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dev | 001-88762 | ENG | HUN | CHAMBER | 2,008 | CASE OF KALMAR AND LORENCZ v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 4. The applicants were born in 1960 and 1928 respectively and live in Budapest. 5. On 8 November 1996 the applicants brought an action against Mr M., claiming moral damages for the latter’s insulting behaviour. The Dombóvár District Court initially suspended the proceedings pending the outcome of the criminal case being conducted against the respondent. A first judgment was eventually given on 15 April 1998 but was quashed on appeal on 27 May 1999. Subsequently, the case was assigned to the Szekszárd District Court. This court joined two further cases pending between the same parties to the principal action. 6. The joint proceedings later continued before the Buda Surroundings District Court. This court held numerous hearings between 24 January 2002 and 27 March 2007. Although the applicants did not attend several hearings, it appears that they requested the court to continue with their case in their absence. Ultimately, the District Court found for the applicants on 31 May 2007. 7. On 10 June 1999 Mr Kalmár brought an official liability action against the Attorney General’s Office. The case was assigned to the Pest County Regional Court. On 17 September 2000 this court adjudicated some of the plaintiff’s claims and disjoined others, the examination of which was suspended pending the outcome of another case. In the latter connection, the proceedings were resumed on 19 December 2001. However, no hearing took place until 4 October 2006. Further hearings took place on 14 March 2007 and 14 April 2008. According to the information in the case file, this case is still pending. 8. In 2001 Mr Kalmár was found guilty of making false accusations. On 30 July 2003 he requested a retrial. According to the information in the case file, that request is still pending. 9. On 5 August 2004 Ms J. filed a criminal report against Mr Kalmár, accusing him of libel. A hearing took place on 20 March 2006, at which Mr Kalmár complained that he had not been properly informed of the charges against him. His motion for bias against the police authority dealing with the case was dismissed, and his ensuing complaint, filed on 3 December 2004, does not appear to have been answered. 10. On 17 May 2006 Mr Kalmár challenged the Budapest XX/XXI/XXIII District Court for bias. His motion was rejected on 2 June 2006. According to the information in the case file, these proceedings are still pending. | 1 |
dev | 001-76586 | ENG | DEU | ADMISSIBILITY | 2,006 | WEBER AND SARAVIA v. GERMANY | 1 | Inadmissible | David Thór Björgvinsson | 1. The first applicant, Ms Gabriele Weber, is a German national. The second applicant, Mr Cesar Richard Saravia, is a Uruguayan national. Both applicants live in Montevideo (Uruguay). They were represented before the Court by Mr W. Kaleck, a lawyer practising in Berlin, and by Mr E. Schwan, a university professor in Berlin. The German Government (“the Government”) were represented by their Agents, Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The case concerns several provisions of the Law of 13 August 1968 on restrictions on the secrecy of mail, post and telecommunications (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses), also called “the G 10 Act”, as modified by the Fight Against Crime Act of 28 October 1994 (Verbrechensbekämpfungsgesetz). 4. It notably concerns the extension of the powers of the Federal Intelligence Service (Bundesnachrichtendienst) with regard to the recording of telecommunications in the course of so-called strategic monitoring, as well as the use (Verwertung) of personal data obtained thereby and their transmission to other authorities. Strategic monitoring is aimed at collecting information by intercepting telecommunications in order to identify and avert serious dangers facing the Federal Republic of Germany, such as an armed attack on its territory or the commission of international terrorist attacks and certain other serious offences (see “Relevant domestic law and practice” below, paragraphs 18 et seq.). In contrast, so-called individual monitoring, that is, the interception of telecommunications of specific persons, serves to avert or investigate certain grave offences which the persons monitored are suspected of planning or having committed. 5. The first applicant is a freelance journalist who works for various German and foreign newspapers, radio and television stations on a regular basis. In particular, she investigates matters that are subject to the surveillance of the Federal Intelligence Service, notably armaments, preparations for war, drug and arms trafficking and money laundering. In order to carry out her investigations, she regularly travels to different countries in Europe and South and Central America, where she also meets the persons she wants to interview. 6. The second applicant, an employee of Montevideo City Council, submitted that he took messages for the first applicant when she was on assignments, both from her telephone and from his own telephone. He then transmitted these messages to wherever she was. 7. On 19 November 1995 the applicants lodged a constitutional complaint with the Federal Constitutional Court. 8. They alleged that certain provisions of the Fight Against Crime Act amending the G 10 Act disregarded their fundamental rights, notably the right to secrecy of telecommunications (Article 10 of the Basic Law), the right to self-determination in the sphere of information (Articles 2 § 1 and 1 § 1 of the Basic Law), freedom of the press (Article 5 § 1 of the Basic Law) and the right to effective recourse to the courts (Article 19 § 4 of the Basic Law). 9. In the applicants’ submission, technological progress had made it possible to intercept telecommunications everywhere in the world and to collect personal data. Numerous telecommunications could be monitored, in the absence of any concrete suspicions, with the aid of catchwords which remained secret. Strategic monitoring could then be used in respect of individuals, preventing the press from carrying out effective investigations into sensitive areas covered by the Act. 10. The Federal Constitutional Court, having held a hearing, delivered its judgment on 14 July 1999 (running to 125 pages). It found that the constitutional complaint lodged by the second applicant was inadmissible. The court noted that a constitutional complaint could be lodged directly against a statute if the person concerned could not know whether there had actually been an implementing measure applying the statute to him or her. The complainant, however, had to substantiate sufficiently his or her argument that his or her fundamental rights were likely to be breached by measures taken on the basis of the impugned statute. 11. The Federal Constitutional Court noted that it was irrelevant that the applicants did not reside in Germany, because the impugned provisions were aimed at monitoring international telecommunications. However, it held that, unlike the first applicant, the second applicant had failed to substantiate sufficiently his claim that his rights under the Basic Law were likely to be interfered with by measures based on the impugned provisions of the amended G 10 Act. In the absence of any further details, the mere fact that he dealt with the first applicant’s telecommunications in her absence was not sufficient to demonstrate this. 12. Partly allowing the first applicant’s constitutional complaint, the Federal Constitutional Court held that certain provisions of the Fight Against Crime Act were incompatible or only partly compatible with the principles laid down in the Basic Law (see “Relevant domestic law and practice” below, paragraphs 18 et seq.). In particular, section 3(1), first and second sentence, point 5, section 3(3), (4), (5), first sentence, (7), first sentence, (8), second sentence, and section 9(2), third sentence, of the Act were found to be incompatible with Article 10, Article 5 or Article 19 § 4 of the Basic Law (see paragraphs 26 et seq. below). It fixed a deadline of 30 June 2001 for the legislature to bring the situation into line with the Constitution. 13. On 29 June 2001 a new version of the G 10 Act came into force (BGBl. I 2001, pp. 1254, 2298) and the G 10 Act in its version as amended by the Fight Against Crime Act of 28 October 1994 ceased to apply. 14. The Basic Law provides for the following fundamental rights, in so far as relevant: “(1) Everyone shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to obtain freely information from generally accessible sources. Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed. There shall be no censorship. (2) These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour.” “(1) Secrecy of mail, post and telecommunications shall be inviolable. (2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that review by the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people’s elected representatives.” “... (4) If a person’s rights are violated by a public authority, he may have recourse to the courts. If no other jurisdiction has been established, the civil courts shall have jurisdiction. Article 10 § 2, second sentence, remains unaffected by this paragraph.” 15. The separation of legislative powers between the Federation and the Länder is laid down in Articles 70 et seq. of the Basic Law. Pursuant to Article 70 § 1 the Länder, in principle, have the right to legislate in so far as the Basic Law does not confer legislative power on the Federation. Such legislative power is conferred on the Federation, in particular, in Article 73: “The Federation shall have exclusive power to legislate [ausschließliche Gesetzgebungskompetenz] on: 1. foreign affairs and defence, including the protection of civilians; ...” 16. Being the statute envisaged by Article 10 § 2, second sentence, of the Basic Law (cited above, paragraph 14), which provides for exceptions to the general rule of inviolability of telecommunications, the Law of 13 August 1968 on restrictions on the secrecy of mail, post and telecommunications (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses), also called “the G 10 Act”, lays down the conditions under which the authorities may introduce the restrictions referred to in that provision of the Basic Law. 17. In a judgment delivered on 6 September 1978 (Klass and Others v. Germany, Series A no. 28), the Court held that the provisions of the G 10 Act of 13 August 1968, in its original version and as regards the monitoring of individuals, did not contravene the Convention. It found that the German legislature was justified in considering that the interference resulting from the legislation in question with the rights guaranteed by Article 8 § 1 of the Convention was necessary in a democratic society within the meaning of paragraph 2 of that Article. The Court also considered that the remedies provided for in the G 10 Act complied with the requirements of Article 13 of the Convention. 18. The Federal Law of 28 October 1994 on the fight against crime amended the G 10 Act. Among other things, it extended the range of subjects in respect of which “strategic monitoring” (as opposed to monitoring of individuals) could be carried out. In the original version of the G 10 Act, such monitoring was permitted only in order to detect and avert the danger of an armed attack on the Federal Republic of Germany and at that time was therefore merely focused on the States belonging to the Warsaw Pact. Furthermore, owing to technical progress it had become possible to identify the telephone connections (Anschlüsse) involved in an intercepted telecommunication. 19. Pursuant to the provisions of the G 10 Act which either remained unchanged by the Fight Against Crime Act or were not contested in the present case, the Offices for the Protection of the Constitution of both the Federation and the Länder (Verfassungsschutzbehörden des Bundes und der Länder), the Military Counter-Intelligence Service (Militärischer Abschirmdienst) and the Federal Intelligence Service were entitled to monitor and record telecommunications within their own sphere of activities (section 1(1) of the G 10 Act). Monitoring of individuals was limited to serious threats to national security (for example, high treason or threatening the democratic order) and was permissible only if less intrusive means of investigation had no prospect of success or were considerably more difficult (section 2 of the G 10 Act). As to strategic monitoring, only the head of the Federal Intelligence Service or his deputy were entitled to lodge an application for a surveillance order. The application had to be lodged in writing, had to describe and give reasons for the nature, scope and duration of the measure and had to explain that other means of carrying out the investigations either had no prospect of success or were considerably more difficult (section 4 of the G 10 Act). 20. Restrictions on the secrecy of telecommunications were to be ordered by the Federal Minister assigned by the Chancellor or the highest authority of the Länder (in respect of applications by their Offices for the Protection of the Constitution). The order was made in writing and specified the exact nature, scope and duration of the monitoring measure. The duration of the measure was to be limited to a maximum of three months; the execution of the measure could be prolonged for a maximum of three months at a time as long as the statutory conditions for the order were met (see section 5 of the G 10 Act). 21. The monitoring measures authorised were to be carried out under the responsibility of the requesting authority and under the supervision of a staff member qualified to hold judicial office. Monitoring had to be discontinued immediately if the conditions of the monitoring order were no longer met or the measure was no longer necessary (section 7 of the G 10 Act). 22. Section 3(4) provided that the Federal Intelligence Service was to verify whether the personal data obtained by measures taken under subsection 1 of section 3 were necessary to pursue the aims laid down in that subsection. 23. The Federal Constitutional Court found that in its present version section 3(4) was incompatible with Article 10 and Article 5 § 1, second sentence, of the Basic Law. It found that the provision did not contain sufficient safeguards to guarantee that personal data which were not destroyed or deleted as being unnecessary for the purposes of the Federal Intelligence Service would be used only for the purposes which had justified their collection. Furthermore, the provision also failed to comply with the identification requirements flowing from Article 10. In addition, there were insufficient safeguards to guarantee that the Federal Intelligence Service would only use such data as were relevant for the dangers listed in section 3(1). Such safeguards should also ensure that the Federal Intelligence Service would take into account the important concerns of nondisclosure of sources and confidentiality of editorial work as protected by the freedom of the press under Article 5 § 1 of the Basic Law. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(4) was to be applied only if the data were specially marked and were not used for purposes other than those listed in section 3(1). 24. Monitoring measures were supervised by two bodies, the Parliamentary Supervisory Board and the so-called G 10 Commission (see section 9 of the G 10 Act). At the relevant time, the Parliamentary Supervisory Board consisted of nine members of parliament, including representatives of the opposition. The Federal Minister authorising monitoring measures had to inform the board at least every six months about the implementation of the G 10 Act (section 9(1) of the G 10 Act). 25. The G 10 Commission consisted of a president who was qualified to hold judicial office and three additional members who were appointed by the Parliamentary Supervisory Board for the duration of one legislative term and who were independent in the exercise of their functions (see section 9(4) of the G 10 Act). The Federal Minister authorising surveillance measures had to inform the G 10 Commission monthly about planned monitoring measures and had to obtain its consent (section 9(2) of the G 10 Act; see paragraphs 55-58 below). Moreover, the Federal Minister had to inform the Commission whether or not persons concerned by such measures had been notified of them. If the Commission decided that notification was necessary, the Federal Minister had to arrange for it to be given without undue delay (section 9(3) of the G 10 Act). 26. Section 1(1), points 1 and 2, in conjunction with section 3(1), first and second sentence, authorised the monitoring of wireless telecommunications, that is, telecommunications which were not effected via fixed telephone lines, but, for example, via satellite connections (Überwachung nicht leitungsgebundener Fernmeldeverkehrsbeziehungen). 27. Section 3(1), first sentence, provided that restrictions on the secrecy of telecommunications could be ordered by the competent Federal Minister with the approval of the Parliamentary Supervisory Board, on an application by the Federal Intelligence Service, for international wireless telecommunications. Under the second sentence of that provision, such restrictions were permitted only in order to collect information about which knowledge was necessary for the timely identification and avoidance of certain dangers, namely: (1) an armed attack on the Federal Republic of Germany; (2) the commission of international terrorist attacks in the Federal Republic of Germany; (3) international arms trafficking within the meaning of the Control of Weapons of War Act and prohibited external trade in goods, data-processing programmes and technologies in cases of considerable importance; (4) the illegal importation of drugs in substantial quantities into the territory of the Federal Republic of Germany; (5) the counterfeiting of money (Geldfälschung) committed abroad; (6) the laundering of money in the context of the acts listed under points 3 to 5. Pursuant to section 3(1), third sentence, restrictions on the secrecy of telecommunications could also be ordered for telecommunications via fixed telephone lines and for mail in order to identify and avert the dangers listed in section 3(1), second sentence, point 1. 28. The Federal Constitutional Court found that, pursuant to Article 73, point 1, of the Basic Law (see paragraph 15 above), the federal legislature had exclusive legislative power to regulate the matters listed in section 3(1) of the amended G 10 Act, as they concerned foreign affairs. 29. However, the Federal Constitutional Court took the view that allowing the monitoring of telecommunications in order to prevent the counterfeiting of money abroad, in accordance with point 5 of section 3(1) in its present wording, constituted a disproportionate interference with the secrecy of telecommunications as protected by Article 10 of the Basic Law. It argued that this danger as such could not be considered to be as serious as an armed attack on the German State or any of the other dangers listed in section 3(1). The counterfeiting of money should therefore be included in section 3(1) only if it was restricted to cases in which it threatened the monetary stability of the Federal Republic of Germany. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(1), second sentence, point 5, was to be applied only if the counterfeiting of money abroad threatened monetary stability in Germany. 30. In practice, wireless telecommunications (as opposed to telecommunications via fixed telephone lines) comprised some ten per cent of the total volume of telecommunications at the relevant time. However, given technical progress, the volume of such telecommunications was expected to rise in the future. 31. Technically, telecommunications via satellite links (with the satellites being positioned some 36,000 km above the equator) could be intercepted from sites in Germany if the signal reflected by the satellite (the “downlink”) covered the area in which the station was located. The area covered by the satellite beam depended on the satellite technology used. Whereas signals downlinked by older satellites often “beamed” across onethird of the earth’s surface, more modern satellites could concentrate their downlink on smaller areas. Signals could be intercepted everywhere within the area covered by the beam. International radio relay links (Richtfunkstrecken) could be intercepted from interception sites on German soil only if the radio relay transmission was effected within close proximity of these sites. 32. Pursuant to section 3(2), the Federal Intelligence Service was only authorised to carry out monitoring measures with the aid of catchwords (Suchbegriffe) which served, and were suitable for, the investigation of the dangers described in the monitoring order (first sentence). The second sentence of that provision prohibited the catchwords from containing distinguishing features (Identifizierungsmerkmale) allowing the interception of specific telecommunications. However, this rule did not apply to telephone connections situated abroad if it could be ruled out that connections concerning German nationals or German companies were deliberately being monitored (third sentence). The catchwords had to be listed in the monitoring order (fourth sentence). The execution of the monitoring process as such had to be recorded in minutes by technical means and was subject to supervision by the G 10 Commission (fifth sentence). The data contained in these minutes could be used only for the purposes of reviewing data protection and had to be deleted at the end of the year following their recording (sixth and seventh sentences). 33. Section 3(3), first sentence, provided that personal data (personenbezogene Daten) obtained through the interception of telecommunications could only serve the prevention, investigation and prosecution of offences listed in section 2 of the Act and in certain other provisions, notably of the Criminal Code. These offences included, in particular, high treason against the peace or security of the State, crimes threatening the democratic order, the external security of the State or the security of the allied forces based in the Federal Republic of Germany, the formation of terrorist associations, murder, manslaughter, robbery, the forgery of payment cards or cheques, fraud relating to economic subsidies, infiltration of foreigners and the production, importation and trafficking of illegal drugs. Personal data thus obtained could be used only if the person concerned was either subject to individual monitoring under section 2 of the Act or if there were factual indications (tatsächliche Anhaltspunkte) for suspecting a person of planning, committing or having committed one of the offences mentioned above. This catalogue of offences for the investigation of which knowledge obtained by strategic monitoring could be used was considerably enlarged by the amendment of the G 10 Act in issue. 34. Pursuant to section 3(3), second sentence, the obligation on the Federal Intelligence Service to inform the Federal Government of its findings obtained by strategic monitoring, including personal data, under section 12 of the Federal Intelligence Service Act remained unaffected. 35. The Federal Constitutional Court found that section 3(3), second sentence, in its present version, failed to comply with Articles 10 and 5 § 1, second sentence, of the Basic Law. The provision did not contain sufficient safeguards to guarantee that the duty of the Federal Intelligence Service to report to the Federal Government, which included the transmission of personal data, would be performed solely for the purposes which had justified the collection of the data (Zweckbindung). Furthermore, the provision failed to comply with the identification requirements (Kennzeichnungspflicht) flowing from Article 10. Ensuring that personal data were not used for illegal purposes was possible only if it remained discernible that the data concerned had been obtained by means of an interference with the secrecy of telecommunications. Likewise, there were no safeguards ensuring that the Federal Government did not keep or use the personal data transmitted to them for purposes other than those listed in section 3(1). The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(3), second sentence, was to be applied only if the personal data contained in the report to the Federal Government were marked and remained bound up with the purposes which had justified their collection. 36. Section 3(5), first sentence, provided that the data obtained in the circumstances described in subsection 1 of section 3 had to be transmitted to the Offices for the Protection of the Constitution of the Federation and of the Länder, to the Military Counter-Intelligence Service, to the Customs Investigation Office (Zollkriminalamt), to the public prosecutors’ offices and to certain police services for the purposes laid down in subsection 3 of section 3 in so far as this was necessary for the recipient authorities to carry out their duties. 37. Pursuant to section 3(5), second sentence, the decision to transmit data was to be taken by a staff member who was qualified to hold judicial office. 38. The Federal Constitutional Court found that the federal legislature’s exclusive legislative power under Article 73, point 1, of the Basic Law (see paragraph 15 above) to regulate matters concerning foreign affairs also covered the transmission to other authorities of information obtained by the Federal Intelligence Service in the performance of its tasks as provided for in section 3(5) of the amended G 10 Act. The federal legislature merely had to provide guarantees that the further use of the data did not disregard the primary function of the monitoring measures. 39. The Federal Constitutional Court further found that section 3(5) was not fully compatible with Articles 10 and 5 § 1, second sentence, of the Basic Law. It held that Article 10 did not prohibit the transmission to the authorities listed in section 3(5), first sentence, of information which was relevant for the prevention and investigation of criminal offences. This finding was not called into question by the fact that the initial collection of data by means of the random interception of telecommunications in order to prevent or investigate offences, without any prior suspicion of a specific offence being planned or having been committed, would breach Article 10. 40. However, in the opinion of the Federal Constitutional Court, the transmission of data under section 3(5), first sentence, in its present version, disproportionately interfered with the right to secrecy of telecommunications and freedom of the press. The transmission of data constituted a further serious interference with the secrecy of telecommunications, because criminal investigations could be instituted against persons concerned by the interception of telecommunications which had been carried out without any prior suspicion of an offence. Consequently, such transmission was proportionate only if it served the protection of an important legal interest and if there was a sufficient factual basis for the suspicion that criminal offences were being planned or had been committed. 41. Section 3(5), first sentence, read in conjunction with section 3(3), did not fully comply with these requirements. 42. The catalogue of offences in respect of which the transmission of data was permitted also included less serious offences such as fraud relating to economic subsidies. Moreover, the impugned provision authorised the transmission of data in cases in which there were merely factual indications for the suspicion that one of the offences listed in that provision had been committed or was even only being planned. The transmission of data for the investigation of an offence which had already been committed was to be authorised only if the factual basis for the transmission was the same as that required by Article 100a of the Code of Criminal Procedure. Article 100a provided, however, that interferences with the secrecy of telecommunications in order to investigate crimes required the presence of specific facts – as opposed to mere factual indications – warranting the suspicion that the person concerned had committed an offence listed in that provision. As regards the transmission of data for the prevention of crime, the combination of the following elements led to a disproportionate interference with the fundamental rights affected: the fact that mere factual indications were sufficient, that the mere planning of an offence could suffice, and that transmission could also be justified in the case of less serious offences. 43. The Federal Constitutional Court further found that section 3(5), second sentence, was likewise not compatible with the right to secrecy of telecommunications. It considered it unnecessary to entrust the decision on transmission of data to an independent body. However, there was no requirement to record in minutes the transmission or the destruction or deletion of the data. This rendered effective supervision of the transmission of the data impossible. 44. The Federal Constitutional Court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(5), first sentence, could be applied provided that data were only transmitted if specific facts aroused the suspicion that offences listed in section 3(3) had been committed. Furthermore, the transmission had to be recorded in minutes. 45. Section 3(6) and (7) and section 7(4) regulated the procedure for destruction of the data obtained by strategic monitoring. 