests concerned by the amendment made to welfare authorities after the above mentioned date should be automatically transferred to the court. 52. Section 106 of the amended Family Act reads, as far as relevant, as follows: “(1) A child has a right to have contact with both parents. Both parents have a right to have contact with their children. The contact is meant primarily to serve the child’s interest. ... (5) The court can withdraw or restrict the right to contact only if this is necessary for the protection of the child’s interest. Contact would not be in the child’s interest if it caused psychological pressure or if it caused risk to the child’s physical and psychological development. The Court can decide that the contact should be carried out under the supervision of a third person or by means other that visits if this is necessary in order to protect the child’s interests. ... (7) Before taking a decision under the ... fifth paragraph of this section, the court must obtain an opinion from the welfare authority. The court shall consider also the child’s opinion, if he or she is able to express it himself or herself, or with the assistance of another person he or she trusts and has chosen ...” 53. Moreover, section 106.a was introduced with the above-mentioned amendment. It provides that the child has a right to have contact with the extended family members, apart from his or her parents, if he or she is personally attached to them. These included the current or previous spouse or partner of one of his parents. The contact should be agreed between the parents, the child, if he or she is able to understand the matter, and the persons in question. The welfare authorities should assist in the matter. If no agreement is reached, the court shall decide on the issue further to a request lodged by a child who is fifteen or older, the persons in question or the welfare authority. | 0 |
dev | 001-86109 | ENG | RUS | CHAMBER | 2,008 | CASE OF PORTNOVA v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicant was born in 1952 and lives in the town of Novovoronezh in the Voronezh Region. 5. The applicant was entitled to a disability allowance and commodity benefits. She sued the local Social Security Committee for the unpaid allowance and benefits, and claimed their re-adjustment. 6. By judgment of 16 July 2003, the Novovoronezh Town Court of the Voronezh Region awarded the applicant 22,109.75 Russian roubles (RUB) for the period from 1 July 2002 to 31 July 2003. On 14 October 2003 the Voronezh Regional Court upheld the judgment. The applicant received the money due to her on 7 June 2005. On 5 September 2005 the Town Court awarded the applicant RUB 5,552.02 as compensation for inflationary losses caused by the delay in the enforcement of the judgment of 16 July 2003, as upheld on 14 October 2003. It appears that the compensation award has not been paid to the applicant. 7. By judgment of 5 January 2004, the Town Court awarded the applicant RUB 13,971.25 for the period from 1 August to 31 December 2003. This judgment became final on 15 January 2004. It was enforced on 4 August 2005. 8. On 15 April 2004 the Town Court increased the applicant’s monthly allowance to RUB 5,664.84 and awarded her RUB 9,494.52 in arrears for the period from 1 January to 31 March 2004. The judgment became final on 26 April 2004. It was enforced on 25 August 2005. 9. On 30 September 2004 the Town Court awarded the applicant RUB 9,494.52. On 11 October 2004 the judgment became final. The applicant received the money on 25 August 2005. 10. By judgment of 15 November 2005, the Town Court awarded RUB 5,700.35 as compensation for inflationary losses in respect of the sums awarded to the applicant on 5 January, 15 April and 30 September 2004. It appears that the compensation award has not been paid to the applicant. 11. By judgment of 16 February 2004, the Town Court awarded the applicant RUB 4,973.57. The judgment became final on 26 February 2004. Apparently, it remains without enforcement. 12. On 6 September 2004 the Town Court awarded RUB 2,272.30 to the applicant and increased her monthly commodity benefits to RUB 679.78. The judgment became final on 17 September 2004. It appears that on 16 July 2004 the applicant received RUB 500 in execution of that judgment. | 1 |
dev | 001-113805 | ENG | SVN | CHAMBER | 2,012 | CASE OF BARIŠIČ v. SLOVENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger | 5. The applicant was born in 1950 and lives in Sežana. 6. The applicant, a retired captain, worked for International Shipping and Chartering Ltd. (Splošna plovba p.o.), a State-owned company, from 1971 until 1974 and from 1981 until 12 September 1992. On 13 September 1992 the applicant concluded a temporary contract of work, renewed several times until 11 February 1999, with the Genshipping Corporation, Monrovia, Liberia, one of the parent companies of International Shipping and Chartering Ltd. In 2000 the applicant retired due to his disability and back pain. 7. On 13 August 2001 the applicant instituted proceedings before the Koper Labour Court against International Shipping and Chartering Ltd. and the Genshipping Corporation, seeking recognition of his permanent work status since 12 September 1992, his reinstatement and a pecuniary award, inter alia, for the loss of wages. 8. After two hearings, on 9 December 2002 the Koper Labour Court dismissed the applicant’s claim. Both parties appealed. 9. On 27 November 2003 the Higher Labour and Social Court upheld both appeals in part and remitted the case for re-examination. The applicant lodged an appeal on points of law against the rejected part of the appeal. 10. On 1 February 2005 the Supreme Court dismissed the applicant’s appeal on points of law. He lodged a constitutional complaint. 11. In the framework of the remitted proceedings, on 9 September 2005 the Koper Labour Court dismissed the applicant’s claim. He lodged an appeal. 12. On 31 August 2006 the second-instance court upheld the applicant’s appeal in part and amended the first-instance decision. He lodged an appeal on points of law. 13. On 9 January 2007 the Supreme Court rendered a decision rejecting the applicant’s appeal. He lodged a constitutional complaint. 14. On 27 March 2007 the Constitutional Court dismissed the applicant’s constitutional complaint (see paragraph 10 above). 15. On 4 December 2007 the Constitutional Court dismissed the second constitutional complaint (see paragraph 13 above). 16. On 14 April 2003 the applicant instituted proceedings against the Genshipping Corporation and against International Shipping and Chartering Ltd., seeking a declaration of employment since 2003, social cover and payment of salaries due since 2002. He also requested an interlocutory injunction. 17. On 22 April 2003 the Koper Labour Court dismissed the applicant’s request for an interlocutory injunction concerning the termination of his contract and social cover. He lodged an appeal against this decision which was rejected on 15 May 2003. 18. After three hearings, on 26 October 2005 the Koper Labour Court dismissed his claim. He lodged an appeal. 19. On 11 January 2007 the second-instance court rejected his appeal. He lodged an appeal on points of law. 20. On 8 November 2008 the Supreme Court rejected the appeal. He lodged a constitutional complaint on 9 February 2009 and the proceedings appear to be still pending. 21. On 8 May 2001 the applicant instituted proceedings before the Ljubljana Labour and Social Court against a decision of the Pension and Invalidity Insurance Fund. 22. Between 14 July 2003 and 13 July 2006 six hearings were held and two experts appointed. 23. At the last hearing the first-instance court delivered a judgment upholding the applicant’s claim in part. The defendant appealed. 24. On 6 March 2007 the Higher Labour and Social Court upheld the applicant’s appeal in part and amended the first-instance judgment. 25. On 25 October 2001 the applicant instituted proceedings before the Ljubljana Labour and Social Court challenging a decision of the Medical Insurance Fund issued on 20 September 2001. 26. On 30 October 2001 the applicant amended his claim by also challenging a decision of the Medical Insurance Fund issued on 24 September 2001. 27. On 8 November 2005 the first-instance court decided that the proceedings should be separated (reference number of the new set of proceedings Ps 2973/2005). 28. On 8 March 2007 the first-instance judgment was rendered and his request was upheld in part. The applicant appealed. 29. On 18 November 2007 the Ljubljana Higher Labour and Social Court upheld his appeal in part and modified the first-instance judgment. 30. Following the decision of 8 November 2005 (see paragraph 27 above) the Ljubljana Labour and Social Court issued a judgment on 7 May 2008. The applicant’s request was upheld in part and the remainder remitted for re-examination before the Medical Insurance Fund. The defending party appealed. 31. On 27 May 2009 the Ljubljana Higher Labour and Social Court upheld the appeal and remitted the case for re-examination before the firstinstance. The proceedings appear to be still pending. 32. On 24 December 2004 the applicant instituted proceedings before the Ljubljana Labour and Social Court challenging a decision concerning his unemployment benefits and payment of social security. 33. On 8 May 2005 the latter rendered a judgment, dismissing the applicant’s request. This decision was served on the applicant on 7 June 2006. He did not appeal. 34. On 4 April 2006 the applicant started proceedings against the Pension and Invalidity Insurance Fund challenging a decision on payment of his salaries. 35. On 12 May 2006 the Labour and Social Court rejected the applicant’s claim. This decision was served on the applicant on 20 June 2006. He did not appeal. 36. For relevant domestic law see Nezirović v. Slovenia ((dec.) no. 16400/06, 25 November 2008). | 1 |
dev | 001-77203 | ENG | POL | ADMISSIBILITY | 2,006 | GUZ v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Zbigniew Guz, is a Polish national who was born in 1962 and lives in Subkowy. He was represented before the Court by Mr C. Pastwa, a lawyer practising in Świecie. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 October 1995 the Tczew Police opened an investigation against the applicant on suspicion of aggravated assault. It appears that on 2 November 1995 the applicant went to Germany. Subsequently, the Tczew District Prosecutor (Prokurator Rejonowy) stayed the investigation since the applicant had not replied to the summons and his place of residence was unknown. On 30 November 1995 the District Prosecutor issued a search and arrest warrant in respect of the applicant on suspicion of aggravated assault. On 13 November 2000 the applicant was arrested by the police and subsequently the investigation against him was resumed. The District Prosecutor laid additional charges against the applicant. Subsequently, the District Prosecutor applied to the Tczew District Court (Sąd Rejonowy) for the applicant to be detained pending the investigation. On 16 November 2000 the District Court remanded the applicant in custody until 13 February 2001 on suspicion of aggravated assault, handling stolen goods and forgery of a car body. It found that in the light of the evidence obtained, in particular witnesses’ testimonies, there was a strong likelihood that the applicant had committed the offences with which he had been charged. It also observed that there was a reasonable risk that the applicant would go into hiding given that he had been at large since 1995. On 11 December 2000 the Gdańsk Regional Court (Sąd Okręgowy) upheld that decision. It underlined that the applicant had been suspected of committing the offences in question between April 1993 and August 1995 and that five search and arrests warrants had been issued. It also observed that progress in the proceedings against the applicant had been impossible as he had gone into hiding for five years. Further, it held that the applicant’s detention was justified by the severity of the anticipated sentence. It appears that the applicant’s pre-trial detention was prolonged by the Gdańsk Regional Court on 8 February 2001 for an unspecified period. On 7 March 2001 the Gdańsk Court of Appeal (Sąd Apelacyjny) upheld the Regional Court’s decision of 8 February 2001. In addition to the arguments previously invoked, it also found that on the day of his arrest, the applicant had been using a forged driving licence. That, in the court’s view, further warranted the prolongation of the applicant’s detention so as to prevent him from absconding. On 5 April 2001 the District Prosecutor ordered that the applicant undergo psychiatric observation. The relevant report was submitted to the prosecutor on 7 May 2001. On 12 April 2001 the Regional Court extended the applicant’s detention until 13 June 2001, relying on the same grounds as in the earlier decisions. That decision was upheld on appeal on 23 May 2001. On 7 June 2001 the Regional Court ordered that the applicant be held in custody until 13 July 2001. It reiterated the grounds previously given. On 11 July 2001 the Tczew District Prosecutor filed a bill of indictment against the applicant. He was charged with attempted homicide, handling stolen goods, forgery of documents and a car body and having used a forged driving licence. The second defendant, S.G., was charged with directly endangering the life of another person. The prosecution requested the trial court to hear evidence from 21 witnesses. On 12 July 2001 the Regional Court extended the applicant’s detention until 13 October 2001. It considered, having regard in particular to the victim’s evidence, that there was a strong suspicion that the applicant had committed the offences in question. It also observed that the applicant’s continued detention was necessary in order to secure the proper conduct of the proceedings given the severity of the likely sentence. On 8 August 2001 the Gdańsk Court of Appeal upheld the Regional Court’s decision. It observed that the applicant’s detention was necessary given the fact that he had evaded justice for several years. It also noted that the severity of the sentence which could be imposed justified of itself the applicant’s continued detention. It appears that the applicant’s detention was subsequently extended on later unspecified dates. On 9 April 2002 the Regional Court ordered that the applicant be held in custody until 30 June 2002, reiterating the grounds previously given. On 18 June 2002 the Regional Court prolonged the applicant’s detention until 30 September 2002. That decision was upheld by the Court of Appeal on 10 July 2002. The courts repeatedly relied on the strong likelihood that the applicant had committed the offences with which he was charged. In addition, they had regard to the severity of the likely sentence and the fear that he might go into hiding if released. The latter was justified, in the courts’ view, by the length of time the applicant had evaded justice prior to his arrest and his having used a forged identity document. The Gdańsk Regional Court held 18 hearings on the following dates: 12 and 24 October, 13 November, 4 and 19 December 2001; 8 January, 12 and 19 February, 12 March, 9 and 30 April, 21 May, 4 and 18 June, 3 September, 1, 17 and 25 October 2002. One trial hearing was adjourned on account of the absence of the applicant’s lawyer (19 December 2001). On numerous occasions the applicant requested the trial court to release him. However, his requests were dismissed for the same reasons which had served to justify his continued detention. On 31 October 2002 the Gdańsk Regional Court gave judgment. It convicted the applicant as charged and sentenced him to seven and a half years’ imprisonment. It also prolonged the applicant’s detention on remand until 31 January 2003. The applicant appealed against the first-instance judgment. On 15 October 2003 the Gdańsk Court of Appeal upheld the judgment of the Regional Court. The applicant lodged a cassation appeal against the judgment of the Court of Appeal. On 20 May 2004 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal due to its manifestly ill-founded character. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), surety by a responsible person (poręczenie osoby godnej zaufania), surety by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju). Article 249 § 1 sets out the general grounds for imposition of preventive measures. That provision reads: “1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.” Article 249 § 5 of the 1997 Code, in the version applicable at the relevant time, provides: “The court shall inform the detainee’s lawyer of the time of a court session at which a decision is to be taken on the prolongation of detention on remand or at which an appeal against a decision imposing or prolonging detention on remand is to be examined.” Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided: “1. In imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months. 3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years. 4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed. In addition, new paragraph 5 was added. It provides: “A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.” | 0 |
dev | 001-99334 | ENG | TUR | ADMISSIBILITY | 2,010 | ERCANLAR OTOMOTİV Tİc. A.Ş. v. TURKEY | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | The applicant, Ercanlar Otomotiv Tic. A.Ş., is a joint stock company registered in Turkey and located in Istanbul. It was represented before the Court by Mr S.N. Gürel, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 17 November 1982 a public company, the Türkiye Süt Endüstrisi Kurumu (the State dairy producer, hereafter referred to as the “SEK”), decided to partially expropriate a plot of land (parcel no. 80) owned by the applicant company and located in Mersinli, İzmir. On 25 February 1983 the applicant company was officially notified of the SEK's expropriation decision by a notice served through the notary public. It was indicated in the notice that expropriation compensation in the amount of 2,803,700 Turkish liras (TRL) had been deposited in the applicant company's name in a blocked bank account at the Alsancak Branch of Ziraat Bankası, a State-run bank. The applicant subsequently sought the annulment of the expropriation. On 21 December 1983 the İzmir Administrative Court rejected the applicant's request and on 18 December 1984 the Supreme Administrative Court upheld the administrative court's decision. On an unspecified date the applicant company commenced proceedings for additional compensation. On 4 November 1986 the İzmir Civil Court ordered that the amount of compensation be increased by TRL 7,848,800. The judgment became final on 17 February 1987, neither of the parties having appealed. On 25 November 1987 the additional expropriation was deposited in the same account at Ziraat Bankası in the applicant company's name. The applicant company subsequently lodged an action with the İzmir Administrative Court for the annulment of the parcel plan pertaining to the expropriated plot of land. On 27 April 1988 the İzmir Administrative Court annulled the parcel plan as requested. On 29 May 1989 the Supreme Administrative Court upheld the judgment of the administrative court. A new parcel plan was prepared on 24 September 1998, which was also annulled by the İzmir Administrative Court on 18 October 2002. It appears that there is presently no parcel plan in respect of the land in question. On 3 December 1987 the SEK commenced proceedings before the İzmir Civil Court for the compulsory registration of the title of the expropriated land in its name. Following proceedings which lasted for ten years and involved six examinations, on 1 April 1997 the Court of Cassation granted the suit. On 2 July 1997 it rejected the applicant company's rectification request. The Court of Cassation held that the pending parcel plan pertaining to the relevant land did not preclude the registration of its title in the expropriating company's name. In the meantime, on 6 March 1992 the applicant company lodged an action for recovery of the expropriated land in accordance with Article 23 of the now defunct Expropriation Law (Law No. 6830). They argued that the public interest justifying expropriation in the present case had been lost as the land had not been put to use in accordance with the initial purpose of the measure. On 30 October 1996 İzmir Civil Court dismissed the applicant's request, holding that the conditions for restitution of expropriated land under Article 23 of the said Law had not materialised. On 4 April 1997 the Court of Cassation upheld this judgment and on 4 June 1997 it rejected the applicant company's rectification request. On 11 November 1997 the SEK was merged with another public company, thereby losing its legal personality. Upon this merger, on 11 February 1998 the applicant company applied for the reopening of the proceedings concerning the recovery and the compulsory registration of the land. They argued that the land was no longer required for public purposes as the expropriating public company had ceased to exist. On 21 December 1999 the İzmir Civil Court rejected the applicant's request by two separate judgments (cases nos. 1996/529 E. and 1996/530 E.), holding that the conditions for reopening the proceedings had not been satisfied. According to the information in the case file, both judgments became final on 19 October 2000. On 7 June 2000 the applicant company sent a letter to Ziraat Bankası to inquire whether the expropriation compensation, together with the additional amount, had been deposited with the bank and, in the affirmative, whether they were entitled to have access to the money. On 26 July 2000 they sent another letter to the bank, requesting it to expedite the reply. It is alleged that the bank never sent a written reply but orally informed the applicant company that they had no records regarding the requested information. The applicant company accordingly brought an action seeking a declaratory judgment (tespit davası) on 15 April 2002 before the İzmir Civil Court to establish whether the expropriation compensation had been deposited in a blocked account at Ziraat Bankası in its name or whether any payment had been otherwise made to it in compensation for the expropriation. The bank verified during the proceedings that the expropriation compensation had been deposited in a blocked account in the applicant company's name at their Alsancak Branch, but no attempt had been made to collect it. On 19 September 2002 the firstinstance court dismissed the applicant company's case, as the statements received from the bank had made it unnecessary to render a declaratory judgment. On 8 April 2003 the Court of Cassation upheld the judgment of the first-instance court and on 27 June 2003 it rejected the rectification request. | 0 |
dev | 001-76449 | ENG | HUN | CHAMBER | 2,006 | CASE OF JACZKO v. HUNGARY | 4 | Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings | null | 4. The applicant was born in 1948 and lives in Budapest. 5. On 28 December 1987 the applicant brought an action against his ex-wife, seeking the division of their matrimonial property. 6. In the period between 29 March 1988 and 19 May 1992, ten hearings took place and the opinions of valuation experts were obtained. 7. Further hearings took place on 19 September, 28 October and 16 December 1994, 2 February and 23 March 1995. Meanwhile, the expert was invited to submit a new opinion and to complete it subsequently. 8. On 20 June 1995 the Buda Central District Court ordered the applicant to pay 675,000 Hungarian forints (HUF) to his ex-wife. 9. On appeal, the Budapest Regional Court, on 8 March 1996, quashed parts of the appealed judgment and remitted those parts to the District Court. Furthermore, it fixed the parties’ respective shares of the property. 10. On 27 May 1997, on the applicant’s petition for review, the Supreme Court quashed the second-instance judgment concerning the establishment of the parties’ property shares. Accordingly, this part of the case was also remitted to the District Court. 11. In the resumed proceedings, the District Court held hearings on 19 June, 1 September and 27 October 1998; it also appointed another expert. On 21 January 1999 the applicant’s motion for bias was dismissed. 12. Further hearings took place on 19 October 1999, 24 January and 6 March 2000. An on-site inspection scheduled for 19 September 2000 had to be postponed, because the applicant did not agree to the defendant’s personal attendance. A new opinion was submitted by the expert on 28 February 2001. 13. Another hearing was held on 19 June 2001. The next one scheduled for 10 July 2001 was postponed at the applicant’s request to 23 August 2001. 14. On 5 September 2001 the District Court fixed the parties’ respective shares in a real-estate of common ownership, granted ownership of it to the applicant and ordered him to pay compensation and unrealised rent to his ex-wife. The court relied on documentary evidence, the testimonies of the parties and the opinions of two expert architects. On 12 November 2001 the applicant appealed. 15. An appeal hearing took place on 1 March 2002. On 22 March 2002 the appellate court appointed an expert, who submitted his opinion on 25 June 2002. 16. On 6 November 2002 the Regional Court increased the amount of compensation to be paid by the applicant. It further quashed the part of the District Court judgment which concerned the unrealised rent and discontinued the proceedings in this regard. The judgment acquired legal force. 17. On 19 December 2002 the applicant filed a petition for review, alleging that the final decision was unfounded and at variance with the relevant substantive law. 18. In a preliminary examination under section 273 of the Code of Civil Procedure, on 13 May 2003 the Supreme Court refused to deal with the merits of the petition. It applied section 270 § 2 of the Code of Civil Procedure, as in force in the relevant period, according to which a review of substantive unlawfulness of final decisions was only admissible if a review was considered necessary from the perspective of harmonising or developing the application of the law. 19. On 24 September 2003 the Regional Court dismissed the applicant’s request to have the final decision rectified. It held that, in essence, the request was aimed at challenging certain provisions of the final decision which constituted res iudicata and was thus incompatible ratione materiae with the procedural rules concerning the rectification of decisions. | 1 |
dev | 001-83053 | ENG | SRB | ADMISSIBILITY | 2,007 | MAKSIMOVIC v. SERBIA | 4 | Inadmissible | null | The applicant, Mr Nikola Maksimović, is a Serbian national who was born in 1949 and lives in Lukićevo. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. The facts of the case, as submitted by the parties, may be summarised as follows. In 2001 the Zrenjanin Municipality Public Prosecutor indicted the applicant for abuse of office. On 31 March 2004 the Zrenjanin Municipal Court found the applicant guilty and imposed a suspended prison sentence (uslovna osuda) of three months. The applicant appealed, claiming that the facts established in the first-instance judgment were incorrect. On 30 June 2004 the Zrenjanin District Court dismissed the applicant’s appeal and upheld the first-instance judgment. On 4 December 2001 the Zrenjanin Municipality Public Prosecutor filed an indictment against Company B. and the applicant in the Zrenjanin Commercial Court for an economic offence concerning the security of payments. Following Serbia’s ratification of the Convention on 3 March 2004, the applicant requested the competent court to stay the proceedings pending the outcome of the aforementioned criminal proceedings (Chapter A above). He claimed that the two proceedings concerned the same amounts of money and thus the same offence. The court stayed the proceedings. On 4 February 2005 the Zrenjanin Commercial Court requested the Zrenjanin Municipal Court to provide a copy of the case file in the other criminal proceedings. However, that court was unable to do so as the file had been sent to the Zrenjanin District Court following the applicant’s request for a reopening of the criminal case and his subsequent appeal against the refusal to do so. Once the proceedings resumed, hearings scheduled for 27 March and 20 April 2006 were adjourned because Company B.’s legal representative had failed to appear. On the last-mentioned date the Zrenjanin Commercial Court fined Company B. for its failure to appear in court. The court held the next hearing on 11 May 2006, when the applicant requested time to set out his defence in writing. The hearing scheduled for 28 September 2006 was again adjourned due to the co-defendant’s failure to appear. The court ordered that the legal representative of Company B. be brought to the next hearing by the police. On 12 October 2006 the Zrenjanin Commercial Court gave judgment acquitting both the applicant and Company B. of all charges. | 0 |