46. Section 3(6) provided that if the data obtained in the circumstances set out in section 3(1) were no longer necessary to achieve the purposes listed in that provision and if they did not have to be transmitted to other authorities pursuant to section 3(5), they had to be destroyed and deleted from the files under the supervision of a staff member who was qualified to hold judicial office (first sentence). The destruction and deletion had to be recorded in minutes (second sentence). It was necessary to verify every six months whether the conditions for destruction or deletion were met (third sentence). 47. Section 3(7) provided that the recipient authorities were likewise to verify whether they needed the data transmitted to them in order to achieve the aims laid down in section 3(3) (first sentence). If this was not the case, they also had to destroy the data immediately (second sentence). The destruction could be dispensed with if separation of the data from other information which was necessary for the fulfilment of the tasks set was impossible or could only be carried out through unjustifiable effort; the use of such data was prohibited (third sentence). 48. Section 7(4), first sentence, provided that personal data obtained by means of monitoring measures pursuant to sections 2 and 3 about a person involved in the telecommunications monitored had to be destroyed if they were no longer necessary for the purposes listed in the Act and could no longer be of significance for an examination by the courts of the legality of the measure. The destruction had to be carried out under the supervision of a person qualified to hold judicial office. Pursuant to section 7(4), second sentence, the destruction had to be recorded in minutes. It was necessary to examine every six months whether personal data obtained could be destroyed (third sentence). Access to data which were merely kept for the purpose of judicial review of the monitoring measure had to be blocked (fourth sentence). They could only be used for that purpose (fifth sentence). 49. The Federal Constitutional Court found that the provisions on the destruction of data laid down in section 3(6) and (7), second and third sentences, and section 7(4) complied with Article 19 § 4 of the Basic Law. The provisions had, however, to be interpreted so as not to frustrate judicial review of monitoring measures. This meant that data could only be destroyed six months after the person concerned had been notified that monitoring measures had been taken. 50. However, the Federal Constitutional Court considered section 3(7) to be incompatible with Article 10 of the Basic Law. It was necessary for the recipient authorities to mark the data as having been obtained by means of the interception of telecommunications. Otherwise, following verification that the information obtained was relevant for the tasks of the authorities concerned, personal data could be saved in a manner which made it impossible to identify them as resulting from the strategic monitoring of telecommunications. The restrictions on the permitted use of these data pursuant to section 3(3) would thereby be undermined. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(7) could be applied provided that the data were marked as described. 51. Section 3(8), first sentence, provided that the Federal Intelligence Service or the recipient authorities had to inform the persons monitored about the restriction imposed on the secrecy of telecommunications as soon as such notification could occur without jeopardising the achievement of the aim pursued by the restriction and the use of the data. Pursuant to section 3(8), second sentence, no notification was given if the data obtained had been destroyed within three months after their receipt by the Federal Intelligence Service or the recipient authorities. 52. The Federal Constitutional Court considered the restriction on the duty of notification as such, as laid down in section 3(8), first sentence, to be compatible with the Basic Law. By virtue of Article 10 § 2, first and second sentences, taken in conjunction with Article 19 § 4, third sentence, of the Basic Law, no notification had to be given if this served to protect the German State or its democratic order or if disclosure of the information obtained or the methods used to this end threatened the fulfilment of the tasks of the authorities concerned. 53. However, section 3(8), second sentence, violated Articles 10 and 19 § 4 of the Basic Law. There were no safeguards precluding the data from being used before their destruction within the three-month period. The mere destruction of the data within that period alone did not, however, justify dispensing with the duty of notification irrespective of the prior use of the data. 54. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(8) could be applied provided that the data had not been used before their destruction. 55. Section 9(2) provided for supervision of the monitoring measures by an independent body, the so-called G 10 Commission. 56. Pursuant to section 9(2), first sentence, the competent Federal Minister was to inform the G 10 Commission on a monthly basis about the measures he had ordered to restrict the secrecy of telecommunications before such measures were implemented. 57. The Federal Minister could, however, order the execution of the measure before informing the G 10 Commission if there was a risk that a delay might frustrate the purpose of the measure (second sentence of section 9(2)). The Commission gave a decision of its own motion or further to complaints contesting the legality and necessity of monitoring measures (third sentence). Monitoring orders which the Commission deemed illegal or unnecessary had to be immediately revoked by the Minister (fourth sentence). 58. The Federal Constitutional Court considered that section 9(2), in its present wording, was incompatible with Article 10 of the Basic Law. It failed to provide in a sufficiently clear manner that supervision by the G 10 Commission covered the whole process of obtaining and using the data (including measures taken under section 3(3), (5), (6) and (8)), and not only the monitoring orders by the competent Minister. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, the provision in question was only to be applied if the Commission’s supervisory powers extended to measures taken under section 3(3), (5), (6) and (8). 59. Section 9(6) excluded the possibility of judicial review in the case of monitoring measures ordered and executed to prevent an armed attack on the territory of the Federal Republic of Germany within the meaning of section 3(1), second sentence, point 1. 60. Pursuant to section 5(5) of the G 10 Act, which remained unchanged in substance, the person concerned had to be notified of measures restricting the secrecy of telecommunications as soon as these measures were discontinued, provided that such notification did not jeopardise the purpose of the restriction (first and second sentence). After notification, the person concerned could have recourse to the courts; section 9(6) did not apply (third sentence). 61. The Federal Constitutional Court found that section 9(6) constituted a justified restriction on the secrecy of telecommunications in accordance with Article 10 § 2, second sentence, of the Basic Law. Moreover, a person concerned by a monitoring measure could have recourse to the courts following notification of the restriction under section 5(5), third sentence, of the G 10 Act. The same applied if the person concerned had learned of the monitoring measure by another means, without having been notified. 62. A new version of the G 10 Act, which takes into account the principles laid down by the Federal Constitutional Court in its judgment of 14 July 1999, came into force on 26 June 2001. | 0 |
dev | 001-83520 | ENG | DEU | ADMISSIBILITY | 2,007 | BRZANK v. GERMANY | 4 | Inadmissible | Peer Lorenzen | The applicant, Mrs Ines Brzank, is a German national who was born in 1969 and lives in Oschatz. The applicant is a practising lawyer who specialises, inter alia, in sports law. She distributed a leaflet containing her curriculum vitae, which mentioned her career as an athlete in the national team of the German Democratic Republic and that she had won several international tournaments. Also, the applicant listed in the leaflet her fees for a first legal consultation, depending on the value in dispute, in matters concerning private litigation and, depending on the duration of the consultation, in matters concerning family law, labour law and criminal law. Her highest fee was 333 German marks (DEM). At the bottom of the list, she put an asterisked footnote that the highest fee for a first consultation permitted under the applicable law, then the Federal Scale of Fees for Lawyers (Bundesrechtsanwaltsgebührenordnung), was DEM 350. The latter fee was therefore higher than any of the fees the applicant had listed. Another lawyer who practised in the same town as the applicant lodged an application for interim measures, and as a result the Leipzig Regional Court provisionally ordered, in a judgment of 7 November 2001, the applicant to refrain from referring to her former sports career in her advertising and from listing her fees for first legal consultations on matters of family and labour law with the above-mentioned footnote. An appeal by the applicant was dismissed by the Dresden Court of Appeal on 5 February 2002. In the main proceedings, by judgment of 17 April 2002, the Leipzig Regional Court repeated the above order and included an order to refrain from listing in the footnote to the leaflet the fees for all first legal consultations, subject to a fine of 250,000 euros (EUR) for non-observance of the order. It based the claimant’s request for an injunction (Unterlassungsanspruch) on sections 1 and 3 of the Unfair Competition Act in conjunction with section 43b of the Federal Lawyers Act (see relevant domestic law section). The Leipzig Regional Court reasoned that lawyers were only allowed to use factual information whose form and content was connected with the profession in their advertising. It reasoned that the reference to her former sports career lacked any such connection with her profession as a lawyer. As to the list of her legal fees containing the asterisked footnote, it noted that the applicant had made a comparison between her fees for a first legal consultation and the fees permitted under the applicable law. Ordinary citizens however would not be aware that the applicable law gave lawyers the discretion to charge a fee for a first consultation ranging between a tenth of that fee and the full amount, and that the fees varied according to the value in dispute. After comparing the applicant’s fees with the amount mentioned in the footnote, an ordinary citizen would assume that any other lawyer might charge DEM 350 for a first legal consultation, whereas the maximum fee the applicant charged was DEM 333. Therefore, the leaflet might give the impression that the applicant’s fees were normally lower than the fees of those lawyers who used the full discretion permitted under the applicable law. The Leipzig Regional Court noted however that this was not the case, pointing out that some of the applicant’s fees for lower values in dispute were considerably higher than the fees permitted under the applicable law. It also pointed out that the footnote referred to a fee of DEM 350 without mentioning that this was the full fee for consultations only for disputes with a value above DEM 10,000. Therefore, ordinary clients could be misled into assuming that the fee of DEM 350 applied to all values in dispute and that the applicant’s fees were normally lower than the fees permitted under the applicable law. Therefore, the list with the footnote had to be considered “misleading advertising” within the meaning of section 3 of the Unfair Competition Act. On 27 September 2002, the Dresden Court of Appeal dismissed an appeal lodged by the applicant. It reasoned that, contrary to the applicant’s submission, she had not generally been prohibited from mentioning her fees in her advertising. It was the specific form of the advertisement in conjunction with the footnote that had been regarded as misleading by the Leipzig Regional Court. On 4 August 2003 the Federal Constitutional Court partly quashed the judgments of the Leipzig Regional Court of 29 May 2002 and of the Dresden Court of Appeal of 27 August 2002 in so far as they concerned the prohibition on referring to the applicant’s sports career in the leaflet. It took the view that, because the applicant partly specialised in legal disputes concerning sports, the reference did have a direct connection to her profession. Therefore, the prohibition violated the applicant’s freedom to choose a profession under Article 12 of the German Basic Law. With regard to the prohibition on listing her fees in the asterisked footnote, the Federal Constitutional Court refused to admit the constitutional complaint for adjudication. It found that Article 12 of the Basic Law included advertising for professional services, and that the professions were allowed to advertise as long as they provided factual information which was not misleading. It was not objectionable from a constitutional point of view that the domestic courts had regarded the list with the asterisked footnote as misleading and that they had interpreted that list in context and from the perspective of an ordinary citizen. By using the footnote, the applicant had made a comparison between her “prices” and the highest fees permitted under the applicable law. It could not be regarded as erroneous that the domestic courts had found that an ordinary citizen (who would not make complicated calculations) would assume by mistake that the applicant was normally less expensive. The Unfair Competition Act protected not only other competitors, but also the general public, from unfair competition. It was not decisive that there had not been malpractice on the part of the applicant. The applicant received the decision of the Federal Constitutional Court on 20 August 2003. Relevant provisions of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb): “Any person who, in the course of business activity and for purposes of competition, commits acts contrary to honest practices may be enjoined from performing these acts and held liable for damages.” “Any person who, in the course of business activity and for purposes of competition, makes misleading statements concerning business matters, in particular concerning the nature, the origin, or the manner of manufacture, or the pricing of individual goods or commercial services or of the offer as a whole, concerning price lists, the manner or the source of acquisition of goods, concerning the possession of awards, concerning the occasion or purpose of sale, or concerning the size of the available stock, may be enjoined from making such statements.” Relevant provision of the Federal Lawyers Act (Bundesrechtsanwalts-ordnung): “A lawyer is only permitted to advertise his/her services in as far as the advertising in question provides factual information concerning the form and the nature of the professional services and as long as it is not aimed at soliciting specific instructions or a specific brief.” | 0 |
dev | 001-57679 | ENG | ITA | CHAMBER | 1,991 | CASE OF F.C.B. v. ITALY | 3 | Violation of Art. 6-1+6-3-c;Damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | C. Russo | 9. On 20 September 1972, in the course of an armed robbery in the province of Bergamo, two masked criminals killed one person and seriously injured another; they then fled in a car driven by an accomplice. Among the suspects, who were swiftly identified, was the applicant. 10. Mr F.C.B. was arrested in Switzerland on 9 November 1973 and extradited to Italy on 19 February 1974. He was charged with armed robbery, murder and attempted murder, these crimes being aggravated by the fact that he had committed them while wilfully evading arrest under other warrants. 11. On 10 November 1977 the Bergamo Assize Court found him and his four co-defendants guilty and sentenced him inter alia to twenty-four years’ imprisonment. 12. The applicant and three others who had been found guilty appealed, and on 26 March 1980 the Brescia Assize Court of Appeal acquitted them for lack of evidence. Mr F.C.B. was released on the following day; in accordance with Article 171 of the Code of Criminal Procedure (see paragraph 25 below), he indicated his address. 13. The Principal Public Prosecutor and three other parties, including the applicant, appealed on points of law. The prosecution’s notice of appeal was served on Mr F.C.B. personally on 5 April 1980 at the address he had given, which was also that of his mother. 14. On 13 April 1983 the Court of Cassation dismissed the applicant’s appeal, allowed the prosecution’s appeal, and remitted the case to the Milan Assize Court of Appeal. 15. Mr F.C.B. had in the meantime entered the Federal Republic of Germany on 24 April 1980. He settled at Constance and was granted a residence permit there on 29 September 1980. He claims that he informed the Italian Consulate in Freiburg of his new address, in order for it to be notified to the Italian authorities for "entry in the civil status register". He did not, however, send the authorities an amended version of his declaration of 27 March 1980 (see paragraph 12 above). 16. The applicant was arrested in Brussels on 19 December 1982 under a warrant issued in the Netherlands in connection with proceedings relating to the abduction of a Netherlands woman. According to Mr F.C.B., after he had been extradited to the Netherlands the Dutch authorities obtained a copy of his criminal record; furthermore, the judge in charge of the case arranged for his Italian colleagues in Milan and Bergamo to co-operate in investigations in Italy and asked the Milan Chief Public Prosecutor’s Office to have searches of the dwellings of the applicant, his sister and his sister-in-law carried out. The Government did not contest this point, merely stating that they had no detailed information about it. Mr F.C.B. maintained that he was held in solitary confinement from 19 December 1982 to 19 February 1985, when his conviction by the ‘s-Hertogenbosch Court of Appeal became final, and was thus subject to certain restrictions - which were, however, eventually relaxed - on correspondence, visits and contacts with other detainees. 17. On 25 November 1983 the President of the Milan Assize Court of Appeal attempted to serve a summons to appear before that court on the applicant at the address given by him on his release, but neither the applicant nor his mother lived there any more. On 15 December 1983 the summons was delivered to Mr F.C.B.’s mother, whose new address had been found out in the meantime. The applicant’s lawyer had also been informed on 23 October 1983 of the hearing date. 18. The trial opened on 9 April 1984 in Mr F.C.B.’s absence. His counsel informed the court that, according to close relatives of his client, the latter was in custody in Maastricht; he added, however, that he was unable to produce documentary evidence to this effect. The prosecution submitted that there was no objective evidence to show that Mr F.C.B. was in custody and invited the court to try him in absentia as unlawfully absent (contumace). The court decided to do this, but counsel for one of the co-defendants asked it to verify the information that Mr F.C.B. was unable to attend the trial, as the applicant’s presence could prove to be of importance for his client. That client and another co-defendant confirmed that Mr F.C.B. was in prison in the Netherlands; the one had learnt of it from the newspapers and the other had received a letter from the applicant sent from Maastricht prison. 19. The prosecution for their part repeated their submissions. After deliberating in private, the Assize Court of Appeal confirmed its declaration that Mr F.C.B. was unlawfully absent, as he had not provided proof that he was unable to attend, despite having been notified in good time of the start of the trial. On 10 April 1984 the court sentenced him to twenty-four years’ imprisonment and issued a warrant for his arrest. 20. On 26 April Mr F.C.B.’s Dutch lawyer sent his Italian colleague copies of documents (two summonses to appear before the Netherlands courts) showing that his client was in custody. Translations were given to the court on 26 May. 21. The applicant’s lawyer appealed on points of law to the Court of Cassation; his grounds of appeal were filed in February 1985. He submitted that the Assize Court of Appeal had been wrong in declaring Mr F.C.B. unlawfully absent and questioned the correctness in law of the judgment. On the first point he argued that the decision itself and the subsequent proceedings were null and void, as it had been impossible for his client to attend the hearing. He said that it was only out of excessive regard for formal propriety that the Assize Court of Appeal had declined to rule that the applicant was unable to appear, notwithstanding several concurring statements testifying to the fact. 22. The Court of Cassation dismissed the appeal on 13 November 1985. It found, firstly, that the appeal court had been right to try Mr F.C.B. as unlawfully absent, as there was no proof that he was unable to attend. The documents produced on 26 May 1984 (see paragraph 20 above) had been offered in evidence only after judgment had been given and therefore had no probative value. With greater diligence the defence could have produced them before the hearing. It could be seen from the statement of appeal that the applicant would have had time to do this, as he had been in custody in the Netherlands well before the summons to appear was served. The Court of Cassation held that it was for the Assize Court of Appeal to assess the alleged inability to attend, and that that court had given proper reasons for its decision. 23. On 5 September 1984 the Italian authorities had requested Mr F.C.B.’s extradition for the purposes of the judicial investigation concerning him. On 17 June 1985, however, the Maastricht Regional Court dismissed the request as inadmissible, on the grounds that the Milan Assize Court of Appeal had already given a judgment on the merits on 10 April 1984 (see paragraph 19 above). The court added that it would consider the matter again in the event of the judicial investigation being reopened as a result of a retrial being ordered by the Court of Cassation or for some other reason. 24. The Netherlands agreed to extradite Mr F.C.B. to Belgium and he is currently in custody there. According to the information given to the Court by counsel for the applicant, the applicant will have to return to the Netherlands to serve one year’s imprisonment there, and if the Italian authorities succeed in obtaining his extradition, he will then serve in Italy six years and six months of the prison sentence imposed by the Milan Assize Court of Appeal. 25. In the Foti and Others judgment of 10 December 1982, the Colozza judgment of 12 February 1985 and the Brozicek judgment of 19 December 1989 (Series A no. 56, p. 12, paras. 33-36; no. 89, p. 11, para. 18, and p. 12, paras. 21-22; no. 167, p. 13, para. 26) the Court gave a brief description of the Italian legislation then in force as regards notifications and trials in absentia (contumacia). As to notifications to an accused who has been released but in whose case a final judgment has not yet been given, the first and fourth paragraphs of Article 171 of the Code of Criminal Procedure provide as follows (translation from Italian): "An accused held in custody who has to be released for a reason other than a final acquittal ... must at the time of release declare or elect an address [for service] by lodging a document with the director of the prison. The director shall enter any declaration he has received in the register specified in Article 80 and shall immediately notify it to the judicial authority which ordered the release ... . Any change relating to the address declared or elected must be communicated by the suspect or accused to the authority in charge of the case, as provided for in the first paragraph. Notifications made to the address previously declared or elected shall be valid until such communication has been received." | 1 |
dev | 001-75617 | ENG | FRA | ADMISSIBILITY | 2,005 | SCEA FERME DE FRESNOY v. FRANCE [Extracts] | 1 | Inadmissible | null | The applicant company, SCEA Ferme de Fresnoy, is an agricultural partnership with unlimited liability (société civile d’exploitation agricole). Its registered office is situated at Port-Saint-Nicolas in the administrative district of Saint-Nicolas-la-Chapelle and its manager, Mr Bertrand Mangeot, acts on its behalf. It was represented before the Court by Mr C. Bremond, of the Paris Bar. The French Government were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs. On 19 May 2004 counsel for the applicant company informed the Court that Mr Paul Mangeot, one of the partners in the business, had died and that his widow, together with his son, Mr Bertrand Mangeot, who was already the manager, were now the only shareholders. Counsel indicated that Mr Mangeot and his mother had expressed their wish to continue the proceedings before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. Mr Bertrand Mangeot runs a 242-hectare farm in the administrative district of Montpothier (département of Aube). His father was joint manager until his death. The farm was acquired in 1971 following the expropriation of a previous agricultural holding based in Lognes. The central part of the farm consists of various farm buildings around an inner courtyard and includes a chapel and a chapter house dating from the twelfth and thirteenth centuries, which are the remains of the Templar commandery of Fresnoy. Both of those edifices are tightly integrated into the surrounding buildings. In a letter of 4 March 1986, the Aube prefecture offered a State grant for the restoration of the chapel and chapter house. The proposed grant was to cover 15% of the initial work. The applicant company declined the offer in view of the excessive share of the cost that it would have to bear. By a decision of the prefect dated 26 August 1988, the remains of the commandery were added to the secondary list of historic buildings. Following the approval of the National Historic Monuments Commission on 16 November 1992 and by a decision of 4 January 1994, the chapel and chapter house of the historic Fresnoy commandery were added to the primary list of historic buildings under the Historic Monuments Act of 31 December 1913. The reason for the listing was that “the preservation [of the buildings] ha[d] public-interest value in relation to the history of art, in view of the rarity and authenticity of the Templar architecture”. This status gave rise to various sets of proceedings. As the applicant company had envisaged building a farm shed near the chapel and chapter house, various meetings were organised with the national heritage architect and the architecture authority for the département of Aube with a view to finding a new location, since the applicant company’s initial plan could no longer be implemented owing to the constraints of the historic monument protection. On 24 March 1990 the applicant company lodged an application for a building permit in respect of a farm machinery workshop, in spite of the national heritage architect’s negative opinion, which was subsequently confirmed on 3 August 1990. By a decision of the prefect dated 10 August 1990, the building permit was refused on the ground that “the intended construction would have an adverse effect on the chapel of the Templar commandery and would undermine the current harmony of the buildings as a whole”. The applicant company applied to the Châlons-sur-Marne Administrative Court for judicial review of the prefect’s decision. On 12 December 1990 a further meeting was held on the site with a view to finding a possible location for the farm machinery workshop. In a letter of 4 April 1991, the national heritage architect informed the applicant company, among other things, that the purpose was not to prevent it from building but to help it draw up the best possible plan, taking into account all the technical, operational and site-related constraints. In a judgment of 1 December 1992, the Châlons-sur-Marne Administrative Court set aside the decision of 10 August 1990 to refuse the building permit, on the ground that the prefect had based his decision on an incorrect assessment of the facts. In a judgment of 30 June 1994, the Nancy Administrative Court of Appeal dismissed an appeal by the Minister for Infrastructure, Housing and Transport on the ground that the national heritage architect had not given his opinion within the statutory period. On 3 March 1995 the applicant company applied for a permit to build a shelter. On 8 July 1995 the national heritage architect advised against the granting of a permit. By a decision of 19 July 1995, the prefect denied the applicant company a building permit in respect of a maintenance and repair workshop on the ground that “the work envisaged is capable of adversely affecting the surroundings of the historic monument protected under the Act of 31 December 1913 (chapel and chapter house)”. On 26 June 1996 the national heritage architect received Mr Mangeot, who submitted to him a plan for the construction of a farm building situated to the west of the main farm and aligned with an existing shed (adjoining the chapel). The national heritage architect gave his approval in principle, subject to a few minor adjustments, as the plan complied with the main guidelines laid down by the architecture and heritage authority of the département of Aube. On 26 November 1996 the applicant company applied for a building permit. By a decision of the prefect dated 22 January 1997, the building permit was granted subject to certain conditions, such as the obligation to plant a screen of standard trees of local species. The extra cost incurred on account of the permit conditions was 1,850 French francs (FRF). On 23 September 1997 the applicant company applied for a permit to demolish two unlisted buildings that were not adapted to the needs of the farm. By a decision of the prefect dated 9 December 1997, the demolition permit was refused on the following grounds: “... the work envisaged is capable of adversely affecting the surroundings of the historic monument protected under the Act of 31 December 1913 (Fresnoy Farm). ... the disappearance of these traditional constructions with their specific character would detract from the immediate surroundings of the above-mentioned protected buildings and would undermine the quality of their environment; restoration with a view to reuse has to be envisaged.” On 21 March 2000 the applicant company lodged two fresh applications for building permits. On 3 May 2000 the national heritage architect advised in favour of both applications, subject to the following conditions: “In order to harmonise this development with the neighbouring traditional constructions, which form the setting of the above-mentioned protected building: [In respect of the first plan:] the cladding will be of a dark colour ... the roofing will be red-brown in colour and mat in appearance [In respect of the second plan:] the building to be erected will be clad entirely with wooden slats [tavillons] the roofing will be red-brown in colour and with no gloss effect.” By two decisions of the prefect dated 17 May 2000, the applicant company was granted two building permits, subject to the above-mentioned conditions. As the applicant company failed to proceed with the building work within the periods laid down in the decisions, the validity of the two building permits has since lapsed. On 11 March 1994 the applicant company applied to the Conseil d’Etat for judicial review of the listing decision of 4 January 1994. In a judgment of 22 February 1995, the Conseil d’Etat dismissed the applicant company’s application for judicial review and confirmed both the formal validity and the substantive legality of the impugned decision. The Conseil d’Etat noted in particular, concerning the substantive legality of the listing decision, that “the chapel and chapter house of the Fresnoy commandery ... constitute a rare example of Templar architecture ... the preservation [of which] has public-interest value for artistic and historical reasons, such that the listing thereof as a historic monument can legally be justified ... [and] the second paragraph of section 5 of the Act of 31 December 1913 ... cannot have the purpose or effect of obliging the authorities to attach any easements or obligations to the listing status other than those resulting, pursuant to the Act of 31 December 1913, from the listing itself”. On 7 November 1994, in a letter addressed to the prefect of the département of Aube, the applicant company sought FRF 5,000,000 in compensation under section 5 of the Act of 31 December 1913, on the ground that “the listing has clearly caused harm to the claimant company’s agricultural activity, by creating in the very heart of the farm an easement capable of rendering impossible any development of the farm, or even of seriously undermining its day-to-day operations”. Having regard to the fact that the listing had obliged the company to “rebuild all the farm buildings currently at its disposal in a position other than that in which the operational buildings [we]re currently located”, and to the fact that this total reconstruction had been assessed by experts at FRF 6,777,000, the applicant company concluded its letter with a claim for that sum under the second paragraph of section 5 of the above-mentioned Act of 1913. Having failed to reach a friendly settlement of the compensation claim, the applicant company lodged an application for compensation on 20 December 1995 with the expropriations judge at the Troyes tribunal de grande instance. At a hearing on 6 June 1996, the Government Commissioner noted that there was “some confusion between obligations for owners of properties located in the vicinity of listed buildings and easements arising directly from a listing decision”. In a judgment of 11 July 1996, the tribunal de grande instance rejected the application, noting in particular: “In the present case ... only two parts of the farm buildings have been listed, representing 4% of the total developed area. The damage claimed by SCEA Ferme de Fresnoy mainly concerns developments affecting non-listed structures; accordingly, the applicant company has not shown that it has sustained damage in respect of the listed premises alone or as a result of a change affecting the premises and capable of causing such damage; it is not therefore entitled to rely on the provisions of section 5 of the Act of 31 December 1913 since the dispute concerns only the area surrounding the listed premises and, moreover, the applicant company is bound only by restrictions that do not preclude it from altering neighbouring premises if it abides by the prescriptions laid down by the authorities. In these circumstances, it is appropriate to reject the application by SCEA Ferme de Fresnoy, which has not sustained direct and established pecuniary damage as a result of the listing of its buildings.” The applicant company appealed against that judgment, maintaining in particular that section 5 of the Act of 31 December 1913 was to be construed as creating an entitlement to compensation for all forms of damage sustained by an owner as a result of a listing decision, and not simply that sustained in respect of the listed buildings themselves. The applicant company further argued that “such a restrictive construction of section 5 ... would in effect deprive the owner of the compensation due to him for damage arising from a serious violation of his right of property, in breach of the French Constitution and the European Convention on Human Rights, which expressly guarantee respect for such right”. The Government Commissioner noted, as at first instance, that there was “some confusion between obligations for owners of properties located in the vicinity of listed buildings and easements arising directly from a listing decision”. He stated that the case in issue “concern[ed] an easement for the protection of the vicinity of a listed structure ... [which was] not to be confused with easements arising directly from a listing decision”. He concluded that the grounds submitted in support of the applicant company’s claim did not derive directly from the listing decision. On 24 June 1998 the Rheims Court of Appeal upheld the judgment and gave the following reasoning: “– Construction of section 5 of the Act of 31 December 1913 The appellant company claims that section 5 of the Act ... is to be construed as pertaining to the entire grouping of buildings, incorporating the listed structures. However, that provision refers only to the listing decision. The notion of ‘premises’ as used in the second paragraph of section 5 of the Act of 31 December 1913 pertains only to the premises designated in the listing decision. The decision of 4 January 1994 states that ‘the chapel and chapter house of the historic Fresnoy commandery shall be listed as historic monuments ...’. It is therefore appropriate to dismiss the claim of SCEA Ferme de Fresnoy whereby it contends that the term ‘premises’ as used in the above-mentioned section 5 should be construed as covering the entire property, which would be tantamount to the listing of the whole complex of buildings. – Conditions of application of section 5 of the Act of 31 December 1913 For there to be an entitlement to compensation, the easement relating to the listing must have entailed a change in the condition or use of the premises giving rise to direct, substantiated and established damage, for which the burden of proof lies with the claimant. In this connection SCEA Ferme de Fresnoy based its claim on the restrictions imposed on it, as a result of the listing, in respect of its plans for demolition, the construction of a farm shed or development of the farm site. However, those restrictions, created by prior agreement with the national heritage architect, are not the result of any change in the status or use of the premises, as the chapter house and chapel have not been affected by such changes. The restrictions imposed on the company result from the application of Article R. 421-38-4 of the Planning Code, which protects the view around a listed building by requiring the agreement of the national heritage architect prior to any demolition or construction. Such an easement, pertaining to the protection of the area surrounding a listed building, does not give rise to the compensation provided for in the current legislation. Moreover, SCEA Ferme de Fresnoy has obtained permission to erect a storage building, subject to the approval of the plan by the national heritage architect. Lastly, such easements for the protection of the area surrounding a listed building derive from the law and cannot give rise to compensation unless it is specifically provided for in a statutory instrument. ...” The applicant company subsequently lodged an appeal on points of law, in support of which it submitted a single ground with four limbs. One of its claims was that the Court of Appeal’s decision had been devoid of the statutory basis required by Article 55 of the Constitution, as it had denied compensation for damage resulting from the listing without considering whether such refusal was contrary to the provisions of Article 14 of the Convention or Article 1 of Protocol No. 1. On 8 March 2000 the Court of Cassation, rejecting the submissions of the Advocate-General, dismissed the appeal in a judgment containing the following reasoning: “... having found, firstly, that section 5 of the Act of 31 December 1913 provided for compensation following a listing by official order if the resulting easements and obligations entailed a change in the condition or use of the premises and, secondly, that the easement pertaining to the protection of the area surrounding a listed building did not give rise to any compensation under the current legislation, the Court of Appeal, leaving aside a subsidiary consideration and without being required to make a determination that had not been sought from it as to the applicability of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms or of Article 1 of Protocol No. 1, rightly considered that the notion of ‘premises’ pertained only to those designated in the listing decision and dismissed the company’s compensation claim, thus justifying its decision in law.” ... In France, the first provisions for the protection of historic monuments date back to 1836, when the church of Saint-Savin-sur-Gartempe was listed. However, until 1887 the listing process had few legal effects and the provisions of an Act of 30 March 1887 were mainly “contractual” in nature. It was only in 1913 that a meaningful protection system was provided for in France with the Historic Monuments Act of 31 December 1913, the basic statute governing heritage, which has since been amended a number of times. The Act mainly lays down the procedures whereby immovable property whose preservation is in the public interest for historical or artistic reasons is to be added to the secondary or primary historic monuments lists. Such decisions carry various legal effects and may create easements or obligations which affect the property itself. Only in respect of property on the primary list may the adverse consequences of easements and obligations relating to listing, under certain circumstances, give rise to compensation at the request of their owner, under the second paragraph of section 5 of the Act of 31 December 1913. The 1913 Act, in sections 13 bis and 13 ter, also provides for a protected area around buildings deemed to be of interest, such that, through the review of applications for building or demolition permits by the owners of property in the vicinity of listed buildings, their surroundings are protected and the aesthetic quality of the adjacent area is preserved as far as possible. Such easements, created for the benefit of owners of historic buildings, affect the adjacent property. The protection of a historic monument, whether by secondary listing or by primary listing, under the amended Historic Monuments Act of 31 December 1913, automatically creates a conservation area around it, extending to about 78.5 hectares. Over the past century, some 40,000 monuments have been protected under this legislation in France. In view of the geographical proximity of some monuments or even their superposition in certain cases, the aggregate surface area of the conservation areas thus created, and consequently the number of properties concerned, are considerable. The total protected area becomes even greater when account is taken of sites classified under the Law of 2 May 1930 on the protection of natural monuments and places of artistic, historic, scientific, legendary or scenic interest, together with the architectural and landscape heritage areas (zones de protection du patrimoine architectural et paysager – ZPPAUP) set up under sections 69 to 72 of Law no. 83-8 of 7 January 1983 on the division of powers between municipalities, départements, regions and the State. “Immovable property whose preservation is in the public interest for historical or artistic reasons shall be entered on the primary list of historic monuments, as a whole or in part, by the minister responsible for the fine arts, in accordance with the distinctions laid down in the following sections. Immovable property subject to listing under the present Act shall include: ... 2. Immovable property of which listing is necessary to allow for the isolation, clearing or cleaning of a listed building or building proposed for listing; 3. In general terms, developed or undeveloped property located within the field of view of a listed building or building proposed for listing. For the purposes of this Act, the criterion of being located within the field of view of a listed building or building proposed for listing shall be regarded as applying to any other developed or undeveloped property that is visible from the former, or at the same time as the former, and is situated within a range of not more than 500 metres. On an exceptional basis this range may be extended beyond 500 metres. A decision of the Conseil d’Etat, adopted further to an opinion of the National Historic Monuments Commission, shall indicate the monuments to which such extension may apply and shall determine the range of the protected area in each case. From the date on which the fine arts authority notifies the owner of a listing proposal, all the effects of such listing shall apply automatically to the property concerned. They shall cease to apply if the listing decision is not taken within ‘twelve months’ following such notification. ...” “The following property shall be regarded as having been validly listed prior to the enactment of this law: (1) buildings listed on the general schedule of listed monuments, officially published in 1900 by the fine arts authority; (2) those and other buildings that have been listed by means of a decision [arrêté or décret] under the Act of 30 March 1887. Within a period of three months, the schedule of buildings regarded as listed prior to the enactment of this Act shall be published in the Official Gazette. An entry shall be drawn up for each of those buildings giving full particulars thereof; the fine arts authority shall ensure that the entry is filed with the appropriate Land Registry for the site of the property. Such registration shall not give rise to any taxes payable to the Treasury. The primary list of protected buildings shall be kept up to date and published at least once every ten years. Public or private buildings, or parts of buildings, which, without warranting an immediate proposal for addition to the primary list, nevertheless have sufficient historical or artistic interest for their preservation to be desirable, may at any time be added to the secondary list by decision of the regional prefect, or, where such secondary listing is proposed by the National Historic Monuments Commission, by decision of the minister responsible for cultural affairs. Secondary listing under the same conditions may also apply to any developed or undeveloped property situated within the field of view of a building already listed on the primary or secondary list. The regional prefect shall ensure that decisions to add buildings to the secondary list of historic monuments are registered at the appropriate Land Registry for the site of the listed building. Such registration, which shall not give rise to any taxes payable to the Treasury, shall be carried out in accordance with the formalities and procedures laid down by the legislation on land registration. Owners shall be notified of such secondary listing, which shall impose on them an obligation not to make any alterations to the listed building or part of a building, without having informed the regional prefect, giving four months’ notice, of their intention and of the work they propose to carry out. The minister may object to such work only by initiating the primary listing procedure as provided for herein. However, if the purpose or effect of the work is to divide up or strip the building or part of building on the secondary list, for the sole purpose of selling all or part of the materials thus detached, the minister shall have five years in which to decide on its primary listing and may, in the meantime, order the suspension of the work in question. The minister responsible for education shall be authorised to subsidise up to 40% of the actual cost of any maintenance or repair work that may be required for the preservation of buildings or parts of buildings listed on the secondary list of historic monuments. The work shall be carried out under the supervision of the historic monuments authority.” “Property belonging to any persons other than those enumerated in sections 3 and 4 shall be added to the primary list by decision of the minister responsible for cultural affairs, where the owner has given consent. The decision shall lay down the conditions attached to such listing. Where the owner has not given consent, the addition to the primary list shall be decided by an order of the Conseil d’Etat which shall lay down the conditions attached to the listing and in particular any easements or other obligations thus created. The primary listing may then entitle the owner to compensation if, as a result of such easements or obligations, a change in the status or use of the premises gives rise to direct and established pecuniary damage. The application for compensation shall be lodged within six months from the notification of the primary listing decision. If the compensation cannot be agreed upon by friendly settlement, its amount shall be determined by the expropriations judge. The government may decide not to act upon such a listing order under the conditions thus laid down. In such cases it shall be required, within three months from the notification of the judgment, to repeal the listing decision or to proceed with the expropriation of the property.” “When immovable property is located within the field of view of a listed building, it may not be subjected, whether by private owners or by public authorities or establishments, to any new construction, demolition, deforestation, transformation or alteration capable of affecting its appearance, without prior authorisation. Building permits issued under legislation on building lines and on municipal and regional land-use and urban development plans shall constitute authorisation, as provided for in the preceding paragraph, provided they have been endorsed with the approval of the national heritage architect.” “Where it does not concern work for which a building permit, a demolition permit, or the authorisation provided for under Article R. 442-2 of the Planning Code is necessary, the application for authorisation under section 13 bis shall be addressed to the prefect, who shall give his decision after seeking the opinion of the national heritage architect. However, if the minister responsible for historic monuments has decided to take up the matter, authorisation may be given only with his express agreement. If the prefect has not notified his response to the applicants within a period of forty days from the filing of their application, or if they are not satisfied by the response they have received, they may refer the matter to the minister responsible for cultural affairs within two months from the notification of the prefect’s response or following the expiry of the forty-day period allowed for such notification. The minister shall decide. If his decision has not been notified to the applicants within a period of three months following receipt of their application, the application shall be deemed to have been refused. The applicants shall comply with the restrictions imposed on them for the protection of the listed building, either by the national heritage architect in the case referred to in the second paragraph of section 13 bis, or by the prefect or minister responsible for cultural affairs in the cases referred to in the first, second and third paragraphs of this section.” “In accordance with section 13 bis of the Historic Monuments Act of 31 December 1913, as amended, where immovable property is located within the field of view of a listed building, it may not be subjected, whether by private owners or by public authorities or establishments, to any new construction, demolition, deforestation, transformation or alteration capable of affecting its appearance, without prior authorisation. Building permits shall constitute such authorisation provided they have been endorsed with the approval of the national heritage architect.” “Where a construction is located within the field of view of a listed building, the building permit may be issued only with the authorisation of the national heritage architect. Pursuant to the third paragraph of section 13 bis of the Historic Monuments Act of 31 December 1913, as amended, the regional prefect, upon a written request by the mayor or authority empowered to issue the building permit, sent by registered letter with return receipt within one month following notification of the national heritage architect’s opinion, shall, after consulting the regional commission on heritage and sites, deliver an opinion superseding that of the national heritage architect. Where the mayor is not the authority empowered to issue the permit, the regional prefect shall notify the authority in question of the request he has received from the mayor. The opinion of the regional prefect shall be notified to the mayor and to the authority empowered to issue the permit. The regional prefect shall be deemed to have confirmed the opinion of the national heritage architect if he has not responded within four months following receipt of the request, unless the matter has, in the meantime, been taken up by the minister responsible for culture. In such a case, the permit may be issued only with the express agreement of the minister. The minister’s decision to take up the matter shall be notified to the applicant, to the mayor and to the competent authority. If the national heritage architect refuses to give his approval or gives conditional approval, the authority empowered to issue the permit may, within one month from receipt of that decision, refer the matter to the minister responsible for historic monuments. For such purpose that authority shall transmit to the minister the file on the application for a building permit, together with the document stating the position of the national heritage architect. In cases where the mayor is empowered to issue a building permit, he shall inform the prefect of such referral. The permit may then be issued only with the express agreement of the minister. If the minister fails to respond within two months from the date of referral he shall be deemed to have confirmed the position of the national heritage architect.” “There shall be no entitlement to compensation for easements created pursuant to this Code in respect of roads, sanitation, aesthetic appearance, or for other purposes, and pertaining in particular to the use of land, the height of edifices, the proportion of developed and undeveloped land within each property, prohibited construction in certain areas and along certain roads, or the distribution of buildings between different areas. However, compensation shall be payable if such easements result in a violation of vested rights or a change in the previous condition of the land that causes direct, pecuniary and established damage. Unless a friendly settlement is reached, such compensation shall be assessed by the administrative court, which shall take into account the increase in value of a building produced by the implementation of a land-use plan that has been made public, or of an approved local-development plan or equivalent document.” The latter provision and the question of statutory easements have been addressed in various ways in case-law (see, inter alia, Commune de Gap-Romette, judgment of the Conseil d’Etat of 14 March 1986, and Ministre de la Culture c. SCI Villa Jacob, judgment of the Conseil d’Etat of 20 January 1989). As to the obligation of the administrative court to examine, if necessary proprio motu, the merits of an application for compensation under Article L. 160-5, see the judgment delivered by the Conseil d’Etat on 19 December 1984 in Soc. Ciments Lafarge. Moreover, the Conseil d’Etat has stated, in the light of Article 1 of Protocol No. 1, that Article L. 160-5 of the Planning Code “does not set out a general and absolute principle, but expressly provides for two exceptions as regards the vested rights of owners and a change in the previous condition of the land. Lastly, the Article in question does not prevent an owner whose property is affected by an easement from claiming compensation in exceptional cases where the aggregate of the conditions and circumstances in which the easement has been created and implemented, as well as its substance, have imposed on the owner an individual and excessive burden out of proportion with the general-interest objective pursued. In these circumstances, the applicant is not justified in asserting that Article L. 160-5 of the Planning Code is incompatible with the provisions of Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms” (Bitouzet, judgment of the Conseil d’Etat of 3 July 1998, Recueil Lebon 1998, p. 288, and Lady Jane, judgment of the Conseil d’Etat of 7 January 2000). ... This convention provides, in particular: “The Parties to this Convention agree to: (a) recognise that rights relating to cultural heritage are inherent in the right to participate in cultural life, as defined in the Universal Declaration of Human Rights; (b) recognise individual and collective responsibility towards cultural heritage; (c) emphasise that the conservation of cultural heritage and its sustainable use have human development and quality of life as their goal; ...” “To sustain the cultural heritage, the Parties undertake to: (a) promote respect for the integrity of the cultural heritage by ensuring that decisions about change include an understanding of the cultural values involved; (b) define and promote principles for sustainable management, and to encourage maintenance; ...” | 0 |