dev | 001-100279 | ENG | RUS | CHAMBER | 2,010 | CASE OF SERGEY TIMOFEYEV v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1;Non-pecuniary damage - award | Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste | 5. The applicant was born in 1968 and lives in the town of Shakhty, in the Rostov Region. 6. On 10 July 1995 the Shakhty Prosecutor's Office instituted criminal proceedings against the applicant and Mr P. for rape and attempted rape of two victims. On 10 October 1995 the proceedings were terminated for lack of evidence. 7. On 13 December 1995 the decision of 10 October 1995 was quashed and the case was remitted for a further investigation. 8. On 1 July 1996 the applicant was remanded in custody on suspicion of rape and attempted rape. On an unspecified date he was released. A preventive measure in the form of an undertaking not to abscond was applied both to the applicant and Mr P. 9. On 1 July 1997 the Shakhty Town Court acquitted the applicant and Mr P. of rape and attempted rape. 10. On 15 January 1998 the Rostov Regional Court quashed the firstinstance judgment on appeal and remitted the case for a fresh examination. 11. On 6 August 1998 the Presidium of the Rostov Regional Court quashed the judgment of 15 January 1998 and remitted the case for a new examination in the second instance. 12. On 26 August 1998 a hearing before the Rostov Regional Court was postponed because the applicant's counsel, Mr K., was occupied. 13. On 9 September, 14 October and 4 November 1998 the Rostov Regional Court postponed appeal hearings because the applicant was ill. 14. On 9 December 1998 the Rostov Regional Court postponed a hearing because they had received a telegram from an anonymous sender requesting that the applicant's case be taken off the list of appeals to be heard. 15. On 29 December 1998, as well as on 3 February and 3 March 1999 the Rostov Regional Court postponed appeal hearings because of the applicant's illness. 16. On 14 April 1999 the Rostov Regional Court decided to examine the appeal in the applicant's absence, quashed the judgment of 1 July 1997 and remitted the case for a fresh examination in the first instance. The applicant's counsel was not present at the hearing. 17. On 11 May 1999 the Shakhty Town Court scheduled a hearing for 8 June 1999. 18. On 8 June 1999 the Shakhty Town Court ordered Mr P. to be summoned to a hearing. It appears that Mr P. failed to comply with the summons. 19. On 2 July 1999 the criminal proceedings against the applicant and Mr P. were suspended. The preventive measure in Mr P.'s respect was changed to custodial detention and he was put on a wanted list. The Shakhty Town Court decided not to proceed with the examination of the case. The applicant and his lawyer did not appeal against the decision. 20. On 4 January 2002 the criminal proceedings were resumed in respect of the applicant. 21. On 10 January 2002 the Shakhty Town Court postponed a trial hearing owing to the applicant's failure to appear. 22. On 23 January 2002 a trial hearing was postponed to 18 February 2002. 23. On 18 February 2002 a hearing was postponed owing to witnesses' and the applicant's counsel's failure to appear. Mr K. was absent because of a business trip. 24. On 26 February 2002 a hearing was postponed because of the applicant's illness. 25. On 14 March 2002 a hearing was postponed on a prosecutor's request in charge of the search for Mr P. 26. On 18 March 2002 a hearing was postponed because one of the victims failed to attend. 27. On 21 March 2002 a hearing was postponed until 22 March 2002 on the applicant's request, to allow him to study the case file. 28. On 21 March 2002 the Shakhty Town Court dismissed Mr K.'s request to suspend the proceedings against the applicant pending the search for Mr P. The applicant's counsel appealed against the ruling on the same day. 29. Between 22 March and 1 April 2002 the Shakhty Town Court held hearings on the applicant's case every day. 30. On 28 March 2002 the Shakhty Town Court dismissed the applicant's request that the proceedings be terminated on the basis of the Act of Amnesty in Commemoration of the 55th Anniversary of the Victory in the Great Patriotic War of 1941-45 adopted by the Russian State Duma on 26 May 2000 (“the Amnesty Act”). 31. On 1 April 2002 a hearing was postponed because the applicant was ill. 32. On 9 April 2002 the criminal proceedings in respect of the applicant were suspended because of his illness. 33. On 23 April 2002 the Rostov Regional Court upheld the rulings of 21 and 28 March 2002. 34. On 13 June 2002 the proceedings against the applicant were resumed and a hearing was scheduled on 27 June 2002. 35. On 27 June 2002 the Shakhty Town Court held a hearing, dismissed the applicant's challenge in respect of the composition of the court and a request for a medical examination and postponed the hearing until 23 August 2002. 36. On 25 July 2002 the Presidium of the Rostov Regional Court quashed by way of supervisory review the refusal to dismiss the applicant's requests of 27 June 2002. 37. On 16 August 2002 the Chief Doctor of the Shakhty Oncological Dispensary informed the trial court that the applicant had been diagnosed with malignant lymphoma and had undergone gastrectomy (removal of the stomach) and hemicolectomy (removal of a part of the colon). He underlined that the applicant had a first-degree disability and “dumping syndrome” (rapid fall in blood sugar after eating) which did not allow him to participate in the hearing; and that any stressful situation could aggravate his condition. 38. On 19 August 2002 the criminal proceedings in respect of the applicant were suspended because of his illness. 39. On 1 October 2002 the Rostov Regional Court quashed the ruling of 19 August 2002 and remitted the case for a fresh examination to the Shakhty Town Court with a new composition. 40. On 29 October 2002 a hearing was scheduled for 15 November 2002. 41. On 15 November 2002 the proceedings in respect of the applicant were suspended because of his illness and then resumed on 27 November 2002. 42. On 10 and 25 December 2002 hearings were postponed because of the applicant's absence. 43. On 17 January 2003 the proceedings in respect of the applicant were suspended because of his illness and then resumed on 31 January 2003. 44. On 10 February 2003 a hearing was postponed because the applicant's counsel, Ms L., was occupied. 45. On 26 February 2003 the Shakhty Town Court heard the applicant, his counsel, the victim and several witnesses and examined written evidence. 46. On 28 February 2003 the Shakhty Town Court convicted the applicant of rape and attempted rape and sentenced him to three years' imprisonment. The applicant was exempted from serving the sentence under the Amnesty Act. 47. On 28 February 2003 one of the victims appealed against the judgment. 48. On 5 and 11 March 2003 the applicant lodged appeals against his conviction, challenging, inter alia, the court's factual findings. According to the applicant, he requested the Rostov Regional Court to examine his appeal in his presence. According to the Government's submissions, the applicant did not request to be present at a hearing. 49. On 11 March 2003 the prosecutor appealed against the judgment of 28 February 2003. 50. On 1 April 2003 the applicant lodged an additional appeal in which he made detailed complaints alleging deficiencies in the first-instance proceedings. According to the Government, he also requested that an appeal hearing be held in his presence. 51. On 20 April 2003 the victim lodged an additional appeal, which was forwarded to the applicant for comments. 52. On 27 May 2003 the Shakhty Town Court received the applicant's comments on the victim's and prosecutor's appeals and then forwarded the case to the Rostov Regional Court. An appeal hearing was scheduled for 15 July 2003. 53. On 15 July 2003 the Rostov Regional Court postponed an appeal hearing to 5 August 2003 because the applicant was ill. 54. On 5 August 2003 the applicant did not appear before the Rostov Regional Court because he was ill. The hearing was postponed until 26 August 2003. 55. On 26 August 2003 the appeal hearing was again postponed because of the applicant's failure to appear in the court-room due to illness. 56. In August 2003 the President of the Criminal Chamber of Rostov Regional Court requested the Ministry of Health of Rostov Region and Chief Doctor of the Shakhty Oncological Dispensary to provide information on the applicant's state of health with a view to the possibility of his participating in an appeal hearing scheduled for 30 September 2003. 57. On 4 September 2003 the Health Department of Shakhty Administration informed the Rostov Regional Court that the applicant was suffering from a malignant lymphoma and that between 29 July and 18 August 2003 he had been hospitalised. The applicant was weak; a stressful situation would have an adverse impact on his state of health. It was not possible to predict or assume a date when he would be available for an appeal hearing. 58. On 29 September 2003 the applicant sent a telegram to the Rostov Regional Court, requesting that the hearing be adjourned as he was in hospital. He also asked if the court was equipped with facilities to enable wheelchair access. 59. On 30 September 2003 the Rostov Regional Court decided to reject the applicant's request to adjourn the appeal hearing. It referred to the applicant's serious state of health, and the legislative rule that the appeal court must start examination of an appeal no later than one month after it has been lodged. 60. On the same day the Rostov Regional Court examined the case on appeal. The court heard submissions by the judge rapporteur and prosecutor, but the applicant's counsel was not present at the hearing. The judgment of 28 February 2003 was upheld. 61. On 20 February 2004 the Rostov Regional Court rejected the applicant's request for supervisory review proceedings. With respect to the applicant's complaint about examination of the case on appeal in his absence the court found that the applicant had failed to appear “for a farfetched reason”. 62. An appeal court examines appeals with a view to verifying the lawfulness, validity and fairness of first-instance judgments (Article 373). 63. An appeal court must start the examination of an appeal no later than one month after its receipt (Article 374). 64. An appeal court can directly examine evidence, including additional material submitted by parties (Article 377 §§ 4 and 5). 65. An appeal court may (a) uphold a first-instance judgment; (b) quash it and terminate criminal proceedings; (c) quash it and remit the case for a fresh examination in the first-instance; and (d) amend the judgment (Article 378 § 1). | 1 |
dev | 001-91245 | ENG | MDA | CHAMBER | 2,009 | CASE OF IORDACHI AND OTHERS v. MOLDOVA | 2 | Violation of Art. 8;No violation of Art 13+8 | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 7. The applicants were born in 1972, 1965, 1980, 1961 and 1980 respectively and live in Chişinău. They are members of “Lawyers for Human Rights”, a Chişinău-based non-governmental organisation specialised in the representation of applicants before the Court. 8. According to the applicants, after the coming to power of the Communist Party the number of violations of human rights increased considerably. In that context their organisation was created, whose sole purpose was the protection of human rights by assisting persons who sought to introduce applications with the European Court of Human Rights. 9. As a result, the applicants considered that they had caused the Government serious harm in terms of damage to their image and financial loss as a result of the findings of violation in cases they had helped to bring before this Court. 10. The applicants maintained that they ran a serious risk of having their telephones tapped as a result of their activity, due to the state of the legislation in force. They did not claim to have been victims of any specific interception of their communications, whether by telephone or post, and they had not instituted any domestic proceedings in that respect. 11. The Government disputed the allegation concerning the increase of the number of violations of human rights after the Communist Party had won the elections. 12. On 17 January 2008 one of the applicants wrote to the President of the Supreme Court of Justice and asked for statistical information concerning, inter alia, the number of applications lodged by the investigating bodies with courts for interception of telephone conversations and the number of successful and unsuccessful applications. 13. In a letter of 6 February 2008 the Head of the President's Office of the Supreme Court of Justice replied that in 2005 of a total of 2,609 applications for interception lodged, 98.81% had been successful; in 2006 of the 1,931 applications lodged, 97.93% had been successful; and in 2007 of the 2,372 applications lodged, 99.24% had been successful. 14. The Operational Investigative Activities Act of 12 April 1994 reads as follows: a) revealing attempts to commit crime; preventing, suppressing or discovering criminal offences and the persons who organise, commit or have already committed offences; and ensuring compensation for damage caused by a criminal offence; b) searching for persons who are evading the preliminary investigative authorities, the preliminary investigation or the court, or who are fleeing from a criminal sanction, or for persons who have disappeared; c) collecting information on events or actions which endanger the State or the military, economic or environmental security of the Republic of Moldova. ... (1) The Constitution, the present Law and other regulations enacted in accordance with them constitute the legal basis for operational investigative activities. (2) The authorities which are entitled to conduct operational investigative activities may issue, within the limits of their competence, in accordance with the law and with the consent of the Supreme Court of Justice and the General Prosecutor's Office, regulations governing the organisation, methods and tactics of carrying out operational investigative measures. ... (2) Anyone who considers that the actions of the authority which has carried out investigative measures have infringed his or her rights and liberties may lodge a complaint with the hierarchically superior authority, the General Prosecutor's Office or the courts. (3) In order to ensure a full and thorough examination of the complaint lodged by a person against whom operational investigative measures have been applied without due grounds, the authorities which have applied such measures shall, at the request of the prosecutor, present the latter with a record of every operational action taken on duty. Data concerning persons who have confidentially contributed to the conduct of operational investigative measures shall be presented only at the request of the General Prosecutor. (4) Should the authority (the official) exercising the operational investigative activity have infringed the legitimate rights and interests of natural and legal persons, the hierarchically superior authority or prosecutor shall take measures restoring such legitimate rights and interests, and afford compensation for the damage caused, in accordance with the law. (1) Operational investigative measures shall be carried out only in accordance with the law and only when it is otherwise impossible to achieve the aims provided for in section 2. (2) For the purpose of accomplishing the stated aims, the authorities carrying out operational investigative measures are entitled, with due observance of the rules of secrecy, to: ... (c) intercept telephone and other conversations; ... The operational investigative measures provided for under ..., (l), ... may be carried out only by the Ministry of Internal Affairs and the Information and Security Service under the statutory conditions and only when such measures are necessary in the interests of national security, public order, the economic situation of the country, the maintenance of legal order and the prevention of offences, and the protection of health, morals, and the rights and interests of others. ...” In 2003 this section was amended as follows (amendment in bold): (1) Operational investigative measures shall be carried out only in accordance with the law on criminal procedure and only when it is otherwise impossible to achieve the aims provided for in section 2. (2) For the purpose of accomplishing the stated aims, the authorities carrying out operational investigative measures are entitled, with due observance of the rules of secrecy, to: ... (c) intercept telephone and other conversations; ... The operational investigative measures provided for under ..., (l), ... may be carried out only by the Ministry of Internal Affairs and the Information and Security Service under the statutory conditions and only when such measures are necessary in the interests of national security, public order, the economic situation of the country, the maintenance of legal order and the prevention of very serious offences and the protection of health, morals, and the rights and interests of others. ...” The section was further amended in 2007 and currently reads as follows (amendment in bold): (1) Operational investigative measures shall be carried out only in accordance with the law on criminal procedure and only when it is otherwise impossible to achieve the aims provided for in section 2. (2) For the purpose of accomplishing the stated aims, the authorities carrying out operational investigative measures are entitled, with due observance of the rules of secrecy, to: ... (c) intercept telephone and other conversations; ... The operational investigative measures provided for under ..., (l), ... may be carried out only by the Ministry of Internal Affairs and the Information and Security Service under the statutory conditions and only when such measures are necessary in the interests of national security, public order, the economic situation of the country, the maintenance of legal order and the prevention of serious, very serious and exceptionally serious offences, and the protection of health, morals, and the rights and interests of others. ...” Under Article 16 of the Criminal Code the serious offences are considered to be those offences which are punishable with imprisonment of up to fifteen years; very serious offences are intentional offences punishable with imprisonment of over fifteen years; and exceptionally serious offences are those intentional offences punishable with life imprisonment. Approximately 59% of all offences provided for in the Moldovan Criminal Code fall into the category of serious, very serious and exceptionally serious offences. “(1) The grounds for carrying out operational investigative activities are: (a) unclear circumstances concerning the institution of criminal proceedings; (b) information of which the authority carrying out an operational investigative activity has become aware in connection with: - an illegal act that is being prepared, committed or has already been committed, or persons who are preparing, committing or have already committed such an act, where the basis for instituting criminal proceedings is insufficient; - persons who are fleeing from a criminal investigation or the courts, or who are avoiding a criminal sanction; ... (c) instructions given by a criminal investigator, investigative body, prosecutor or court in pending criminal cases; (d) requests from the bodies carrying out an operational investigative activity based on the grounds provided for in the present section. ...” In 2003 this section was amended as follows (amendment in bold): (1) The grounds for carrying out operational investigative activities are: (a) unclear circumstances concerning the institution of criminal proceedings; (b) information of which the authority carrying out an operational investigative activity has become aware in connection with: - an illegal act that is being prepared, committed or has already been committed, or persons who are preparing, committing or have already committed such an act, where the basis for instituting criminal proceedings is insufficient; - persons who are fleeing from a criminal investigation or the courts, or who are avoiding a criminal sanction; ... (c) instructions given by an officer of criminal investigation, investigative body, prosecutor or court in pending criminal cases; (d) requests from the bodies carrying out an operational investigative activity based on the grounds provided for in the present section. ... (1) Operational investigative measures which infringe lawful rights - the secrecy of correspondence, telephone and other conversations, telegraphic communications, and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit serious offences or are committing or have already committed serious offences, and only with the authorisation of the prosecutor pursuant to a reasoned decision of one of the heads of the relevant authority. ... (2) In urgent cases where otherwise there would be a risk of commission of serious criminal offences, it shall be permitted, on the basis of a reasoned conclusion of one of the heads of the authority carrying out the operational investigative activity, to carry out operational investigative measures. The prosecutor must be notified within 24 hours. (3) Should danger to the life, health or property of certain persons become imminent, interception of their telephone conversations or other means of communication shall be permitted, following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity, and the prosecutor shall be notified.” In 2003 this section was amended as follows (amendment in bold): (1) Operational investigative measures which infringe lawful rights - the secrecy of correspondence, telephone and other conversations, telegraphic communications, and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit very serious offences or are committing or have already committed very serious offences, and only with the authorisation of the investigating judge pursuant to a reasoned decision of one of the heads of the relevant authority. ... (2) In urgent cases where otherwise there would be a risk of commission of serious criminal offences, it shall be permitted, on the basis of a reasoned conclusion of one of the heads of the authority carrying out the operational investigative activity, to carry out operational investigative measures. The investigating judge shall be informed within 24 hours. He shall be presented with the reasons and shall verify the legality of the measures taken. (3) Should danger to the life, health or property of certain persons become imminent, interception of their telephone conversations or other means of communication shall be permitted, following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity, and the investigating judge shall give his authority.” The section received further amendments in 2007 and currently reads as follows (amendment in bold): (1) Operational investigative measures which infringe lawful rights - the secrecy of correspondence, telephone and other conversations, telegraphic communications, and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit serious, very serious and exceptionally serious offences or are committing or have already committed such offences, and only with the authorisation of the investigating judge pursuant to a reasoned decision of one of the heads of the relevant authority. ... (2) Should danger to the life, health or property of certain persons become imminent, interception of their telephone conversations or other means of communication shall be permitted, following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity, and the investigating judge shall give his authority. ... (1) In cases envisaged under section 7, bodies exercising operational investigative activities are entitled to carry out operational control. A record must be kept of any measure of operational control. (2) Operational control shall be carried out with the authorisation and under the supervision of the head of the body conducting it. The results of operational investigative measures applied shall be reflected in duly filed official operational documents. ... (3) Official operational documents shall be submitted to the prosecutor in order to obtain approval for carrying out operational investigative measures. (4) The operational control shall be suspended when the specific aims of the operational investigative activity set out in section 2 are accomplished or when circumstances are established proving that it is objectively impossible to accomplish the aim.” In 2003 paragraph 3 of this section was repealed. (1) The results of operational investigative activity may be used for preparing and carrying out criminal investigative activities and for carrying out operational investigative measures in order to prevent, stop or discover criminal offences, and as evidence in criminal cases. (2) Data obtained during operational control shall not constitute a reason for limiting the rights, liberties and legitimate interests of natural and legal persons. (3) Information about the persons, means, sources (with the exception of the persons who may provide assistance to the authorities carrying out such measures), methods, plans and results of the operational investigative activity, and about the organisation and the tactics of carrying out the operational investigative measures which constitute State secrets, may be disclosed only in accordance with the conditions provided by law. (1) Operational investigative activity shall be exercised by the Ministry of Internal Affairs, the Ministry of Defence, the Information and Security Service, the Protection and State Security Service, the Department of Customs Control attached to the Ministry of Finance and the Prison Department attached to the Ministry of Justice. ... ... Scrutiny, on behalf of Parliament, of operational investigative activity shall be exercised by the relevant permanent parliamentary commissions. The authorities which exercise operational investigative activities shall submit information to these commissions in accordance with the law. (1) Enforcement of the laws by the authorities carrying out operational investigative activities and the lawfulness of the decisions adopted by these authorities shall be supervised by the General Prosecutor, his or her deputy, and the municipal and county prosecutors...” 15. On 29 June 2007 the Ministry of Internal Affairs, the Secret Services and the Centre for Combating Organised Crime and Corruption enacted special instructions in accordance with section 4 (2) of the above Law. The instructions regulated the co-operation between the intercepting bodies and the telephone operators. In particular it obliged the operators to co-operate with the intercepting bodies in order to facilitate the interception of telephone conversations and to provide them with all the necessary information and with unlimited access to their networks. 16. The Code of Criminal Procedure in force until 12 June 2003 read as follows: The interception of telephone conversations or other means of communication used by a suspect, defendant or other person involved in a criminal offence may be carried out in connection with criminal proceedings instituted in accordance with a decision of the authority conducting the preliminary investigation or the criminal investigator with the authorisation of the prosecutor, or in accordance with a court decision, where such a measure is deemed necessary in a democratic society in the interests of national security, public order, the economic welfare of the country, the maintenance of order and the prevention of crimes, or the protection of the health, morals, rights and liberties of others. The interception of telephone or other conversations may not last more than six months. ... Conversations held over the telephone or other means of communication may be recorded. The interception and recording of telephone conversations or other means of communication shall be carried out by the criminal investigator unless the task is entrusted to the authority in charge of the preliminary investigation. In this case, the criminal investigator shall draw up a warrant and a decision concerning the interception, which shall be sent to the authority in charge of the preliminary investigation. At the same time the criminal investigator shall liaise with the authority in charge of the preliminary investigation or specify in the warrant the circumstances and manner of interception of the conversations and recording, modification and disposal of the information obtained. ... Following the interception and recording, a record shall be drawn up giving a summary of the content of the taped conversations relevant to the case. The tape shall be attached to the record and the part which does not relate to the case shall be destroyed once the judgment becomes final.” 17. The Code of Criminal Procedure, in force after 12 June 2003, in so far as relevant, reads as follows: The investigating judge ensures judicial supervision during the criminal prosecution by: ... 5. authorising the interception of communications, seizure of correspondence, video recordings;...” ... (1) The interception of communications (telephone conversations, or communications by radio or using other technical means) is carried out by the prosecution body on the basis of an authorisation issued by the investigating judge issued on the basis of a reasoned warrant of a prosecutor charged with the examination of very serious and exceptionally serious crimes. (2) In case of urgency, when a delay in obtaining an authorisation as stipulated in paragraph (1) could cause serious harm to the evidence-gathering procedure, the prosecutor may issue a reasoned warrant for the interception and recording of communications. She or he is obliged to inform the investigating judge about this immediately and no later than 24 hours after issuing the warrant. The latter is required to take a decision within 24 hours regarding the warrant issued by the prosecutor. When she or he confirms it, she or he authorises the further interception if necessary. When he or she does not confirm it, she or he orders its immediate suspension and the destruction of records already made. (3) The interception of communications may be carried out at the request of the victim of a crime, a witness and members of his/her family, in case of threats of violence, extortion or commission of other crimes affecting such parties, based on a reasoned warrant of the prosecutor. (4) The interception of communications during a criminal investigation is authorised for a maximum of 30 days. The interception may be extended on the same conditions if justified. Each extension cannot however exceed 30 days. The total duration cannot exceed 6 months. In any case, it cannot last longer than the criminal prosecution. (5) The interception of communications may be stopped before the end of the period for which it has been authorised, if the grounds initially justifying it no longer exist. (6) During a criminal prosecution, after the end of an authorised interception, and after having asked the opinion of the prosecutor who supervises and carries out the criminal prosecution, the investigating judge shall inform in writing the persons whose conversations were intercepted and recorded. This shall be done within a reasonable time, and must be done before the termination of the criminal prosecution. (1) The interception of communications is carried out by the criminal prosecution body. Persons whose responsibility is technically to facilitate the interception and recording of communications are obliged to preserve the secrecy of the procedure and the confidentiality of correspondence. They are liable in the event of a violation of their obligations under the provisions of articles 178 and 315 of the Criminal Code. A note must be made to the effect that they have been informed of these obligations. (2) A record of the interceptions and recording carried out by the prosecution body must be drawn up in conformity with the provisions of articles 260 and 261. It must record information about the authorisation given by the investigating judge, the intercepted telephone number or numbers and their addresses, together with details of the radio or other technical equipment used for conversations. The record must also indicate the name (where known) of the parties and the date and time of each separate conversation and the number assigned to the tape used for the recording. (3) Recorded communications must be fully transcribed and annexed to the record along with the authorisation of the criminal prosecution body, after its verification and signature by the prosecutor carrying out or supervising the criminal prosecution. Communications in languages other than the one in which the criminal prosecution is carried out shall be translated with the assistance of an interpreter. The tape containing the original recorded communications shall also be annexed to the record after having been sealed and after the stamp of the criminal investigation body has been applied. (4) The tape of the recorded communications, the transcript and the records of the interception and recording of communications shall be handed over to the prosecutor within 24 hours. The prosecutor shall assess which parts of the collected information are important for the case in question and draw up a record in this regard. (5) Original copies of the tapes along with the complete written transcript and copies of the records shall be handed over to the investigating judge who authorised interception of the communications for further storage in a special place in a sealed envelope. (6) The court shall adopt a decision regarding the destruction of records which are not important for the criminal case. All the other records shall be kept up to the moment when the file is deposited in the archive. Evidence collected under the provisions of articles 135 and 137 may be verified through technical expert examination by the court at the request of the parties or ex officio.” 18. Under section 15(5) of the Advocacy Act of 13 May 1999, a lawyer's professional correspondence can be intercepted only under the conditions provided for by law. Section 15 (13) provides that the confidentiality of a lawyer's correspondence with his client is guaranteed and that such correspondence cannot be intercepted. | 1 |
dev | 001-22186 | ENG | PRT | ADMISSIBILITY | 2,000 | BRANDAO FERREIRA v. PORTUGAL | 1 | Inadmissible | null | The applicant is a Portuguese national who was born in 1953 and lives in Lisbon. He is represented before the Court by Mr A. Fialho Pinto, a lawyer practising in Lisbon. The facts of the case, as submitted by the parties, may be summarised as follows. In 1997 the applicant, a wing commander in the airforce, was a military attaché at the Portuguese Embassy in Guinea-Bissau. On 20 February 1997 the chief liaison officer for military attachés informed the Armed Forces General Staff that the applicant had been absent from duty, without leave and using an official vehicle, for four days. On 25 February 1997 the Armed Forces Chief of Staff ordered disciplinary proceedings to be brought against the applicant and appointed an officer to conduct the investigation. On 26 February 1997 the investigating officer sent the applicant a copy of the chief liaison officer’s report with a request for his comments, which the applicant sent him on 7 March 1997. On 14 March 1997 the investigating officer heard evidence from the chief liaison officer in the applicant’s absence. On 30 April 1997 the investigating officer lodged submissions accusing the applicant of dereliction of duty contrary to paragraphs 25 and 34 of Article 4 of the Military Disciplinary Regulations (unauthorised use of a military vehicle and absence without leave), aggravated by circumstances set out in subparagraphs (b) and (h) of Article 71 of the Regulations (the breach of regulations had occurred overseas and had been detrimental to the service). In his reply lodged on 16 May 1997 the applicant gave the names of three witnesses from whom, he said, the investigating officer should take statements. On an unspecified date the investigating officer declared the investigation to be at an end and sent his report to the Armed Forces Chief of Staff. On 23 May 1997 the Chief of Staff found the applicant guilty of the alleged offences and sentenced him to five days’ detention. The applicant requested the Chief of Staff to review that decision on the grounds that there had been a breach of the adversarial principle. By an order of 19 June 1997 the Chief of Staff granted the request in part and ordered the investigating officer to take evidence from the witnesses whose names had been provided by the applicant. The investigating officer heard the three witnesses concerned in the absence of the applicant and his representatives between 13 and 18 June 1997. In his report dated 18 June to the Chief of Staff, he indicated that the statements of the witnesses did not alter his earlier conclusions. By an order of 18 June 1997 the Chief of Staff upheld the sentence of five days’ detention, which had been served by the applicant in the meantime. On an unspecified date the applicant appealed against that decision to the Courts Martial Appeal Court (Supremo Tribunal Militar). He alleged among other things a violation of his defence rights and of the adversarial principle. In that connection, he complained that he had not been permitted to question the witnesses whose names he had given, either in person or through his representative. On 30 October 1997 the Courts Martial Appeal Court dismissed the applicant’s appeal. With regard to the adversarial principle, it said, inter alia: “Certainly, military disciplinary proceedings, which are not criminal proceedings, are governed subsidiarily by the procedural provisions of the Code of Military Justice, and in particular those guaranting the rights of the defence. However, criminal proceedings comprise two distinct stages: the investigation stage, which is governed by the inquisitorial principle, and the trial stages, which is subject to the adversarial principle. During the investigative stage, the accused’s representative is not entitled to question or contradict witnesses. He is restricted to requesting them to give evidence on certain factual matters before the investigating [officer]. For that reason, there has been no breach of the adversarial principle, which is inapplicable to that stage of the proceedings...” The Courts Martial Appeal Court went on to hold that the mitigating circumstance pleaded by the applicant, namely his co-operation in uncovering the truth, was not to be taken into consideration. Detention or a ban on leave (detençao ou probiçao de saída) is a penalty laid down by Article 26 of the Military Disciplinary Regulations (adopted by Legislative-Decree No. 142/77 of 9 April 1997), which provides, inter alia: “1. Detention or a ban on leave shall consist of the confinement of the person punished to barracks or aboard ship throughout the term of the sentence. The person punished shall not be exempted from military training or the performance of rota (escala) duties. ...” The sentence may not exceed ten days in the case of officers. As to its effects, Article 53 lays down that the person concerned shall lose one day of seniority rights for every four days’ detention. The Military Disciplinary Regulations also lay down other sentences, notably disciplinary imprisonment and aggravated disciplinary imprisonment. Disciplinary imprisonment means detention in suitable premises. However, the serviceman may be called on to perform any work required of him between morning and evening (Article 27). Aggravated disciplinary imprisonment means detention in a prison. | 0 |