dev | 001-61583 | ENG | POL | CHAMBER | 2,004 | CASE OF D.P. v. POLAND | 3 | Violation of Art. 5-1;Violation of Art. 5-3;No violation of Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Nicolas Bratza | 9. The applicant was born in 1965 and lives in Opole, Poland. 10. On 16 June 1995 the applicant was taken into custody by the police. On 17 June 1995 the Wrocław Regional Court (Sąd Wojewódzki) dismissed his complaint about placing him in police custody. 11. On 17 June 1995 the Wrocław Regional Prosecutor (Prokurator Wojewódzki) charged the applicant with aggravated fraud and remanded him in custody. The charges related to a period between 30 January and 3 March 1995 when the applicant, together with his accomplices, allegedly defrauded several individuals and businesses by obtaining from them under false pretences cash, automobiles, furniture, computers and other goods of a total value of PLN 1,050,000. In addition, the applicant was charged with possession of a forged passport. The Regional Prosecutor considered that the applicant’s detention on remand was warranted by the fact that he was charged with several criminal acts which caused a significant danger to society (stopień społecznego niebezpieczeństwa jest znaczny), as he had acted within a criminal organisation and had obtained valuable goods. In addition, the applicant’s criminal activity took place over a long time and it was probable that if released he would collude and try to destroy evidence. 12. On 10 July 1995 the applicant applied to the Wrocław Regional Prosecutor for release from detention. On 12 July 1995 the Regional Prosecutor rejected the application. He dismissed as unsubstantiated the applicant’s claims that poor health and the financial situation of his family required his release. Moreover, the applicant’s contention that his illhealth called for release would be decided after a panel of medical experts had examined him. 13. On 24 and 26 July 1995 the applicant again made applications to the Wrocław Regional Prosecutor for release from detention. On 26 July 1995 his requests were dismissed. The Regional Prosecutor relied on a medical opinion issued by the Wrocław Prison Hospital, which stated that the applicant could remain in detention. In addition, he considered that since the applicant’s daughter and his cohabitee lived with the latter’s parents, there was no need for him to be released to care for them. 14. On 2 August 1995 the applicant made an application for release from detention. On 4 August 1995 the Wrocław Regional Prosecutor rejected his application. The prosecutor referred to the medical opinion of 19 July 1995, which confirmed that the applicant’s state of health allowed the continuation of his detention. Furthermore, he considered that the fact that the applicant’s daughter had recently received medical treatment in the infant pathology ward of the Wrocław Regional Hospital did not constitute a ground for the applicant’s release. The prosecutor also pointed out that the applicant’s cohabitee cared for his daughter. 15. On 9 August 1995 the Wrocław Appellate Prosecutor dismissed the applicant’s appeal against the Regional Prosecutor’s decision of 26 July 1995. The Appellate Prosecutor considered that the evidence showed that the applicant had committed the criminal offences with which he was charged. Moreover, the state of health of his daughter did not require that he be released. The prosecutor was also of a view that the applicant’s detention was necessary to ensure the proper course of the proceedings. 16. On 23 August 1995 the applicant lodged with the Wrocław Court of Appeal (Sąd Apelacyjny) a complaint about his detention. On 31 August 1995 the court transmitted it to the Wrocław Regional Prosecutor to consider it as a request to change the preventive measure applied to the applicant. On 1 September 1995 the prosecutor rejected the request. He dismissed as unsubstantiated the applicant’s claims that his own state of health as well as that of several members of his family required his release from detention. In this connection, the prosecutor referred to medical opinions, which stated that the applicant was neither mentally ill nor retarded and that his detention would not cause any risk to his health and life. Furthermore, he considered that the investigation of the applicant’s claim that his detention constituted a hardship for his family had showed that it was unsubstantiated. 17. On 6 September 1995 the Wrocław Regional Court allowed the request submitted by the prosecution service and extended the applicant’s detention on remand until 30 November 1995. The court considered that the evidence collected in the case sufficiently supported the charges laid against the applicant. It also relied on a significant danger to society caused by the criminal offences in question and the necessity to ensure the proper course of criminal proceedings. Furthermore, the court pointed out that the investigation of the case would have to be continued in order to clarify the applicant’s role in the commission of the criminal offences and to identify individuals who would be charged with receiving stolen goods from the applicant. Finally, the court considered that the applicant’s case did not disclose any of the grounds for release from detention listed in Article 218 of the Code of Criminal Procedure, i.e. danger to the detainee’s life or health and extreme hardship caused to either the detainee or his family. On 6 October 1995 the Wrocław Court of Appeal dismissed the applicant’s appeal against the decision of the Regional Court. 18. On 30 December 1995 the Wrocław Regional Prosecutor filed with the Wrocław Regional Court a bill of indictment against the applicant. 19. On 31 January 1996 the applicant asked the Wrocław Regional Court to release him from detention. On 5 February 1996 the court dismissed his request. It relied on a significant danger to society caused by the criminal offences with which the applicant was charged and the evidence on which they were based. The court was also of the view that the applicant’s family did not suffer hardship which would justify his release. 20. On 15 February 1996 the applicant again filed an application for release but on 22 February 1996 the Wrocław Regional Court rejected it. On 29 February 1996 the Wrocław Court of Appeal dismissed the applicant’s appeal against that decision. The court observed that the applicant could apply for bail. 21. On 7 March 1996 the Wrocław Regional Court rejected the application for release filed by the applicant on 26 February 1996. On 1 April 1996 the court rejected the application lodged on 19 March 1996. 22. On 19 April 1996 the applicant made a further application to the Wrocław Regional Court for release from detention. On 25 April 1996 the court dismissed his application. It referred to the previous court decisions refusing his requests for release. Moreover, the court considered that the claim that the applicant’s father suffered hardship was unsubstantiated. 23. The date of the first hearing was fixed for 15 April 1996. However, it was cancelled because one of the defendants was ill and could not attend it. 24. On 16 May 1996 the applicant made an application to the Wrocław Regional Court for release from detention. On 30 May 1996 the court dismissed his request. It relied on a significant danger to society caused by the criminal offences with which the applicant was charged and the evidence on which they were based. The court further considered that the applicant’s detention was necessary to secure the proper conduct of criminal proceedings. In addition, it observed that the applicant’s failure to pay child support did not warrant his release, as one of his children was in receipt of child support payments from the Child Support Fund (Fundusz Alimentacyjny). 25. On 31 June 1996 the Regional Court held a hearing. It was adjourned because two defendants failed to attend it. 26. On 8 July 1996 the applicant made an application to the Wrocław Regional Court for release from detention. On 15 July 1996 the court rejected his request. It relied on the grounds for continuing the applicant’s detention listed in previous court decisions. 27. On 5 August 1996 the applicant asked the Wrocław Regional Court to release him from detention. On 8 August 1996 the court dismissed his request. It considered that the evidence collected in the case sufficiently supported the charges laid against the applicant. As the charges could lead to a severe prison sentence, there was a risk of absconding. Furthermore, the court was of the view that the applicant’s inability to provide care to his children over a long period of time did not result in exceptional hardship for his family. 28. On 12 August 1996 the Wrocław Regional Court dismissed the applicant’s application for release from detention filed on 6 August 1996. The court relied on the evidence collected in the case, which in its opinion supported the charges laid against the applicant. In addition, it considered that the prospect of a severe penalty, which could be imposed on the applicant, could prompt him to abscond. 29. On 19 August 1996 the Vice-President of the Wrocław Court of Appeal informed the Ministry of Justice and the applicant that the applicant’s case did not disclose that the proceedings had taken unreasonably long. In particular, he pointed out that thirteen individuals were accused in the case, the case file consisted of seventeen volumes and evidence had to be taken from fiftyeight witnesses. Furthermore, the VicePresident observed that the first hearing had been cancelled because one of the defendants had been ill. The second hearing had been adjourned until 30 August 1996 as two defendants had failed to attend it. Finally, he stated that “the judge rapporteur is dealing with twenty-five other cases and therefore is not able to decide this case sooner than is possible”. 30. On 30 August 1996 the Regional Court held a hearing. It was adjourned because some of the defendants failed to attend it. 31. On 3 September 1996 the Wrocław Court of Appeal allowed the applicant’s appeal against the Regional Court’s decision of 8 August 1996 rejecting his application for release from detention. The appellate court quashed the impugned decision and instructed the trial court to reconsider the applicant’s request. It acknowledged that “in the present case the detention on remand has lasted quite long”. In addition, the appellate court considered that the trial court’s statement on the applicant’s intention to abscond was not precise enough. As the applicant’s detention had already lasted sixteen months and as he was not charged with a serious offence, the mere reference to the possibility that the applicant could abscond because of the prospect of a severe penalty was not sufficient. The appellate court also observed that the trial court had not considered whether another preventive measure could replace the applicant’s detention on remand. 32. On 12 September 1996 the Wrocław Regional Court dismissed the applicant’s four applications for release submitted in August and September 1996. The court considered that the charges against the applicant were sufficiently supported by the evidence. Moreover, the difficulties in finding the applicant’s place of residence during the investigative stage of the proceedings and the prospect of a severe penalty showed that he could go into hiding if released from detention. The court further noted that the applicant could not be released on bail as he had stated that he had no funds to pay it. Finally, it considered that there was no evidence pointing towards the existence of any of the grounds for release provided for by Article 218 of the Code of Criminal Procedure. 33. The hearing held on 13 September 1996 was adjourned until 27 September 1996 as some of the defendants failed to attend it because of ill health. 34. During the hearing held on 27 September 1996 the Wrocław Regional Court rejected the applicant’s application for release from detention. The hearing was adjourned because some of the defendants failed to attend it. 35. On 7 October 1996 the Wrocław Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 12 September 1996. The appellate court observed that the applicant’s release would delay the proceedings, as his cohabitee lived in Opole. It also noted that the applicant had contributed to the delay in the proceedings because on numerous occasions he had submitted requests and appeals. In addition, on several occasions a case file had been transmitted from the trial court to the Wrocław Detention Centre after the applicant had asked to consult it. 36. On 17 October 1996 the Wrocław Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 27 September 1996. The appellate court referred to previous court decisions rejecting his applications for release from detention. The court further noted that although the length of the applicant’s detention could be worrying (trwa już niepokojąco długo), it had not been caused by the inactivity of the trial court. Moreover, the appellate court recommended that “more energetic steps” be taken to expedite the proceedings. Finally, it acknowledged that the state of health of the applicant’s cohabitee and his daughter was not good. However, the court was of the view that the applicant’s release would not contribute to the improvement of their health. 37. In a letter of 23 October 1996 the President of the Wrocław Regional Court advised the applicant that the trial court could not be blamed for the delay in the proceedings. He pointed out that the court had fixed numerous hearings, which had been adjourned because of the absence of defendants who had been ill. 38. During the hearing held on 25 October 1996 the applicant applied for bail. He proposed that the bail be set at PLN 2,000. However, the Wrocław Regional Court rejected the application. It gave the following reasons for its decision: “The circumstances raised by the accused in his application have already been considered by both the Regional Court and the Court of Appeal. Therefore, taking into account the fact that no new circumstances have taken place, it should be assumed that the reasons for continuing detention on remand have not ceased to exist.” 39. During the hearing held on 12 December 1996 the Wrocław Regional Court rejected the applicant’s application for release from detention. The hearing was adjourned because some of the defendants failed to attend it. 40. On 31 December 1996 the Wrocław Regional Court decided to request the Supreme Court (Sąd Najwyższy) to extend the applicant’s detention on remand. 41. On 7 January 1997 the Wrocław Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 12 December 1996. The appellate court recalled that during the preceding ten months it had been considering on a monthly basis the applicant’s appeals against the trial court’s refusals to release him. It considered that the factual and legal circumstances concerning the applicant’s detention had not changed. 42. On 24 January 1997 the Supreme Court allowed the Regional Court’s request and extended the applicant’s detention on remand until 24 July 1997. It considered that the prolongation of the applicant’s detention was justified by the evidence, the possibility that he could go into hiding and the complexity of the case. It also observed that the delay in the proceedings was caused by the behaviour of defendants who had failed to attend hearings. The Supreme Court further reflected on the legality of the applicant’s detention between 1 and 24 January 1997. The relevant part of the court’s reasoning may be summarised as follows: The Supreme Court, noting that the application was filed on 31 December 1996 but posted as late as 13 January 1997, first considered what was the proper date of ‘lodging’ such an application for the purposes of Article 222 § 4 of the Code of Criminal Procedure. The Supreme Court next observed that, depending on the answer to this question, it would have to determine the legal consequences of a potential failure on the part of the Wrocław Regional Court to respect the rule laid down in Article 10 (a) § 2 of the Interim Law of 1 December 1995, which stated that in cases where no request for a further prolongation of detention on remand had been ‘lodged’, the detention on remand had to be lifted and the person concerned released not later than on 1 January 1997. The Supreme Court considered that it should also deal with the question of whether it was competent to rule on the application if it had been ‘lodged’ after the expiry of the term referred to in Article 10 (a) of the Interim Law of 1 December 1995, i.e. after 1 January 1997. Referring to the first question, the Supreme Court held that the proper date of ‘lodging’ an application under Article 222 § 4 of the Code of Criminal Procedure had to be deemed either the date of posting the request or the date of submitting it to the registry of the Supreme Court since to hold otherwise would mean leaving a detainee without any guarantee that the Supreme Court was properly supervising his detention. Moreover, if the requesting court was not bound by any time-limits for submitting its application, detention, the most severe among the preventive measures, might continue for an unspecified and unlimited time outside the Supreme Court’s supervision. In consequence, an application under Article 222 § 4 of the Code of Criminal Procedure, a mere ‘proposal’ to continue detention, would, for all practical purposes, transform into a basis for continuing detention. Clearly, that was not the intention of the legislator. The Supreme Court therefore concluded that since in the applicant’s case no application for a further prolongation of his detention was ‘lodged’ before 1 January 1997, the applicant’s (and his co-defendants’) detention from that date to the date of its present decision lacked any legal basis and was, accordingly, unlawful. It went on to find that it was, nevertheless, competent to deal with the application lodged outside the relevant date. It considered that a lower court’s obligation to release a detainee in case of its failure properly to lodge an application under Article 222 § 4 of the Code of Criminal Procedure was one thing, but its right to make such an application at any time was another. In the Supreme Court’s opinion, the application in question should be deemed a “fresh application” and be examined as such. 43. On 28 January 1997 the Wrocław Regional Court held a hearing. 44. On 10 February 1997 the President of the Wrocław Court of Appeal informed the applicant that his complaints about his unjustified detention on remand were unsubstantiated. The President also recalled that on 24 January 1997 the Supreme Court had prolonged the applicant’s detention and that no hearings could be held in his case at the time when the Supreme Court had been considering the request to extend his detention. In addition, he observed that the next hearing was scheduled for 17 March 1997. 45. On 24 February 1997 the Wrocław Regional Court dismissed as unsubstantiated the applicant’s challenge to one of the judges considering his case. 46. On 17 March 1997 the Wrocław Regional Court held a hearing. It was adjourned because some of the defendants failed to attend it. 47. During the hearings held on 17 April and 28 May 1997 the Wrocław Regional Court dismissed the applicant’s applications for release from detention. The latter hearing was adjourned because some of the defendants failed to attend it. 48. The hearing held on 8 July 1997 was adjourned because some of the defendants did not attend it. 49. During the hearing held on 8 September 1997 the Wrocław Regional Court decided to sever the charges laid against three co-defendants and to consider them in separate proceedings because the co-defendants’ numerous failures to attend hearings resulted in the delay in deciding the applicant’s case. Thereafter, the proceedings were continued against the applicant and eight codefendants. 50. The next hearings were held on 13, 28 October and 25 November 1997. The hearing scheduled for 18 November 1997 was cancelled. 51. On 19 December 1997 the hearing was held before the Regional Court. It decided to request the Supreme Court to prolong the applicant’s detention on remand. 52. On 15 January 1998 the Supreme Court extended the applicant’s detention on remand until 31 March 1998. 53. During the hearing held on 30 January 1998 the Regional Court rejected the applicant’s requests that the charges against him be decided in separate proceedings and that he be released from detention. 54. On 3 and 17 March 1998 hearings took place before the trial court. 55. On 20 March 1998 the applicant was released from detention. 56. Subsequently, hearings were held on 17 April, 15 May, 5 June, 2 July, 3 September, 6 October, 30 November and 1 December 1998. 57. In the course of 1999 the Wrocław Regional Court held hearings on the following dates: 5 January, 4 February, 11 March, 14 April, 7 and 28 May, 9 June, 7 September, 29 October and 15 December. The hearings held on 7 September and 29 October 1999 were adjourned because a judge was ill. 58. On 14 January 2000 the court held a hearing. 59. During the hearings held between 25 November 1997 and 14 January 2000 the Wrocław Regional Court took evidence from more than fifty witnesses. 60. On 21 January 2000 the Wrocław Regional Court convicted the applicant and sentenced him to five years and six months’ imprisonment and to a fine. On 14 April 2000 the applicant appealed against his conviction. 61. On 24 August 2000 the Wrocław Court of Appeal dismissed the applicant’s appeal. 62. On 24 October 2000 the Court received the applicant’s letter of 9 October 2000. The front of the envelope in which the letter was delivered bears a stamp in Polish: “Opole Detention Centre, Ward III, Received on 09.10.2000.” On the back of the envelope there is a stamp in Polish: “Censored. Opole, 19.10.2000”. The top edge of the envelope is sealed with Sellotape. The envelope is postmarked 19 October 2000. 63. Over the period to which the facts of the present case relate, i.e. from March 1995 to the beginning of 1999, Polish criminal legislation was amended on several occasions. In so far as the present case is concerned, there were two relevant amendments to the Code of Criminal Procedure (“the 1969 Code”), a law which is no longer in force as it was repealed and replaced by the socalled “New Code of Criminal Procedure” of 6 June 1997 (“the 1997 Code”), which entered into force on 1 September 1998. The first such amendment was made by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes which entered into force on 1 January 1996, except the amendments relating to the imposition of detention on remand (in particular, those stating that only a judge was empowered to detain a suspect on remand); the entry into force of the latter amendments being postponed until 4 August 1996 (see below). The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (“the 1995 Interim Law”) came into force on 1 January 1996. Section 10(a) of the Law introduced special interim rules governing the prolongation of detention on remand beyond the statutory time-limits laid down in Article 222 §§ 2 and 3 of the 1969 Code in cases where such detention had been imposed before 4 August 1996 (see below, 2 c) “Statutory time-limits for detention on remand”). 64. At the material time the 1969 Code listed as “preventive measures” (środki zapobiegawcze), inter alia, detention on remand, bail and police supervision. Article 210 § 1 of the 1969 Code read (in the version applicable until 4 August 1996): “Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor.” Article 222 (in the version applicable until 4 August 1996) stated, in so far as relevant: “1. The prosecutor may order detention on remand for a period not exceeding three months. (1) the court competent to deal with the case, upon the prosecutor’s request, for a period not exceeding one year; (2) the Supreme Court, upon request of the Prosecutor General, for a further fixed term required to terminate the investigation.” Under Article 212 § 2 a detainee could appeal against a detention order made by a prosecutor to the court competent to deal with his case; however, he was not entitled to be brought before the judge dealing with his appeal. 65. Article 209 of the 1969 Code set out general grounds justifying imposition of preventive measures. That provision (as it stood at the material time) provided: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” Article 217 § 1 defined grounds for detention on remand. That provision, in the version applicable until 1 January 1996 provided, in so far as relevant: “Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or (2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means; or (3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or (4) an accused has been charged with an offence which creates a serious danger to society.” On 1 January 1996 paragraphs (3) and (4) were repealed. From that date on that provision read: “(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or (2) [as it stood before 1 January 1996].” Paragraph 2 of Article 217 then read: “If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.” 66. The 1969 Code set out the margin of discretion as to maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand, the most extreme among the preventive measures, should not be imposed if more lenient measures were adequate. Article 213 § 1 provided: “A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis therefor has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.” Article 225 stated: “Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.” The provisions of the Code providing for “mandatory detention” (for instance, pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 referred to above. Finally, Article 218 provided: “If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if: (1) it may seriously jeopardise the life or health of the accused; or (2) it would entail excessively burdensome effects for the accused or his family.” 67. Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, the law did not set out any time-limits on detention on remand in court proceedings; it did so only in respect of the investigative stage (see above, 2a) Imposition of detention on remand; Article 222 in the version applicable until 4 August 1996). Article 222 of the 1969 Code in the version applicable after 4 August 1996 provided, in so far as relevant: “3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person was liable to a sentence of a statutory minimum of at least 3 years’ imprisonment] this period may not exceed two years. 4. In particularly justified cases the Supreme Court may, on an application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.” 68. On 28 December 1996, by virtue of the Law of 6 December 1996, paragraph 4 of that Article was amended and the grounds for prolonging detention beyond the statutory time-limits included also: “... other significant obstacles, which could not be overcome by the authorities conducting the proceedings...” However, as already mentioned (see paragraph 63 above), under section 10 (a) of the 1995 Interim Law, different rules applied to persons whose detention on remand started prior to 4 August 1996. That section provided: “1. In cases where the total period of detention on remand which started prior to 1 August 1996 exceeds the [maximum] time-limits referred to in Article 222 §§ ... and 3 of the Code of Criminal Procedure [as amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes], the accused shall be kept in detention until the Supreme Court gives a decision on an application for prolongation of his detention under Article 222 § 4 of the Code of Criminal Procedure. 2. In cases mentioned in paragraph 1, if no [such] application has been lodged, detention shall be lifted not later than 1 January 1997.” In cases where the Supreme Court dismissed an application under Article 222 § 4, a detainee had to be released. As long as it had not given its ruling, the application of the relevant court – which had the form of a decision (“postanowienie”) – was deemed to be a legal basis for the continued detention. 69. Article 24 § 1 of the 1969 Code read, in so far as relevant: “1. The court competent to deal with the charges laid against a principal offender shall be competent to determine the charges laid against all his accessories and/or other persons, if the offence[s] committed by the latter are closely related to that [or those] committed by a principal offender [and] if the criminal proceedings against [all of them] are pending simultaneously. 2. The cases of persons referred to in paragraph 1 shall be joined in the same proceedings; 3. In cases where circumstances have rendered a joint determination of all the charges referred to in paragraphs 1 and 2 difficult [the court] may sever a specific charge [or charges] from the case ... .” A first-instance court could, either of its own motion or on an application made by a party, make a severance order at any time. 70. That offence, until 1 September 1998, was defined in Article 205 § 2 (1) of the Criminal Code of 1969, which provided: “Anyone who has committed aggravated fraud shall be liable to a sentence ranging from one to ten years’ imprisonment.” On 1 September 1998 the Criminal Code of 1969 was repealed by the socalled “New Criminal Code” of 6 June 1997 and, from then on, the offence of aggravated fraud has been defined by Article 294 § 1 read in conjunction with Article 286 § 1 of the New Criminal Code; the potential sentence still ranges from one to ten years’ imprisonment. | 1 |