dev | 001-90212 | ENG | RUS | CHAMBER | 2,008 | CASE OF MUMINOV v. RUSSIA | 3 | Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13+3;Violation of Art. 5-1;Violation of Art. 5-4;No violation of Art. 34;Remainder inadmissible;Just satisfaction reserved | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1965 and is serving a sentence of imprisonment in Uzbekistan. 7. The applicant arrived in Russia in July 2000 and resided in the town of Michurinsk in the Tambov Region. It appears that until mid-2003 he returned to Uzbekistan for several short periods of time. In 2004 he was convicted by a Russian court and sentenced to six months’ imprisonment for having used a false migration card. After his release, in October 2004 he moved to Usman, a provincial town in the Lipetsk Region, where he was employed as a cook. On 31 January 2005 the applicant sought a temporary residence authorisation (разрешение на временное проживание) and apparently applied for Russian citizenship. It appears that his application was rejected on 28 February 2006 (see paragraph 17 below). According to the applicant, he became aware of that refusal only on 29 September 2006. 8. Most recently, from 23 December 2005 to 23 March 2006 the applicant had a valid temporary residence registration (временная регистрация) in the Lipetsk Region. According to the applicant, on an unspecified date in 2006 the Chief Inspector of the Criminal Police of Usman in the Lipetsk Region refused to renew it. It appears, however, that no formal decision was issued. 9. According to the Uzbek authorities, in April 2005 two Uzbek nationals complained to the Uzbek National Security Service (NSS) that the applicant had been engaged in anti-constitutional activities during an unspecified period of time. He left Uzbekistan after his accomplices had been apprehended. 10. On 29 April 2005 the NSS of the Surkhandarianskiy Region initiated criminal proceedings against the applicant under Article 159 § 3 (b) and Articles 216, 244-1 and 244-2 of the Uzbek Criminal Code (see paragraph 76 below). They accused him of membership of Hizb ut-Tahrir (HT), a transnational Islamic organisation, which is banned in Russia, Germany and some Central Asian states. On 8 May 2005 the Uzbek authorities issued an arrest warrant in respect of the applicant with reference to the charges under Articles 159 and 244-1 of the Uzbek Criminal Code. 11. On 2 February 2006 the applicant was apprehended in the town of Gryazi in Russia and taken into custody. On 4 February 2006 the Gryazi Town Court of the Lipetsk Region authorised his detention with a view to extradition to Uzbekistan, relying on Article 108 of the Code of Criminal Procedure (CCrP). It did not set a time-limit for which that detention was authorised. The detention order was amenable to appeal to the Regional Court within a three-day time-limit. The applicant did not appeal. 12. In March 2006 the Uzbek Prosecutor General’s Office requested the applicant’s extradition and provided assurances that he would not be surrendered to another State without Russia’s consent and would not be prosecuted or punished for any offence committed prior to his extradition and for which extradition would have been refused; and that he would be able to leave Uzbekistan after being tried and serving his sentence. 13. On 12 April 2006 the Lipetsk regional prosecutor instructed the administration of the remand centre to keep the applicant in detention under Article 466 of the CCrP, the 1993 Minsk Convention and the Prosecutor General’s Instructions of 20 June 2002 (see paragraphs 53, 54 and 66 below). 14. On 22 September 2006 the Prosecutor General’s Office of the Russian Federation rejected the extradition request because some of the acts imputed to the applicant were not criminal offences in Russia, while the others had been committed before becoming punishable under the Russian Criminal Code, or prosecution for such offences had become time-barred. 15. On 26 September 2006 the Prosecutor General’s Office informed the Prosecutor’s Office of the Lipetsk Region that the applicant’s extradition had been refused, and instructed that office to check the grounds for the applicant’s presence in the territory of Russia and to decide whether he should be removed from Russia. 16. On 28 September 2006 the regional prosecutor instructed the Gryazi Prosecutor’s Office to check the lawfulness of the applicant’s stay in Russia and to institute proceedings against him under the Code of Administrative Offences, if appropriate. The prosecutor wrote as follows: “...if a judge does not order administrative expulsion and if legal grounds obtain, it is necessary to decide on Mr Muminov’s deportation under section 25.10 of the Law on Entering and Leaving the Russian Federation and the Government’s Decree no. 199 of 7 April 2003...” On the same day, the Gryazi Prosecutor’s Office ordered the applicant’s release from custody. 17. The applicant was released on 29 September 2006. Immediately thereafter, the Gryazi Prosecutor’s Office accused him of residing in the territory of Russia in breach of Article 18.8 of the Code of Administrative Offences. It found in particular that the applicant’s application “for permission to temporarily reside in Russia” had been rejected by the Regional Office of the Federal Security Service (“FSB”) on 28 February 2006 and that his residence registration had expired on 23 March 2006. On the same date, the administrative file was examined by a judge in the Gryazi Town Court who discontinued the case for lack of a corpus delicti. The judge held in essence that although the applicant’s residence registration had expired on 23 March 2006, on that date and until 29 September 2006 he had been detained with a view to extradition. Having been released and charged on the same day, he could not have committed the offence imputed to him. The judgment became final after the expiry of the statutory time-limit for appeal. 18. While in detention, in April 2006 the applicant submitted to the Lipetsk Regional Migration Authority applications for refugee status and temporary asylum in Russia. On 12 April 2006 migration officers interviewed him in the remand centre. As can be seen from the interview record, signed by the applicant, he denied membership of any proscribed organisation; having learnt from his wife about the criminal charges against him in Uzbekistan, he had been planning to go there in order to clarify the situation but could not buy a train ticket. He indicated his “fear of being prosecuted for serious offences which he had not committed” as the reason for refusing to return to Uzbekistan. 19. In a decision of 17 April 2006 the Migration Authority refused to examine the applicant’s application for refugee status on the merits, concluding that he had left Uzbekistan for “economic reasons” falling outside the scope of an admissible refugee request and that he was refusing to return there because of the criminal prosecution against him. The Migration Authority also rejected his temporary asylum application on 2 May 2006, concluding that his fear of being prosecuted for offences could not be a valid reason for granting temporary asylum. The Authority found as follows: “...the applicant’s explanations are contradictory... On 12 April 2006 he explained that he had arrived in Gryazi to purchase a train ticket, whereas on 20 April 2006 he contended that he had been in Gryazi to seek assistance from a friend in order to lodge a complaint with the Strasbourg court. The applicant probably means the European Court of Human Rights in Strasbourg, whereas he is a national of Uzbekistan, a Central Asian republic. Besides, a complaint before that court may be lodged after the applicant has exhausted all judicial remedies in his republic; in addition, he fled justice in Uzbekistan. Thus, the applicant is manifestly trying to hide his true intentions. All the reasons indicated by the applicant for not returning to Uzbekistan were examined together with his request for refugee status and did not justify granting such status. No other reasons were adduced in favour of granting such a status on the basis of humane considerations. According to information from the Russian Ministry of Foreign Affairs, ‘... there was no ascertainable information about instances of torture or the sentencing of expelled Uzbek nationals to the death penalty... During the last two years Uzbekistan has taken certain measures for reform in this field... In December 2003 the Supreme Court of Uzbekistan prohibited lower courts from using in evidence confessions obtained under torture or without counsel being present. In September 2004 the Plenary Session of the Supreme Court upheld the inadmissibility of unlawfully obtained evidence...’ The seriousness of the charges against the applicant should be taken into account... The political and extremist activities of Hizb ut-Tahrir may represent a threat to national security...” 20. In August 2006 the applicant, with the help of the Civic Assistance Committee, a non-governmental organisation helping immigrants, retained Ms Biryukova to represent his interests in the domestic proceedings. On 15 September 2006 the applicant obtained a copy of the decision of 17 April 2006 and appealed against it. He pleaded that he had become a refugee “sur place”; being a Sunnite, he feared that he would be tortured by the Uzbek authorities in order to make him admit to the extremist charges against him. He referred to reports by the UN and international non-governmental organisations about cases of ill-treatment against several persons in a similar situation. 21. On 24 October 2006 the applicant was expelled to Uzbekistan (for further details see section D below). 22. On 27 October 2006 the Sovetskiy District Court of Lipetsk upheld the decision of 17 April 2006. The court concluded that the applicant had failed to adduce any evidence that he had been or would be persecuted for “political reasons”. 23. On 18 December 2006 the Lipetsk Regional Court set aside the judgment of 27 October 2006 and ordered a re-examination of the matter by the District Court. On 10 January 2007 the District Court again dismissed the applicant’s complaint. It found as follows: “... [the applicant] failed to comply with Articles 56 and 57 of the Code of Civil Procedure requiring him to adduce evidence in support of his allegation of political persecution.... [H]e has already been residing unlawfully in Russia for a long time ... He neither submitted any evidence that he had left Uzbekistan for political reasons, nor has it been averred that his fears of persecution for political reasons were justified. He did not apply for refugee status after his unlawful entry into Russian territory. Thus, there were no legal grounds for examining his 2006 refugee application on the merits.” The applicant’s representative did not appeal against that judgment. 24. In the meantime, in early October 2006 the applicant obtained an appointment for an interview on 1 November 2006 at the Centre for Refugees in the Moscow Office of the United Nations High Commissioner for Refugees. 25. On 16 October 2006 the Civic Assistance Committee requested the migration authorities to confirm the lawfulness of the applicant’s stay in Russia so that he could leave for another country that did not require a visa for Uzbek nationals. 26. The applicant was apprehended on 17 October 2006 on the premises of the Civic Assistance Committee, apparently because of his lack of a residence registration required under the Aliens Act (see paragraph 48 below). He was then taken to the Tverskoy District Office of the Federal Migration Authority. After an interview, he was brought before a judge of the Tverskoy District Court of Moscow, who found the applicant guilty of having resided in Russia in breach of the residence regulations. The judge imposed on him an administrative fine of 1,000 Russian roubles (RUB) and ordered his administrative expulsion from Russia, which is a subsidiary penalty under Article 18.8 of the Code of Administrative Offences. According to the text of the judgment, at the hearing the applicant conceded that he had been unlawfully resident in Russia and had no definite place of residence or source of income in Russia. According to the applicant, he was not allowed to contact the Civic Assistance Committee, to be represented by a lawyer retained by it or to speak during the hearing. In a separate decision given on the same date, the judge ordered the applicant’s immediate placement in the Severnyy Detention Centre no. 1 for Aliens. 27. On 18 October 2006 the FSB asked the administration of the detention centre not to deport the applicant without its consent and to coordinate with it all visits to the applicant, receipt of parcels by him or his telephone calls. 28. On 19 October 2006 the applicant’s counsel lodged a statement of appeal against the expulsion order with the Moscow City Court. A hearing was set down for 26 October 2006. 29. On 20 October 2006 the applicant issued Ms Chumakova with an authority form empowering her to institute proceedings before the European Court. 30. On 23 October 2006 the applicant requested the Court, under Rule 39 of the Rules of Court, to prevent his expulsion to Uzbekistan. He feared immediate expulsion despite his pending appeal against the expulsion order and alleged that he would face a serious risk of ill-treatment and unfair prosecution if he were returned to Uzbekistan. 31. On 24 October 2006 the Court indicated to the Russian Government under Rule 39 that the applicant should not be expelled to Uzbekistan until further notice. The Russian Government were notified at 5.17 p.m. Strasbourg time (7.17 p.m. Moscow time) by e-transmission through the publication of the relevant letter on the secure website used for communication between the Registry of the Court and the Office of the Representative of the Russian Federation at the European Court of Human Rights. 32. According to the Government, the applicant left Russia at 7.20 p.m. (Moscow time) on 24 October 2006 from Domodedovo Airport for Tashkent on board flight no. E3-265. The applicant’s representative submitted a letter dated 25 December 2006 issued by the Domodedovo Airlines Company, which read as follows: “Domodedovo Airlines cannot confirm that Mr P.T. Muminov was on board flight no. E3-265 from Domodedovo to Tashkent on 24 October 2006 since there is no boarding pass for that passenger.” As follows from a letter of 19 December 2006 from Uzbekistan Airways, Mr R. Muminov was on board flight no. HY-602 from Domodedovo to Tashkent on 24 October 2006. According to a copy of the log entries provided by the company and produced by the applicant’s representative, that flight left Moscow at 11.50 p.m. on 24 October 2006. 33. According to a report allegedly issued by the FSB on 22 October 2006, the applicant was questioned on 20 October 2006 in relation to his alleged extremist activities; “in view of his insincerity and taking into account the pressure by the human-rights organisations which attempt to present him as a victim of political repression, [the applicant] was removed from Russia”. 34. According to a press release issued by the FSB on 28 October 2006, the applicant was removed from Russia on 27 October 2006. 35. On 2 November 2006 the Moscow City Court quashed the expulsion order of 17 October 2006 and remitted the case to the District Court. The City Court found that the district judge had not specified the nature of the applicant’s allegedly unlawful conduct. The judge had not established the facts of the case, including the date of the applicant’s arrival in Russia, whether he had complied with his obligation to register at the place of his residence in Russia and when his registration had expired. Neither had the judge verified the authorities’ allegation that the applicant had been residing unlawfully in Russia since December 2005. 36. On 29 November 2006 the District Court re-examined the case and found that “the applicant had been lawfully present in the territory of Russia when he was first apprehended and remanded in custody”; he had then arrived in Moscow on 5 October 2006 in order to apply for refugee status at UNHCR’s Moscow office; he had stayed at the office of the Civic Assistance Committee until his arrest on 17 October 2006. The District Court also indicated that the applicant had appealed against the refusal to examine his application for refugee status and that a judgment had been given on 27 October 2006 and had not yet become final. The District Court concluded that the applicant had not committed the administrative offence of “breaching the residence regulations within the territory of the Russian Federation”, and discontinued the proceedings. 37. On 15 January 2007 the Dzhankurganskiy Criminal Court in Uzbekistan convicted the applicant of unlawful actions against the constitutional order and participation in the activities of a proscribed organisation, and sentenced him to five years and six months’ imprisonment. According to the text of the judgment, “[the applicant] pleaded not guilty at the trial, denied the charges against him and fully retracted the statement he had made during the preliminary investigation while indicating that he had been compelled to sign that statement, which he had done without reading it”. With reference to statements from two witnesses and the applicant’s pre-trial statement, the trial court found that in 1999 the applicant had become a member of HT in Uzbekistan and had engaged in propaganda concerning its activities aimed at subverting the constitutional regime and creating an Islamist state. The judgment indicated that the applicant had been represented by a lawyer. The trial judgment was amenable to appeal. It is unclear whether the applicant exercised his right to appeal against it. 38. According to the applicant’s representative before the Court, the applicant had been refused permission to be represented by his privately retained counsel but legal-aid counsel had been appointed instead. Neither the applicant’s representative nor his family members had been informed of the exact place of his detention in Uzbekistan. 39. The applicant’s representative before the Court wrote to the Uzbek Prosecutor General’s Office asking for information regarding the place of the applicant’s detention and the conditions of access to him. Her request was forwarded to the prosecutor in the Surkhandaryinsk Region of Uzbekistan. On 17 January 2007 the prosecutor forwarded the request to the Surkhandaryinsk Regional Court. The applicant’s representative also wrote to the Uzbek Ministry of the Interior and the Ministry of Foreign Affairs. No replies were received. 40. On an unspecified date, the Russian authorities sent a request concerning the applicant to the Uzbek authorities. On 6 March 2007 the Uzbek Ministry of the Interior replied and enclosed a letter in Russian from the applicant dated 20 December 2006 worded as follows: “... during my arrest and detention... the police and other law-enforcement officers did not violate my rights and did not exert any physical pressure upon me. I have no claims against the police officers in Moscow or Lipetsk or against any other law-enforcement authority in Russia. I confirm that this declaration is correct and written with my own hand.” 41. According to a linguistic expert report, produced by the applicant’s representative, the above letter did not contain any significant mistakes, whereas the applicant’s personal letters contained numerous mistakes reflecting his Uzbek mother tongue’s phonetics and grammar. The expert noted that the applicant would not have been able to acquire a sufficient command of the Russian language during the three months between the date of his sample letters (September 2006) and the letter in question (December 2006). The expert concluded that the letter of 20 December 2006 had not been written spontaneously by the applicant, who had transcribed the text from the original or written it from a letter-by-letter dictation by someone else. 42. On 28 October 2006 the Prosecutor’s Office of the Central Administrative District of Moscow initiated criminal proceedings on a complaint by the applicant’s representative about his hasty expulsion. 43. On 12 February 2007 the Moscow military prosecutor refused to bring criminal proceedings against any FSB officers in relation to the applicant’s hasty expulsion. The prosecutor stated: “... as a result of the joint operation by officials of detention centre no. 1, migration officers and FSB officers on 24 October 2006, [the applicant] was removed from Russia in breach of ... the Code of Administrative Offences... It transpires from the case file that the matter of his expulsion before the judgment ... acquired legal force was raised by the FSB before the migration authority and the administration of the detention centre... [I]t was established that the migration authority had purchased a flight ticket for [the applicant] but it had not been used ... thus, the exact time of his crossing the Russian border was not confirmed... According to Mr K., an FSB officer, Mr Muminov’s departure was delayed pending the arrival of Uzbek officials, who purchased a new ticket for him...” 44. On 20 April 2007 Mr G., Director of the Detention Centre for Aliens, was charged with abuse of power. Mr G. pleaded guilty at the trial. On 24 May 2007 the Butyrskiy District Court of Moscow convicted him of abuse of power and sentenced him to a fine of RUB 35,000. It held, inter alia: “... being aware that the expulsion order in respect of Mr Muminov had not become final, Mr G. violated his defence rights and authorised the execution of the expulsion order at around 5 p.m. on 24 October 2006... As a result, Mr Muminov was put on flight no. HY-602 leaving for Tashkent... Besides, ... on 26 October 2006 the European Court of Human Rights indicated to the Russian authorities that he should not be removed from Russia. However, the Russian Federation was unable to comply with that decision as a result of Mr G.’s unlawful actions.” It appears that that judgment was not appealed against and became final. 45. No one may be subjected to torture, violence or any other inhuman or degrading treatment or punishment (Article 21 § 2). The decisions and actions (or inaction) of State authorities, local self-government, non-governmental associations and public officials may be challenged in a court of law (Article 46 § 2). In conformity with the international treaties of the Russian Federation, everyone has the right to turn to inter-State organs concerned with the protection of human rights and liberties after all domestic remedies have been exhausted (Article 46 § 3). 46. Pursuant to the Agreement between the Russian and Uzbek Governments signed in Minsk on 30 November 2000, as amended in 2005, citizens of one of the two States were not required to have a visa to enter and stay in the territory of the other State (section 1). 47. Under the Law on Legal Status of Aliens in the Russian Federation (no. 115-FZ of 25 July 2002 – “the Aliens Act”), as in force at the material time, a foreign national could temporarily stay in the territory of Russia, or temporarily or permanently reside in it. A foreign national had to obtain a temporary residence authorisation (разрешение на временное проживание) in order to temporarily reside in Russia or a residence permit (вид на жительство) in order to permanently reside in Russia (sections 6 and 8, respectively). A temporary residence authorisation or a residence permit could be refused, inter alia, if an alien advocated a violent change of the constitutional foundations of the Russian Federation, otherwise created a threat to its security or citizens or supported terrorist (extremist) activities (sections 7 and 9). 48. A foreign national had to register his or her residence within three days of his or her arrival in Russia (section 20(1)). Foreign nationals had to obtain residence registration at the address where they were staying in the Russian Federation. Should their address change, such change was to be re-registered with the police within three days (section 21(3)). 49. A foreign national who breached the regulations on staying or residing in the Russian Federation, including failure to register his or her residence, was liable to an administrative fine with or without administrative expulsion from Russia (Article 18.8 of the Code of Administrative Offences). A decision on the administrative offence was enforced once it had become final (Article 31.2 § 2 of the Code). 50. Pursuant to the Instructions on deportation or administrative expulsion of an alien, adopted by the Ministry of the Interior on 26 August 2004, the authority in charge of the execution of an expulsion order which had become final was to determine the country of destination and make arrangements for the alien’s departure (point 22). 51. Under the Law on the Procedure for Entering and Leaving the Russian Federation (no. 114-FZ of 15 August 1996), as amended in 2006, a competent authority could decide that a foreign national’s presence in Russian territory was undesirable – even if it was lawful – if, for example, it created a real threat to the defence capacity or security of the State, to public order or health (section 25.10 of the Law). If such a decision was given, the foreign national had to leave Russia or else be removed from the country. The procedure for such removal was detailed in the Government’s Decree no. 199 of 7 April 2003. 52. Under the Russian Code of Criminal Procedure (CCrP), the period of detention pending investigation could not exceed two months (Article 109 § 1) and could be extended by a judge up to six months (Article 109 § 2). Further extensions could only be granted if the person was charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months was permissible and the detainee was to be released immediately (Article 109 § 4). 53. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy was to decide on the measure of restraint in respect of the person whose extradition was sought. The measure of restraint was to be applied in accordance with the established procedure (Article 466 § 1). 54. Pursuant to the Instructions issued by the Prosecutor General on 20 June 2002, the procedure for the arrest and extension of detention of persons pending extradition was determined by international treaties to which the Russian Federation was a party. Chapter 54 of the CCrP was applicable in the parts complying with those treaties. Detainees’ release could be ordered by the Prosecutor General’s Office or by a court decision (point 2.9). 55. In a decision of 4 April 2006 the Constitutional Court held that the general provisions governing measures of restraint applied to all forms and stages of criminal proceedings, including proceedings on extradition. The Constitutional Court reiterated its settled case-law to the effect that excessive or arbitrary detention, unlimited in time and without judicial review, was not compatible with the Constitution in any circumstances, including in the context of extradition proceedings. It appears that the decision was published in July 2006. On 11 July 2006 the Constitutional Court declined jurisdiction in relation to a request by the Prosecutor General for clarification of that decision and indicated that courts of general jurisdiction were competent to decide on the procedure and time-limits which should apply for detention in extradition proceedings. 56. Chapter 16 of the CCrP laid down the procedure by which parties to criminal proceedings could challenge the acts or omissions of an inquirer, investigator, prosecutor or court (section 123). Those acts or omissions could be challenged before a prosecutor or a court. Article 125 provides for judicial review of a decision taken by inquirers, investigators, prosecutors not to initiate criminal proceedings, a decision to discontinue them or any other decision or omission which was capable of impinging upon the rights of persons involved in the proceedings (section 125). 57. The Custody Act laid down the procedure and conditions for the detention of persons who were apprehended under the CCrP on suspicion of criminal offences; it also applied to persons who were suspected or accused of criminal offences and who were remanded in custody (section 1). Persons suspected or accused of criminal offences had a right to lodge complaints with a court or another authority in relation to the lawfulness and reasonableness of their detention (section 17(1)(7)). 58. The Refugees Act (Law no. 4258-I of 19 February 1993) defines a refugee as a person who is not a Russian national and who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it (section 1(1)(1)). The migration authority may refuse to examine the application for refugee status on the merits if the person concerned has left the country of his nationality in circumstances falling outside the scope of section 1(1)(1), and does not want to return to the country of his nationality because of a fear of being held responsible for an offence (правонарушение) committed there (section 5(1)(6)). 59. Persons who have applied for or been granted refugee status cannot be returned against their will to the State of which they are a national where their life or freedom would be imperilled on account of their race, religion, nationality, membership of a particular social group or political opinion (sections 1 and 10(1)). 60. Having received a refusal to examine an application for refugee status on the merits and having decided not to exercise the right of appeal under section 10, the person concerned must leave the territory of Russia within one month of receiving notification of the refusal if he or she has no other legal grounds for staying in Russia (section 5(5)). Under section 10(5), having received a refusal to examine the application for refugee status on the merits or a refusal of refugee status and having exercised the right of appeal against such refusals, the person concerned must leave the territory of Russia within three days of receiving notification of the decision on the appeal if he or she has no other legal grounds for staying in Russia. If, after the appeal has been rejected, the person concerned still refuses to leave the country, he or she is to be deported (section 13(2)). 61. If the person satisfies the criteria set out in section 1(1)(1), or if he or she does not satisfy such criteria but cannot be expelled or deported from Russia for humanitarian reasons, he or she may be granted temporary asylum (section 12(2)). Persons who have been granted temporary asylum cannot be returned against their will to the country of which they are a national or to the country of their former habitual residence (section 12(4)). 62. By a decision (решение) of 14 February 2003 the Supreme Court of the Russian Federation granted the Prosecutor General’s request and classified a number of international and regional organisations as terrorist organisations, including HT (also known as the Party of Islamist Liberation), and prohibited their activity in the territory of Russia. It held in relation to HT that it aimed to overthrow non-Islamist governments and to establish “Islamist governance on an international scale by reviving a Worldwide Islamist Caliphate”, in the first place in the regions with predominantly Muslim populations, including Russia and other members of the Commonwealth of Independent States. 63. Recommendation No. R (98) 13 of the Council of Europe Committee of Ministers to Member States on the rights of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights, reads as follows: “Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request, as recommended, among others, in Council of Europe Recommendation No. R (81) 16 of the Committee of Ministers..., 1. An effective remedy before a national authority should be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment. 2. In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when:... 2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief;... 2.4. the execution of the expulsion order is suspended until a decision under 2.2 is taken.” 64. The Council of Europe Commissioner for Human Rights issued on 19 September 2001 a Recommendation (CommDH(2001)19) concerning the rights of aliens wishing to enter a Council of Europe Member State and the enforcement of expulsion orders, part of which reads as follows: “11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.” 65. For other relevant documents, see the Court’s judgment in the case of Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 36-38, ECHR 2007... 66. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997), to which both Russia and Uzbekistan are parties, provides that an extradited person cannot be subject to criminal prosecution or punished for a criminal offence committed prior to extradition and in respect of which extradition was refused, without the consent of the extraditing State (Article 66 § 1). The extradited person cannot be surrendered to a third State without the consent of the extraditing State (Article 66 § 2). 67. In his report (E/CN.4/2003/68/Add.2) submitted in accordance with Resolution 2002/38 of the United Nations (UN) Commission on Human Rights, the Special Rapporteur on the question of torture, Theo van Boven, described the situation in Uzbekistan as follows: “40. According to the information received from non-governmental sources, torture is being used in virtually all cases in which articles 156, 159 and 244 CC [Criminal Code] ... are invoked, in order to extract self-incriminating confessions and to punish those who are perceived by public authorities to be involved in either religious, or political, activities contrary to State interests (socalled security crimes). These provisions, which are rather vaguely worded and whose scope of application may be subject to various interpretations, are said to have been used in numerous allegedly fabricated cases and to have led to harsh prison sentences. The four crimes that, following recent amendments, are now the only capital offences are said to lead to a death sentence only if they are combined with aggravated murder charges. Evidence gathering in such cases is said to rely exclusively on confessions extracted by illegal means. It is reported that religious leaflets as well as weapons or bullets have been planted as evidence that a person belongs to banned groups such as Hizb-ut-Tahrir, a transnational Islamic movement which calls for the peaceful establishment of the Caliphate in Central Asia. It is also reported that torture and ill-treatment continue to be used against inmates convicted on such charges, inter alia to force them to write repentance letters to the President of the Republic or to punish them further... 66. The combination of a lack of respect for the principle of presumption of innocence despite being guaranteed by the Constitution (art. 25) and [the Code of Criminal Procedure] (art. 23), the discretionary powers of the investigators and procurators with respect to access to detainees by legal counsel and relatives, as well as the lack of independence of the judiciary and allegedly rampant corruption in the judiciary and law enforcement agencies, are believed to be conducive to the use of illegal methods of investigation. The excessive powers in the overall criminal proceedings of procurators, who are supposed at the same time to conduct and supervise preliminary criminal investigations, to bring charges and to monitor respect for existing legal safeguards against torture during criminal investigations and in places of detention, make investigations into complaints overly dependent on their goodwill. 67. The Special Rapporteur regrets the absence of legal guarantees such as the right to habeas corpus and the right to prompt and confidential access to a lawyer and relatives. He further observes that pre-trial detainees are held in facilities which are under the same jurisdiction as investigators in the case... 68. The Special Rapporteur believes, on the basis of the numerous testimonies (including on a number of deaths in custody) he received during the mission, not least from those whose evident fear led them to request anonymity and who thus had nothing to gain personally from making their allegations, that torture or similar ill-treatment is systematic as defined by the Committee against Torture. Even though only a small number of torture cases can be proved with absolute certainty, the copious testimonies gathered are so consistent in their description of torture techniques and the places and circumstances in which torture is perpetrated that the pervasive and persistent nature of torture throughout the investigative process cannot be denied. The Special Rapporteur also observes that torture and other forms of ill-treatment appear to be used indiscriminately against persons charged for activities qualified as serious crimes such as acts against State interests, as well as petty criminals and others.” 68. In March 2005 the UN Human Rights Committee considered the second periodic report of Uzbekistan under the International Covenant on Civil and Political Rights and adopted the following observations (CCPR/CO/83/UZB): “10. The Committee is concerned about the continuing high number of convictions based on confessions made in pre-trial detention that were allegedly obtained by methods incompatible with article 7 of the Covenant. It also notes that, while on 24 September 2004 the Plenum of the Supreme Court held that no information obtained from a detained individual in violation of the criminal procedure requirements (including in the absence of a lawyer) may be used as evidence in court, this requirement is not reflected in a law... 11. The Committee is concerned about allegations relating to widespread use of torture and illtreatment of detainees and the low number of officials who have been charged, prosecuted and convicted for such acts. It is a matter of further concern that no independent inquiries are conducted in police stations and other places of detention to guarantee that no torture or illtreatment takes place, apart from a small number of inquiries with external participation quoted by the delegation... 15. The Committee notes that while under domestic law individuals have access to a lawyer at the time of arrest, this right is often not respected in practice... 16. The Committee remains concerned that the judiciary is not fully independent and that the appointment of judges has to be reviewed by the executive branch every five years...” The applicant also referred to the 2001 report (CCPR/CO/71/UZB, § 14) by the UN Human Rights Committee and the 2002 report (CAT/C/CR/28/7, § 5 (e)) by the UN Committee against Torture. 69. The UN Special Rapporteur on Torture, Manfred Nowak, stated at the Session of the UN Human Rights Council on 20 September 2006: “The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven’s visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials... Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan...” 70. In his 2006 report “Situation of human rights in Uzbekistan” (A/61/526) the UN Secretary General expressed his concern about the fate of individuals extradited or expelled to Uzbekistan: “20. UNHCR continues to be concerned about the fate of an increasing number of Uzbek asylum-seekers and refugees, some of whom fled the Andijan events, who have been detained in countries of the Commonwealth of Independent States and forcibly returned to Uzbekistan despite a real risk of mistreatment in breach of international standards. In February 2006, 11 Uzbek asylum-seekers were forcefully returned from Ukraine to Uzbekistan. In a press statement of 16 February 2006, UNHCR said that it was appalled by this forceful deportation. Thus far, the Office of the United Nations High Commissioner for Refugees (UNHCR) has not had access to the 11 individuals... According to information received by OHCHR, no access has been granted to these individuals since their return to Uzbekistan. 21. OHCHR is concerned about other individuals who have fled since the Andijan events and who are under pressure from the Government of Uzbekistan or the host country to return despite a real risk of mistreatment in breach of international standards... 46. In an interview of 10 April 2006, the Special Rapporteur on the question of torture said that ‘there is ample evidence that both police and other security forces have been and are continuing to systematically practise torture, in particular against dissidents or people who are opponents of the regime’... 48. The Human Rights Committee, in its concluding observations of 31 March 2005 (CCPR/OP/83/UZB), remained concerned about the high number of convictions based on confessions made in pre-trial detention that were allegedly obtained by methods incompatible with article 7 of the International Covenant on Civil and Political Rights. The Committee expressed concern at the definition of torture in the Criminal Code of Uzbekistan. In addition, the Committee pointed to the allegations relating to widespread use of torture and ill-treatment of detainees and the low number of officials who have been charged, prosecuted and convicted for such acts. The Government of Uzbekistan was due to submit follow-up information by 26 April 2006 on these issues in accordance with the request of the Committee. So far, no such information has been submitted to the Human Rights Committee.” 71. In November 2007 the UN Committee against Torture considered the third periodic report of Uzbekistan (CAT/C/UZB/3) and adopted, inter alia, the following conclusions (CAT/C/UZB/CO/3): “6. The Committee is concerned about: (a) Numerous, ongoing and consistent allegations concerning routine use of torture and other cruel, inhuman or degrading treatment or punishment committed by law enforcement and investigative officials or with their instigation or consent, often to extract confessions or information to be used in criminal proceedings; (b) Credible reports that such acts commonly occur before formal charges are made, and during pre-trial detention, when the detainee is deprived of fundamental safeguards, in particular access to legal counsel. This situation is exacerbated by the reported use of internal regulations which in practice permit procedures contrary to published laws; (c) The failure to conduct prompt and impartial investigations into such allegations of breaches of the Convention;... 9. The Committee has also received credible reports that some persons who sought refuge abroad and were returned to the country have been kept in detention in unknown places and possibly subjected to breaches of the Convention... 11. [T]he Committee remains concerned that despite the reported improvements, there are numerous reports of abuses in custody and many deaths, some of which are alleged to have followed torture or ill-treatment...” 72. In support of his allegation of the risk of ill-treatment in Uzbekistan, the applicant also submitted a copy of the third-party submissions by Human Rights Watch (HRW) and the AIRE Centre in the cases of Ismoilov and Others v. Russia (no. 2947/06, judgment of 24 April 2008) and in Mamatkulov and Askarov v. Turkey ([GC], nos. 46827/99 and 46951/99, ECHR 2005I); the 2005 report by the Memorial Human Rights Centre in cooperation with the International League for Human Rights in relation to the Second Periodic Report of Uzbekistan to the UN Human Rights Committee; the 2005 HRW Briefing Paper “Torture Reform Assessment: Uzbekistan’s Implementation of the Recommendations of the Special Rapporteur on Torture” and other documents from that organisation; and various news items available on Internet sites such as www.centrasia.ru. The above documents described a disquieting human-rights situation in Uzbekistan with reference to diverse examples and indicated a lack of ascertainable progress in this field. 73. In a comprehensive 2004 report entitled “Creating Enemies of the State: Religious Persecution in Uzbekistan”, Human Rights Watch provides the following analysis (internal footnotes omitted): “Members of Hizb ut-Tahrir, like Muslims labeled ‘Wahhabi’ by the state, are overwhelmingly self-defined Hanafi Sunnis, as are most Muslims in Uzbekistan, and not adherents of Wahabbism as it is understood in the Saudi Arabian context... Hizb ut-Tahrir members form a distinct segment of the independent Muslim population by virtue of their affiliation with a separate and defined Islamic group with its own principles, structure, activities, and religious texts. Hizb ut-Tahrir is an international Islamic organization with branches in many parts of the world, including the Middle East and Europe. Hizb ut-Tahrir propagates a particular vision of an Islamic state. Its aims are restoration of the Caliphate, or Islamic rule, in Central Asia and other traditionally Muslim lands, and the practice of Islamic piety, as the group interprets it... Hizb ut-Tahrir renounces violence as a means to achieve reestablishment of the Caliphate. However, it does not reject the use of violence during armed conflicts already under way and in which the group regards Muslims as struggling against oppressors, such as Palestinian violence against Israeli occupation. Its literature denounces secularism and Western-style democracy. Its anti-Semitic and anti-Israel statements have led the government of Germany to ban it. The government of Russia has also banned the group, classifying it as a terrorist organization. Some in the diplomatic community, in particular the U.S. government, consider Hizb ut-Tahrir to be a political organization and therefore argue that imprisoned Hizb ut-Tahrir members are not victims of religious persecution. But religion and politics are inseparable in Hizb ut-Tahrir’s ideology and activities, and one of the chief reasons Uzbek authorities arrest members is the religious ideas Hizb ut-Tahrir promotes: the reestablishment of the Caliphate and strict observance of the Koran. Even if one accepts that there is a political component to Hizb ut-Tahrir’s ideology, methods, and goals, this does not vitiate the right of that group’s members to be protected from religion-based persecution. Hizb ut-Tahrir in Uzbekistan Hizb ut-Tahrir is not registered in Uzbekistan and is therefore illegal. It is referred to as a ‘banned’ organization, though in contrast to the means used by German authorities to ban Hizb ut-Tahrir, no single Uzbek administrative or judicial decision has ever prohibited the organization. Members meet in small groups of about five people, referred to as ‘study groups’ by members and as ‘secret cells’ by Uzbek government officials. Both sides acknowledge that the primary activity of these small groups is the teaching and study of Hizb ut-Tahrir literature, as well as traditional Islamic texts such as the Koran and hadith. Membership in the group is solidified by taking an oath, the content of which has been given variously as: being faithful to Islam; being faithful to Hizb ut-Tahrir and its rules; and spreading the words of the Prophet and sharing one’s knowledge of Islam with others. Law enforcement and judicial authorities generally considered both those who had and had not taken the oath as full-fledged members. In Human Rights Watch interviews and in court testimony, Hizb ut-Tahrir members have overwhelmingly cited an interest in acquiring deeper knowledge of the tenets of Islam as their motivation for joining the group. Hizb ut-Tahrir members in Uzbekistan, and likely elsewhere, regard the reemergence of the Caliphate as a practical goal, to be achieved through proselytism. Members in Uzbekistan distribute literature or leaflets produced by the organization which include quotations from the Koran, calls for observance of the basic tenets of Islam, and analysis of world events affecting Muslims, including denunciation of the mass arrest of independent Muslims in Uzbekistan... Human Rights Watch has documented 812 cases of arrest and conviction of the group’s members in Uzbekistan. The group itself estimated in June 2000 that police had arrested some 4,000 of its members in Uzbekistan during the government’s campaign against independent Islam since 1998. By November 2002 the German section of Hizb ut-Tahrir estimated that the government of Uzbekistan had imprisoned as many as 10,000 of the group’s followers. The Russian rights group Memorial reported 2,297 religiously and politically motivated arrests it had documented as of August 2001; the group estimated that more than half of the Muslims arrested for nonviolent crimes were those accused of Hizb ut-Tahrir membership. In addition to being arrested for membership and gathering to study, adherents of Hizb ut-Tahrir have been arrested, sometimes en masse, for possession or distribution of the group’s literature or, in some cases, because of simple, accidental proximity to those proselytizing for Hizb ut-Tahrir... Torture and Mistreatment in Pre-trial Detention Widespread torture of detainees is common in criminal investigations in Uzbekistan. In the campaign against independent Islam, police have systematically employed torture to coerce confessions and statements incriminating others. In the past two years, the international community has taken notice of the pervasive and serious nature of torture in Uzbekistan and its use in the campaign against independent Islam... ... Police and security agents torture independent Muslim suspects during the investigative phase to compel confessions or testimony against others. The interrogation of an independent Muslim generally centers on questions about the detainee’s beliefs, affiliation with Islamic groups, or association with well-known independent imams. The end product the police are seeking is a statement – prepared by police, signed by the detainee – that describes the detainee’s religious belief, practice, and affiliation rather than a criminal act. Because many of those detained on religion-related charges are held incommunicado, the interrogation may last up to six months. Through torture and threats – on which we present details below – agents have coerced detainees to name members of religious organizations, people who have attended mosque with them, or even friends and neighbors who may not in fact have shared their religious beliefs or affiliation. They also have forced detainees to admit to associations with individuals unknown to them. Police then arrested those named, or brought them in as witnesses, often coercing them into testifying for the prosecution. This coercive strategy produces a perpetual flow of names for the police and security services to pursue. Police sometimes arrest a suspect and torture individuals unknown to him into testifying against him...” The report summarises a number of cases of torture documented by Human Rights Watch, describing methods of torture used against Muslim detainees, including beatings by fist and with truncheons or metal rods, rape and sexual violence, electric shock, use of lit cigarettes or newspapers to burn the detainee, and asphyxiation with plastic bags or gas masks. The report also seeks to reveal the role torture plays in coercing testimony; judicial refusal to investigate victims’ allegations; and the courts’ practice of admitting as evidence testimony obtained under torture. The report also indicates that although Uzbek law provides for access to legal counsel from the moment of arrest, the investigating police frequently pressure detainees not to seek counsel. When detainees or their families attempt to engage an independent defence lawyer, authorities often refuse requests from the lawyer for access to his or her client, until the police have secured a confession from the accused. Police frequently pressure detainees or their families to accept the services of State-appointed lawyers who do not defend their client’s interests, and who are unlikely to lodge complaints against ill-treatment. Judges have ignored defendants’ court testimony about the torture they endured and have admitted as evidence confessions and other testimony obtained through torture during the investigation. 74. The 2005 US Department of State Country Report on Human Rights Practice, released on 8 March 2006, provides the following information in relation to Uzbekistan: “Although the law prohibits such practices, police and the NSS [National Security Service] routinely tortured, beat, and otherwise mistreated detainees to obtain confessions or incriminating information... Defendants in trials often claimed that their confessions, on which the prosecution based its cases, were extracted as a result of torture... During the year the government took a few steps towards reform confined to education and outreach, while in large part it showed little will to address UN conclusions... Authorities treated individuals suspected of extreme Islamist political sympathies, particularly alleged members of HT [Hizb ut-Tahrir], more harshly than ordinary criminals. There were credible reports that investigators subjected pretrial detainees suspected to be HT members to particularly severe interrogation. After trial, authorities reportedly used disciplinary and punitive measures, including torture, more often with prisoners convicted of extremism than with ordinary inmates. Local human rights workers reported that common criminals were often paid or otherwise induced by authorities to beat HT members. As in previous years there were numerous credible reports that officials in several prisons abused HT members to obtain letters of repentance, which are required for a prisoner to be eligible for amnesty. According to prisoners’ relatives, amnestied prisoners, and human rights activists, inmates who refused to write letters disavowing their connection to HT were often beaten or sent into solitary confinement. During the year inmates and a guard at one prison corroborated reports that prison guards systematically beat suspected HT members following the March and April 2004 terrorist attacks... Authorities continued to arbitrarily arrest persons on charges of extremist sentiments or activities, or association with banned religious groups... Authorities made little distinction between actual members and those with marginal affiliation with the group, such as persons who had attended Koranic study sessions with the group. As in previous years, there were reports that authorities arrested and prosecuted persons based on the possession of HT literature. Coerced confessions and testimony were commonplace. Even persons generally known to belong to HT stated that the cases against them were built not on actual evidence, which would have been abundantly available, but on planted material or false testimony... Defense attorneys had limited access in some cases to government-held evidence relevant to their clients’ cases. However, in most cases a prosecution was based solely upon defendants’ confessions or incriminating testimony from state witnesses... During the year the BBC quoted a former Interior Ministry official who claimed that investigators often used beatings, psychotropic drugs, or threats against family members to obtain confessions from defendants...In many cases, particularly those involving suspected HT members, when the prosecution failed to produce confessions it relied solely on witness testimony, which was reportedly often also coerced...” 75. The Uzbek Criminal Code states that the Uzbek criminal law is based on the Constitution and recognised principles of international law such as the principle of legality, equality of citizens before the law, humanism and fairness (Articles 1 and 3). 76. Article 159 of the Uzbek Criminal Code, entitled “Attacks against the constitutional order of the Republic of Uzbekistan”, refers to public calls for unconstitutional change of the existing State structure, for the seizure of power or removal from power of legally elected or designated authorities or for the unconstitutional violation of the unity of the territory of the Republic of Uzbekistan, as well as the dissemination of materials having such content. Such acts are punishable by a fine or up to three years’ imprisonment. When committed by an organised group or in its interest, they are punishable by up to ten years’ imprisonment (§ 3 (b)). Article 216 of the Code, entitled “Establishing Proscribed Non-governmental and Religious Organisations”, refers to establishing or resuming the activities of proscribed non-governmental and religious organisations, as well as active participation in their activities. Such acts are punishable by a fine or a term of imprisonment of up to five years. Article 244-1 of the Code, entitled “Preparation or dissemination of materials constituting a threat to public safety and public order”, refers to the preparation or dissemination of materials expressing the ideology of religious extremism, separatism or fundamentalism, incitement to riot or the forced eviction of citizens or materials intended to cause public panic, after an official warning. Such acts are punishable by a fine or a term of imprisonment up to three years. Article 244-2 of the Code, entitled “Establishing, leading or participating in religious extremist, separatist, fundamentalist or other prohibited organisations”, refers to the offence of establishing, leading or participating in religious extremist, separatist, fundamentalist or other prohibited organisations. Such acts are punishable by a term of imprisonment of up to fifteen years and, if they cause serious damage, up to twenty years. 77. The Uzbek Code of Criminal Procedure states that the administration of justice is based on the principles of equality of citizens before the law and the courts, irrespective of their gender, race, nationality, language, religion, social origin, beliefs or personal or social status (Article 16). Judges, prosecutors and investigators must respect the reputation and honour of persons participating in the proceedings (Article 17). No one may be subjected to torture, violence and other forms of cruel or degrading treatment. Actions or decisions which are degrading, lead to the dissemination of a person’s private information, damage his or her health, or unjustifiably cause physical or moral suffering are prohibited. State authorities and public officers in charge of criminal proceedings must protect the rights and freedoms of the persons participating in those proceedings (Article 18). No one may be arrested or detained unless ordered by a court or prosecutor. A court or prosecutor must promptly release each person who is unlawfully detained beyond the time-limit authorised by the law or a court decision. A person’s private life, inviolability of his or her home, correspondence and telephone conversations are protected by the law. Damage caused to the person as a result of a violation of his or her rights or freedoms in the course of criminal proceedings must be compensated for in compliance with the provisions of the Code. | 1 |