dev | 001-105291 | ENG | HRV | CHAMBER | 2,011 | CASE OF ORLIC v. CROATIA | 3 | Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | 4. The applicant was born in 1950 and lives in Punat, on the Krk island in Croatia. 5. The applicant was in active military service with the former Yugoslav People’s Army (hereinafter: “the YPA”) for almost twenty-three years, until 25 June 1991, when he voluntarily left the YPA and moved from Postojna, Slovenia, where he held a specially protected tenancy of a flat given to him by the YPA, to Rijeka, Croatia. 6. The applicant made himself available for service in the Croatian army. He was unemployed until December 1991, when he found civilian employment. He then served in the Croatian army between October 1993 and October 1994 and eventually retired on 31 December 2007. 7. In the meantime, on 17 July 1991 the Government adopted the Decree on the Prohibition of All Real Estate Transactions in Croatia (Uredba o zabrani raspolaganja nekretninama na teritoriju Republike Hrvatske – “the Decree”, published in Official Gazette no. 36/1991 of 24 July 1991), which banned all transactions in respect of immovable property situated in Croatia and belonging to the Former Yugoslavia’s federal institutions or legal entities having their seat in one of its former federal units. The Decree entered into force on 24 July 1991. 8. The applicant had a specially protected tenancy of a flat in Postojna, Slovenia. On 22 August 1991 the applicant returned that flat to the YPA, in order to obtain priority for the allocation of another flat. 9. On 5 September 1991 the applicant was given the right to purchase a flat in Rijeka by the YPA and moved into the flat with his family. 10. Pursuant to the Government’s Decree of 2 October 1991, all possessions of the former YPA came under the ownership of the Republic of Croatia. 11. On 8 October 1991 the Republic of Croatia declared its independence. 12. On 8 November 1991 the Croatian Government and the YPA Rijeka Corps entered an agreement by which the Croatian Government guaranteed the personal safety of those members of the Rijeka Corps of the YPA who did not wish to leave the Rijeka area and to respect their acquired rights. 13. On 22 November 1991 the Croatian Government and the YPA entered into a further agreement by which the Croatian Government guaranteed the personal safety of those members of the YPA who did not wish to leave Croatia upon the termination of their service in the YPA and accepted to respect the inviolability of their private property and their continuing right to occupy the flats given to them by the YPA. 14. From January 1992 until his eviction in October 2004 the applicant paid the rent and all the charges in respect of the flat in Rijeka to the Croatian Ministry of Defence. Until June 2000 the bills were issued in the name of G.R., the previous holder of a specially protected tenancy of the same flat. From June 2000 the bills were issued in the applicant’s name. 15. In 1997 the applicant received part of a house in Punat on the island of Krk, Croatia by way of a gift from his father. 16. In 1996 the State brought a civil action against the applicant in the Rijeka Municipal Court (Općinski sud u Rijeci), seeking his eviction. The State argued that, as the owner of the flat, it had the right to seek the eviction of the applicant because the decision issued by the YPA, granting the applicant the right to purchase the flat in question, had been contrary to the Decree. The State sought repossession of the flat. 17. In his defence dated 16 November 1996 the applicant maintained that he had served as a YPA officer and that the YPA had allocated the flat in question to him and that, therefore, he had had a valid legal basis for occupying the flat. He further argued that he had had a specially protected tenancy of a flat in Postojna which he had given up in order to obtain a specially protected tenancy of a flat in Rijeka. He also submitted that he, at the invitation of the Croatian authorities, had made himself available to serve in the Croatian army and that he had two schoolchildren. 18. On 24 October 2000 the Municipal Court found in the State’s favour and ordered the applicant to vacate the flat. The court found that the State owned the flat and that the applicant had no legal entitlement to occupy it. The relevant part of the judgment reads as follows: “It is disputed between the parties whether the defendant’s occupancy is based on a valid legal entitlement. It is to be noted in that connection that the defendant had moved into the flat in question on the basis of a decision of the [YPA] Garrison Command (Komanda garnizona) no. 499-154-5 of 5 September 1991. Under sections 1 and 3 of the Decree on the Prohibition of All Real Estate Transactions in Croatia (Official Gazette 36/91), the [aforesaid] decision is null and void, and cannot serve as a valid legal basis for acquiring a specially protected tenancy, as [the grounds for doing so] are those listed in section 59 § 1 of the Housing Act. The above-mentioned Decree entered into force on 17 July 1991, while the decision of the Garrison Command was not issued until 5 September 1991, which was after the entry into force of the above-mentioned Decree. Since a ... legal act contrary to the provisions of the Decree is null and void ... which entails a requirement that the legal position of the parties to such a contract has to be the same as before the contract was concluded ... the plaintiff’s claim is to be granted ...” 19. The applicant lodged an appeal whereby he argued that before it had declared its independence, the Republic of Croatia had had no authority to enact any decrees concerning the assets of the YPA. He also relied on the agreement between the Croatian Government and the YPA. He reiterated his argument that he, when leaving the YPA, had acted at the invitation of the Croatian authorities and had made himself available to serve in the Croatian army. 20. On 19 September 2001 the Rijeka County Court (Županijski sud u Rijeci) upheld the first-instance judgment, endorsing the reasoning of the first-instance court, and dismissing the applicant’s argument that the Republic of Croatia had had no authority to adopt the Decree. The relevant part of the judgment reads as follows: “... the first-instance court established that the defendant had occupied the flat in Rijeka, Mihanovićeva 2, on the basis of a decision of the Garrison Command ... which is null and void under sections 1 and 3 of the Decree ... and therefore cannot be considered as a valid legal basis for acquiring a specially protected tenancy, [in contrast to] the [grounds] listed in section 59 § 1 of the Housing Act ... The Decree entered into force on 17 July 1991, while the decision of the Garrison Command was not issued until 5 September 1991, which was after the entry into force of the above-mentioned Decree. In view of the nullity of the said decision, the plaintiff’s claim was granted ... The factual findings and legal standpoints of the first-instance court are accepted by this court as correct. The defendant argued that, before it had declared its independence, the Republic of Croatia had had no authority to enact any decrees concerning the assets of the YPA because these had been federal assets given to the YPA by a federal statute, namely, the YPA Assets and Financing Act (Zakon o sredstvima i financiranju JNA). Therefore, the Republic of Croatia had had no authority to enact the Decree on the Prohibition of All Real Estate Transactions in Croatia ... These arguments are, however, ill-founded. The Decree is based on Article 140 § 2 of the Constitution of the Republic of Croatia, which provides that “where an act or action by a federal body or by another federal republic ... goes against the territorial integrity of the Republic of Croatia or its interests or where such an act places it in a position of inequality within the Federation, the bodies of the Republic [of Croatia] shall, on the basis of the right to self-determination and the sovereignty of the Republic of Croatia established by this Constitution, adopt necessary decisions in order to protect the interests of the Republic of Croatia. ... Hence, the first-instance court correctly applied sections 1 and 3 of the Decree ... by declaring the decision of the Garrison Command ... null and void, since it was issued after the said Decree had entered into force. Accordingly the defendant does not have a valid legal basis for occupying the flat in Rijeka ... and his reliance on the Agreement between the Republic of Croatia and the YPA of 22 November 1991 is irrelevant. ...” 21. The applicant brought a constitutional complaint on 1 February 2002. In that complaint, the applicant argued that the flat in question had been allocated to him by the former YPA on the basis of a federal statute before the Republic of Croatia had declared its independence. He again reiterated his arguments that he had left the YPA at the invitation of the Croatian authorities and had made himself available to serve in the Croatian army. 22. On an unspecified date, the applicant asked the Ministry of Defence, as owner of the flat, to conclude a contract for the sale of the flat between the Ministry as seller and himself as buyer. On 19 April 2004 the applicant lodged another request with the Ministry of Defence, in order to legalise his occupancy of the flat. He claimed that he had a specially protected tenancy of the flat and the right to buy the flat under Article 2 of Annex G to the Agreement on Succession Issues (Ugovor o pitanjima sukcesije). On 27 July 2004 the Ministry of Defence dismissed his request, finding that the Agreement cited by the applicant was inapplicable in the applicant’s case. 23. On 12 April 2007 the Constitutional Court dismissed the applicant’s complaint, endorsing the lower courts’ reasoning. 24. On 9 July 2002 the Rijeka Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Rijeci) sought an enforcement order in the Rijeka Municipal Court for the eviction of the applicant. The enforcement order was issued on 30 December 2002. The applicant lodged an appeal, arguing that his eviction from the flat would cause him irreparable damage because he and his family would be rendered homeless. He also sought the adjournment of the eviction until a decision by the Constitutional Court on his constitutional complaint had been issued. 25. On 10 February 2004 the Rijeka Municipal Court dismissed the applicant’s request for an adjournment, finding that the grounds adduced were not those listed in the Enforcement Act (Ovršni zakon), and that the applicant had not specified the damage he would suffer if evicted. 26. The applicant lodged an appeal, arguing, inter alia, that the Rijeka Municipal Court had disregarded his argument that the eviction would render him and his family homeless. 27. On 26 May 2004 the Rijeka County Court dismissed the applicant’s appeals against the enforcement order and the decision on adjournment of the eviction, finding that the pending constitutional complaint and the irreparable damage claimed did not constitute valid grounds for successfully challenging the enforcement order. 28. The eviction was initially scheduled for 14 September 2004. On that occasion, representatives of the Rijeka Municipal State Attorney’s Office agreed with the applicant’s request to adjourn the eviction until 28 October 2004. The applicant complied with the enforcement order and vacated the flat on 28 October 2004. 29. The relevant part of the Agreement of 8 November 2001 concluded between the Croatian Government and the YPA Rijeka Corps reads: “The Republic of Croatia guarantees the personal safely and respect for the acquired rights, including those from employment, of the members of the YPA Rijeka Corps who do not wish to leave the territory of Rijeka by the date [noted in] section XII of this Agreement at the latest. This guarantee also concerns the members of their families ...” “... leaving the Croatian territory by the members of the Rijeka Corps is to be completed by 10 December 1991 at the latest.” 30. The relevant part of the Agreement of 22 November 2001 concluded between the Croatian Government and the YPA reads: “The Republic of Croatia guarantees the personal safely, [and to respect the] inviolability of private property and continuing right to use flats, of the members of divisions, institutions and commands of the YPA who do not wish to leave the territory of Zagreb or the territory of the Republic of Croatia upon the termination of their service in the YPA, as well as [that] of the members of their families ...” 31. Article 34 of the Constitution (Ustav Republike Hrvatske, Official Gazette nos. 41 and 55) reads as follows: “The home is inviolable. A search of a person’s home or other premises shall be ordered by a court in the form of a reasoned written warrant based on law. The occupier, or his or her representative, shall be entitled to be present during a search of a home or other premises. The presence of two witnesses shall be obligatory. Under the conditions prescribed by law and where it is necessary to execute an arrest warrant or to apprehend a person who has committed a criminal offence or in order to remove serious danger to the life or health of people, or to property of a high value, the police may enter a person’s home or other premises and carry out a search without a court warrant or the occupier’s consent and without any witnesses being present. Where there is a probability that evidence may be found in the home of a person who has committed a criminal offence, a search shall be carried out only in presence of witnesses.” 32. The relevant part of the Housing Act (Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993) reads: “A specially protected tenancy is acquired on the date of moving into the flat on the basis of a final decision allocating the flat or on another valid legal basis, unless otherwise provided by this Act.” 33. The Specially Protected Tenancies (Sale to Occupier) Act (Official Gazette nos. 27/1991, 33/1992, 43/1992, 69/1992 25/1993, 26/1993, 48/1993, 2/1994, 44/1994, 47/1994, 58/1995, 11/1996, 11/1997 and 68/1998, Zakon o prodaji stanova na kojima postoji stanarsko pravo) regulates the conditions for the sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy of a publicly owned flat to purchase it under favourable conditions of sale. The relevant provision of the Act provides as follows: “Every holder of a specially protected tenancy (hereinafter ‘the tenant’) may submit a written application to purchase a flat to the ... owner (‘the seller’) ... and the seller shall be obliged to sell the flat. ...” 34. Section 161 paragraph 1 of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no 91/1996) reads as follows: “An owner has the right to seek repossession of his or her property from a person in whose possession it is.” 35. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and the Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) provides as follows: “(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated. (2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings. (3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.” 36. The relevant part of Constitutional Court decision no. U-III/408/2003 of 18 February 2004 reads as follows: “As regards the alleged violation of the constitutional right guaranteed under Article 34 of the Constitution, it is to be said that that a violation of that right cannot occur in enforcement proceedings, as Article 34 of the Constitution guarantees the inviolability of the home, which concerns the conduct of the police during entries and searches of homes in the execution of arrest warrants or in order to apprehend a perpetrator of a criminal offence or to remove serious risk to the lives and health of persons or to valuable assets. Therefore, the provision in question is not applicable to the proceedings at issue.” | 1 |
dev | 001-86635 | ENG | ALB | ADMISSIBILITY | 2,008 | NATIONAL NOTARY CHAMBER v. ALBANIA | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | The applicant is the National Notary Chamber of Albania (Dhoma Kombëtare e Noterisë) (“the applicant organisation”). The applicant organisation is represented before the Court by its President and representative Mrs Sh. Kurti. organisation, may be summarised as follows. The applicant organisation was established by Law no. 7829 of 1 June 1994 (“the Notary Act”) which was amended by Law no. 8790 of 10 May 2001 and Law no. 9216 of 1 April 2004. Prior to 1994 a public notary in Albania was considered a public servant and the role and profession of notary were not recognised as a liberal profession. On an unspecified date the applicant organisation became a member of the International Union of Latin Notaries (Union internacional del notariado latino, UINL). On an unspecified date the applicant organisation lodged a constitutional complaint with the Constitutional Court, complaining that Law no. 9216 of 1 April 2004 was unconstitutional. According to the applicant organisation, the Law gave the Minister of Justice control over the exercise of the profession of notary which was incompatible with the nature of liberal professions, thus infringing its rights to freedom of association. It argued that the character of its organisation was akin to that of non-profit-making organisations. It maintained that the new Law had applied rules applicable to public servants to the profession of notary. In particular, sections 6 § 6, 7 (f), 9 § 3, 13 §§ 3 and 5, 14 § 3 and 20 § 5 provided for the most important decisions taken by the National Notary Chamber to be approved by the Minister of Justice, thus stripping it of its decision-making powers and infringing its independence. According to the applicant organisation, the Law gave the Minister of Justice powers that went beyond his supervisory role, subjecting notaries to hierarchical dependence. Lastly, the applicant organisation contested the age-limit imposed by the Law on the exercise of the profession of notary as at variance with the principle of the exercise of liberal professions. On 19 January 2005 the Constitutional Court dismissed the applicant organisation’s complaint and upheld the constitutionality of the Law contested. The court assessed that the basis for the restrictions on the exercise of the profession of notary, in contrast with other liberal professions, had to be found in the public effects of notaries’ actions and in the control that the State needed to exercise over notaries’ services in order to guarantee the interest of the community. “The Constitutional Court decides on: (a) the compatibility of a law with the Constitution or international agreements as provided for under Article 122 ... 1. The Constitutional Court can be seized only at the request of ... (f) political parties and other organisations ... 2. The entities designated in the first paragraph, letters ... f ... can lodge applications only on issues connected with their interests.” Pursuant to the Notary Act of 1994, as amended in 2001, the profession of notary in Albania was considered a liberal profession and notaries in exercising their profession were independent and bound by the legal provisions in force. For the purpose of exercising his duties, a notary was equivalent to a public servant and enjoyed protection under the law. The Act sets forth the structure and bodies of the notary profession. It provides for notaries to be organised at district and national level. All practising notaries engaged within a given district must be members of the district notary chamber. The Act provides that a notary chamber is a legal entity and as such is to be registered in accordance with the procedures prescribed for registering a legal entity. The governing bodies of district notary chambers are the general assembly of all practising notaries in the district and the council of notary chambers. The Act describes in detail the powers of each of these bodies. Disciplinary measures such as: a reprimand, a reprimand with a warning of dismissal, and a fine, are taken by district notary chambers. The disciplinary measure of dismissal is taken by the Minister of Justice. Section 36 of the Act establishes the National Notary Chamber, which is composed of notaries elected by the general assembly of district notary chambers. The central bodies of the National Notary Chamber are the general assembly of representatives of district notary chambers, the national council and the president. The tasks of the president and the national council are defined in the National Notary Chamber’s statute, which is approved by its general assembly. The Act sets forth the following chief tasks of the National Notary Chamber: a) to coordinate the activities of all notary chambers at district level; b) to represent and defend the interests of district notary chambers before state authorities and other institutions; c) to draft a Professional Ethics Code to be approved by the Minister of Justice; d) to approve the standard statute (statuti tip) of district notary chambers and their internal rules of procedure; e) to draw up and keep national and regional registers of notaries; and f) to determine the amount of funds to be allocated to the national council for the performance of its duties. The Act describes the procedure for entering and practising the notary profession. Thus, before engaging in private practice an incumbent notary has to sit an entrance examination whose overall organisation is run directly by the Minister of Justice. A notary must also obtain a licence issued by the Minister of Justice prior to entering professional practice. The appointment, transfer and removal from office of a notary are made by order of the Minister of Justice. Before assuming their duties notaries take an oath before the Minister of Justice or a duly authorised person appointed by the Minister. Under the 1994 Act the removal from office of a notary was not conditional on age. The Act also contains provisions governing, inter alia, the rights and obligations of notaries. The Ministry of Justice, having regard to the opinion of the Ministry of Finance and the National Notary Council, determines the schedule of notary fees. Section 14 stipulates that the Ministry of Justice supervises notaries’ [legal] performance. In 2004 Parliament enacted Law no. 9216 of 1 April 2004, which amended several sections of the Notary Act. In particular, the new Law strengthened the role of the Minister of Justice. Sections 6 § 6, 7 (f), 9 § 3, 13 §§ 3 and 5, 14 § 3 and 20 § 5 provide for the most important decisions to be adopted by the Minister of Justice, having regard to the written opinion of the National Notary Chamber. Most notably, it stipulates that the transfer of a notary to another district must be authorised by the Minister of Justice. It empowers the Minister of Justice to initiate disciplinary proceedings and decide on the disciplinary measures to be taken, even though the notary chamber may refuse to impose such a measure. Section 6 introduces an upper age limit on the notary profession. A notary’s licence will thus be removed when that notary reaches the age of 65. | 0 |
dev | 001-5085 | ENG | EST | ADMISSIBILITY | 2,000 | SVINARENKOV v. ESTONIA | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant is an Estonian citizen, born in 1966 and currently serving a prison sentence in Estonia. The facts of the case, as submitted by the parties, may be summarised as follows. A. On 17 April 1995 criminal proceedings were instituted against the applicant on the suspicion of his having committed a murder on the previous day. On 18 April 1995 the applicant was taken into custody. On 20 April 1995 he was formally charged with deliberate homicide and unlawful possession of a firearm. On the same day the Tartu City Court (Tartu Linnakohus), having regard to the nature of the crime committed, the danger of his absconding and the fact that the weapon used in the crime had not been found, ordered the applicant’s remand in custody until 26 April 1995. On 24 April 1995 the applicant’s defence lawyer lodged an appeal against the order with the Tartu Court of Appeal (Tartu Ringkonnakohus) which dismissed it on 8 May 1995. The applicant’s detention on remand was subsequently extended until 30 June 1995. On 24 April 1995, apparently on the investigator’s order, the authorities seized from the applicant’s apartment, and in his absence, three passports and two other items. The applicant claims that the authorities also seized other objects which were not entered in the official records. He further claims that the authorities conducted an undocumented search at his work place. Upon conclusion of the preliminary investigation the applicant and his defence lawyer were presented with the contents of the case file on 9-16 June 1995. On 22 June 1995 the Tartu public prosecutor approved the summary of charges against the applicant and transferred the case for examination to the Tartu City Court where it was registered on the same day. On 10 July 1995 the City Court held a preliminary hearing in which it considered that due to its case load it was not possible to begin the applicant’s trial immediately, and extended the applicant’s detention until 30 September 1995. On 26 October 1995 the City Court held another preliminary hearing in which it committed the applicant for trial and set its date for 11-17 January 1996. It prolonged the applicant’s detention accordingly. On 4 December 1995 the applicant complained to the City Court that it had violated procedural time-limits under Articles 184 and 204 of the Criminal Procedure Code concerning the start of the trial. He also complained that the authorisation for his detention was renewed only 27 days after the prior authorisation had expired on 30 September 1995. The formal indictment was served on the applicant on 5 December 1995 and his trial commenced on 11 January 1996. As the applicant considered that his witness TN, who testified before the City Court and was questioned by the parties on the same day, had been subjected to undue influence by unknown persons, he requested the City Court on 17 January 1996 to hear promptly his witnesses NL and VL. The City Court postponed the session until 1 April 1996. The applicant’s witness NL appeared before the City Court on 2 April 1996 where she gave evidence and was questioned by the parties. Her husband VL was also summoned but was not heard. The Government submit that VL failed to appear in the hearing while the applicant argues that the City Court refused to hear VL who was therefore denied entry into the court building. On the same day the defence lawyer requested the confrontation of two witnesses TN and IL both of whom had been previously heard by the City Court. The request was turned down as the City Court considered that it possessed sufficient evidence in the case. On 1 April 1996 the applicant complained to the City Court that the authorities’ actions in his apartment on 24 April 1995 were unlawful as they had in fact performed a search which required the public prosecutor’s authorisation and that the seizure of objects took place without his presence. The applicant alleges that he also complained to the public prosecutor. By judgment of the Tartu City Court 17 April 1996 the applicant was found guilty of the charges against him and sentenced to 9 years’ imprisonment. On 22 April 1996 the applicant complained to the judge of the City Court about having had inadequate time to read through the minutes of the court sessions and to comment on them. He also pointed to the alleged violation of the procedural rules concerning the timelimits in examining his case. On 25 April 1996 the applicant lodged an appeal against the City Court judgment disputing the assessment of evidence for his conviction. He further complained about the refusal of the City Court to allow the confrontation of the two witnesses and stated that the City Court had not addressed multiple violations of procedural norms during the pre-trial investigation. In particular, the applicant submitted that it made no mention of his complaint of 1 April 1996 regarding the search of his apartment and workplace and the seizure of his personal effects. In a hearing on 6 June 1996 before the Tartu Court of Appeal (Tartu Ringkonnakohus) the applicant also referred specifically to the interrogation of Russianspeaking witnesses without an interpreter and to falsified additions to the records of witness testimonies. On the same day the applicant requested a new expert opinion on the cartridge cases. The Court of Appeal granted the request and adjourned its examination of the applicant’s case pending the outcome of the expert opinion. On 23 September 1996 the applicant complained to the Court of Appeal about the discovery of changes in several case file documents, e.g. the crime scene record, which were introduced after the termination of the preliminary investigation without his knowledge. According to his lawyer, the changes were probably made after the judgment of the City Court. By judgment of 25 September 1996 the Court of Appeal confirmed the judgment of the first instance court holding it lawful, well-founded and sufficiently motivated. As regards the applicant's complaint of 23 September 1996, the Court held that the alleged changes in the case file documents would not have influenced the City Court's judgment as they were introduced only subsequently. On 7 October 1996 the applicant lodged an appeal in cassation to the Supreme Court (Riigikohus) in which he questioned the evaluation of evidence and pointed again to the allegedly unlawful search and seizure and other violations of procedural norms during the pre-trial investigation, including the interrogation of witnesses without an interpreter and the falsification of witness testimonies. He stated that he had received no reaction from either the City Court or the Court of Appeal to his complaints. He further complained about the introduction of later changes in the file documents and the failure of the Court of Appeal to fully address this issue. On 27 November 1996 the Supreme Court refused the applicant leave to appeal against the Court of Appeal judgment. On 16 April 1997 it allowed, however, the applicant’s appeal for correction of court errors. By judgment of 6 May 1997 the Supreme Court dismissed his application holding the judgments of the Tartu City Court and the Court of Appeal lawful and not subject to annulment. It agreed with the analysis of the evidence and the conclusions reached in these judgments and did not find any substantial violations of the criminal procedure law which would have hindered the thorough, complete and objective investigation of the case or prevented the courts from rendering a lawful and substantiated judgment. B. Relevant domestic law According to Article 182 of the Code of Criminal Procedure the court must take a decision to try the accused who is in custody within 5 days from the arrival of the case file in the court. Its Article 204 provides that the trial must start no later than 20 days from the taking of that decision. Under Article 77¹ of the Code of Criminal Procedure and Article 68 of the Code of Criminal Court Appeal and Cassation Procedure a special appeal on the decisions concerning pre-trial detention and its prolongation can be submitted within five days to a higher court. Pursuant to Article 120 § 1 of the Code of Criminal Procedure supervision over the following of laws by the organs of preliminary investigation is carried out by the public prosecutor. According to its Articles 182 and 183 complaints regarding the activities of the police investigator are submitted to the public prosecutor whose decisions and actions concerning the complaints can be appealed to the higher level public prosecutor. Article 4 § 1(1) of the Code of Administrative Court Procedure provides that the Administrative Court is competent to deal with appeals against the organs of the executive State power or the legal acts or action by one of its officials. Article 139 of the Code of Criminal Procedure stipulates that if an investigator has sufficient reason to believe that in a certain room, location or in a person’s possession there might be items of significance to a criminal case he may conduct a search to find them. A search may be conducted on the basis of a decision of an investigator and only upon the authorisation of the public prosecutor or his deputy. If an investigator knows the exact location of an item which is of significance to a criminal case, he may conduct the seizure of that item. A seizure is carried out on the basis of a decision of an investigator. Under Article 140 of the Code of Criminal Procedure an investigator, in performing a search and a seizure, can take away only those items and documents which are relevant to a criminal case. Each seized item and document must be entered in a protocol indicating their exact amount, format, weight and individual characteristics. Article 141 of the Code of Criminal Procedure provides that a search and a seizure is conducted in the presence of the person concerned or his adult family member or, if this is not possible, in the presence of a local government representative. | 0 |