dev | 001-121202 | ENG | SWE | ADMISSIBILITY | 2,013 | RUMINSKI v. SWEDEN | 3 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Johan Hirschfeldt;Mark Villiger;Paul Lemmens | 1. The applicant, Mr Krzysztof Ruminski, is a Swedish national who was born in 1950 and lives in Jordbro. He was represented before the Court by Mr I. Vita, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms H. Lindquist, of the Ministry for Foreign Affairs 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant suffered for many years from, inter alia, pain in his back and legs and numbness in his right arm. He was granted a full disability pension in 2002, after the diagnosis of lumbago, sciatica and myositis. 4. In 2004 he applied for life annuity and alleged that his physical problems had been caused by his former employment as a driver (1973 to 1974), as a dairy worker (1974 to 1984) and as a food science technician (1984 to 1991). The Social Insurance Office (Försäkringskassan, hereinafter “the Office”) appointed an in-house specialist in orthopaedic surgery who, in a written statement, concluded that there was not a high degree of probability (hög grad av sannolikhet) that any harmful element in the applicant’s former employment had caused his problems. 5. On 17 May 2005, after having held an oral hearing, the Office rejected the application. Referring to, inter alia, the specialist statement by the insurance doctor, the Office held that the applicant had not been subject to any harmful influences which, with a high degree of probability, could have caused or worsened his problems. 6. The applicant appealed to the County Administrative Court (länsrätten) of Stockholm. On 19 April 2007 the court, after having held an oral hearing, upheld the Office’s decision in full. 7. Upon further appeal to the Administrative Court of Appeal (kammarrätten) of Stockholm, the applicant submitted, inter alia, a medical statement (epikris) issued in February 2008 by the Centre of Public Health, division of labour and environmental medicine (Centrum for folkhälsa, Arbets- och miljömedicin). According to the medical statement, there were reasons to believe that the applicant’s work had caused his problems. The applicant requested that an oral hearing be held by the Administrative Court of Appeal before it decided whether to grant leave to appeal as well as before it decided on the merits of the case. He also requested expert witnesses to be heard before the court. 8. In a written statement to the appellate court, the Office questioned the conclusions in the medical statement and, furthermore, referred to medical records from 1997, in which the applicant was held to be fully able-bodied and in which it was noted that no somatic evidence had been found in support of the applicant’s symptoms. 9. On 2 October 2007 the Administrative Court of Appeal decided not to hold an oral hearing prior to deciding on the question of leave to appeal. It referred to the circumstances of the case and the fact that the County Administrative Court had held an oral hearing. The applicant was given the opportunity to submit further observations. It is unclear whether he did so. 10. On 17 March 2008, the Administrative Court of Appeal granted leave to appeal. Subsequently, on 5 September 2008 it decided not to hold an oral hearing before deciding on the merits of the case. It referred to the nature of the case and to the fact that an oral hearing had been held before the County Administrative Court. The applicant was given the opportunity to submit further observations. It is again unclear whether he took advantage of this opportunity. 11. In a judgment on 27 October 2008, the Administrative Court of Appeal upheld the lower court’s judgment in full, giving the following reasons: “The medical and other evidence in the case does not support that the applicant has been exposed to any such harmful influences in his work which could, with a high degree of probability, have caused his problems. His problems can thus – as has been found also by the Office and the County Administrative Court – not be defined as a work-related injury.” 12. The applicant appealed to the Supreme Administrative Court (Högsta förvaltningsdomstolen). He complained about the lack of reasoning in the Administrative Court of Appeal’s judgment and argued that that court’s refusal to hold an oral hearing had infringed his right to a fair trial within the meaning of Article 6 of the Convention. If the Supreme Administrative Court were to grant leave to appeal, he requested an oral hearing. 13. On 4 August 2009, the Supreme Administrative Court refused leave to appeal. 14. Chapter 3 of the Tort Liability Act (Skadeståndslagen, 1972:207) deals with the civil liability of the State. According to section 2 of that chapter, acts or omissions by a public authority may give rise to an entitlement to compensation in the event of fault or negligence. 15. An individual who wants to claim compensation from the State may proceed in either of two ways: he or she may petition the Chancellor of Justice (Justitiekanslern) in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State (Förordningen om handläggning av skadeståndsanspråk mot staten, 1995:1301), or bring a civil action against the State before a district court, with the possibility to appeal to a court of appeal and later to the Supreme Court. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings before the courts. In such proceedings, the State is represented by the Chancellor of Justice (section 2 of the Ordinance with Instructions for the Chancellor of Justice [Förordning med instruktion för Justitiekanslern, 1975:1345]). 16. According to section 2 of the Limitations Act (Preskriptionslagen, 1981:130), the period of limitation in respect of claims against the State is ten years from the point in time when the claim arose, unless the period has been interrupted beforehand. 17. In a judgment of 9 June 2005 (NJA 2005 p. 462) the Supreme Court dealt with a claim for damages brought by an individual against the Swedish State, inter alia, on the basis of an alleged violation of Article 6 of the Convention. The case concerned the excessive length of criminal proceedings and the Supreme Court held that the plaintiff’s right under Article 6 of the Convention to have the criminal charges against him determined within a reasonable time had been violated. Based on this finding and with reference, inter alia, to Articles 6 and 13 of the Convention and the Court’s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000-XI), the Supreme Court concluded that the plaintiff was entitled to compensation under Swedish law for both pecuniary and non-pecuniary damage. With respect to the level of compensation for non-pecuniary damage, the Supreme Court took note of the criteria established in the Court’s case-law stating that the Court’s practice constituted a natural point of departure in this regard. 18. In a decision of 4 May 2007 (NJA 2007 p. 295), the Supreme Court held that the principle concerning a right to damages established in the abovementioned case of 9 June 2005 also applied with regard to the rights contained in Article 5 of the Convention. The Supreme Court stated that the plaintiff’s right to damages on account of a violation of Article 5 should be assessed in the first place under the Tort Liability Act and the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (Lagen om ersättning vid frihetsberövanden och andra tvångsåtgärder, 1998:714). To the extent necessary, the relevant provisions of domestic law should be interpreted in accordance with the Convention. If Sweden’s obligations under Article 5 § 5 could not be met by such an interpretation, the domestic courts should award compensation without the support of specific legal provisions. As concerned the determination of the level of compensation, the Supreme Court repeated that the Court’s case-law was a natural point of departure but also noted that account must be taken of the fact that different national conditions may lead to variations from one country to another in what should be regarded as a reasonable level of compensation. 19. In a judgment of 21 September 2007 (NJA 2007 p. 584), the Supreme Court held that the plaintiffs’ right to respect for their private life under Article 8 had been violated on the basis that a police decision on a medical examination of some of them had not been “in accordance with the law”. Having found that compensation for the violation could not be awarded directly on the basis of the Tort Liability Act, the Supreme Court held that there was no reason to limit the scope of application of the principle established in the above-mentioned cases of 9 June 2005 and 21 September 2007 to violations of Articles 5 and 6 of the Convention. In view of this and with reference to, inter alia, Articles 8 and 13 of the Convention and the Court’s case-law under these Articles, the Supreme Court concluded that the plaintiffs should be awarded non-pecuniary damages for the violation of Article 8. With regard to the levels of compensation, the Supreme Court concluded that they should not be too far removed from the levels which applied when awarding damages under the Tort Liability Act. Generally speaking these levels should, however, be compatible with the case-law of the Court. In the same case, the Svea Court of Appeal had also concluded, in a judgment dated 12 January 2006, that there had been a violation of Article 8 and that an award for non-pecuniary damage should be made on the basis of the principle established in the case of 9 June 2005. 20. Another Supreme Court judgment of 28 November 2007 (NJA 2007 p. 891) concerned a claim for damages against the Swedish State on the basis of an alleged violation of Article 2 of the Convention relating to the suicide of the plaintiffs’ father while in detention. The Supreme Court concluded that the case revealed no violation of Article 2. However, in its reasoning leading to this conclusion, the Supreme Court noted, inter alia, that according to the Court’s case-law there was a right to an effective remedy under Article 13 connected to the State’s duty under the Convention to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty which should, in principle, include a possibility of obtaining compensation for damage. The Supreme Court referred in particular to the judgment in Keenan v. the United Kingdom (no. 27229/95, § 130, ECHR 2001-III). 21. In a judgment of 3 December 2009 (NJA 2009 N 70), the Supreme Court confirmed its previous case-law in a case concerning claims for damages against the Swedish State on account of excessive length of tax proceedings. The court affirmed that it is now a general principle of law that, to the extent that Sweden has a duty to provide redress to victims of Convention violations through a right to compensation for damages, and that this duty cannot be fulfilled even by interpreting national tort law in accordance with the Convention (fördagskonform tolkning), compensation for damages may be ordered without direct support in law. 22. Furthermore, on 16 June 2010 (NJA 2010 p. 363), the Supreme Court ordered compensation for non-pecuniary damage to be paid to an applicant for proceedings which had complied neither with the “reasonable time” requirement in Article 6 § 1 nor with the right to an effective remedy in Article 13. The proceedings in question had concerned a claim for damages against the State. 23. In two judgments of 11 April 2012 (T 5858-10 and T 3470-10), the Supreme Court ordered compensation to be paid to an applicant for civil proceedings (first case) and administrative proceedings (second case) which had not complied with the “reasonable time” requirement in Article 6 § 1 of the Convention. 24. In a judgment of 21 December 2012 (B 1982-11), the Supreme Court reduced the sentence to be served by the defendant in a case where criminal proceedings had not complied with the “reasonable time” requirement in Article 6 § 1 of the Convention. 25. Lastly, in a judgment on the same day (T 5644-11), the Supreme Court ordered compensation for non-pecuniary damage to be paid to an applicant for criminal proceedings which had not complied with the “reasonable time” requirement in Article 6 § 1 of the Convention. 26. In May 2009 the Government decided to set up a working group on tort liability and the Convention to study the current legal situation. In December 2010 the working group submitted its report (Skadestånd och Europakonventionen, SOU 2010:87) to the Government. In the report it is proposed that the Tort Liability Act be amended in order to allow natural and legal persons to obtain damages from the State or a municipality for violations of the Convention. Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the Convention has been violated. The aim of the proposal is to provide a legal basis for granting non-pecuniary damages arising from disregard of the Convention and to fulfil, together with the other already existing legal remedies, Sweden’s obligations under Article 13 of the Convention. 27. In its comments of 7 July 2011 on the above report, the Office of the Chancellor of Justice stated that, since the autumn of 2007 following the Supreme Court’s case-law developments (as set out above), it had dealt with a large number of requests from individuals for compensation on the basis of violations of the Convention. It estimated that it had dealt with roughly 1000 cases over the previous three years. During this time the Chancellor of Justice had also represented the Swedish State in a number of cases before the civil courts concerning alleged violations of the Convention. A majority of the cases that the Office had dealt with had concerned non-pecuniary damages for excessive length of proceedings under Article 6 § 1 of the Convention. Since November 2009, it had received more than 400 such complaints and in more than half of them, the Chancellor of Justice had found a violation and granted compensation. The level of compensation for non-pecuniary damage had been determined with reference to the Court’s case-law and varied between SEK 10,000 and SEK 30,000 (approximately EUR 1,650 and EUR 3,500). Furthermore, the Chancellor of Justice had dealt with a substantial number of cases (around 160) concerning the registration of individuals in the Security Police register. These cases had concerned one or more of Articles 8, 10, 11 and 13 of the Convention. 28. There continue to be other individual cases relating to alleged violations of Articles 5, 7 and 13 of the Convention, among others. For example, in a decision of 8 February 2012 (dnr 2453-11-40), the Chancellor of Justice held that the reasoning in a District Court’s judgment failed to fulfil the requirements set by Article 6 of the Convention. Referring to the case-law of the Supreme Court, the Chancellor of Justice stated that the applicant therefore could be awarded compensation for the damage caused by the violation of the Convention. However, due to the particular circumstances of that case, the applicant was not granted compensation. Furthermore, in a decision of 27 November 2012 (dnr 4560-12-40), the Chancellor of Justice found that a County Administrative Court, in dismissing the applicant’s appeal against a decision by the Employment Service (Arbetsförmedlingen), had violated his right to access to court (the Chancellor referred to the case of Mendel v. Sweden, no. 28426/06, 7 April 2009). Consequently, the applicant was awarded damages. | 0 |
dev | 001-106769 | ENG | MDA | CHAMBER | 2,011 | CASE OF GOROBET v. MOLDOVA | 3 | Violation of Art. 5-1;Violation of Art. 3 (substantive aspect);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi | 5. The applicant was born in 1966 and lives in Costeşti. 6. On 25 February 2008 at approximately 9 p.m. the applicant was visited at his home by two police officers, who invited him to the police station. The applicant refused in the beginning, but after being threatened with criminal prosecution for refusing to comply with legitimate police orders, he conceded. 7. Instead of being taken to the police station, the applicant was taken by the two police officers to the psychiatric hospital in Bălţi, where he was hospitalised against his will for a period of forty-one days. 8. During the first few days the applicant was kept in a room with persons suffering from serious mental disorders, some of whom could not attend to their basic needs and who intimidated him on a regular basis. He requested on several occasions that he be allowed to contact a lawyer or his family, but to no avail. Later he was transferred to a ward with patients with less serious conditions. 9. Throughout his stay in the psychiatric hospital the applicant was administered injections which provoked in him a state similar to paralysis and as a result of which he lost consciousness. He was also forced to take a large amount of tablets on a daily basis. He attempted to refuse to take medication; however, he changed his mind after being threatened with a straitjacket and with being tied to his bed. According to the medical records from the hospital, the applicant received treatment against paranoid depression. The records do not contain any information concerning any risks for the applicant or for other persons posed by the applicant’s condition. The records contain a consent form filled in with the applicant’s name and allegedly signed by him. The applicant denied having signed such a form and submitted that it was a forgery which first appeared in his medical file after the criminal investigation had been initiated (see paragraph 13 below). 10. After being released from hospital, the applicant made official inquiries with the Rascani District Court to find out whether it had authorised his forced hospitalisation. In two letters dated 27 July and 26 December 2008, the Rascani District Court denied having ever received any official request for the applicant’s involuntary confinement in a psychiatric hospital. 11. On 13 June 2008 the applicant obtained from the Rascani hospital two medical reports confirming that he had not been addicted to alcohol or drugs, and that he had not suffered from any psychiatric disorders. The report concerning the applicant’s mental health was issued following his examination by a commission of eight doctors and was signed, inter alia, by a psychiatrist, A.G. 12. The applicant also requested and obtained from his local hospital a document stating that he had not been registered as a person suffering from mental disorders before 25 February 2008. 13. On 29 August 2008 the applicant lodged a criminal complaint with the Prosecutor’s Office, asking it to investigate his case and to prosecute the persons responsible for his illegal forced hospitalisation in a psychiatric hospital and for subjecting him to medical treatment against his will. He described in detail the conditions of his hospitalisation and the medical treatment which he had received, and argued that it amounted to inhuman and degrading treatment. He submitted that his hospitalisation had been possible owing to an official document referring him for compulsory treatment issued by Doctor A.G. from the Rascani hospital. Doctor A.G. had issued that document without ever having seen the applicant in person. The document was not dated, contained the wrong social security number as regards the applicant, and stated that he was in possession of medical insurance, which was not true because he was not in fact medically insured. 14. In the course of the investigation, the Prosecutor’s Office heard the applicant’s family doctor, who stated that before the events of 25 February 2008 she had been told by the applicant’s sister and mother that they had often had disputes with him and that he had threatened them with violence and even with death, and in general displayed very strange behaviour. The family doctor told the applicant’s mother to see the psychiatrist A.G. from the Rascani hospital. In February 2008 the applicant’s mother told the family doctor that she had an official document from A.G. referring the applicant for psychiatric treatment. The family doctor told the applicant’s mother that that document was sufficient to compulsorily confine the applicant in a psychiatric hospital. 15. The applicant’s mother told the prosecutors that starting in December 2007, when the applicant had returned from a long stay in the Russian Federation where he had been employed, he began to have drinking problems and to behave inappropriately. It was the applicant’s sister who went to the Rascani hospital and obtained from A.G. an official document referring the applicant for psychiatric treatment. 16. The applicant’s sister told the prosecutors that the applicant had drinking problems and exhibited very bad behaviour. She saw A.G. from the Rascani hospital and asked him for an official document referring the applicant for psychiatric treatment. A.G. refused to issue such a document without first seeing the applicant. Then she started crying and A.G. conceded. He provided her with the document and told her to contact the family doctor in order to organise the hospitalisation. 17. The two police officers who transported the applicant to the Bălţi psychiatric hospital stated that on 25 February 2008 they had been contacted by the applicant’s family doctor, who presented them with an official document referring the applicant for treatment. They took the applicant directly to the Bălţi psychiatric hospital and left him there. 18. The Prosecutor’s Office also heard psychiatrist A.G., who declared that at the beginning of February 2008 he had been visited by a woman complaining about the aggressive behaviour of her brother, the applicant. Later the applicant was brought in for consultation by a police officer (one of the police officers who had arrested the applicant) and, after a brief conversation, the doctor determined that the applicant was suffering from a delusional belief that his relatives were intending to sell his house. The doctor considered that the applicant represented a risk to his relatives and ordered his hospitalisation. The police officer took the applicant to the Bălţi psychiatric hospital. A.G. was asked why he had issued the applicant with a document in June 2008 stating that he was mentally healthy. A.G. answered that he had issued the applicant with such a document because the applicant had told him that he was healthy and had never received psychiatric treatment. 19. During the investigation, the Prosecutor’s Office requested the applicant to undergo psychiatric evaluation, in order to determine whether he was actually suffering from the mental disorder which had led to his hospitalisation. The applicant agreed in the beginning; however, he changed his mind after learning that he had to commit himself for a three-week long in-patient examination in a psychiatric hospital. 20. On 12 June 2009 the Prosecutor’s Office dismissed the applicant’s criminal complaint on the ground that his hospitalisation had been duly ordered by Doctor A.G., and that as a result of the applicant’s refusal to undergo a medical examination, it was impossible to determine whether the diagnosis as established by Doctor A.G. had been correct or not. In so far as the consent form allegedly signed by the applicant is concerned, it appears that it was disregarded and that no one during the proceedings questioned the fact that the applicant had been hospitalised against his will. 21. The applicant appealed against the above decision to the hierarchically superior Prosecutor’s Office; however, his appeal was dismissed on 13 July 2009. 22. On 23 July 2009 the applicant appealed to the Rascani District Court. He argued, inter alia, that the same psychiatrist, A.G., had issued him in June 2008 with a medical report stating that he did not suffer from any mental disorders and that he had not been registered as a mentally ill patient with his local hospital before 25 February 2008. He also submitted that there had been no court orders committing him to a psychiatric hospital against his will, and that his hospitalisation had therefore been unlawful and arbitrary. 23. On 23 November 2009 the Rascani District Court dismissed the applicant’s appeal on the ground that he had refused to be hospitalised for an in-patient examination. 24. After the communication of the present case to the Government, new criminal proceedings were opened by the General Prosecutor’s Office on 23 April 2010 concerning the alleged unlawful actions of the Bălţi psychiatric hospital’s medical personnel in respect of the applicant. That investigation is still pending. It does not appear from the material submitted by the Government that the investigation had progressed in any way between April 2010 and June 2011, when the Government submitted their final observations in the case. 25. Section 11 of the Law on Psychiatric Assistance (“the Law”) provides that a person can be hospitalised in a psychiatric hospital for treatment against his or her will only in accordance with the provisions of the Criminal Code or in accordance with the provisions of section 28 of that Law. In both cases, except for reasons of urgency, the hospitalisation must be ordered on the basis of a decision taken by a commission of psychiatrists. 26. Section 28 of the Law sets out the reasons which can be relied upon for hospitalising a person for treatment against his or her will. It provides that a person suffering from a mental disorder can be hospitalised against his or her will, before a court judgment for that purpose has been issued, when the mental disorder is particularly serious and constitutes a risk to himself or herself or to others; when the mental disorder is of such a nature that the person is incapable of meeting his or her vital needs alone; or if left untreated, the mental disorder could cause serious harm to the health of the individual concerned. 27. Pursuant to section 32 of the Law, compulsory hospitalisation for treatment of a person in accordance with section 28 must be decided by a court. The hospital must apply to the court for permission, indicating in the application the reasons for which hospitalisation is sought and attaching a copy of the decision of a commission of psychiatrists. Pursuant to section 33, the court examining the application must take a decision within three days from the date on which the application was lodged, and the person concerned has the right to participate in the hearing. If the person’s condition is serious and he or she cannot come to the court, the judge is obliged to hold the hearing at the hospital. The judgment issued at the end of the hearing constitutes the basis for compulsory hospitalisation. 28. Section 39 of the Law provides, inter alia, that a patient hospitalised in a psychiatric hospital with his consent can leave the hospital upon his or her request. On the other hand, a patient hospitalised against his or her will can leave the hospital only upon the decision of a commission of psychiatrists or on the basis of a court judgment. | 1 |
dev | 001-69131 | ENG | POL | CHAMBER | 2,005 | CASE OF J.S. AND A.S. v. POLAND | 3 | Preliminary objection joined to merits (Art. 6-1 inapplicable);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Nicolas Bratza | 8. The applicants, Mr J.S. and Ms A.S. are a married couple residing in Stegna. 9. By way of an administrative decision of 29 October 1948 a property owned by the second applicant’s father W.U. and located in Czarzaste-Chodubki was expropriated pursuant to provisions of the 1944 Decree on Agrarian Reform. It was stated in the decision that W.U. was the owner of this property. 10. On 21 December 1948 this decision was upheld by the Minister of Agriculture, who considered that the factual findings of the expropriation commission as to the area of the property concerned could not be called into question given that the commission was composed not only of agents of the administration, but also of political representatives. 11. By an on-site protocol of 7 May 1949 a commission, established under the provisions of the 1944 Decree on Agrarian Reform, inspected the property and found that land situated in Czarzaste-Chodubki owned by the second applicant’s father W.U. consisted of 68 hectares of land, out of which 50 hectares 3175 square metres constituted arable land. 12. On 15 February 1990 the applicants lodged with the Ministry of Agriculture an application to have the expropriation decision declared null and void under Article 156 of the Code of Administrative Procedure or amended under Article 155 of the Code of Administrative Procedure. 13. On 3 March 1995 the applicants complained to the Supreme Administrative Court about the failure of the administration to rule on their 1990 application. 14. On 24 March 1995 the applicants submitted further pleadings to that court, indicating that certain relevant documents had been found in the Ostrołęka Regional Office which showed that the on-site commission had wrongly calculated the surface of the property concerned in 1949. The area of the property was in fact, in the light of the newly found documents, 49,92 hectares of arable land. Thus, the property should not have been subject to expropriation within the framework of the agrarian reform law as it did not attain the minimum threshold of 50 hectares of arable land. The applicants further referred to an official protocol drawn up in 1957, which confirmed this finding. 15. By a judgment of 9 October 1995 the Supreme Administrative Court ordered the Minister of Agriculture to issue a decision concerning the applicants’ application of 1990 within two months from the date of the judgment. 16. By a letter of 10 November 1995 the applicants informed the Ministry that the property in question had had a surface of approximately 44 hectares, as shown by the protocol of 8 April 1948 and by another document drawn up by land surveyor A.P. in 1948. 17. On 17 April 1996 the Ministry of Agriculture obliged the Ostrołęka Regional Office to take further evidence in order to establish the legal status of the property concerned under the provisions of civil law, i.e. to determine who had been the owner of the property concerned at the time of expropriation. 18. The applicants objected thereto by a letter of 19 May 1996, pointing out that the question who had been the owner of the property in 1948 in terms of substantive civil law was entirely extraneous to the administrative case which was pending before the Ostrołęka Regional Office. Any issues concerning the assessment of the link between the former owner of the property and the applicants from the angle of substantive civil law on inheritance was irrelevant for the administrative case, which concerned only the examination of the lawfulness of the administrative decision on expropriation. They insisted that a decision on their restitution claim be given in accordance with the judgment of the Supreme Administrative Court of 1995, which had set a two-month time limit for the authorities to do so. 19. They reiterated their submissions in a letter of 29 May 1996. On 23 July 1996 the applicants again requested that a decision be given. On 3 December 1996 the applicants reiterated their request that the decision on the merits of the case be given and complained that the proceedings had remained pending for a long time. They referred again to the Supreme Administrative Court’s judgment of 9 October 1995. 20. By a decision of 18 July 1997 the Ministry stayed the proceedings on the ground that a certain H.S. had submitted a request to quash the expropriation decision. She had argued that the second applicant’s father W.U. was not its owner, but only its lessee. She contended that it was her father T.U., who owned the property concerned. However, she had failed to submit conclusive documents to prove it. The proceedings were therefore stayed pursuant to Article 97 § 1 of the Code of Administrative Procedure until relevant documents had been submitted. 21. The applicants appealed against the decision to stay the proceedings. They reiterated their request that a decision be given and emphasised that they had remained pending since 1990. They argued that the decision to stay the proceedings had been taken in disregard of the essential substantive law elements of the case. The documents required by the Ministry and relating to the civil law status of the property at the time of expropriation were entirely irrelevant to the administrative case. 22. By a letter of 6 August 1997 the applicants reiterated their arguments. The proceedings remain stayed. The applicants submit that all their efforts to have them resumed have been unsuccessful. 23. Under Polish law no provisions have been enacted allowing specifically for the redressing of wrongs committed in connection with expropriations effected within the framework of the agrarian reform. Therefore no specific legal framework is available, enacted with the purpose of mitigating the effects of certain infringements of property rights. 24. However, it is open to persons whose property was expropriated or their legal successors, to institute, under Article 156 of the Code of Administrative Procedure, administrative proceedings in order to claim that the expropriation decisions should be declared null and void as having been issued contrary to law. In particular, a final administrative decision can be declared null and void at any time if it was issued without a legal basis, or in flagrant violation of law. 25. Decisions flawed as a result of lesser procedural shortcomings, listed under items 1, 3, 4 and 7 of Article 156, such as those given by an authority which lacked competence to issue a decision in a given case, or in a case which had already been decided or addressed to a person not being a party to the proceedings, can only be declared null and void if less than ten years have elapsed from the date on which such decisions were given. In respect of such decisions it is only possible to declare that they were issued contrary to law; the decisions themselves remain valid. 26. If the flaw that taints the challenged decision is of a substantive character, i.e. if the decision had been given without a legal basis or in flagrant violation of law, the administrative authority shall declare it null and void. 27. A decision to declare the old decision null and void, or a refusal to do so, may ultimately be appealed to the Supreme Administrative Court. 28. Article 1 of the Decree provides that “the agrarian reform in Poland is a State and economic imperative and shall be realised ... pursuant to principles set forth in the manifesto of the Polish Committee of National Liberation”. Article 2 § 1 of the Decree, in so far as relevant, reads: “The following agricultural estates shall be designated for the purposes of the agrarian reform: ... e) being a property or a co-property of natural persons or legal entities, if the entire area of the estate exceeds either 100 hectares in total, or 50 hectares of arable land ... All real estate, referred to in items ... , e) above shall, with no delay and without compensation, be taken over by the State. “ 29. Under Article 35 of the Code of Administrative Procedure of 1960, the administration is obliged to deal with cases without undue delay. Simple cases should be dealt without any delay. In cases requiring some enquiry a first-instance decision should be given in no more than one month. In particularly complex cases decisions shall be taken within two months. 30. If the decision has not been given within those time limits, a complaint under Article 37 of the Code may be filed with the higher-instance authority, which shall fix an additional time limit, establish the persons responsible for the failure to deal with the case within the time-limits, and, if need be, arrange for preventive measures to be adopted in order to prevent further delays. 31. In 1995 the Supreme Administrative Court Act was adopted, which entered into force on 1 October 1995. It created further procedures in which a complaint about the administration’s failure to act could be raised. 32. Under Article 17 of that Act, that court is competent to examine complaints about the administration’s inactivity in administrative proceedings in cases referred to in Article 16 of the Act. 33. Pursuant to Article 26 of the Act, if a complaint about the inactivity of an administrative authority is well-founded, the court shall oblige the competent authority to give a decision, or to carry out the factual act, or to confer or acknowledge an individual entitlement, right or obligation. 34. On 1 January 2004 the Law on Administrative Courts came into force, which replaced the 1995 Act and established a two-tiered system of appeals against administrative decisions to administrative courts. | 1 |
dev | 001-99162 | ENG | TUR | CHAMBER | 2,010 | CASE OF ALKES v. TURKEY (No. 2) | 3 | No violation of Art. 6-1 | Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 4. The applicant, who was born in 1980, currently resides in Switzerland. 5. On 28 March 1998 the applicant was taken into police custody on suspicion of membership of an illegal organisation. On 2 April 1998 he was placed in detention on remand. 6. On 15 April 1998 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, charging him under Articles 168 (2), 497 (2), 522, 55 (3), 33 and 40 of the former Criminal Code with membership of an illegal organisation and armed robbery. 7. On 28 March 2001 the Istanbul State Security Court convicted the applicant under Articles 168 (2) and 497 (2) of the former Criminal Code, and sentenced him to eight years and four months' imprisonment for the former offence and to eleven years and eight months' imprisonment for the latter offence. The State Security Court further stated that the provisions of Law no. 4616, which governed conditional release, the suspension of proceedings and the execution of sentences in respect of certain offences committed before 23 April 1999, had to be taken into account in the execution of the sentence in relation to the offence under Article 497 (2). 8. On an unspecified date the applicant appealed against the judgment of the Istanbul State Security Court. The public prosecutor did not lodge an appeal. 9. On 29 April 2002 the Court of Cassation quashed the judgment of the Istanbul State Security Court, finding that the classification of the applicant's offence had been erroneous. The Court of Cassation further held that the applicant's acquired rights in his former conviction by the decision dated 28 March 2001 had to be safeguarded in the new judgment which would be rendered by the Istanbul State Security Court. 10. The applicant was consequently tried afresh before the Istanbul State Security Court. On 24 January 2003 the Istanbul State Security Court convicted the applicant under Article 146 (1) of the former Criminal Code for attempting to undermine the constitutional order and sentenced him to sixteen years and eight months' imprisonment. The State Security Court stated in its judgment that the applicant's acquired rights had been observed because in the first judgment the applicant had been sentenced to a total of twenty years' imprisonment, whereas in the new judgment the sentence was reduced. 11. On 22 October 2003 the applicant appealed against this judgment arguing, inter alia, that his acquired rights had not been protected. He maintained that, although the sentence imposed by the Istanbul State Security Court in its second judgment had been lower than that originally imposed, under the latter he would have been conditionally released pursuant to Law no. 4616 after ten years, thus actually serving a shorter sentence. 12. On 2 December 2003 the Court of Cassation upheld the reasoning in the judgment of the Istanbul State Security Court, and dismissed the appeal. 13. Following the entry into force of the new Criminal Code on 1 June 2005, the Istanbul Assize Court reopened the proceedings against the applicant in order to review his sentence, pursuant to the provisions of the new Criminal Code. As an interim measure, on 11 October 2005 the applicant was conditionally released pending the outcome of the proceedings. On 22 December 2006 the Istanbul Assize Court found that the provisions of the former criminal code were more favourable to the applicant and therefore decided not to apply the provisions of the new Criminal Code. On 13 November 2007 the Court of Cassation rejected the applicant's appeal. In the meantime, following his release, the applicant fled to Switzerland, where he currently resides. 14. Section 1 (2) of Law no. 4616, stipulates, inter alia, that persons who were serving their prison sentences following a conviction in respect of crimes committed before 23 April 1999 were entitled to a ten year reduction in their total sentence under the relevant execution regulations. Section 1 (5) of this Law states that the provisions of Article 1 are not applicable to, inter alia, Articles 146 and 168 of the former Criminal Code. 15. Article 326 (4) of the former Code of Criminal Procedure stipulates that, upon an appeal lodged solely by the accused, or by the prosecutor for the benefit of the accused, the new judgment may not impose a sentence which is more severe than that which was imposed originally. | 0 |
dev | 001-71525 | ENG | ISL | ADMISSIBILITY | 2,005 | GUNNARSSON v. ICELAND | 3 | Inadmissible | David Thór Björgvinsson | The applicant, Mr Kjartan Gunnarsson, is an Icelandic national who was born in 1951 and lives in Reykjavik. He was represented before the Court by Mr J.R Möller, a lawyer practising in the same town. On 31 August 2000 the newspaper Dagur published an article amidst a heated public debate in the wake of the acquisition of a large part of the shares of the Icelandic Investment Bank by a group, Orca SA in Luxembourg, and strong criticism of leaders of the Independence Party, of which the applicant was the Secretary General. The author of the article, an Advocate named Sigurdur G. Gudjónsson, had advanced the view that members of the general public were not treated equally when at the hands of Independence Party leaders. He recounted events that had occurred in May 1994 when he, a Mr J. O. and several others, had purchased shares in the Islendska útvarpsfélagid (the Icelandic Broadcasting Company, hereinafter referred to as “the IBC”). The acquisition created a new shareholder majority in the IBC. Following a change in the IBC’s Board of Directors, the Islandsbanki had withdrawn a loan offer to, and had in fact broken off with, the IBC. The article further stated that the Islandsbanki’s Managing Director and the former Chairperson of its Board of Directors had close family ties and that the Chairperson was a member of the Independence Party’s Finance Committee. The article then went on (the two passages in italics were the subject of defamation proceedings brought by the applicant): “At this point, we approached Landsbanki. The Chairperson of Landsbanki’s Board of Directors at the time was [the applicant], Secretary General of the Independence Party and Chairperson of the Broadcasting Licensing Committee, which is concerned with the affairs of independent Broadcasting stations. On 29 July 1994, the IBC received a letter from Landsbanki, notifying that it declined to do any business with the IBC. No explanations were given, but those of us [the respondent and other shareholders] who represented the IBC in the negotiations with the Bank were told that [the applicant] was opposed to Landsbanki’s doing business with a company where Mr J. O. was involved. No formal negotiations took place with the other State owned bank, Bunadarbanki, as we were told in informal discussions that it could not take up business with the IBC as some of its shareholders who had lost their majority holdings in the IBC at the share holders’ meeting in July were customers of the bank and might be offended if the bank were to assist the IBC or take up business relations with the IBC. Fortunately there were savings banks in Iceland at the time who regarded business with the IBC as being a positive and lucrative option. Here, decisions regarding business of IBC were made on the basis of interests of the saving banks, not on the basis of what was best for the Independence Party and acceptable to the leaders of the Party’s Finance Committee.” The applicant subsequently brought defamation proceedings against the author of the article, requesting - in addition to compensation - that the following two statements be declared null and void: (1) “No explanations were given, but those of us [the respondent and other shareholders] who represented the Company in the negotiations with the Bank were told that [the applicant] was opposed to Landsbanki’s doing business with a company where Mr J.O. was involved.” (2)“ Here, decisions regarding business of IBC were made on the basis of interests of the saving banks, not on the basis of what was best for the Independence Party and acceptable to the leaders of the Party’s Finance Committee”. The applicant categorically denied as false the allegation that he had played any part in the decision by Landsbanki (hereinafter “the Bank”) and this was supported by two managing directors. The applicant pointed out that members of the Bank’s Board of Directors normally did not involve themselves in the Bank’s lending activities. He considered the allegations as defamatory in that they accused him of allowing interests other than those of the Bank determine his position regarding the Bank’s business with individual companies and of unlawful conduct, in breach of general business rules and ethics and administrative practice. By a judgment of 3 May 2000 the District Court found for the respondent and against the applicant. The latter appealed but by a judgment of 19 December 2000 the Supreme Court rejected his appeal. The Supreme Court observed that the author of the disputed article had made no attempt to prove that the applicant had been involved in the decision in question. However, he had submitted that the employees of the Bank who had been responsible for assessing the IBC’s credit rating had told him and his associates about the applicant’s involvement. The documentary evidence provided no indication that the refusal of credit could not have been based on legitimate business reasons. The take over by the new majority shareholders had given rise to considerable struggle resulting in some uncertainty about the IBC’s future but everything indicated that things had worked out well. Turning to the impugned statements, the Supreme Court noted that allegation (2) did not specifically address the applicant. As to allegation (1), it observed that the remark did not refer to the Bank’s decision-making process but only to informal explanations offered by its employees – no formal explanation had actually been provided for its withdrawal of the offer of credit. The respondent could only be required to prove what the representatives of the company had been told, by providing statements from the bank’s employees. It would not be sufficient for him merely to provide statements by his associates; he would have to summon the relevant bank employees to give oral evidence before the court. The respondent had refused to do so in order to avoid embarrassing the employees concerned, which was understandable in view of the statutory confidentiality rules in section 43 of the Act on Commercial Banks and Saving Banks applicable to bank employees and the fact that they might be reluctant to give evidence about conduct regarded as embarrassing or even illicit by a member of the Bank’s Board of Directors. Having regard in particular to the context in which the impugned remarks had been made, the applicant’s interest in having them declared null and void could hardly be regarded as sufficient to require the Bank’s employees to give evidence. In the view of the Supreme Court, the respondent could not be required to prove the truth of the disputed remarks as this would be unreasonably difficult for him to do. Considering the applicant’ prominent position within the Independence Party and that he served on the Bank’s Board of Directors and as Chairperson of the Broadcasting Licensing Committee, nominated by the Independence Party and elected by Parliament, as well as the requirement that his work in these areas be independent from his role as Secretary General of the Party, he ought to accept public discussion on these connections. Cautiousness should be observed in any attempts to limit such discussion. In a dissenting opinion Supreme Court Justice Mr Gardar Gislason stated inter alia that it could hardly have been difficult for the respondent author to summon the bank employees to give evidence. Not only had the plaintiff asked him to do so but it could also not be maintained that the bankers would thereby act in breach of confidence contrary to section 43 of the Act on Commercial Banks and Saving Banks. It had not been shown that requiring proof from the respondent would amount to an unreasonable burden being placed on him. | 0 |
dev | 001-115213 | ENG | AUT | CHAMBER | 2,012 | CASE OF GASSNER v. AUSTRIA | 3 | Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Reasonable time) | Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 4. The applicant was born in 1955 and lives in Eisenstadt. 5. The applicant is a judge at the Eisenstadt Regional Court. In July 1997 he made a study visit to the Commission of the European Union in Brussels. The Federal Ministry of Justice paid his travel expenses and granted the applicant two weeks’ special leave, in addition to which he took two weeks of his annual leave. 6. On 9 July 1997 the Federal Minister of Justice informed the applicant on his return that it would not reimburse any of the additional expenses he had claimed in the meantime on 20 June 1997. 7. On 5 September 1997 the applicant formally requested the reimbursement of further costs, incurred during the study visit, in particular the costs for his accommodation in the amount of Austrian schillings 17,699.75 (ATS - 1,284.11 euros (EUR)), and submitted additional records. 8. On 20 March 1998 the Federal Minister dismissed the applicant’s request on the grounds that the trip had not been an official journey – this having been made clear by the fact that the applicant had taken some annual leave during that period. 9. On 3 June 1998 the applicant filed a complaint with the Administrative Court. He submitted that the Federal Minister had interpreted the relevant law incorrectly and that if he had properly assessed the evidence he would have concluded that the study visit to Brussels had to be treated as an official journey. 10. On 30 January 2002 the Administrative Court quashed the Federal Minister’s decision finding that the President of the Vienna Court of Appeal had been the authority competent to decide on the request for reimbursement at first instance, rather than the Federal Minister. 11. Thereupon, the matter was transferred to the President of the Vienna Court of Appeal who requested the applicant and the Federal Minister to submit explanations regarding the study visit. 12. On 17 September 2002 the applicant lodged a complaint (Säumnisbeschwerde) with the Administrative Court against the alleged failure of the President of the Court of Appeal to decide on his request within the statutory six-month time-limit. 13. On 23 October 2002 the Administrative Court rejected the complaint because the applicant had not made a prior request under Section 73 of the General Administrative Procedure Act for jurisdiction to be transferred to the Federal Minister of Justice as the authority responsible for hearing appeals. 14. On 29 November 2002 the President of the Vienna Court of Appeal dismissed the applicant’s request for reimbursement of the costs of his accommodation in Brussels on the grounds that the applicant had not been given instructions for an official journey and had not performed any official duties during his stay in Brussels. Therefore he was not entitled to reimbursement of his costs. 15. On an unspecified date the applicant appealed against that decision to the Federal Minister of Justice. 16. On 4 February 2003 the Federal Minister dismissed the applicant’s appeal, confirming the findings in the first-instance decision. 17. On 14 April 2003 the applicant filed a complaint with the Administrative Court against the Federal Minister’s decision. He submitted that while acknowledging that his trip had been in the interest of his official duties (dienstliches Interesse), the Minister had incorrectly assumed that the applicant’s study visit was not to be treated as an official journey. The applicant did not ask for a hearing before the Administrative Court. 18. On 24 February 2006 the Administrative Court dismissed the applicant’s complaint, finding that the Minister had correctly assessed the evidence before him and had correctly concluded that the applicant’s study trip had not been treated as an official journey. 19. Civil servants are entitled under the Rules on Expenses for Official Journeys (Reisegebührenvorschrift) to reimbursement of their expenses for official journeys. Under Section 2 § 1 of these Rules it is an official journey if a civil servant travels to a place which is different from his official duty station (Dienstort) in order to comply with a given instruction (Dienstauftrag). 20. Section 73 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) deals with the administrative authorities’ duty to decide. Its relevant part reads as follows: “(1) Subject to any contrary provision in the administrative regulations, the authorities must give a decision on applications by parties ... and appeals without unnecessary delay and at the latest six months after the application or appeal has been lodged. (2) If the decision is not served on the party within this time-limit, jurisdiction will be transferred to the competent superior authority upon the party’s written request. ...” 21. The relevant provisions of the Administrative Court Act (Verwaltungsgerichtshofgesetz) relating to the application against the administration’s failure to decide read as follows: Section 27 “An application under Article 132 of the Federal Constitution for breach of the duty to decide (application against the administration’s failure to decide) can be lodged only when the highest authority to which an application can be made in administrative proceedings, either by way of an appeal or an application for transfer of jurisdiction, ... has been applied to by a party and has not made a decision on the matter within six months. ...” Section 36 “(2) On an application against the administration’s failure to decide under Article 132 of the Federal Constitution the relevant authority is to be ordered to give a decision within three months and either produce to the Administrative Court a copy of the decision or state why in its opinion there has not been a breach of the duty to decide. The time-limit can be extended once if the administrative authority can show that there are relevant reasons why it is impossible to reach a decision within the prescribed time-limit. If a decision is made within the prescribed time-limit, the proceedings in respect of the application against the administration’s failure to decide shall be stayed.” Section 42 “(1) Subject to any contrary provision of this Federal Act, the Administrative Court shall give a judgment in all cases. ... (4) In respect of applications under Article 132 of the Federal Constitution, the Administrative Court may initially limit its judgment to a decision on specific relevant points of law and order the authority to make a decision consistent with the determined points of law within a specified time-limit which must not exceed eight weeks. If the Administrative Court does not use that possibility or the authority in question fails to comply with the order, the Administrative Court shall rule on the application against the administration’s failure to decide by giving a judgment on the merits, for which it shall have full discretion in the administrative authority’s stead.” | 0 |
dev | 001-86071 | ENG | UKR | CHAMBER | 2,008 | CASE OF SUDYIN v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych | 4. The applicant was born in 1974 and lives in Donetsk. At the material time he was a tax inspector. 5. On 4 July 1997 the Kyivsky District Court of Donetsk (hereinafter “the District Court”) fined the applicant UAH 225 under an administrative procedure for a corruption offence. The applicant was consequently dismissed from his position. 6. On 17 November 1997 the Donetsk Regional Court quashed this judgment and terminated the proceedings. 7. On 22 May 2000 the District Court awarded the applicant UAH 500 in compensation for moral damage to be paid by the State Treasury of Ukraine. 8. This judgment was not appealed and became final on 2 June 2000. 9. In June 2000 the Kyivsky Office of the Bailiffs’ Service in Donetsk initiated the enforcement proceedings. 10. On 22 October 2004 the writ of execution was transferred to the Pechersky Office of the Bailiffs’ Service in Kyiv, which on 7 December 2004 refused to open the enforcement proceedings and transferred the writ to the Department of the Bailiffs’ Service of the Ministry of Justice (hereinafter “the Department”). 11. On 24 January 2005 the Department refused to open the enforcement proceedings on the ground that it fell outside of its competence. 12. Since May 2005 the enforcement proceedings are pending before the Donetsk Department of the Bailiffs’ Service. 13. The judgment of 22 May 2000 remains unenforced. 14. The relevant domestic law is summarised in the judgment of Voytenko v. Ukraine (no. 18966/02, §§ 20-25, 29 June 2004). | 1 |
dev | 001-114329 | ENG | GBR | ADMISSIBILITY | 2,012 | BEGGS v. THE UNITED KINGDOM | 4 | Inadmissible | George Nicolaou;Lech Garlicki;Ledi Bianku;Lord Justice Schiemann;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | The applicant, Mr William Frederick Ian Beggs, is a British and Irish national who was born in 1963 and is currently serving a sentence of life imprisonment in HM Prison Peterhead. He was represented before the Court by Ms R. Cameron, a lawyer practising in Edinburgh. 1. In the early hours of the morning of Sunday 5 December 1999, Mr Barry Wallace, then aged eighteen years, disappeared following a Christmas function organised by his employers. There was evidence that Mr Wallace had consumed a great deal of alcohol and, after leaving the function, had had an altercation with a friend, G.B., before the two youths made up and Mr Wallace left to go to a nightclub. The last sighting of him was at the entrance to the nightclub at around 1.30 a.m. 2. On 6 December 1999 members of the Central Scotland Police Underwater Search Unit discovered severed parts of a human body while on a training exercise in Loch Lomond. Further body parts were discovered on 7, 8 and 10 December 1999. On 15 December 1999 a human head was discovered at Barassie Beach in Troon. Some weeks later, on 8 January 2000, a human torso was recovered from Loch Lomond. DNA analysis revealed the body parts to be those of Mr Wallace. 3. Post-mortem examination revealed certain pre-mortem injuries, including bruising to, and fractures of, the underlying bones of the face; areas of extensive bruising around the anus and in the rectal mucosa; linear marks on the wrists and ankles consistent with these having been caused by the application of handcuffs; and a puncture mark on one of the arms, consistent with that having been inflicted by a needle. Pathologists were unable on the basis of the autopsy findings to determine any definite cause of death. 4. In the meantime, on 16 December 1999 the Procurator Fiscal in Kilmarnock sought and obtained a Sheriff warrant to search the home of the applicant. 5. On 17 December 1999 the police conducted a search of the applicant’s home while he was absent and discovered quantities of Mr Wallace’s blood, as well as other significant items. On the evening of 17 December 1999, upon hearing of the search of his home via the media, the applicant left Scotland. 6. On 21 December 1999 a warrant for the arrest of the applicant was issued by Kilmarnock Sheriff Court in the following terms: “(1) On 5 or 6 December 1999 in Kilmarnock the precise locus being to the petitioner presently unknown [the applicant] did abduct Barry George Wallace ... apply handcuffs or similar implements to his wrists, bind his legs with a ligature and forcibly confine him against his will. (2) On 5 or 6 December 1999 in Kilmarnock or elsewhere in Scotland the precise locus being to the petitioner presently unknown did assault said Barry George Wallace, dismember his limbs and cut his head from his body with a saw or similar instrument and by those means or by some other means to the petitioner presently unknown did murder him.” 7. On 28 December 1999 the applicant, having sought legal advice in the Netherlands, voluntarily surrendered to the Amsterdam Foreign Police Bureau (Vreemdelingepolitie). On 29 December 1999, the applicant appeared before a Police Court (Rechter Commisaris) in Amsterdam and was remanded in custody pending receipt of a formal extradition request from the United Kingdom authorities. 8. On 10 January 2000 a further warrant for the arrest of the applicant was issued by Kilmarnock Sheriff Court which narrated the terms of the previous warrant and continued: “... being conscious of his guilt in respect thereof, did on 5 or 6 December 1999, remove the dismembered body of said Barry George Wallace from 2B Doon Place, Bellfield, Kilmarnock, and did attempt to conceal parts of said body in the waters of Loch Lomond, Stirlingshire, and, in particular, did attempt to conceal there the torso, two severed arms, a severed leg and two sections of leg and further, between 5 and 15 December 1999, both dates inclusive, at Barassie, Ayrshire, did attempt to dissociate the severed head of said Barry George Wallace from the other dismembered parts of his body, and did attempt to conceal it in the sea there, and all of this he did with intent to conceal the crimes of abduction and murder narrated above, to prevent the authorities from recovering evidence in connection with said crimes, and to avoid detention, arrest and prosecution in respect of said crimes, all with intent to pervert the course of justice and did attempt to pervert the course of justice.” 9. On 10 January 2000 an application for extradition was sent to the Scottish Executive and the Amsterdam Public Prosecutor. On 25 January 2000 a Principal Letter of Request was sent to the Home Office in London by the Crown Office in Edinburgh. On 21 February 2000 the Letter of Request was sent to the competent legal authorities in the Netherlands. 10. The applicant challenged his extradition on the grounds that he would not receive a fair trial in Scotland as a result of the extensive media coverage of the crime and that there was a risk to his well-being as a result of a death threat made against him following the media coverage. 11. On 28 March 2000 the extradition request was heard by the District Court of Amsterdam (Arrondissementsrectbank). On 11 April 2000 the court approved the extradition of the applicant in respect of the matters contained in the first petition of 21 December 1999 but declined to authorise extradition in respect of the second petition on the ground that the facts set out in it and averred to constitute the crime of attempting to pervert the course of justice would not be a crime under Dutch law and accordingly did not meet the test of double criminality. 12. On 25 April 2000 the applicant appealed to the Supreme Court of the Netherlands (Hoge Raad der Nederlanden). A procedural hearing was held on 13 June 2000. The Advocate-General delivered his opinion on 25 July 2000 advising the court to dismiss the applicant’s appeal. 13. On 26 September 2000 the Supreme Court upheld the decision of the Amsterdam District Court to extradite the applicant in respect of the matters contained in the first petition and refused the appeal. 14. On 14 November 2000 the Dutch Minister of Justice agreed to extradite the applicant to the United Kingdom on charges of murder and abduction. On 22 November the applicant lodged an application in the District Court of The Hague for review of the Minister’s decision. The hearing took place on 19 December 2000 and the court rejected the applicant’s motion by judgment of 5 January 2001. 15. The applicant was extradited to the United Kingdom on 9 January 2001. 16. On 10 January 2001 the applicant appeared from custody on petition before Kilmarnock Sheriff Court and was remanded in custody for one week pending inquiries. 17. On 17 January 2001 the applicant appeared before the Sheriff Court and made no plea or declaration. He was fully committed for trial and remanded in custody for 110 days. 18. On 14 March 2001 the Lord Advocate indicted the applicant for trial on charges of murder in the High Court sitting in Edinburgh on 17 April 2001. The indictment containing the following single charge: “... on 5 or 6 December 1999 at 2B Doon Place, Bellfield, Kilmarnock you did assault Barry George Wallace..., place handcuffs on his arms and legs, struggle with him, punch him on the face, restrain him, puncture his arm with a needle or similar instrument and penetrate his hinder parts with your private member, all to his severe injury and you did murder him and further you did dismember his body and dispose of the dismembered parts in Loch Lomond, Stirlingshire, and in the sea at Barassie, Troon, Ayrshire.” 19. The applicant subsequently lodged two minutes. The first sought a finding that the extent of the pre-trial media coverage was such that it was impossible for him to receive a fair trial. The second challenged the validity of the extradition procedure and sought to have the averments of dismemberment and disposal of the body removed from the charge on the indictment. 20. On 29 June 2001, the applicant’s legal advisers argued a plea in bar of trial on the grounds of the two minutes lodged. Both minutes were refused by Lord Wheatley sitting in the High Court. However, he granted leave to appeal and the applicant duly lodged a note of appeal. 21. In his written opinion on the disposal of the minutes, Lord Wheatley discussed the extent of the media publicity in the applicant’s case. He noted that a very considerable degree of attention had been devoted in the media to the discovery of the body parts, particularly by newspapers in widespread circulation in Scotland. The applicant had been identified as a prime suspect well before a warrant had been sought for his arrest. His sexual character had been described in prejudicial terms. Analogous previous convictions had been disclosed, as was the fact that the applicant had been cleared on appeal of a previous murder on what was described as a technicality. Photographs of the applicant, including a photograph in which he appeared in handcuffs, were published. As to the nature and extent of the coverage, Lord Wheatley noted: “5. ... It cannot be in doubt that the coverage of the story in certain newspapers in the period immediately after the disappearance of Barry Wallace was extremely prejudicial to, and damning of, the [applicant]. In respect of some of the stories, it could hardly have been more so. However, the character and extent of this coverage did appear to diminish significantly after the initial period of two or three weeks, although it by no means disappeared. This may have had something to do with the provisions of the Contempt of Court Act 1981, which only comes into effect once criminal proceedings have started. An order made under that Act was pronounced in respect of the present indictment on 21 April 2001, restricting the reporting of details of the case, and that order appears to have been observed ...” 22. The judge turned to consider the case-law of this Court and of the domestic courts. He accepted that adverse media or press publicity generally carried the serious risk of compromising or prejudicing the fairness of the hearing. In circumstances where the nature and extent of pre-trial publicity were such that it would be impossible for the trial judge to secure a fair hearing by means of appropriate directions to the jury, the court would require the proceedings against the accused to be discharged. He continued: “12. In the present case I have no doubt that the test which the [applicant] has to satisfy has not been met. While there must be a potential risk that a jury will have been prejudiced against the [applicant] as a consequence of the publicity at the time it was published, and to a certain extent thereafter, I am satisfied that this risk is of a sort that is capable of being managed by the presiding judge during any trial. It is true that there has been an extensive degree of sensational coverage of this case. That is perhaps to be expected in view of the nature of the offence. It may be suggested that it is entirely unsatisfactory that newspapers can state openly that the [applicant] is guilty of the offence of murder, that he has previous convictions for analogous offences and that in effect he can be linked to serial killers and similar unsolved offences. However, this sort of reporting is not illegal and cannot be until criminal proceedings start against any accused. While therefore the impact of the prejudice from the media coverage may well have been severe during December 1999, I am satisfied that it has diminished considerably with the passage of time. It is now eighteen months since the discovery of the body of Barry Wallace. Although the media coverage was extensive and sensational, it was only one story in many covered by the same kind of approach in the newspapers concerned. Further, while the details of the disappearance and death of Barry Wallace and the discovery of his remains will no doubt remain in the minds of many, I was not persuaded by the [applicant’s] submissions that the link between the murder and the [applicant] has achieved the same endurance in the public consciousness. Further, the circumstances and character of a jury trial is such that jurors are compelled to examine the evidence presented to them exclusively and are not primarily influenced by recollections of what may have been reported in a sensational and essentially ephemeral manner some considerable time before. In the concentrated atmosphere of a court room, when the jury are required to focus on the evidence presented to them, the clear directions by the trial judge are, in almost every case, likely to be sufficient to secure a fair and unbiased hearing. The development of the jury system, the strict rules which apply to the presentation of evidence ... and the continuing evolution of judges’ directions to the jury are all designed to secure a fair hearing before an impartial tribunal. If this were not so, it would be necessary to abandon the principle of trial by jury.” 23. The judge was satisfied that allegations by the applicant that the police had put improper and prejudicial information in the media were without concrete support. 