dev | 001-101352 | ENG | LVA | ADMISSIBILITY | 2,010 | LOBANOVS v. LATVIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall | 1. The applicant, Mr Leons Lobanovs, is a Latvian national who was born in 1952 and lives in Daugavpils. 2. The Latvian Government (“the Government”) were represented by their Agent, Mrs Inga Reine. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 1. Alleged ill-treatment and investigation 4. On 13 April 1994, the applicant was found guilty of aggravated infliction of bodily harm and sentenced to nine years' imprisonment. The applicant began to serve his sentence in Jēkabpils prison. 5. On 11 December 1999, due to violations of the internal prison rules, the applicant was transferred from Jēkabpils prison to Grīva prison and on 11 May 2001 he was transferred to Daugavpils prison. 6. According to the applicant, on 29 September 2001 in Daugavpils prison he had felt weak due to being on hunger strike, and had lain down on the floor. A prison guard had approached him and kicked him in the left knee once. A day later another prison guard kicked him in the left side four or five times. Afterwards, on 2 October 2001 the prison guards humiliated the applicant several times by lifting him up together with his bed and throwing it onto the floor. 7. On 1 October 2001 the applicant complained to the prison doctor about permanent pain in his left knee allegedly caused by ill-treatment by a prison guard. According to the medical report the doctor detected a deformation in the joint of the applicant's left knee. It also stated that the knee was not swollen and the skin of the knee was of a normal colour. It was concluded that the deformation of the applicant's left knee was caused by chronic arthrosis. Following another medical examination on 2 October 2001 the applicant was diagnosed with inflammation of the left knee joint. 8. On 26 October 2001 the applicant was transferred to the Central Prison Hospital and on the same day he was admitted to the surgical unit of the hospital, where his previous diagnosis was confirmed. 9. On 29 October 2001 during a medical examination at the hospital the applicant complained of a swollen knee. He also stated that a month ago he had fallen on his left knee. 10. On 10 November 2001 the applicant left the hospital after having received medical treatment and having refused to have his knee operated on. 11. Meanwhile, on 2 November 2001 the applicant had applied to the Specialised Public Prosecutor's Office complaining that from 29 September to 2 October 2001 the Daugavpils prison guards had ill-treated him (see paragraph 6 above). He also complained to the Latvian Prison Administration about the circumstances of his transfer from Daugavpils prison to the Central Prison Hospital between 25 October and 27 October 2001, alleging that he had not been provided with nutrition during the transfer. 12. On 6 November 2001 a prosecutor from the Specialised Public Prosecutor's Office met with the applicant in private and obtained statements from him. 13. On 8 November 2001 the Specialised Public Prosecutor's Office ordered a forensic medical report on the applicant's knee injury. 14. On 13 November 2001 the applicant underwent forensic medical tests. The medical expert's referred to the applicant's medical history by stating, inter alia, that in 1984 the applicant has complained about pain in spine and his right leg. In order to reach a conclusion the experts requested additional medical records from the Central Prison Hospital. 15. On 11 December 2001 the Latvian Prison Administration dismissed the applicant's claim concerning the conditions of his transfer to the Central Prison Hospital. 16. On 12 December 2001 the forensic medical expertise concluded that the swelling in the applicant's left knee was associated with chronic changes to the knee joints caused by deforming arthrosis and bursitis. 17. On 13 December 2001 a prosecutor of the Specialised Public Prosecutor's Office decided not to initiate criminal proceedings regarding the alleged ill-treatment in Daugavpils prison. The decision was supported by the results of the expert report and the results of the internal investigation undertaken by the head of Daugavpils prison. According to the latter, on 29 September, 30 September and 2 October 2001 prison guards had inspected the cell without using any force against the applicant. The applicant did not appeal against the decision to a prosecutor of a higher rank. 18. From 26 July to 10 August 2002 the applicant was repeatedly admitted to the Central Prison Hospital concerning his joint disease. 2. Alleged inference with the applicant's right to respect for his correspondence 19. According to the applicant, on 4 June 2001 he complained to the Prosecutor General that the Grīva prison administration had confiscated complaints he had drafted to various State institutions. He also asked the Office of the Prosecutor to forward his letters, without specifying their contents, to the State Language Centre and the Minister of Justice. The letters to the latter authorities were in a sealed envelope attached to the letter addressed to the Prosecutor General. 20. Following the applicant's inquiry on 9 July 2001 the Office of the Prosecutor General informed the applicant that it had not received his complaint of 4 June 2001. 21. On 18 July 2001, naming the document “a copy of the letter of 4 July 2001”, the applicant sent to the Prosecutor General an identical complaint with attached sealed letters addressed to the Ministry of Justice and the State Language Centre. 22. On 3 August 2001 the Specialized Prosecutor's Office asked the Grīva prison authority to examine the applicant's complaints, whereas the letters addressed to other State institutions were returned to the applicant informing him that they could be sent at his own expense directly to the recipients. 23. On 17 August 2001 the Specialized Public Prosecutor's Office replied to the applicant on the merits of his complaint of 18 July 2001, which was allegedly the copy of the letter from 4 June 2001. 24. On 22 April 2002 the applicant repeatedly asked the Prosecutor General to forward a sealed envelope to the Ministry of Justice. 25. Following the applicant's inquiry on 3 July 2002 the Specialized Public Prosecutor's Office informed the applicant that it had not received his complaint of 22 April 2002. 26. On 29 September and 14 October 2002 the Ministry of Justice received letters from the applicant. 27. Under section 50 of the code convicted persons have the right to write proposals, submissions and complaints to State institutions, public organisations and officials. Proposals, submissions and complaints of convicted persons shall be sent to the appropriate persons and decided in accordance with the procedures prescribed by law. Proposals, submissions and complaints addressed to the prosecutor shall not be monitored and shall be dispatched within twenty-four hours (as worded at the material time). | 0 |
dev | 001-5221 | ENG | GBR | ADMISSIBILITY | 2,000 | G.H. B. v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is a British citizen born in 1924 and living in Wokingham, Berkshire. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s grand-daughter, H, was born in July 1985. In August 1993, H’s mother (the applicant’s daughter, P), who lived in Tyneside, north-east England, contacted the local authorities because she was suffering from mental health problems and could not, at that time, care for H. In September 1993, H was placed with foster parents in Tyneside on a temporary basis. In July 1994, at a meeting of the local authority permanency panel attended by P, the decision was taken that, since P was still unable to care for H, a permanent placement should be found for her. In September 1994, H’s name was added to the Child Protection Register under the category “emotional abuse”. In October 1994, H moved to the south of England to live with her maternal aunt and uncle, who had applied to have H placed permanently with them. P initially opposed this plan but eventually, to avoid a care order, she agreed and, on 1 December 1994, a residence order was made in favour of P’s sister. However, this arrangement broke down and in February 1995 H went to live with the applicant and his wife on a temporary basis. In April 1995, H was placed with short-term foster parents in Berkshire. This was either her fifth or her seventh change of home in three years. She had contact with the applicant and his wife fortnightly, and staying contact with P in Tyneside. In June 1995 H visited P, who was getting married. The day after the wedding, H and P had a disagreement about H’s sleeping arrangements. H wanted to stay with P, but P had arranged for H to stay with a friend. In the course of this argument, P telephoned the police and social services and asked that an emergency placement be found for H. The following day H returned to her foster parents. P declined to have contact with H until November 1995, when they had supervised contact, repeated in December 1995. The local authority commenced care proceedings and on 20 July 1995 an interim care order was made. In her statement dated 22 September 1995, P did not oppose the local authority’s plan to find a long-term permanent placement for H in the south of England, although she did oppose adoption. The applicant and his wife did not support the idea of a long-term placement, and initially decided to apply for H to live with them. When they were refused legal aid to apply for a residence order, they decided to apply instead for a contact order. In January 1996 the local authority advanced a care plan in which it was proposed, for the first time, that H be placed with Mr and Mrs X, with a view to adoption. Mr and Mrs X indicated that they would be willing to allow post-adoption contact between H and her biological family. The case came before His Honour Judge Kenny on 6 February 1996. At the hearing, counsel informed the judge that the parties had agreed to the making of the care order and an order for specified contact in favour of the applicant and his wife. No agreement was reached in respect of contact between H and her mother, since it was not certain whether it would be possible for P to have contact with H in the area where H would be living or at the applicant and his wife’s home. However, since March or April 1996 the applicant and his wife have had no contact with H, or news as to her well-being, with the exception of what was said in court on 6 June 1997 (see below). The local authority applied to vary the order of 16 February 1996, since H was extremely reluctant to have contact with her mother or grandparents. There was a further hearing before Judge Kenny in October 1996. He ordered that there should be no contact until further order of the court and referred the matter to the High Court. On 6 June 1997, the High Court considered a number of applications by the parties. P, who was represented by counsel, applied for the discharge of the order of 16 February 1996 and for a residence order in her favour or, in the alternative, a defined contact order. The applicant and his wife, acting in person, applied in support of P’s application or, in the alternative, if the court were unwilling to commit H to her mother’s care, for a residence order in their favour and, if H were not to live with them, for a defined contact order. The prospective adopters, Mr and Mrs X, applied to adopt H and opposed the attachment of any condition to the adoption order. In giving judgment, the judge, who had spoken privately to H, stated: “The principle of the paramountcy of H’s welfare must be applied ... . H is nearly 12 years old and her wishes, which I accept have been accurately and genuinely stated by her, do deserve to be given great weight, even if they are not, of course, conclusive. She has suffered significant harm in the past and in my judgment there is a risk, indeed the virtual certainty, of a traumatically adverse effect upon her if she is moved from her present home, where she has settled so well. ... ... I am satisfied that [H] wants very much indeed to be adopted so as to complete the process of integration into Mr and Mrs X’s family. For her, an explanation that she is to remain in their care in their capacity as long-term foster parents is to stop short of cementing the bond between her and them and of providing the total security which understandably, in the light of the past history, she craves. She has a strong conviction that her natural family does not approve of her present placement, and she is right: the [applicant and his wife] are vehemently opposed to it ... . In this case an order for direct contact is not viable at all. The child is resolute in her opposition to contact and the making of an order ... . [H] perceives any sort of nexus between herself and her natural family at this point of time to be threatening to the stability of her placement and she even fears that in some way the provision of a report might enable the natural family to discover her location or in some other way (as she puts it) hassle her. ...” He therefore granted Mr and Mrs X’s application for an unconditional adoption order. On 17 October 1997, after hearing the applicant and his wife in person, the Court of Appeal refused P and the applicant leave to appeal against the adoption order, and on 23 January 1998 the Court of Appeal refused leave to appeal to the House of Lords. Relevant domestic law The Children Act 1989 states, in section 1 (as relevant): “(1) When a court determines any question with respect to – (a) the upbringing of a child; ... the child’s welfare shall be the court’s paramount consideration. ... (3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to – (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available under this Act in the proceedings in question. (4) The circumstances are that - ... (a) the court is considering whether to make, vary or discharge [a care and supervision order].” The Adoption Act 1976 provides, in section 16 (as relevant): “(1) an adoption order shall not be made unless - ... (b) in the case of each parent or guardian of the child the court is satisfied that – ... (ii) his agreement to the making of the adoption order should be dispensed with on a ground specified in subsection (2) (2) The grounds mentioned in subsection (1)(b)(ii) are that the parent or guardian - ... (b) is withholding his consent unreasonably ... .” | 0 |
dev | 001-58750 | ENG | POL | CHAMBER | 2,000 | CASE OF TRZASKA v. POLAND | 3 | Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Damage - finding of violation sufficient;Costs and expenses partial award | Elisabeth Palm | 7. On 27 June 1991 the Jastrzębie Zdrój District Prosecutor issued a warrant of arrest against the applicant who was suspected of attempted manslaughter, robbery and rape. He was arrested on the same day. 8. On 23 September 1991 the Katowice Regional Court (Sąd Wojewódzki) prolonged the detention on remand until 30 November 1991 finding a reasonable suspicion that the applicant had committed the crimes in question. The Court considered that certain witnesses had to be heard and that expert opinions should be taken. 9. On 29 November 1991 the Katowice Regional Prosecutor transmitted the bill of indictment to the Katowice Regional Court. The applicant was charged with attempted manslaughter, assault, causing severe bodily harm, use of a dangerous weapon, aggravated theft, rape and theft. 10. On 14 January 1992 the applicant requested the Katowice Regional Court to release him. On 20 January 1992 the Court refused to order the applicant's release in view of the seriousness of the offences concerned. 11. On 4 March 1992 the first hearing was held before the Katowice Regional Court. The applicant requested that the case be transmitted to the Jelenia Góra Regional Court as most witnesses lived nearby. He requested access to the case-file in order to read it in a detailed manner. The Court refused the first request and complied with the second. 12. On 2 April 1992 the applicant failed to appear before the Court. It transpires from the minutes of the hearing that he had refused to leave the prison cell as he felt unwell. A prison physician stated that there were no medical objections to the applicant's participation in the hearing. The hearing set for 20 May 1992 was not held for the same reason. 13. On 30 June 1992 the Court heard the applicant, who denied his involvement in the crimes concerned, and another accused. The hearing was adjourned for 24 September 1992. At this date the court heard four witnesses and further questioned the applicant. On 25 September 1992 five further witnesses were heard. The hearing was adjourned until 18 November 1992. 14. Subsequently the judge rapporteur fell ill. He remained on sick leave from 10 November 1992 to 31 August 1994. The case was assigned to a new panel of judges. 15. On 16 April 1993 the applicant complained to the Minister of Justice about the length of the proceedings. 16. The hearing fixed on 18 June 1993 was adjourned as the applicant's officially appointed counsel requested that the case be assigned to another lawyer in view of his bad health. 17. On 2 August 1993 the hearing was recommenced in view of the change in the composition of the court. The court questioned the applicant and another co-accused. The hearing was adjourned for 8 and 14 September 1993. 18. On 5 August 1993 the officially appointed lawyer informed the court that the applicant had withdrawn his power of attorney. At the hearing set for 8 September 1993 this lawyer was not present. The Court adjourned the hearing until 14 September 1993 and assigned two new lawyers for the applicant's defence. As they failed to appear at the hearing on 14 September 1993, the Court adjourned the hearing until 4 October 1993. 19. On 4 October 1993 one of the officially appointed lawyers requested that the hearing be recommenced. The Court complied with this request and again questioned the applicant and another co-accused. 20. On 3 November 1993 the applicant complained to the Ombudsman (Rzecznik Praw Obywatelskich) about the length of the proceedings in his case and on 18 November 1993 to the Minister of Justice. 21. At the hearing on 19 and 22 November 1993 the court heard sixteen witnesses. At the hearing on 7 January 1994 only two out of fifteen witnesses who were to be heard on that day complied with the summonses. The Court imposed fines on some of them. 22. On 15 December 1993 the President of the Katowice Regional Court requested the President of the Criminal Division of that Court to follow closely the progress in the case and to prepare each month a progress report, with a first date set for 7 January 1994. 23. By a letter of 7 February 1994 the applicant requested the court to recall two of the counsel assigned to his case under the legal aid scheme and to assign the case to the lawyer who had been representing him at the beginning of the proceedings. On 21 February 1994 the court refused, having noted that the first officially appointed counsel had fallen ill; subsequently the applicant had withdrawn the power of attorney of the second counsel; and the third counsel had retired. The court further pointed out that granting the applicant’s request would have resulted in a fifth lawyer financed by the legal aid scheme representing the applicant in the proceedings. 24. On 23 February 1994 three witnesses were heard. On 28 February 1994 the hearing was adjourned as the president of the court fell ill. 25. On 14 March 1994 the President of the Katowice Regional Court reiterated his request to the President of the Criminal Division to supervise the proceedings and to present a first report on the progress by 10 May 1994. 26. On 30 March 1994 the Ombudsman requested the President of the Katowice Regional Court to inform him about the progress in the case. 27. At a hearing on 23 May 1994 five witnesses out of eighteen summoned for that date complied with the summonses. The applicant requested to be released. The court, having heard the prosecutor’s argument in reply, refused to release him in view of the seriousness of the crimes he was charged with. The court further considered that there was the risk of collusion. On 25 May 1994 the applicant lodged an appeal against this decision with the Katowice Court of Appeal. On 1 June 1994 the Katowice Court of Appeal upheld the contested decision. The Court observed that the applicant was suspected of serious crimes and that there was a risk of collusion. The Court noted that there was progress in the case as hearings were being held. Thus, even regard being had to the fact that the applicant had been detained on remand for three years, there were no reasons which would justify his release. 28. On 5 June 1994 the applicant again requested that his counsel be changed. 29. On 7 June 1994 the Ombudsman again requested the President to inform him about the progress in the case and to indicate whether there were still grounds for detention on remand. 30. On 20 June 1994 the Regional Court ordered that accused Z.P. be released in view of his poor health. 31. On 28 June 1994 the applicant requested his release, relying on his rights guaranteed by the European Convention on Human Rights. 32. On 4 July 1994 the Katowice Regional Court refused to release the applicant. The Court noted that the applicant was suspected of dangerous crimes. It also considered that there was a risk of collusion and that, if released, the applicant would jeopardise the criminal proceedings by trying to bear pressure on witnesses and by contacting another co-accused who was not detained. 33. On 16 July 1994 the applicant complained to the Minister of Justice about the length of the proceedings. 34. From June to September 1994 the Court composed a list of the addresses of witnesses who had failed to appear on 23 May 1994. In particular, the court had to establish the address of the rape victim. 35. On 11 October 1994 three witnesses out of the eighteen summoned for that date complied with the summonses. The applicant requested a medical examination in view of his gastrological problems. The court ordered the medical services of the Krakow Detention Centre to submit a medical opinion as to their gravity. Another coaccused, who had been released on 23 June 1994 in view of his illhealth, failed to appear. 36. On 28 October 1994 the applicant refused to leave the prison cell. A medical opinion of 14 November 1994 stated that he suffered from chronic gastritis, but could be treated in the prison. 37. In a letter of 10 November 1994 the applicant challenged the judges. He referred to the fact that on 11 October 1994 the court had ordered the police to force him to leave his cell in order to attend the hearing. On 12 December 1994 the Katowice Regional Court refused to comply with this request. 38. At the hearing on 10 January 1995 two out of ten witnesses appeared before the court. On 31 January 1995 three witnesses were heard. On 7 February 1995 the applicant refused to leave the prison cell, declaring that he felt unwell and he had not received the summons. The court adjourned the hearing in order for a physician to established whether the applicant’s condition prevented him from attending the hearing. Having examined the applicant, the physician stated that there were no medical objections to the applicant’s participation in the hearing. 39. Further hearings were held on 7 March and 22 March 1995. On 22 March 1995 the Court convicted the applicant of attempted manslaughter, rape and aggravated theft and sentenced him to twentyfive years' imprisonment. 40. On 19 October 1995, following the applicant’s appeal, the Katowice Court of Appeal in part quashed the first-instance judgment and ordered that the case be reconsidered. On 27 May 1997 the Katowice Regional Court again convicted the applicant and imposed a sentence of twenty-five years’ imprisonment. 41. The Polish Code of Criminal Procedure, enacted in 1969 applicable at the material time, listed as so-called “preventive measures”, inter alia, detention on remand, bail and police supervision. The authorities competent to decide on detention on remand were provided for in Articles 210 and 212 of the Code, which read as follows: "1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, they shall be ordered by the prosecutor (...)." "1. A decision concerning preventive measures may be appealed [to a higher court] .... 2. A prosecutor's order on detention on remand may be appealed to the court competent to deal with the merits of the case...." 42 43. The courts, when ruling on the prosecutor’s request submitted in pursuance of Article 222 of the Code, were under an obligation to determine the period for which detention could be prolonged. If the court refused to grant the prosecutor’s request for prolongation of detention or if the prosecutor had failed to submit a request for such prolongation before or on the expiry of the last detention order, the detained person had to be released. 44. Article 213 of the Code provided that a preventive measure should be immediately quashed or altered if the basis therefor had ceased to exist or if new circumstances had arisen which justified quashing or replacing a given measure which a more or less lenient one. 45. Under Article 217 § 1 (2) and (4) of the Code, detention on remand could be imposed if there was a reasonable risk that an accused would attempt to induce witnesses to give false testimony or to obstruct the due course of the proceedings by any other unlawful means, or if the accused had been charged with an offence posing a serious danger to society. 46. Under the provisions of the 1969 Code there were three different legal avenues whereby a detained person could challenge the lawfulness of his or her detention and thus possibly obtain release. Under Article 212. § 2 of the Code of Criminal Procedure he could appeal to a court against a detention order given by a prosecutor (see § 41 above). Under Article 222 §§ 2(1) and 3 he could lodge an appeal against a further decision by that court prolonging his detention at a prosecutor's request. Finally, Article 214 of the Code stated that an accused could at any time apply to the authority conducting the criminal proceedings, i.e. the prosecutor or the court, depending on the stage the proceedings had reached, to have a preventive measure quashed or altered. 47. Imposition and prolongation of preventive measures, including detention on remand, were examined by the courts in proceedings held in camera. The presence of the parties at court sessions other than hearings, including sessions held in proceedings concerning review of detention on remand, was regulated in Articles 87 and 88 of the Code of Criminal Procedure, which, insofar as relevant, provided: "The court pronounces its decisions at a hearing if the law provides for it; and otherwise, at a court session held in camera. ..." "A court session in camera may be attended by a prosecutor (...); other parties may attend if the law provides for it." 48. A new Code of Criminal Procedure was enacted by the Sejm (Parliament) on 6 June 1997. It entered into force on 1 September 1998. Pursuant to Article 249 of the new Code, before deciding on the application of the preventive measures, the court shall hear the person charged with offence. The lawyer of the detainee should be allowed to attend in the court session, if he or she is present. It is not mandatory to inform the lawyer of the date and time of the court session, unless the suspect so requests and if it will not hinder the proceedings. 49. The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand is to be considered. | 1 |