24. As to the applicant’s complaint that the rule of specialty in the context of extradition precluded the inclusion in the indictment of averments concerning events after the victim’s death, given that the Dutch authorities had refused to extradite him on the charge of perverting the course of justice, Lord Wheatley found against the applicant. He accepted that the indictment could not include any offence in respect of which extradition had not been granted, and that in the present case it therefore had to be restricted to abduction and murder. He considered the statement accompanying the extradition request, to the effect that death had been brought about by dismemberment or by cause unknown, to have been both reasonable and justified. He further observed that the applicant could face no separate penalty on a charge of perverting the course of justice under the indictment. Even without mention of dismemberment in the indictment, the murder charge would always be aggravated by the method of disposing of the body. He concluded that it was therefore appropriate to include the averments as to dismemberment and disposal. 25. The Appeal Court of the High Court of Justiciary (“the Appeal Court”) heard the appeal on 7-8 August 20. On 17 August 2001 it refused the appeal and issued a written opinion. On the question of the pre-trial publicity, it observed: “29. ... [W]e should in the first place say that in our view there is no doubt that the publicity which followed the disappearance of Barry Wallace was extensive and highly prejudicial to the appellant ... It is not, in our view, necessary to go into the publications in particular detail or to recite the various pejorative epithets that were used in relation to the appellant. It is sufficient to note that the information published included statements that the appellant had previously been convicted of murder, that his conviction had been quashed ‘on a technicality’ and that he had also been convicted of assault. Moreover, the publications drew attention to the fact that there was some similarity in respect of the use of a razor or similar instrument between the circumstances of the appellant’s previous convictions and the supposed circumstances of the present case. This is just the kind of information which has led to the discharge or refusal of a prosecution, in the few cases in which that extreme course has been resorted to by the court. It is, of course, true that there are legal systems in which the court, and the jury, are permitted to know details of a person’s previous criminal record, but our practice has always set its face very strongly against any such disclosure. It is well known that even accidental disclosure of some minor previous conviction in the course of a trial may well lead to abandonment of the proceedings or at least of the particular indictment. In these circumstances, we have no doubt that publication of such information was very liable to prejudice the accused. Indeed, we would question whether any reporter or editor could have been unaware of the importance which the law of Scotland gives to non-disclosure of a previous criminal record. In these circumstances, if the trial had required to proceed within the normal period after the issue of a petition warrant, that is assuming a relatively quick arrest and a trial within 110 days, we would have grave doubts as to whether the prosecution could have proceeded with such a timescale. In the light of the pre-trial publicity, the Crown might have had to consider whether to release the appellant from custody and endeavour to bring the case to trial before the expiry of the twelve month time limit. 30. If the prejudicial nature of the information is the crucial matter to be put on one side ..., the matters to be placed on the other side can be succinctly referred to as the effects of the lapse of time and the process of trial. As has, again, been set out in previous authority, the legal systems which rely on adversarial proceedings and trial by jury are prepared to extend a high degree of trust, which is believed to be well merited, to the readiness of jury men and women to apply the law as it is stated to them and consider the case strictly on the evidence led at a trial. If this were not so, it is doubtful whether the continuance of the practice of jury trial could be justified. Further, as the cases show, it has been generally accepted, not only in the United Kingdom, that the effect of prejudicial press publicity tends to diminish with time. While the general public recollection may continue to hold some idea that a particular widely reported event has occurred and that there were some remarkable or sensational circumstances surrounding it, recollection of the details of such publicity is a very different matter. In the present case, the result of the delays which have occurred is that the vast bulk of the publicity is now more than eighteen months in the past. It is true that there were reports of the appellant’s return to Scotland which might have reminded a reader of the previous narratives, but such reports did not go into any detail in relation to what had previously been reported. They certainly did not repeat the materially prejudicial statements to which we have referred. Apart from the mere lapse of time, account is always taken of the trial process itself which by setting the evidence before the jury in detail and providing them with the expert analyses of counsel and the directions of the judge, is calculated to direct their attention to the evidence and away from any extraneous material.” 26. As regards the specialty argument and the inclusion in the indictment of an averment of dismemberment, the Appeal Court found that the argument before it had added nothing to the considerations which were before the trial judge, whose conclusions the Appeal Court upheld. 27. On 14 September 2001, the applicant pleaded not guilty to the charge. His counsel subsequently made a request for an order under section 4(2) of the Contempt of Court Act 1981 restricting the reporting of the trial. The request was refused by Lord Osborne for reasons set out in his written opinion dated 17 September 2001. 28. The judge noted that it had been held in the case of Galbraith v. HM Advocate 2001 SLT 465 that the power under section 4(2) of the Contempt of Court Act 1981 to make an order postponing publication of a fair and accurate report of the trial proceedings was confined to such a publication; it was not intended for use to prevent unfair or inaccurate reporting, which would be capable of being dealt with as a contempt under section 2 of the Contempt of Court Act 1981. The judge therefore held: “...[I]n my judgment the question for me is whether ‘a fair and accurate report of’ the present trial ‘held in public, published contemporaneously and in good faith’ would create ‘a substantial risk of prejudice in the administration of justice in’ these ‘proceedings’. I have come unhesitatingly to the conclusion that it would not. Senior counsel for the accused himself said that he had ‘no problem’ with fair and accurate reporting; his concern lay elsewhere. That acceptance that fair and accurate reporting did not create a problem is plainly fatal to the motion which he made, since, as the Lord Justice General put it in Galbraith, section 4(2) is intended to deal with fair and accurate reports of proceedings which should nonetheless be postponed, not with material outwith the scope of such reports ... Quite apart from the position taken up by senior counsel for the accused, in relation to the effect of fair and accurate reporting of the trial, I can see no basis at all in this case for concluding that fair and accurate reports of the trial, which will, after all, be held in public, could create a substantial risk of prejudice to the administration of justice in these proceedings. Indeed no case was cited to me in which a Court has held that such reporting could create such a risk in the proceedings themselves, as opposed to other proceedings.” 29. On 18 September 2001, the jury were called and sworn and the applicant’s trial commenced before Lord Osborne. He was represented by senior counsel. 30. The applicant’s counsel subsequently invited the court to summon publishers of specific allegedly prejudicial material which had been reported and published on the Internet as news in December 1999 but remained available on the Internet in the archives of the publications in which it had originally appeared. 31. On 21 September 2001 Lord Osborne refused the applicant’s motion, for reasons set out in his second written opinion. In his opinion, the judge referred to the factors identified by Lord Justice Schiemann LJ in AttorneyGeneral v. MGN Limited, one of which was the likelihood of the publicity coming to the attention of an actual or potential juror. Lord Osborne emphasised that in the present case, as he had been informed by the prosecution and as was not disputed by the defence, the action of entering the applicant’s name into a standard search engine on the Internet would not lead the searcher to the impugned materials. Instead the searcher would have to go to the website of a particular newspaper or broadcaster, and then search its archived material. The judge continued: “25. Among the other factors referred to by Schiemann LJ is the focusing effect of listening over a prolonged period to evidence in a case. It appears to me that in the circumstances of the present case this is a factor of some importance. Furthermore, he considered that an important consideration was the likely effect of the judge’s directions to a jury. Likewise, I consider that this is a matter of great importance. At the commencement of the present proceedings I took pains to direct the jury that their ultimate decision would require to be based upon the evidence which they heard in the Court proceedings, and not upon any extraneous matter which might come to their attention. In due course, that direction will be repeated when the time comes for me to charge the jury. I have no reason to suppose that the jury in the present case will not follow that direction. The system of trial by jury depends upon confidence being placed in juries to follow directions which they are given.” 32. He was satisfied that the material in question had not been shown to be material which would create “a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”. 33. On 26 September 2001 Lord Osborne rejected the applicant’s objection to the admissibility of a statement by a deceased witness, K.P. (anonymised for the purposes of this present judgment only), regarding the applicant’s sexual conduct, for reasons set out in his third written opinion. He considered that its admission would not violate Article 6 §§ 1 or 3 (d) of the Convention, noting that, unlike the position in other jurisdictions, the requirement of Scots law for the proof of a criminal charge by corroborated evidence was “a protection of very considerable importance”. As to the evidence contained in K.P.’s statement, the judge observed: “29 ... Having regard to the nature of the statement of [K.P.], at best for the Crown, it might demonstrate only a propensity on the part of the accused to engage in homosexual sexual activity of the kind described in it. In the present case, the Crown will require to lead corroborated evidence of the crimes charged against the accused; it appears to me that the contents of the statement of [K.P.], while they may be of some assistance in the context of a circumstantial case, are unlikely to be able to carry the Crown very far ...” 34. The judge further referred to the safeguards present in section 259(4) of the Criminal Procedure (Scotland) Act 1995 (see paragraph 109 below) and to the fact that particular directions to the jury concerning the weight to be given to K.P.’s statement would be necessary. Finally, he noted that it was not said on behalf of the accused that the contents of the statement were untrue. He observed that if, as the evidence in the case unfolded, the significance of the evidence contained in the statement assumed greater importance in the prosecution case, it would be open to the accused to raise the matter again, adding: “30. ... Indeed, the overall fairness or unfairness of the trial in relation to Article 6.1 of the convention could be considered in the context of an appeal. As I understand it, it is only in the context of a completed trial that a conclusive assessment of that matter can be made.” 35. On 3 October 2001 Lord Osborne ruled that the search warrant was granted in respect of the applicant’s home and refused an adjournment to allow the applicant to challenge its validity by way of bill of suspension, for reasons set out in his fourth written opinion. The case to be presented on behalf of the applicant in respect of the proposed challenge to the validity of the search warrant was that the police and Procurator Fiscal had no sufficient basis for seeking a warrant. The trial judge concluded: “32. ... Having heard what has been said in defence of the warrant, it is clear and not disputed that certain material was placed before the sheriff which supported the granting of the application and ... I am not persuaded that there has been shown a prima facie case of invalidity of the warrant, such as might be raised in a bill of suspension. 33. In any event, whether an adjournment for the contemplated purpose is to be granted in the course of a trial is plainly a matter for the exercise of my own discretion. While there may be cases in which the granting of such an adjournment would be appropriate, I have not been informed of any case in which that course has actually been followed. In any event, the present trial has now been running for many days. It is far from clear how long an adjournment for the purpose of the bringing of a bill of suspension would require to be. Moreover, it is obvious that the granting of the adjournment for such an uncertain period would be highly disruptive, so far as the jury is concerned, in a trial which is plainly of importance. Having regard to the fact that the issue sought to be raised in a bill of suspension can, if appropriate, be raised in the course of any appeal which may follow any conviction in this trial, it appears to me that no injustice would be done to the accused by the refusal of the present motion.” 36. At the conclusion of the trial, Lord Osborne delivered his charge to the jury. As regards prejudicial publicity, his direction was as follows: “Now, ladies and gentlemen, I have spoken about your responsibility to evaluate and assess the evidence and reach a decision in the light of the evidence. That is what you undertook to do when you took the oath at the start of this trial. So let me dwell for a moment upon what evidence is for this purpose. Evidence quite simply is the testimony of witnesses which is actually given in this Court including any documentary evidence or other material to which they may refer in the course of what they say which had been produced in the case. That, ladies and gentlemen, is the limit of it. That is what evidence is. Evidence does not include assertions or propositions or suggestions which have been put to witnesses in questions to them with which they did not agree. Furthermore, evidence does not include any extraneous material in any form which may have come to your attention concerning this case or to Mr Beggs or concerning Mr Beggs, the accused, from any source outside the four walls of this Court, whether it be in Press, on television or in any other way. Any such material as that should be completely ignored by you. That is not evidence. To pay heed to it would be quite simply a breach of the oath which you took at the start of theses proceedings to reach a decision in the light of the whole evidence in the case. So please, ladies and gentlemen, do bear these matters in mind when you come to deliberate.” 37. In respect of the allegation in the charge that the applicant had penetrated the victim with his private member, the judge explained to the jury that this amounted to an allegation of sodomy and gave them directions on the circumstances in which anal penetration amounted to a crime. 38. Regarding the evidence of the deceased witness, K.P., he said: “... [W]hat I must impress upon you is that that material differs from the evidence given by a witness over there in the witness box. [K.P.] unfortunately could not do that and certain consequences flow from that. Because he is dead, evidence is competent and permissible of the things which he said before he died because that is the only now available material which there can be relating to what he said. However, you should understand that because he is now dead, because he has not been directly a witness in this case, you should approach his evidence in a different way from the way in which you would approach the evidence of a living witness. In the first instance, you have not had the opportunity if seeing [K.P] or hearing him giving his evidence. You have not had the opportunity of assessing his demeanour in the way in which you can assess the demeanour of other witnesses. Furthermore, he has not been put on oath in this Court in a formal way which is a matter of significance and more particularly he has not been cross-examined by the lawyers who have appeared in this case in the way that they have been able to cross-examine other witnesses. So these features mean that you should approach his evidence, the material which is in the statement which he is said to have made, with critical care and you should assess its weight in the light of the considerations which I have just mentioned.” 39. The judge also directed the jury that no adverse inferences could be drawn from the fact that, when charged following a caution in which he was told that he did not need to say anything, the applicant chose to accept the invitation to say nothing. 40. On 12 October 2001 the applicant was convicted of murder by majority verdict of the jury. He was sentenced to life imprisonment with a tariff (punishment part) set at twenty years, to run from 28 December 1999. 41. In passing sentence, Lord Osborne noted: “... [Y]ou have been convicted of the crime of murder. Parliament has enacted that there is only one sentence which can be imposed in such a case which is imprisonment for life. Accordingly, that is the sentence which I impose ... ... It is also my duty in terms of the Sex Offenders Act of 1997 to state that you have been convicted of a sexual offence to which Part 1 of that Act applies. Accordingly you are subject to the notification requirements contained in that Act ...” 42. On 2 July 2002 the applicant’s legal advisers lodged a formal note of appeal against conviction and sentence. The note contained eight grounds of appeal against conviction, each ground being subdivided into a number of subparagraphs, and one ground of appeal against the tariff part of the applicant’s sentence. 43. The grounds of appeal against conviction related to: publicity issues; the admission of the statement of K.P.; the conduct of the prosecutor at trial; the granting of the search warrant; the sufficiency of the evidence; the admissibility of evidence of the applicant’s travel to the Netherlands; the rule of specialty; and the compatibility of the jury trial with the Convention. 44. On 21 September 2009, following the disclosure process which took place during the appeal proceedings, the applicant lodged a further ground of appeal regarding non-disclosure in relation to a police statement, which had been noted by the police in December 1999, of I.C., a witness who had given oral evidence at trial. Subsequent to making her initial statement to the police, I.C. had been precognised, i.e. interviewed, by both the prosecution and the defence. 45. The appeal against conviction was heard between 29 September 2009 and 9 October 2009. 46. On 9 March 2010 the court handed down its judgment refusing all the grounds of appeal against conviction. It made some comment at the outset regarding the delay in the appeal process and observed: “5. ... At a cost no doubt to the progress of the cases of other appellants, the court was able to arrange for the appeal to be heard over eight days in mid-October 2009.” 47. Further relevant extracts of the court’s judgment are summarised below. 48. Under this head, the applicant complained about prejudicial publicity both prior to and during his trial. He relied on Article 6 and complained in particular about the nature of the publicity; the alleged involvement of the authorities in the dissemination of information to the press; the failure of the court to control the publicity; the failure of the prosecuting authorities to control the publicity; the failure of the court to take steps to manage the trial in the light of the prejudicial publicity; and aspects of the Scottish jury system. 49. The Appeal Court referred at the outset to the opinion of Lord Wheatley in response to the applicant’s plea in bar of trial (see paragraphs 21-23 above) and to the fact that the matter had been considered on appeal (see paragraph 25 above). It also noted the terms of Lord Osborne’s warnings to the jury, both at the start of trial and in his charge to the jury (see paragraph 36 above). The court considered that in approaching matters of publicity, it was important to note the nature and, in particular, the timing of the potentially prejudicial publicity. It reviewed the submissions of the applicant’s counsel before Lord Wheatley as to the publicity which had occurred following the search of the applicant’s home, and quoted extensively the findings of the Appeal Court in its judgment in 2001 (see paragraph 25 above). It noted that roughly one year and eight months had elapsed since the publicity of which the applicant complained was published by the time that the Appeal Court gave its decision on 17 August 2001, and a further month ensued before the trial began. 50. As to the subsequent refusal of Lord Osborne to allow the section 4(2) motion (see paragraphs 27-28 above), the court said: “24. Before us, ... counsel for the appellant, sought to question this decision by the trial judge on the basis that postponement of fair and accurate reporting of the trial proceedings was a potential safeguard and that with the benefit of hindsight the focus of trial counsel and the court was too narrow. However, on the court’s testing that assertion, what was submitted was that reading fair and accurate contemporaneous reports of the trial might revive in the minds of the jury some earlier press report which they might have read some 21 months earlier. 25. We are unable to accept this branch of the argument for the appellant. ... [T]he trial judge was undoubtedly correct in refusing the motion for postponement of fair and accurate reporting of the trial. There was no proper basis upon which he could have acceded to the motion made to him. Moreover, and perhaps more importantly, there is no suggestion in what was put before us that the allowance of the normal rule of reporting matters fairly and accurately resulted in fact in the realisation of the apprehension of trial counsel that the allowance of the contemporaneous publication of such fair and accurate reports would be the source of a repetition of the prejudicial material published prior to the proceedings becoming active. The apprehension upon which the motion was advanced not having materialised, we are unable to see how it could be contended that the refusal of this motion rendered the trial unfair. Moreover, we are unable to understand the suggestion, advanced by counsel for the appellant to us, that the reading by a member of the jury of a fair and accurate report of the day’s proceedings should prompt a mental reaction of recalling prejudicial material which would not derive from the hearing of the whole evidence on that and the previous days of the trial.” 51. Regarding Lord Osborne’s refusal to summon certain publishers to court (see paragraphs 31-32 above), the Appeal Court observed that it was accepted by both prosecution and defence that the impugned materials were archived material originally published before the criminal proceedings had become active on 21 December 1999 and that they could not be accessed by entering the applicant’s name into a standard Internet search engine. It noted that the applicant did not submit that Lord Osborne had erred but rather that the focus before the trial court had been too narrow. The Appeal Court referred to the applicant’s submission that warnings to the jury to ignore extraneous material were insufficient and that vetting or sequestration of the jury ought to have been carried out, and observed: “35. ... [W]e start by accepting, as did the Appeal Court dealing with the pre-trial minute, that the articles appearing in the press and other broadcasting media in the interval between, on the one hand, the discoveries in Loch Lomond on 6 December 1999 and more particularly the search of the appellant’s flat on 17 December 1999 and, on the other hand, the criminal proceedings becoming active on 21 December 1999 were highly prejudicial to the appellant. But, as that Appeal Court recognised, in part at least as a result of the interposition of the extradition proceedings, the reality was that a substantial period of time had elapsed since the publication of the offending material in December 1999. In the event, the trial began some 21 months after the proceedings became ‘active’. It has, in our view, been consistently noted by the courts that the passage of time may assuage the effects of prejudicial media reporting ... We recognise of course that it is not a simple matter of measuring the extent to which time has elapsed. The nature of the prejudicial material and other relevant factors may come in to play. Further, as the courts have consistently recognised in the authorities to which we were referred, the discipline of the trial process is another important factor in the evaluation of whether the holding of a trial against a history of prejudicial publicity is unfair. Put shortly, the jury having been participant in an ongoing inquiry in which they have heard the actual evidence from a variety of classes of witnesses, it is that evidence which will be at the forefront of the mind of the jurors and which will predominate over any distant memory the jury might have of some earlier publicity. 36. ... Lord Osborne’s observation was to the effect that whereas the court may be presented with an assembly of a number of prejudicial published articles, it is highly improbable that any potential juror would have read all of that material; there is thus a danger in overestimating the impact which prejudicial publicity may have had on any particular juror.” 52. The court noted that the trial judge had given the jury very clear directions in his charge on the need to decide the case only on the evidence and to set aside any extraneous material, referring specifically to items in the press, on the television or in any other source, and that similar instructions were given to the jury at the very start of the trial. It concluded: “38. In our view these were all important factors or safeguards against any effect on the trial which might have emanated from what was published in the various organs of the media in the interval between 6 and 21 December 1999, and more particularly between 17 and 21 December 1999, since it was only on 17 December that the appellant was identified in the press. Certainly, in an era before the archiving of material in electronic form on internet websites, we consider that a court would not have difficulty in dismissing the contention that such prejudicial publicity in that short interval prior to the criminal proceedings becoming active inevitably, and without anything further, rendered a trial taking place some 21 months later unfair where the directions given by the trial judge in the present case had been so given.” 53. As to the additional “internet dimension”, the court reiterated that it was not suggested that, respecting the state of internet search engines in 2001, the information given to the trial judge as to access to archived material was flawed. The Appeal Court therefore accepted that at the time of the trial, in order to obtain access to the prejudicial archive material, a relatively determined search was required which involved, first, selecting a publisher’s website and then entering into a further search within that archived website. The court also observed that it was accepted by both counsel for the applicant and the prosecution that while in 2001 many people did have access to the Internet, the extent of familiarity with and use of the Internet was less than obtained in 2010. 54. The Appeal Court concluded: “40. It is against that background of circumstances as they were in 2001 that we consider the suggestion, never formulated as a distinct proposition or submission, that to ensure a fair trial the trial judge, in 2001, was required, additionally to the other instructions which he gave at the start of the trial, to direct the jury to the effect that the jury members should not undertake any internet inquiries. It is to be observed, first, that the giving of such an additional instruction or direction to the jury was never suggested to the trial judge by either trial counsel ... Secondly, there may be intelligible reasons why that suggestion was not made. Whether such an instruction is a good idea is a matter of debate. As the Solicitor General related, in his recent personal experience, the giving of such a direction was seen as not being – or at least not always being – in the interests of the defence. Thirdly, the model directions culled from New South Wales and the bench book in use in the Crown Court in England and Wales to which we were referred by counsel for the appellant are not only not mandatory in those jurisdictions but also were not in force at the time of the appellant’s trial. They were introduced much later. The same, in our view, applies to the observations recently made by the court in Sinclair v HM Advocate [2008 SCCR 1 where the Appeal Court indicated that, in an appropriate case, the trial judge might give the jury a suitably framed direction about not actively seeking material about the accused on the internet]. The fact that some jurisdictions selected by counsel for the appellant have chosen one path does not indicate a universality of wisdom. There are no doubt others who may have chosen not to follow that particular path.” 55. In the circumstances the court was satisfied that the fact that the trial judge did not additionally and specifically instruct the jury not to undertake Internet searches did not involve any failing on his part. His primary instruction was to ignore any extraneous materials and to pay attention only to the evidence and in the view of the Appeal Court it was implicit in that instruction that the members of the jury should not seek out such extraneous materials. 56. As to the suggestion that the trial judge should have ordered that the jury members be sequestered for the entirety of the trial or should have arranged for them to be vetted, the Appeal Court noted: “42 ... Although at one point trial counsel floated such a course as a possible motion which he might make, in the event no such motion was made, we think wholly understandably. The notion that the members of the jury should be sequestered in hotel accommodation every night and every weekend in conditions, even within the hotel, precluding access to the internet, is so disproportionate that it can readily be rejected. In reality, of which we think trial counsel would be very conscious, such sequestration of the jury might be likely to ‘backfire’ seriously against the accused. Secondly, it was suggested that the trial judge ought to have embarked on an exercise of jury vetting, by specifically questioning the members of the jury regarding their respective recollections of the media articles published some 21 months previously. Suffice to say that such a procedure is without any warrant in our law and is wholly inconsistent with our practice of jury selection. We are not in the least surprised that responsible trial counsel did not make any such suggestion to the trial judge, who, in our view, could not have acceded to such a suggestion were it to have been advanced.” 57. For these reasons the court rejected the ground of appeal relating to prejudicial publicity. 58. The applicant contended that the trial judge had erred in admitting the statement made by K.P. and that the admission had rendered his trial unfair. 59. The Appeal Court referred to Lord Osborne’s opinion on this matter (see paragraphs 33-34 above) and continued: “55. ...[W]e agree ... that [K.P.’s] statement was simply one piece of circumstantial evidence to be considered along with many other pieces of circumstantial evidence. [K.P.] was relating what the appellant had told him of his habitual behaviour, preferences, and sexual interests ... Once all the evidence had been led, [K.P.’s] statement, if accepted by the jury and considered along with the other pieces of circumstantial evidence which they accepted, might assist them to some extent in drawing inferences about how and why the deceased, last seen in Kilmarnock town centre, and who had no previous connection with the appellant, and who did not normally go to places with strangers, might end up in the appellant’s company and in his flat. But, while accepting that the hearsay evidence was thus not irrelevant, in light of all the other evidence in the case, we agree with the Solicitor General that the appellant’s conviction cannot be said to have been based solely or to a material extent upon [K.P.’s] statement. The statement was simply one of many relevant pieces of circumstantial evidence.” 60. It further noted that the trial judge had given directions to the jury warning them to treat the evidence of K.P. with caution, for reasons which he carefully explained (see paragraph 38 above). The applicant had not sought to argue that the jury were misdirected. The court added: “57. ... [E]vidence concerning the appellant’s sexual interests and his statement as to what had occurred on the night in question was also led from [B.]. Many other adminicles of circumstantial evidence were available to the jury to enable them to draw inferences and form a view. Thus the evidence of [K.P.’s] statement did not stand alone and was not thus a crucial element in the prosecution case. So we are unable to detect any sound basis upon which it would be open to us to hold that the admission of evidence from the police officer of what [K.P.] said to him, by reason of its being hearsay evidence, constituted a breach of any ECHR right of the appellant.” 61. The applicant complained that the conduct of the prosecutor was such as to deprive him of a fair trial, as he had made frequent, deliberate, inappropriate and prejudicial comments both in the course of the evidence led before the jury and in his address to them at the conclusion of the trial to the effect that the applicant had been able to give evidence about matters which were relevant to the issues to be considered by the jury and that his silence was to be interpreted as proof of his guilt. 62. The Appeal Court examined the impugned acts and comments of the prosecutor. It observed that the posing of rhetorical questions was a recognised and legitimate oratorical technique in a criminal trial, and that the prosecutor had employed this technique frequently in his speech in relation to a variety of matters. On the argument made by the applicant, it concluded: “68. ... It is important to appreciate that nowhere in the words spoken by the Advocate depute was there any reference to the appellant’s having had the opportunity of giving evidence to provide an answer to the Advocate depute’s rhetorical question and having failed to do so. The trial judge in his charge to the jury underscored the need not to draw any adverse inference from the appellant’s not having given evidence.” 63. This ground of appeal was accordingly rejected. 64. The applicant contended, inter alia, that the trial judge had erred in refusing an adjournment of the trial to enable him to seek the suspension of the search warrant on the grounds that it had been granted without adequate reasons. 65. The Appeal Court noted that in response to its request to the Sheriff who had granted the search warrant, the latter had produced a report dated 31 July 2006, in which he set out his recollection of the hearing. The Appeal Court observed that, unsurprisingly given the lapse of time, it was apparent from that report that the Sheriff could remember little of the detail of the hearing. It explained that with a view to overcoming this, the applicant’s lawyers had been supplied with a typed, essentially contemporaneous attendance note prepared by the Procurator Fiscal, summarising the material laid before the Sheriff. The Appeal Court quoted the terms of the attendance note in full. In relevant extract, it recorded the following: “Sheriff Russell asked for justification and I informed him that the limbs and head which had been recovered were those of the missing Barry Wallace, and that the police had carried out a MO [modus operandi] profile with SCRO [Scottish Criminal Records Office]. The only suspect in Scotland turned out to be William Beggs, not only that, he lived in Kilmarnock. The sheriff was advised of the information which the police had in relation to Beggs’ previous conviction at Kilmarnock High Court, where he had picked up and intoxicated a young boy, who awoke to find Beggs cutting his leg ... The sheriff was also advised of the English conviction for murder and for wounding, and the fact that in relation to the woundings, Beggs had cut his victims. He was also advised that the flesh on the limbs had been cut in a similar way before the bones had been cut. Mr Andrew advised the sheriff that in addition to the background information given above, Beggs is known to have left this country and gone to Ireland, and it is suspected is still there, the inference being that he has fled from this jurisdiction. I further advised the sheriff that we also suspected that the dismembered parts of the body had been taken by Beggs, in his motor car, to the places where they were disposed of, and that he is known to have driven one motor car to Ireland, left it there and returned on foot. Finally I moved the sheriff to grant the warrant on the basis that the intrusion into Beggs private life was relatively minor compared to the very serious crime under investigation, and therefore that the balance of the public interest lay in granting the warrant.” 66. The Appeal Court observed, having regard to the terms of the attendance note: “94. ... In essence, the basis given for suspicion having fallen on the appellant was primarily information held by the police of previous convictions of the appellant and what might be termed police intelligence of other incidents in which there was information considered by the police as implicating the appellant but in which the evidence had been insufficient to allow prosecution. That was supplemented by such suspicions as were raised by the appellant’s movements to and from Northern Ireland ...” 67. In so far as counsel for the applicant sought to argue that it was illegitimate or inappropriate for the prosecuting authorities to have based suspicion on a police analysis of modus operandi, the Appeal Court rejected the suggestion, noting: “95 ... In an appropriate case, the police and the prosecutor are, in our view, entitled to proceed upon the basis that information on a person’s criminal history and analysis of modus operandi places that person in the position of a suspect. Clearly, it is not necessary when seeking a warrant that the prosecuting authorities have evidence to establish guilt; the purpose of seeking the warrant to search the property or person of the suspect is with a view to getting evidence helpful to prove the suspicion, or from the suspect’s standpoint possibly eliminating him from that field of suspicion. In our view, the present case was one in which it was appropriate for the police and the prosecuting authorities to proceed upon the basis of previous criminal history (whether by court conviction or police intelligence) and a modus operandi analysis. Additionally, there was the information held respecting the appellant’s movements to and from Northern Ireland. 68. The Appeal Court therefore concluded that there was clearly a proper basis upon which the Procurator Fiscal sought the grant of the search warrant and that the Sheriff had not erred in exercising his discretion to grant it. In this regard, the court observed that it was apparent from the attendance note that the Sheriff was reminded of the need to balance the public interest in the investigation of crime against the private interest of protection against unwarranted interference in the applicant’s private life. 69. The applicant contended that the trial judge had erred in rejecting a submission on the sufficiency of the evidence regarding various aspects of the charge, including in particular the alleged penetration of the deceased’s hinder parts by the applicant. 70. The Appeal Court, having reviewed the evidence presented at trial, considered that there was an adequate evidential base upon which a jury could infer that penetration by the penis had occurred and that the victim had not consented. It therefore rejected this ground of appeal. 71. The applicant argued that he was convicted and sentenced in breach of the rule of specialty having regard to the terms of the indictment, and in particular the inclusion of references to dismemberment and sodomy; the leading of evidence which was put before the jury as criminal conduct; the basis upon which conviction was sought by the prosecution; the basis upon which the jury were charged; and the terms of his sentence. 72. As to the inclusion of the averment of dismemberment in the indictment, the Appeal Court referred to the opinion of Lord Wheatley (see paragraph 24 above) and the judgment of the Appeal Court agreeing with that opinion (see paragraph 26 above). It considered that the finality of that decision was not open to being re-visited in the appeal. 73. The applicant’s principal argument was directed at the inclusion in the indictment of the averment that the applicant “did assault [the deceased] ...and penetrate his hinder parts with your private member”, not argued before Lord Wheatley. According to the applicant, this alleged a separate crime of sodomy, not charged as such in the extradition request, and so the court had no jurisdiction to entertain this allegation of criminal conduct. 74. The Appeal Court first examined the scope of the specialty rule, observing: “184. ... [T]he specialty principle prevents a State to which a person has been surrendered from prosecuting that person for an offence different in its essential nature from the charge, or any of the charges, upon which he or she was extradited. The rule does not however have any effect, or operate any restriction, upon the evidence which may be deployed by the prosecutor in proof of the commission of the criminal conduct in respect of which the person was surrendered; and that is so even if the evidence so deployed discloses or suggests the commission of a criminal offence for which extradition was not granted by the sending State. 185. We would add that these conclusions are, in our view, entirely consistent with the origins and rationale of the specialty rule. The rule is primarily one of international law. It is concerned with respecting the power of the extraditing State to refuse extradition and ensuring that in so far as that State has a discretion to refuse extradition, that discretion is not abused by the receiving State. Its principal purpose is thus to preserve comity between States, rather than effect a protection for the accused. Given that such is the primary purpose, it is in our view comprehensible that the rule should not be concerned with the nature of the evidence and procedure followed in prosecuting the extradition offence or whether the evidence tendered in the proof of that offence might also indicate the commission of some other offence or involve the commission of some lesser offence within the category of the extradition offence ...” 75. Turning to the inclusion of the averments of anal penetration in the indictment, the court observed that while the trial judge had treated them as amounting to an allegation of sodomy and had given the jury appropriate directions on that crime, it had reservations whether they were properly to be seen as averments of sodomy rather than incidents in the indecent or sexual assault to which the indictment referred. It did not see in the trial judge’s approach anything detrimental to the applicant’s position. It continued: “188. ... [T]he fact is that the indictment did not include any charge of sodomy separate from the charge of assault and murder and thus no penalty separate from that imposed in respect of the murder could have been imposed upon the appellant in respect of the averment said to be an averment of sodomy.” 76. As regards the breach of specialty allegation, the court explained: “190. In the judicial decisions to which we were referred respecting the specialty rule or principle there is recognition that in extradition cases, obviously, one cannot operate a narrow technical approach as to the juristic ingredients in a particular offence; a more ‘conduct based’ approach needs to be followed ... We consider that in principle that view is sound. As was pointed out by the Solicitor General, the first petition warrant upon which extradition was granted referred to the possibility of establishing the death by ‘some other means to the petitioner presently unknown’. At that point in time, the torso of the deceased had not been recovered and hence the procurator fiscal was ignorant of such details of the assault upon the deceased as might later be revealed by that examination. In the event, those details revealed evidence of forcible anal penetration. So, as part of the allegation of assault leading to death, those details were an inherent element of that assault. In other words they were part and parcel of the conduct founding the proof of the extradition charge. On the broader, conduct based approach required in the application of extradition law, we thus do not consider that the possibility that domestic law might technically, or, in the old-fashioned sense of the adverb, nicely, identify a part of the averments of the details of the assault upon the deceased as containing an averment of sodomy leads to any violation of the specialty principle. 191. Accordingly we do not consider that it can properly be said that the appellant was proceeded against and convicted, separately from the charge of murder, of a distinct charge of sodomy any more than it may be said that he was separately proceeded against and convicted of the discrete charge of assault. The appellant faced a single charge of murder, within which were contained as part of that charge the lesser allegations of assault, including the averment of anal penetration. Whether that be categorised as indecent assault or sodomy it remains a matter within the murder charge. These were lesser offences included within the charge of murder and for the reasons which we have endeavoured to indicate their inclusion did not offend against the international law principle of specialty. Further, in passing sentence, the trial judge stated that the appellant had been convicted of murder and he passed sentence for that offence. No separate penalty was imposed in respect of assault or indeed sodomy. The extract conviction, providing the warrant for the appellant’s imprisonment, records the conviction as being that of murder alone.” 77. Although, having passed sentence for murder the trial judge went on to say that the applicant had been convicted of an offence to which the Sex Offenders Act 1997 applied (see paragraph 41 above), without explaining the basis for that pronouncement, this did not alter the terms of the conviction by the jury and did not in itself give rise to any liability to the notification requirements in the 1997 Act. 78. The Appeal Court therefore found that no breach of the rule of specialty had occurred in the applicant’s case. 79. The applicant argued that the absence of reasons for the jury’s decision, in a case as factually and legally complex as his was, violated his Article 6 rights. He relied, inter alia, on the judgment of the Second Section of this Court in Taxquet v. Belgium, no. 926/05, 13 January 2009; a request for referral to the Grand Chamber was pending at the time. 80. The Appeal Court examined the general tenor of this Court’s caselaw on the need for reasons, putting to one side its recent judgment in Taxquet, and observed: “203. [W]e consider that it is clear from the judgments and decisions to which we were referred that the ECtHR‘jury’, the fact that, in returning its verdict, such a jury does not deliver an exposition of its reasoning does not in itself involve any infraction of Article 6. In that respect we refer to the passages, to which reference has already been made, in the decisions in Savic v Denmark; Snooks and Dowse v United Kingdom; and Papon (No. 2) in which the view taken is that the absence of any direct delivery of reasons by the jury itself may be offset by the discernability of the basis of the jury’s decision from the procedural framework in which the jury operates. We would also mention that, although we were not referred to the decision, in Gregory v United Kingdom (1998) 25 EHRR 577 the ECtHR, at para 44 of its judgment, acknowledged that ‘...the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law which serves to reinforce the jury’s role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors on the evidence which they have heard’.” 81. As to the impact of Taxquet, the court referred to an analysis by Judge Indreberg, giving the lead judgment of the Norwegian Supreme Court in the case of A. v. The Public Prosecution Authority, 2009/397, 12 June 2009, and agreed with her that Taxquet was not to be read as imposing a requirement that a jury supply reasons for its verdict. In the applicant’s case it observed: “207. Just as in any other jury trial in Scotland, the verdict returned by the jury in the present case is not returned in isolation. It is given within a framework which includes, in particular, the speeches to the jury by those advocating the prosecution and the defence and the directions given to the jury by the trial judge. It is not suggested that the address by the trial Advocate depute in this case did not set out clearly the nature of the Crown case and the evidence which the Crown invited the jury to accept and acceptance of which was necessary if the jury were to return a guilty verdict. Nor is it suggested that the address by defence counsel did not clearly present to the jury the basis upon which it was contended that guilt was not established and that the appellant should be acquitted. It is also not suggested that the trial Judge’s charge to the jury did not adequately identify all the matters which the Crown had to establish, or fail to analyse or describe the necessary elements or ingredients in the offence. Accordingly, from that framework and also from the evidence in the case, the basis of the conviction is discernable. With a jury verdict thus placed in such a framework, we do not consider, having regard to the case law of the ECtHR to which we were referred, that the fact that a jury does not supply reasons involves an infraction of the fair trial requirements of Article 6 of the Convention. 208. We would add that in the submission as initially presented and also in the ground of appeal, it is suggested that the circumstances of the present case were somehow so complicated or unusual that the normal procedures or framework within which a jury verdict is returned did not suffice. We do not agree with that suggestion. The indictment contained a single charge and, while no doubt a number of legal issues arose in the trial and required to be dealt with by the trial judge, the matters for the jury were not in our view extraordinary or particularly complex ... Further, we would add that the fact that the Crown case was largely circumstantial clearly does not take this case out of the ordinary.” 82. The applicant contended that the fact that the witness statement by I.C. was first placed in the hands of his lawyers in September 2009 prevented him from calling the witness or making use of the information in the statement in the cross-examination of other witnesses. 83. The Appeal Court noted at the outset: “213. It is plain that the drafter of the Note [of appeal] proceeds under a serious misconception. [I.C.] was included as a witness on the list annexed to the indictment, and so could have been called by the defence, had it not been that, of course, she was in fact called by the prosecution and cross-examined by the defence. Further, while her police statement might in theory afford scope for cross-examination on the basis of a prior inconsistent statement, it could not be deployed as a tool of crossexamination of other witnesses, as the drafter seems to have thought.” 84. The court nonetheless heard submissions from counsel on the basis that the non-disclosure had prevented cross-examination of I.C. during the trial on the basis of a prior inconsistent statement. It noted: “214. ... As matters emerged in the argument before us, the only possible differences between what the police noted as being [I.C.’s] account and her ultimate evidence was that in the former she is recorded as having said that she noted blood at the left side of the deceased’s mouth following a punch to the deceased’s face by [G.B.]; that apart, she saw no other injuries to the deceased; and that, following the cessation of the fight or altercation, the deceased began to punch his own head – something which he had done before when drunk.” 85. The court observed that I.C. had been precognosed by both sides and that the results had essentially been the same; and that I.C.’s evidence at trial did not materially depart from the precognitions. It continued: “219. ... So it is perhaps unlikely that [I.C.] would readily and persuasively accept the accuracy of the police officer’s note of the interview; and were she not to do so, evidence from the police officer to contrary effect, if accepted, would not of course establish the truth of the statement, but might damage her reliability and thus impede the defence in its invocation of the evidence of [I.C.] as undermining the Crown contention. But more importantly, were [I.C.], on being presented with the terms of her statement as noted by the police officer, to have accepted that she did see some blood at the mouth of the deceased, following a punch from [G.B.], and that at some point shortly thereafter the deceased, having got up from the ground, began to punch himself in accordance with a proclivity seen by the witness on previous occasions when drink had been taken, we are unable to see how those additional matters materially assist the defence contention that the serious facial injuries, including the fractures of the underlying bone structures, were caused prior to the deceased’s entry to the appellant’s flat. Were the jury to take account of those additional matters, that account would have to be taken not only in the context of all of the rest of [I.C.’s] evidence, but also the wider context of all of the other evidence respecting the [G.B.] encounter and events preceding and succeeding, including the evidence of his seeking entry to the Club in an uninjured state; and, of course, the medical evidence. We therefore have grave difficulties in seeing how, realistically, disclosure of the police note of the interview could have possibly affected the outcome of the trial or given a real possibility of a different outcome ...” 86. The Appeal Court was therefore satisfied that the absence of the police statement from the defence file, an absence, it noted, which was also shared by the prosecution, did not result in material prejudice to the applicant or in the trial being unfair. 87. The applicant’s counsel urged the Appeal Court not only to consider each ground of appeal separately but to look at them as a whole to decide whether the trial had been fair. 88. The Appeal Court gave the submission consideration but was not persuaded, looking at the grounds jointly and collectively, that a miscarriage of justice had occurred. 89. On 27 May 2010, the Appeal Court refused leave to appeal to the Supreme Court on four grounds of appeal identified which, the applicant contended, raised human rights issues. 90. In respect of the first ground of appeal regarding the rule of specialty, the Appeal Court found that no devolution issue arose (see paragraphs 114-115 below). 91. As regards the second ground of appeal in respect of prejudicial publicity, leave was refused on the basis that it did not raise a matter of general public importance. 92. Leave to appeal was also refused in respect of the third ground of appeal based on the absence of reasons from the jury. The Appeal Court indicated that it was for the Supreme Court to decide whether leave should be granted on this ground. 93. Finally, the Appeal Court refused leave to appeal on the basis of the non-disclosure of the statement by I.C. It noted: “11. ... As is stated in the Note [of appeal], for whatever reason, the members of this court understood from the submissions that [I.C.] had given evidence at the trial whereas it appears that, while she was listed as a witness at an earlier stage in the proceedings and while she was precognosed by both the Crown and the defence, she did not in fact give evidence. However, the real issue raised by this additional ground of appeal was whether, to the extent that the police statement contained any details different from or additional to what had been ascertained by precognition, the defence were materially prejudiced and that issue is unaffected by the misunderstanding ...” 94. As to the applicant’s submission that for the purposes of deciding whether to grant leave it was important to consider the various complaints “in the round”, the Appeal Court said: “12 ... For our part we do not consider that this is a proper approach. In our view in considering an application for leave to appeal to the Supreme Court of the United Kingdom, it is necessary to identify and formulate a specific issue or specific issues which properly constitute a devolution issue or issues.” 95. On 16 December 2010 the Supreme Court refused the applicant’s application for leave to appeal against conviction. 96. On a number of occasions, starting in about February 2003, letters from the applicant’s legal advisers were opened by prison officers at Peterhead. Although the applicant received official apologies and assurances that it would not happen again, the incidents continued. 97. In September 2003 the applicant lodged a petition for judicial review in respect of the opening of his privileged correspondence by prison staff, arguing a violation of Article 8 of the Convention. 98. On 5 September 2003, in the context of the judicial review proceedings, the Scottish ministers gave an undertaking not to open, or have the applicant open in the presence of prison staff, the applicant’s privileged correspondence or correspondence from the Complaints Commissioner sent to HM Prison Peterhead. The judge refused the applicant’s motions for interim interdict (injunction) and interim declarator, noting the terms of the undertaking. The applicant appealed. 99. While the applicant was detained in HM Prison Edinburgh, his letters were once again opened, the undertaking of the Scottish ministers applying only to mail sent to HM Prison Peterhead. On 19 May 2004, the Scottish ministers extended their undertaking to cover HM Prison Edinburgh. 100. On 26 November 2004 a prison officer at Peterhead opened a letter from the Complaints Commissioner to the applicant in the latter’s presence. It transpired that the staff responsible for sorting and delivering mail did not understand that the undertaking applied to correspondence with the Complaints Commissioner. 101. The applicant sought a contempt of court order against the Scottish ministers for the breach of the undertaking. On 15 March 2005, judgment was handed down in the appeal and the court found the Scottish ministers in contempt of court. 102. Pursuant to section 65(1) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”), the trial of an accused on indictment must commence within a period of twelve months of the first appearance of the accused on petition in respect of the offence. However, in respect of an accused in detention, section 65(4)(b) provides that the trial must commence within 110 days. 103. A general practice exists in Scotland of prosecution and defence lawyers taking statements from witnesses before the trial commences and preparing a written record of the witnesses’ evidence. These statements are knows as precognitions. Precognitions are inadmissible as evidence at trial but allow lawyers on both sides to know in advance what will be the oral evidence of the witness during the trial. 104. Scots criminal law distinguishes between summary and solemn procedure. In the former the trial takes place before a judge sitting alone. In the latter, which is reserved for more serious offences, the trial takes place before a judge and a jury of fifteen members on the basis of an indictment. 105. By section 97(1) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”), immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both: (a) on an offence charged in the indictment; and (b) on any other offence of which he could be convicted under the indictment. 106. If the trial judge rejects a submission of no case to answer, the defence case is presented. The prosecution and defence then address the jury. The presiding judge then charges the jury. The role of the presiding judge in charging the jury was restated by the Lord Justice General in Hamilton v. HM Advocate (1938) JC 134: “The primary duty of the presiding judge is to direct the jury upon the law applicable to the case. In doing so it is usually necessary for him to refer to the facts on which questions of law depend. He may also have to refer to evidence in order to correct any mistakes that may have occurred in the addresses to the jury, and he may have occasion to refer to the evidence where controversy has arisen as to its bearing on a question of fact which the jury has to decide. But it is a matter very much in his discretion whether he can help the jury by resuming the evidence on any particular aspect of the case.” 107. The jury may return one of three verdicts: one of guilty and two alternative acquittal verdicts of not guilty or not proven. No reasons for any of the three verdicts are given by the jury. However, by section 106(3)(b) of the 1995 Act, there is a right of appeal in respect of any alleged miscarriage of justice, which includes a miscarriage based on the jury having returned a verdict which no reasonable jury, properly directed, could have returned. 108. Section 259 of the 1995 Act sets out a number of exceptions to the general rule in Scots law that hearsay evidence is inadmissible in criminal proceedings. One such exceptions arises where the witness who made the statement is dead. 109. Section 259(4) provides that where evidence of a statement made by, inter alia, a person who has subsequently died: “(a) any evidence which, if that person had given evidence in connection with the subject matter of the statement, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings; (b) evidence may be given of any matter which, if that person had given evidence in connection with the subject matter of the statement, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and (c) evidence tending to prove that that person, whether before or after making the statement, made in whatever manner some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.” 110. Pursuant to section 2(2) of the Contempt of Court Act 1981 (“the 1981 Act), a publication which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced may constitute a contempt of court tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so. 111. Section 4(2) of the 1981 Act allows the court, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in the proceedings before it, or in any other proceedings pending or imminent, to order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose. 112. At the relevant time the Extradition Act 1989 applied to the extradition proceedings. Section 18(1) of the Act provided: “Where any person is returned to the United Kingdom by a foreign state in pursuance of extradition arrangements, he shall not, unless he has first been restored or had an opportunity of leaving the United Kingdom, be triable or tried for any offence committed prior to the surrender in any part of the United Kingdom, other than– (a) an offence in respect of which he was returned; or (b) any offence disclosed by the particulars furnished to the foreign state on which his return is grounded; or (c) any other offence in respect of which the foreign state may consent to his being tried.” 113. Article 14 of the European Convention on Extradition 1957 deals with the principle of specialty and provides “1. A person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reason restricted in his personal freedom, except in the following cases: a. when the Party which surrendered him consents ...; b. when that person, having had an opportunity to leave the territory of the Party to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it. ...” 114. Section 57(2) of the Scotland Act 1998 provides that the Scottish Executive (of which the Lord Advocate is a member) has no power to act in a manner incompatible with the Convention. 115. A devolution issue is an issue raised under Schedule 6 to the Scotland Act concerning whether a legislative provision or an administrative act passed or taken under the Scotland Act 1998 is within the powers of the Scottish Parliament or the Scottish Executive. Notwithstanding the general rule in Scots Law that the Appeal Court is the final court of appeal in criminal matters, a devolution issue can be appealed to the Supreme Court. | 0 |
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