dev | 001-75247 | ENG | SVN | CHAMBER | 2,006 | CASE OF GRUSOVNIK v. SLOVENIA | 4 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | David Thór Björgvinsson;John Hedigan | 5. The applicant was born in 1960 and lives in Zgornji Dolič. 6. On 9 January 1993 the applicant was injured in an accident at work. The applicant’s employer had taken out insurance with the insurance company ZT. 7. On 30 August 1995 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 8,009,850 tolars (approximately 33,300 euros) for the injuries sustained. Between 1 October 1996 and 8 January 1999 the applicant lodged eight preliminary written submissions and/or adduced evidence. Between 14 November 1996 and 1 October 1998 she made six requests that a date be set for a hearing. On 25 September 1997 the judge presiding the case was appointed to the Celje Higher Court (Višje sodišče v Celju) and the case was assigned to a new first-instance court judge. Of the three hearings held between 13 December 1996 and 13 January 1999 none was adjourned at the request of the applicant. During the proceedings the court appointed a medical expert. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 1 March 1999. 8. On 16 March 1999 ZT appealed to the Celje Higher Court contesting the part of the judgment referring to costs and expenses of the proceedings. On 16 February 2000 the court allowed the appeal in part and remanded the case back to the first-instance court for re-examination. The decision was served on the applicant on 21 March 2000. 9. Between 6 July 2000 and 13 March 2001 the applicant lodged four rush notices with the first-instance court. On 6 April 2001 the first-instance court issued a new decision on costs and expenses. The decision was served on the applicant on 11 April 2001. 10. On 11 May 2001 ZT appealed to the Celje Higher Court. On 18 July 2002 the court rejected the appeal. The decision was served on the applicant on 28 August 2002. | 1 |
dev | 001-82223 | ENG | UKR | CHAMBER | 2,007 | CASE OF SHAMRAY v. UKRAINE | 4 | Violation of Art. 6-1;Violation of P1-1 | Peer Lorenzen | 4. The applicant was born in 1954 and lives in Yenakiyeve. 5. In 1999 the applicant instituted civil proceedings against his former employers, the State-owned mines “Yenakiyivska” and “Poltavska”, seeking compensation for damage to his health. 6. On 12 February 1999 the Yenakiyeve Court (Єнакіївський міський суд) ordered the mine “Poltavska” to pay the applicant a lump sum of 10,922.79 hryvnyas (UAH). On 22 March 1999 the Donetsk Regional Court (the “Regional Court”; Донецький обласний суд) amended this judgment, having additionally awarded the applicant arrears in monthly allowances for the period of October 1996 – October 1999. 7. On 22 March 1999 the Regional Court ordered the mine “Yenakiyivska” to pay the applicant the total UAH 10,263.24 in monthly allowance arrears. 8. After the above decisions had become final and the enforcement proceedings had been instituted in their respect, the applicant unsuccessfully requested the judicial authorities to re-open the proceedings, seeking higher compensation. 9. According to the Government, the judgments debts were fully paid to the applicant in several instalments, last payments having been made in September 2003. To this end, the Government presented copies of the decisions to terminate the enforcement proceedings taken on 19 and 26 September 2003 by the Bailiffs (Відділ Державної виконавчої служби Єнакіївського міського управління юстиції) in respect of the mines “Yenakiyivska” and “Poltavska” respectively. 10. The applicant maintained that he had received only a part of the judgments debt due to him. He did not, however, specify the outstanding amount and provided no information on whether he had challenged the Bailiffs' decision to terminate the enforcement proceedings. 11. After the case had been communicated to the Government, the applicant additionally submitted a number of documents concerning his other disputes and proceedings against various parties, however, he neither described the relevant facts, nor articulated any separate complaints in their respect. 12. A description of the relevant domestic law can be found in Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005). | 1 |
dev | 001-108595 | ENG | TUR | COMMITTEE | 2,012 | CASE OF DOLUTAŞ v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | András Sajó;Paulo Pinto De Albuquerque | 4. The applicant was born in 1977 in Sivas. 5. On 6 May 1998 the applicant was taken into police custody on suspicion of being a member of an illegal organisation. 6. On 9 May 1998 he was brought before the public prosecutor and investigating judge at the Istanbul State Security Court, who ordered his pre-trial detention. 7. On 11 May 1998 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, charging him with membership of an illegal organisation. 8. On 14 July 1998 due to the factual and legal connection between the cases, the court decided to joint the applicant’s case to other proceedings, involving seven accused (no. 1998/2). 9. On the same day the applicant was released pending trial. 10. On 29 July 2000 a change took place in the judges sitting as a bench at the Istanbul State Security Court and therefore, the next hearing was scheduled on 7 September 2000. 11. On 16 November 2000 the hearing was postponed to 20 February 2001 due the change in the assignment of judges at the trial court. 12. On 20 February 2001 the applicant was summoned to appear before the court in order to make his supplementary submissions for his defence, in view of a possible alteration of the offence he was charged with. 13. On 10 May 2001 the court observed that the registered writ having sent to the applicant, returned to the case file without a delivery. 14. On 30 November 2001 the public prosecutor at the Istanbul State Security Court filed an additional bill of indictment, charging the applicant with using explosives. 15. From the date of 10 May 2001 to 24 May 2007, despite the authorities’ efforts to have summoned the applicant, his whereabouts could not be established. During that period, the court ordered the Avcılar Police Department to make an enquiry to the applicant’s family about his nonappearance. Subsequently, the court was informed that the applicant had gone abroad to study. 16. The trial court invited the prosecutor’s office to transmit the arrest warrant against the applicant to the customs with a view to securing his appearance before the court once he entered the country. 17. Following a constitutional amendment, State Security Courts were abolished and the applicant’s case was transferred to the Istanbul Assize Court. 18. On 6 November 2007, in his defence submissions to the court, the applicant’s lawyer claimed that the applicant had already been tried by another chamber of the Istanbul Assize Court on the basis of the same facts and requested that the matter be examined further. 19. On 3 April 2008 the Istanbul Assize Court ordered the case file of the proceedings in question to verify the reason for the applicant’s previous conviction. 20. On 24 February 2009 the court ruled that the criminal proceedings be discontinued on the ground that the prosecution was time-barred. On the same day, the applicant’s lawyer lodged an appeal against the judgment. 21. According to the submissions in the case file, the proceedings are currently pending before the Court of Cassation. | 1 |
dev | 001-100690 | ENG | RUS | CHAMBER | 2,010 | CASE OF PAKHOMOV v. RUSSIA | 3 | Remainder inadmissible;No violation of Art. 3 | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 6. The applicant was born in 1980 and lives in the town of Artyom, Primorye Region. 7. On 27 April 2007 a group of police officers entered the applicant's flat, intending to search it. The applicant, who had been offered the opportunity to hand over any illegal substances before the search, handed the police officers 2.5 grams of tobacco and marijuana compound. No other illegal substances or money were found during the subsequent search of the flat carried out by the police. The applicant was arrested and taken to the Artyom town temporary detention centre, where a police investigator, Mr S., informed him that he had been arrested on suspicion of selling drugs to an anonymous person, whom the police called Mr I., during a policecontrolled purchase on 27 February 2007. The investigator also notified the applicant of an identification parade scheduled for the following day, in which Mr I. was to participate. 8. On 28 April 2007 the applicant was taken to the Artyom Town Department of the Federal Service for Drug Control where he remained handcuffed to a heating device for several hours. The identification parade did not take place. 9. On the same day the Artyom Town Court authorised the applicant's placement in custody for two months. He was transferred to temporary detention facility no. IZ-25/1 in Vladivostok. 10. In the middle of May 2007 the applicant was notified of another charge brought against him. The prosecution authorities accused him of selling drugs to Mr I. on another occasion, namely 9 March 2007. 11. On 11 June 2007 the police investigator, Mr S., served the applicant and his lawyer with a bill of indictment. The investigation offered the following version of events on which the charges against the applicant were grounded. According to the investigating authorities, on an unspecified date an anonymous person, whose personal data could not be disclosed and who was called “Mr I.”, approached a police officer, Mr Za., and informed the latter that he could buy drugs from the applicant. The police officer Za. decided to act on the information received from Mr I. and organised a police-controlled purchase of drugs. He invited two soldiers serving in the local military unit, Mr K. and Mr M., to act as lay witnesses during the purchase. On 27 February 2007 police officer Za., accompanied by another police officer, Mr G., two lay witnesses, Mr K. and Mr M., and Mr I., drove to the applicant's house. On arrival to the applicant's block of flats, officer Za. gave Mr I. money to purchase drugs from the applicant. Serial numbers of the bills were recorded in advance. Mr I., accompanied by Mr K., left the car and went to the applicant's flat. Mr K. did not enter the flat, waiting for Mr I. on the ground floor. Mr I. spent approximately fifteen minutes in the applicant's flat. After he had returned to the car, Mr I. handed the police officers a package containing 2.08 grams of a substance, later identified by forensic experts as a compound of tobacco and cannabis, and stated that he had bought drugs from the applicant. The investigating authorities also insisted that the same sequence of events, albeit with the participation of other lay witnesses, Mr Se. and Mr B., occurred on 9 March 2007. 12. On 16 October 2007 the applicant's lawyer recorded a conversation with a Mr A., who insisted that he could identify Mr I. According to Mr A., in the middle of March 2007 he had met with the person identified as Mr I. The latter had told Mr A. that he had framed the applicant in a drug case. According to Mr I., the police had arrested him when he was carrying drugs and as a result he had been forced to participate in two police-controlled drug purchases. Mr I. allegedly explained that he had kept the money which the police officers had given him for drug purchases and in return he had allegedly given the police officers drugs which he had hidden in advance behind a heating device in the hall near the applicant's flat. 13. On 14 December 2007 the Artyom Town Court found the applicant guilty of two counts of attempted drug trafficking and one count of drug possession, and sentenced him to eight years' imprisonment. The conviction was based on the following evidence: - statements by Mr I., given during the pre-trial investigation and read out in open court, despite the applicant's objection. In those statements Mr I. gave a detailed description of the events on 27 February and 9 March 2007 pertaining to his participation in the police-controlled purchases of drugs from the applicant. As follows from the Town Court's judgment, Mr I.'s personal data were not disclosed to the applicant. Mr I.'s absence from trial hearings had been considered “exceptional”. Having cited no reasons which could justify Mr I.'s absence from the court hearing, the Town Court held that the absence was prompted by “exceptional circumstances”. On a number of occasions the defence unsuccessfully asked the Town Court to disclose Mr I.'s identity. - statements made in open court by Ms M. and Ms D., lay witnesses who had assisted the police officers during the search of the applicant's flat on 27 April 2007. Both Ms M. and Ms D. confirmed that the applicant had voluntarily turned over to the police officers a small package of a substance containing marijuana. - statements made in a trial hearing by Mr Se., who had acted as a lay witness during the police-controlled purchase of drugs from the applicant on 9 March 2007. Mr Se. explained that on a request from a police officer he had followed Mr I. to the door of the applicant's flat. Mr I. had spent several minutes in the flat. After Mr I. left the flat he had a small package, which he gave to the police officers. - statements given by another lay witness, Mr B., during the pre-trial investigation and read out in open court with the parties' consent. Mr B.'s statements were similar to those given by Mr Se. - statements by Mr K., a lay witness who had participated in the police-controlled purchase of drugs from the applicant on 27 February 2007. Those statements were given by Mr K. during an interview with an investigator and read out in a trial hearing. The Town Court, without providing any further details, held that reasons for Mr K.'s absence from the trial were “exceptional”. In his statements Mr K. provided a detailed description of events on 27 February 2007 and corroborated the prosecution's version. - statements by police officer Za., made in open court. The police officer set out an account of events on 27 February, 9 March and 27 April 2007, insisting that on the first two dates Mr I. had purchased drugs from the applicant during the police-controlled operations and that on the later date drugs had been found in the applicant's flat during the search. - report on a body search of Mr I. on 27 February 2007 showing that Mr I. had had no illegal substances or money on him before he took part in the police-controlled purchase of drugs from the applicant. - report drawn up by police officer Za. on 27 February 2007 showing that the latter had given Mr I. four 100-rouble bills to purchase drugs from the applicant; - report of 27 February 2007 indicating that on his return from the applicant's flat Mr I. had handed the police officers a package containing a phytogenous substance. - an expert report confirming that the substances which Mr I. had handed to the police officers during the police-controlled operations on 27 February and 9 March 2007 contained cannabis. - an expert report, according to which cannabis handed over by Mr I. to the police on 27 February and 9 March 2007 most probably had the same origin. However, the cannabis which the applicant voluntarily turned over to the police during the search of his flat was from a different batch. 14. On request by the defence the Town Court heard a number of witnesses and rejected their testimony as unreliable. Two defence witnesses testified that they had visited the applicant on 9 March 2007 and had been in his flat at the time when the police had allegedly performed the controlled drug purchase. They insisted that no one had visited the applicant's flat when they had been there and that the applicant had not sold drugs to anyone. Another witness testified that she had been in the applicant's flat with her brother on 27 February 2007 at the time of the alleged drug purchase. She stressed that there had been no other visitors. The Town Court interviewed Mr So., the head of the military unit where lay witnesses Mr K. and Mr P. had been performing military service. Mr So. stated that, on a written request from the applicant's lawyer, he had had a conversation with Mr K., who had insisted that he had not seen Mr I. entering the applicant's flat. The Town Court also studied a statement written by Mr K. at the end of that conversation. Mr K. confirmed that after Mr I. had approached the door of the applicant's flat he had ordered Mr K. to go down to the ground floor and thus Mr K. had been unable to observe Mr I. entering the flat. The Town Court refused to call Mr A., whom the applicant had asked to be questioned about Mr I.'s identity. 15. The applicant's lawyer appealed against the conviction, arguing, inter alia, that the Town Court had read out statements by Mr I. and Mr K., disregarding the objection by the defence to that effect, and that it had refused to hear Mr A. 16. On 3 March 2008 the Primorye Regional Court upheld the judgment of 14 December 2007, endorsing the reasons given by the Town Court. As regards the applicant's argument concerning the statements by Mr I. and Mr K., the Regional Court held as follows: “The [Town] court read out the statements by Mr I. and Mr K. in open court, complying with the requirements of Article 281 of the Russian Code of Criminal Procedure, because the [Town] court found that the reasons for their absence from the hearings were exceptional and [it] issued a reasoned judgment to that effect.” The Regional Court also concluded that the Town Court had rightfully dismissed the applicant's and his lawyer's requests for the disclosure of Mr I.'s identity. 17. On 15 January 2010 the Presidium of the Primorye Regional Court, by way of a supervisory review, quashed the judgments of 14 December 2007 and 3 March 2008 in the part concerning the applicant's conviction for drug trafficking, and upheld the conviction for possession of drugs found in his flat during the search. It stressed that having based, to a substantial degree, the applicant's conviction for drug trafficking on statements by witnesses whom the applicant had been unable to confront in open court, including the anonymous witness I. and a lay witness K., the domestic courts had violated Article 6 § 3 (d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Presidium concluded that there was no evidence that the applicant was guilty of drug trafficking. Having acquitted the applicant of that charge, the Presidium reduced his sentence to two years' imprisonment and authorised his immediate release, as he had already served the entire sentence. The Presidium also confirmed the applicant's right to rehabilitation. 18. The following account has been drawn up from the medical records submitted by the Government. 19. In 2003 the applicant was diagnosed with pulmonary tuberculosis. He underwent treatment in a tuberculosis hospital in Artyom. 20. On 28 April 2007, on his admission to temporary detention facility no. IZ-25/1, the applicant informed an attending prison doctor that he had tuberculosis and complained of a cough and general fatigue. The doctor noted in the admission record that an examination by a tuberculosis specialist was required. 21. Three days later the applicant underwent an X-ray examination which revealed the presence of a tuberculoma, measuring two centimetres in width and three centimetres in length, in the upper lobe of the left lung and dense foci in the right lung. On the basis of the X-ray examination the tuberculosis specialist recorded the following diagnosis in the applicant's medical history: “large residual changes in the form of a tuberculoma on the left and dense foci on the right after the recent tuberculosis; “D” control is not required; R-control should be carried out twice a year”. The next X-ray exam was prescribed for a month later. 22. On 29 June 2007 the applicant received the second chest X-ray examination, which showed no relapse. 23. On 13 July 2007 the applicant requested to see a prison doctor to whom he complained of fatigue, a high temperature in the evenings and excessive sweating. The doctor diagnosed the applicant with acute viral respiratory infection, authorised a number of analyses, including general blood and urine tests, sputum analysis and a survey X-ray exam, and prescribed treatment with floracyd, a cough medicine and multivitamins. 24. A survey X-ray examination performed on 16 July 2007 revealed the reactivation of the tuberculosis and the need for in-patient treatment for the applicant. The doctor's diagnosis was “infiltrative tuberculosis on the right side”. 25. On 17 July 2007 the applicant was transferred to the pulmonary tuberculosis ward of the medical department in the detention facility, where he remained until 3 April 2008. On 19, 20 and 23 July 2007 bacteriological sputum tests were performed by way of bacterioscopy, and showed no mycobacterium tuberculosis (“MBT”). Subsequently similar tests were performed once a month, each time producing negative results. On 23 July 2007 a sputum sample taken for culture turned out positive. At the same time results of the applicant's drug susceptibility testing (“DST”) were made available to the facility medical personnel, guiding the choice of the applicant's treatment regimen. Between 17 July 2007 and 25 March 2008 the applicant was subjected to an intensive chemotherapy regimen, comprising a number of drugs: isoniazid, pyrazinamide, rifampicin, ethambutol, streptomycin, phosphoglif and multivitamins. During the initial stage of the treatment the applicant adhered to a strict medication regime, having received ninety doses of anti-bacteriological medicines. An intake of every dose was observed by the facility medical staff. Attending tuberculosis specialists examined the patient once in three or four days in view of identifying whether a correction of the drug regimen was necessary. Monthly clinical blood and urine analyses were also carried out. Every two months the applicant received chest radiography. Liver examinations were conducted regularly. 26. After a sputum culture testing had showed that the applicant was no longer smear positive and similar results had been received by way of sputum smear bacterioscopy at completion of the intensive phase of the treatment, the continuation phase of the therapy commenced, comprising treatment with isoniazid, rifampicin and ethambutol (“HRE regimen”). 27. The applicant's medical history contained a number of entries made by attending tuberculosis specialists, recording the applicant's negative attitude towards the treatment and his refusal to take anti-bacteriological medicines on at least five occasions. The attending doctors had conversations with the applicant, persuading him to continue the treatment and warning about a possible relapse of the illness or development of severe multi-drug-resistant tuberculosis. In addition, during examinations doctors occasionally reminded him of the negative effects of treatment interruption. 28. Following the applicant's final conviction on 3 March 2008, on 3 April 2008 the applicant was discharged from the medical department of the detention facility with a final diagnosis of infiltrative tuberculosis of the right lung in the resolution and consolidation phase and recommendations to continue treatment on an HRE regimen with a daily special dietary food ration. He was sent for subsequent treatment to Specialised Medical Establishment no. 47 (“the tuberculosis hospital”) for prisoners suffering from tuberculosis, located in the Primorye Region. 29. On 7 April 2008, on admission to the tuberculosis hospital, the applicant was examined by a tuberculosis specialist. A clinical blood analysis and sputum smear bacterioscopy were performed. It was decided to continue the extension phase of the medicine regimen as prescribed by medical specialists of the detention facility. A chest X-ray examination and sputum culture testing were scheduled to be performed at the end of the extension phase. The applicant was also assigned a special diet. 30. Once a month the applicant received a full medical examination. Each time the attending tuberculosis specialists recorded the total number of doses of anti-bacteriological medicines taken by the applicant. Clinical blood and urine tests were performed every three months. A sputum smear was regularly taken for bacterioscopy testing, revealing no presence of MBT. The applicant's medical record also showed that medical personnel discussed with the applicant the necessity of the treatment and adherence to a strict medical regimen. 31. On 25 February 2009 the applicant was examined by a medical panel comprising a number of medical specialists. Having studied his medical records, including results of three most recent X-ray examinations, blood and urine analysis and sputum smear tests, the panel issued the following diagnosis: “clinical recovery from infiltrative pulmonary tuberculosis accompanied by the presence of extensive post-tuberculosis changes in the form of foci and fibrous foci... in both lungs”. A schedule showing future medical procedures and their frequency was developed. The applicant was also prescribed seasonal retreatment courses with isoniazid, ethambutol and vitamins, to prevent relapse of the illness. 32. On 7 April 2009 the applicant was transferred to correctional colony no. 20. On arrival he was examined by a colony physician, who diagnosed the applicant with acute maxillary sinusitis for which he received treatment between 7 and 20 April 2009. As follows from the applicant's medical history, the correctional colony medical staff complied fully with the recommendations issued by the specialists of the tuberculosis hospital in respect of medical tests and anti-relapse treatment for the applicant. “1. Provision of anti-tuberculosis aid to individuals suffering from tuberculosis is guaranteed by the State and is performed on the basis of principles of legality, compliance with the rights of an 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 is provided to citizens when they voluntarily apply [for such aid] or when they consent [to such aid], safe 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 receive such an aid in medical anti-tuberculosis facilities, licensed to provide [that aid]. 2. Individuals who are or have been in contact with an individual suffering from tuberculosis should undergo an examination for detection of tuberculosis in compliance with requirements of law of the Russian Federation...” 1. Regular medical examinations of persons suffering from tuberculosis is performed in compliance with the procedure laid down by a respective federal executive body... 2. Regular medical examinations of persons suffering from tuberculosis is performed irrespective of the patients' or their representatives' consent. 3. A medical commission appointed by the head of a medical anti-tuberculosis facility... takes a decision authorising regular medical examinations or terminating them and records such a decision in medical documents...; an individual in respect of whom such a decision has been issued, is informed in writing about the decision taken.” “2. Individuals suffering from contagious forms of tuberculosis who... intentionally avoid medical examinations aimed at detection of tuberculosis or avoid treating it, should be admitted, by a 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, 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 have other rights provided for by the laws of the Russian Federation on health care...” “Individuals... suffering from tuberculosis must; 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 suffering from tuberculosis [visit them].” “4. Individuals... suffering from tuberculosis should 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...” 33. Russian law gives detailed guidelines for provision of medical assistance to detained individuals. These guidelines, found in the joint Decree of the Ministry of Health and Social Development and the Ministry of Justice no. 640/190 on Organisation of Medical Assistance to Individuals Serving Sentences or Detained (“the Regulation”), enacted on 17 October 2005, are applicable without exception to all detainees. 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 should 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 and those in need of urgent medical assistance. Particular attention should 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 X-ray. During the in-depth examination a prison doctor should record the detainee's complaints, study his medical and personal history, record injuries if present, and recent tattoos and schedule additional medical procedures, if necessary. A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses. 34. Subsequent medical examinations of detainees are performed at least twice a year or on detainees' complaints. 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 comprehensively informed about the results of the medical examinations. 35. Section III of the Regulation also sets the procedure for cases of refusals by detainees to undergo a medical examination or treatment. In each case of refusal, a respective entry should be made in the detainees' medical record. A prison doctor should comprehensively explain the detainee consequences of his refusal to undergo the medical procedure. 36. Detainees take prescribed medicines in the presence of a doctor. In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a daily dose of medicines to the detainee for unobserved intake. 37. 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, 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 impacts of the refusal should follow. Detainees suffering from tuberculosis should also be transferred to a special dietary ration. 38. 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; laid down rules on vaccination; determined courses and regimens of therapy for particular categories of patients, and so on. 39. 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 set 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). 40. Article 281 of the new CCrP, in so far as relevant, reads as follows: “1. Testimony previously given by a victim or witness during the preliminary investigation or at the trial may be read out... if the victim or witness fails to attend, subject to the parties' consent, save in cases listed in the second part of the present Article. 2. If a victim or witness fails to appear in court, the court may, at a party's request or on its own initiative, read out statements previously given by them in the following cases: 1) victim's or witness's death; 2) grave illness precluding attendance at a court hearing; 3) refusal by a victim or witness who is a national of a foreign State to attend a hearing when summoned by the court; 4) natural disaster or any other emergency case precluding attendance at a court hearing.” 41. The relevant provisions of the new CCrP read as follows: “1. A court in its judgment.... acknowledges the right to rehabilitation for an individual who has been acquitted... At the same time the rehabilitated [person] should have explained to them the procedure for compensation for damage pertaining to criminal prosecution....” “1. Compensation for pecuniary damage to a rehabilitated [person] includes: salary, pension, allowances and other sources of income which he lost as a result of the criminal prosecution; his property confiscated or seized by the State on the basis of the judgment by which he had been convicted...; fines and legal costs and expenses which he paid in compliance with the court's judgment; sums paid by him for provision of legal services...; other expenses. 2. At any moment during the limitation period established by the Russian Civil Code and after the rehabilitated [person] received a copy of the judgment [by which he had been acquitted]... he has the right to apply to [the court which had issued the judgment] with a demand to compensate him damage... ... 4. No later than a month after the demand for compensation was received, the court... must determine its amount and issue a decision authorising the payment in compensation for that damage. That payment should take into account the inflation rate. ...” “1. A prosecutor should give an official apology in the name of the State to the rehabilitated [person] for damage caused to him. 2. An action for compensation for non-pecuniary damage should be brought within civil judicial proceedings....” “1. Restoration of labour, pension, housing and other rights of a rehabilitated [person] should be performed in compliance with [the CCrP] established for execution of court judgments....” 42. 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.” 43. 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 out-patient 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.” 44. 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 of 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 undertaken in the community in accordance with relevant legislation (Section 41). 45. 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.” 46. 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 held 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.” 47. 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.” 48. 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 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 (phluorography). Specificity, sensitivity, and cost-effectiveness considerations were not features of this approach. Bacille Calmette-Guerin (BCG) immunization was a key feature of the TB... 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 into 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.” 49. The following are the extracts from Treatment of Tuberculosis: Guidelines for National Programmes, World Health Organisation, 1997, pp. 27, 33 and 41: “Previously treated patients may have acquired drug resistance. They are more likely than new patients to harbour and excrete bacilli resistant to at least isoniazid. The re-treatment regimen consists of initially 5 drugs, with 3 drugs in the continuation phase. The patient receives at least 2 drugs in the initial phase which are still effective. This reduces the risk of selecting further resistant bacilli.... 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.” 50. In the fourth edition of the Guidelines, published in 2009, the WHO recommended as follows: “DST [a drug susceptibility testing] before or at the start of therapy is strongly recommended for all previously treated persons.” (p. 11) | 0 |
dev | 001-58118 | ENG | GRC | CHAMBER | 1,997 | CASE OF STAMOULAKATOS v. GREECE (No. 2) | 3 | Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (ratione temporis);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed | C. Russo;N. Valticos | 6. The applicant is a Greek national born in 1936 and currently resident in the United Kingdom. 7. On 23 February 1987 he submitted to the Prefecture of Athens an application for a disability pension under section 31 of Law no. 1543/85. 8. On the orders of the Prefecture an administrative inquiry was carried out by the Municipality of Moshato, which concluded on 15 December 1987 that the applicant was entitled to a pension because he had been tortured during the dictatorship and had suffered irreparable damage to his health as a result. 9. On 29 January 1988 the Health Committee of the Prefecture of Athens advised the General Accounting Office of the State (Geniko Logistirio tou Kratous) to grant the applicant a pension. The Health Committee considered that the applicant had been incarcerated because of his activities against the military dictatorship and had been tortured. As a result, his right hand was paralysed. 10. On 23 May 1988 the Pensions Regulatory Service (Ypiressia Kanonismou Syntaxeon) of the General Accounting Office rejected the applicant’s application on the ground that the conditions of section 31 of Law no. 1543/85 (see paragraph 19 below) were not fulfilled. The General Accounting Office considered that the applicant’s allegations were not proved by court decisions or public documents issued before 14 June 1984 and that the applicant had not been injured as a result either of his direct involvement in the struggle against the dictatorial regime or his opposition thereto. On 14 June 1988 the applicant appealed to the Audit Court (Elenktiko Synedrio). 11. The applicant’s appeal was heard by the Third Chamber of the Audit Court on 2 December 1988. It was rejected on 10 March 1989. The Third Chamber considered that the applicant’s allegations were not proven by a court decision or public document issued before 14 June 1984. It also found that the torturing of the applicant during the dictatorship had not resulted in an “injury” but in an “illness”. The law, however, provided for the award of a pension to persons who had been “injured” as a result of their opposition to the dictatorship. 12. On 17 April 1989 the applicant lodged an appeal on points of law with the Audit Court sitting in plenary, claiming that the Third Chamber had erred in law. 13. The Plenary held a hearing on 9 October 1991 at which the applicant did not appear. On 24 June 1992 the Audit Court decided that the applicant had not been duly summoned and adjourned the case. 14. Another hearing was held on 4 November 1992 at which the applicant was duly represented. On 26 May 1993 the Audit Court upheld the applicant’s appeal, on the ground, inter alia, that the Third Chamber had failed to examine in depth the cause of the paralysis of the applicant’s right hand. It sent the case back to its Third Chamber for reconsideration. 15. The Third Chamber held a hearing on 22 October 1993 at which the applicant was neither present nor represented. On 28 January 1994 it decided to adjourn the case. It ordered the applicant to produce within two months a number of decisions issued in the context of criminal proceedings against the applicant before 14 June 1984. It also sent the applicant’s file to the Health Committee of the Region of Attica ordering it to examine the applicant and to deliver an opinion on the following issues: Was the applicant’s paralysis the result of “injury” or “illness”? What was the extent of his disability? Was there any relationship between his disability and his activities during the dictatorship? 16. On 25 November 1994 the Health Committee considered that it could not deliver an opinion on the applicant’s case in the absence of any evidence that the applicant’s health condition was related to his activities during the dictatorship. On 29 March 1995 the applicant was informed of the Committee’s decision not to deliver an opinion. 17. On 6 October 1995 the Third Chamber of the Audit Court held a fresh hearing. 18. A further hearing was held on 29 November 1996. The Court has not been informed of any decision of the Third Chamber of the Audit Court. The Government state that judgment is to be delivered shortly. 19. Section 31 of Law no. 1543/85 provides the following: “All Greek citizens who were injured by or as a result of their direct involvement in the struggle against the dictatorial regime of 21 April 1967 to 23 July 1974 or as a result of their opposition to the above-mentioned regime are entitled to a pension paid by the State Treasury, provided that the above-mentioned circumstances have been recognised in a court decision based on public documents issued no later than 14 June 1984. ...” This provision does not create a right to a pension for persons who contracted an illness, as distinct from an injury, through their opposition to the dictatorship. Such a right was however created by a law of 1988 which is not relevant to the present case. 20. The award of a pension is not automatic but has to be applied for through the Prefecture to the Pensions Regulatory Service of the General Accounting Office. 21. An objection against the decision of the Pensions Regulatory Service can be brought before the Pensions Verification Board of the General Accounting Office (Article 66 of the Civilian and Military Pensions Code). An appeal lies within one year to a Chamber of the Audit Court (Article 48). A further appeal, on points of law, lies within one year (Articles 109 and 114) to the plenary Audit Court, which has the power to refer the case back to the competent Chamber (Article 116). | 1 |
dev | 001-23468 | ENG | POL | ADMISSIBILITY | 2,003 | SZOTT-MEDYNSKA AND OTHERS v. POLAND | 3 | Inadmissible | Georg Ress;Mark Villiger | The first applicant, Ms Dorota Szott-Medyńska, is a Polish national, born in 1954. She runs a family business together with the second and third applicants, Mr Maciej Medyński and Mr Krzysztof Medyński. They reside in Skierniewice. They are represented before the Court by Ms Mirosława Sztandera, a lawyer practising in Łódź. The respondent Government are represented by Mr K. Drzewicki, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants run a small family business. By decisions of 17 December 1997 the Treasury Office found all three applicants guilty of a fiscal offence punishable under Article 98 of the Fiscal Criminal Act in that they had failed to pay a monthly income-tax advance on wages for their employees for April 1997, in the amount of 284,90 Polish zlotys (“PLN”). The Treasury Office imposed on each of the applicants a pecuniary penalty of PLN 250, to be substituted by seventeen days of imprisonment in case of default of payment. The penalty was imposed under Article 41 of the same Act, stipulating sanctions for fiscal offences (cf. distinction between “fiscal crimes” and “fiscal offences” in the “Relevant domestic law” below). The applicants lodged an appeal against this decision with the Treasury Chamber, arguing that the first-instance authority had wrongly instituted the fiscal proceedings against them as no criminal offence had been committed and that, in any event, the legal classification of the offence should be changed to a more lenient one. They submitted that as soon as they had noticed their error they had informed the Treasury Office and, on 20 June 1997, had paid the income tax in arrears with the statutory interest due. Therefore, the State had not sustained any loss. In their submissions, their conviction was a result of an overly formalistic, impractical and unreasonable approach of the tax authorities to the business activities and the tax obligations resulting therefrom. On 16 March 1998 the Skierniewice Treasury Chamber dismissed their appeals and upheld the contested decisions. No further appeal lay in law against this decision. The 1971 Fiscal Criminal Act (Ustawa Karna Skarbowa), applicable at the material time, distinguished between two types of wrongful acts in the area of fiscal law: “fiscal crimes” and “fiscal offences”; fiscal offences being a category of less serious acts. Article 1 of the Fiscal Criminal Act defined fiscal crimes as wrongful acts punishable by imprisonment, limitation of liberty or a fine between PLN 200 and PLN 5,000,000. By virtue of Article 13, additional sanctions could be imposed for fiscal crimes such as: deprivation of civil rights, prohibition to exercise certain activities, confiscation of an object, and publication of the court judgment by which the offender was convicted. Articles 35 and 41 of the Fiscal Criminal Act defined fiscal offences as wrongful acts punishable by a “pecuniary penalty” (as distinguished in terminology from “fine”) between PLN 20 to PLN 1,000. Under Article 43, the additional sanction of confiscation of an object could also be imposed for a fiscal offence where the Act expressly provided therefor. Under Article 36 of the Act, certain provisions of the Criminal Code of 1969, defining general notions of criminal responsibility, were applicable in proceedings concerning fiscal offences. The provisions in question concerned, inter alia, the definition of a punishable act, the prohibition of retroactivity, the definition of intentional and non-intentional offence, the age limit for liability, notions of attempted offence and aiding and abetting, the circumstances justifying exclusion of criminal liability, and the principles applicable to the determination of criminal sanctions. As provided by Article 42 of the Act, when pecuniary penalty exceeding PLN 50 is imposed, it may be substituted by up to 30 days' imprisonment in default of payment. Pursuant to Article 122, the courts were competent to examine cases concerning fiscal crimes punishable by imprisonment or limitation of liberty. Under Article 123 of the Act, cases concerning fiscal crimes in which only fines could be imposed, and cases concerning fiscal offences, were examined by fiscal administrative boards. Article 206 of the Act stated that decisions given in proceedings concerning fiscal crimes and offences could be appealed against if the law so provided. The remedies were the following: an appeal, a request that the case be examined by a court, and an appeal against interlocutory decisions. Under Article 208 § 1 of the Act, in cases concerning fiscal crimes, a party to the proceedings could choose between an appeal to a higher administrative authority or a request that the case be examined by a court. An option to use one remedy barred the use of the other. In proceedings concerning fiscal offences, however, only an appeal to a higher administrative authority could be lodged. On 3 July 1998 a legislative amendment to the Fiscal Criminal Act was adopted to the effect that the demand that the case be examined by the court became available also with respect to fiscal offences. It entered into force on 1 September 1998. Subsequently, with effect as of 17 October 1999, the new Fiscal Criminal Code replaced the 1971 Fiscal Criminal Act. According to the new law, the courts are competent to examine all cases concerning fiscal crimes and fiscal offences. On 17 October 1997, the new Constitution entered into force in Poland. Article 79 § 1 of the Constitution provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” At the material time, the complaint had to be lodged within 2 months from the date on which the individual decision was served (Article 46 § 1 of the Constitutional Court's Act). This time-limit was extended to 3 months with effect as of 8 October 2000. Article 190 of the Constitution, insofar as relevant provides as follows: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court, ... shall be published without delay. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers. 4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a legally effective judgment of a court, a final administrative decision or settlement of other matters was issued, shall be a basis for re-opening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings.” Article 227 of the Fiscal Criminal Act, as amended by the Constitutional Court Act, provides, insofar as relevant, as follows: “The Minister of Finance, in the exercise of his supervisory powers, shall, ex officio or upon request, amend or quash a final decision ... rendered on the basis of the legal provision which was found by the Constitutional Court to be in contravention of the Constitution, international agreement or statute ....” Article 39 § 1 of the Constitutional Court Act, provides, insofar as relevant: “The Constitutional Court should discontinue the proceedings ... when: [...] 3. normative act challenged ... lost its binding force before the judgment of the Constitutional Court was delivered.” With effect as of 8 October 2000, an amendment was introduced which allows the Constitutional Court to continue the proceedings if it considers it necessary for the protection of constitutional rights and freedoms. Article 239 § 1 of the Constitution provides: “Within 2 years of the day on which the Constitution comes into force a judgment of the Constitutional Court of the non-conformity with the Constitution of statutes adopted before its coming into force shall not be final and shall be required to be considered by the Sejm which may reject the judgment of the Constitutional Court by a two-third majority vote in the presence of at least half of the statutory number of Deputies. The foregoing provision shall not concern judgments delivered by the Constitutional Court upon requests for preliminary rulings.” It was controversial among legal writers in Poland whether the Sejm was also empowered to reject judgments delivered upon individual complaints as this category was not expressly excluded from the scope of this provision. The issue had not arisen in practice as the Sejm has never rejected Constitutional Court's judgments on individual complaints and the transitional period of 2 years, referred to in the above provision, expired on 17 October 1999. | 0 |
dev | 001-105768 | ENG | SVN | COMMITTEE | 2,011 | CASE OF STREHAR v. SLOVENIA | 4 | Violation of Art. 6-1;Violation of Art. 13 | Angelika Nußberger;Ganna Yudkivska | 5. The applicant was born in 1943 and lives in Polskava. 6. On 5 September 1997 the applicant instituted civil proceedings before the Slovenska Bistrica Local Court seeking annulment of a purchase contract. 7. On 6 July 1999 the first-instance court annulled the contract. An appeal was lodged. 8. On 24 October 2000 the Maribor Higher Court upheld the appeal and remitted the case for re-examination. 9. Between 12 July 2006 and 15 February 2007 three hearings were held. 10. On 27 February 2007 the applicant withdrew the claim and a decision on termination of proceedings was issued on 21 March 2007. 11. A description of relevant domestic law can be found in the Nezirović v. Slovenia decision (no. 16400/06, 25 November 2008, §§ 1320). | 1 |
dev | 001-106147 | ENG | RUS | ADMISSIBILITY | 2,011 | VLADIMIR KUZNETSOV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | The applicant, Mr Vladimir Alekseyevich Kuznetsov, is a Russian national who was born in 1987 and lives in the town of Nizhniy Novgorod. He was represented before the Court by Ms L. Zhukova, Mr M. Bereza and Mr V. Andreyev, lawyers practising in Nizhniy Novgorod. The facts of the case, as submitted by the applicant, may be summarised as follows. On 20 June 2006 the Military Commission of the Leninskiy District of Nizhniy Novgorod registered the applicant for compulsory military service and scheduled a medical examination of him by a medical panel comprising a number of specialists in order to determine whether he was fit to serve. With the medical panel finding him fit to perform military service, the applicant was drafted into the army and sent to military unit no. 3256 in Nizhniy Tagil. In August 2006 the applicant and four other conscripts were sent for two months of training with military unit no. 3275 in the village of Lesnoy, Sverdlovsk Region. According to the applicant, almost immediately upon arrival at that military unit he became the subject of ill-treatment and humiliation by senior conscripts. The treatment included sleep and food deprivation, acts of violence, excessive physical exercise, threats, extortion (including that of money, food and personal belongings), insults and orders to commit theft within the military unit’s premises or in nearby villages. Similar acts of violence and degrading treatment continued upon the applicant’s return to military unit no. 3256 in October 2006. On 15 November 2006 a senior soldier, sergeant Z., woke the applicant up at night and ordered him to clean the floors of the barrack’s lavatories. In response to the applicant’s refusal, sergeant Z. took him outside, ordered him to put on a military hat, having, beforehand, turned it inside out so that the metal cockade on the hat would press against the applicant’s forehead, and allegedly punched him on the head a number of times, leaving an impression of the cockade on the applicant’s forehead. Although the applicant felt extreme pain and was feeling dizzy and disoriented for almost a week after the incident, he did not seek medical assistance, considering that to be futile. According to the applicant, the incident on 15 November 2006 was not the first occasion on which sergeant Z. had acted violently towards him. For instance, approximately a week before the events on 15 November 2006 sergeant Z. had also hit the applicant when the latter had refused to make coffee for him. On 29 November 2006 the applicant was granted leave to stay in town with his parents, who had come to visit him. Having noticed the applicant’s poor state of health, on 1 December 2006 his mother took him to a private hospital, the NikoMed Consultative Diagnostic Centre, where, following an ultrasound scan of his kidneys and abdominal cavity and an examination by a neurologist, to whom the applicant complained of severe headache and dizziness, the applicant was diagnosed with the residual effects of concussion and mild diffuse changes in the liver. No injuries were, however, recorded on his body. Having been questioned by the doctor about the cause of the concussion, the applicant explained that he had hit his head against a propeller shaft when cleaning military equipment more than three weeks before the medical examination. On 19 December 2006 the applicant was admitted to the gastroenterological department of the Yekaterinburg Military Circuit Hospital. The applicant submitted that his doctors had misinterpreted the symptoms of concussion, such as vomiting and dizziness, considering that he had been suffering from an intestinal disease. He was released from the hospital a month later. Having again been subjected to mockery on his return to the military unit, the applicant left the unit without authorisation when his parents came to visit him on 28 January 2007. Two days later the applicant lodged a complaint with the military prosecutor of Nizhniy Novgorod Garrison, seeking the institution of criminal proceedings against his commanding officers and senior conscripts. Having heard the applicant and his mother, having interrogated the personnel of the military unit and conscripts who had come into contact with the applicant and having requisitioned medical records describing the applicant’s state of health, on 19 February 2007 the prosecutor refused to open a criminal case in the absence of any evidence of ill-treatment. On 22 August 2007 the Military Court of the Nizhniy Tagil Garrison examined the applicant’s appeal against the decision of 19 February 2007 and dismissed it as unfounded. The Military Court studied the materials of the prosecutor’s inquiry and the applicant’s medical history and heard the prosecutor and witnesses, including the alleged perpetrators and the doctors. It endorsed the prosecutor’s conclusion that there was no evidence of ill-treatment: all of the witnesses had denied subjecting or having seen the applicant being subjected to acts of violence or psychological pressure and there was no medical evidence, save for the medical certificate of 1 December 2006, documenting signs of possible violence. The court noted, in particular, that daily medical examinations of soldiers had been performed in the military unit and that injuries had never been discovered on the applicant’s body. Relying on medical expert testimony, the court stressed that the diffuse changes discovered in the applicant’s liver during the examination in the private hospital were linked to illnesses of the digestive system. As to the alleged residual effects of concussion, the court found no reason to doubt the applicant’s statement given to the doctors that he had hit his head against a propeller shaft. Having been properly informed of the hearings before the Military Court of the Nizhniy Tagil Garrison, the applicant did not attend. On 8 November 2007 the Military Court of the Ural Circuit dismissed the applicant’s appeal against the judgment of 22 August 2007, having fully endorsed the lower court’s reasoning. At the same time, the appellate court laid particular emphasis on the applicant’s inconsistent description of events and the fact that, having had an opportunity to freely complain to the doctors in the private hospital, he had explained his alleged concussion as an accident. Without providing the Court with a copy of the decision or indicating when the decision had been issued, the applicant submitted that the prosecutor’s decision of 19 February 2007 had been quashed by a higherranking prosecutor while the appeal proceedings before the Military Court of the Ural Circuit had still been pending. According to the applicant, the new round of the investigation had also ended with a decision not to open a criminal inquiry in view of a lack of criminal conduct. | 0 |
dev | 001-61482 | ENG | POL | CHAMBER | 2,003 | CASE OF MATWIEJCZUK v. POLAND | 3 | Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 8 with regard to monitoring of correspondence;Not necessary to examine Art. 34;No violation of Art. 8 with regard to delay of correspondence;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Matti Pellonpää | 9. The applicant was born in 1966 and is currently detained in the Radom prison. 10. In July 1996 the applicant was released from prison. On 11 September 1996 the police arrested him. The police suspected that on 10 September 1996 the applicant had committed an armed robbery and rape. At the same time, the police enforced a warrant for the arrest of the applicant issued on 28 August 1996 by the Pruszków District Court (Sąd Rejonowy) in the criminal proceedings against the applicant pending before that court. 11. On 13 September 1996 the Warsaw District Court remanded the applicant in custody on charges of armed robbery and sexual assault. The court took into account the fact that the applicant was of no fixed abode and that his accomplices had not been arrested. 12. On 8 November 1996 the Warsaw Regional Court (Sąd Wojewódzki) dismissed the applicant's appeal against the District Court's decision to remand him in custody. The Regional Court considered that the applicant's detention was justified by the existence of serious evidence of his guilt, the gravity of charges against him, the risk of collusion, the fact that he was of no fixed abode and was unemployed. In addition, the court observed that the police failed to apprehend the applicant's accomplices and that there was a risk that he would go into hiding. Finally, the court was of the view that the applicant's case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure. 13. On 10 December 1996 the Warsaw Regional Court extended the applicant's detention until 11 March 1997. 14. The applicant made an application for release but it was dismissed on 19 December 1996 by the Warsaw Regional Court. It referred to the gravity of the charges brought against the applicant and the existence of serious evidence of his guilt. 15. Between 20 January and 27 February 1997 the prosecution service decided that it would seek evidence from five expert witnesses and requested the applicant's medical file from a psychiatric hospital in which he had been treated. 16. On 4 March 1997 the Warsaw Regional Court appointed legal aid counsel to defend the applicant. 17. On 5 March 1997 the prosecution service received two expert opinions. On 7 March 1997 the District Prosecutor interviewed the victim of rape. 18. On 10 March 1997 the Warsaw Court of Appeal (Sąd Apelacyjny) allowed the request submitted by the prosecutor and extended the applicant's detention on remand until 11 May 1997. The court referred to the gravity of the charges against the applicant and the grounds for detention provided in Article 217 §§ 1 and 2 of the Code of Criminal Procedure. Moreover, it noted that one of the co-accused was still in hiding and that immediately after the commission of the alleged crime “there had been an attempt to contact the victim [of the assault]”. The court also agreed with the submissions of the prosecutor that the investigation was not finished because certain forensic tests still had to be carried out, the applicant and another co-accused were still under psychiatric observation, whereas the police was trying to apprehend the third accused. The applicant appealed against that decision to the Supreme Court (Sąd Najwyższy). 19. Between 8 and 18 April 1997 the prosecution service received two expert opinions and decided to request DNA tests. 20. On 24 April 1997 the Supreme Court dismissed the applicant's appeal against the Warsaw Court of Appeal's decision of 10 March 1997. It referred to the charges against the applicant and observed that there existed serious evidence of his guilt. 21. On 29 April 1997 the Warsaw-Ochota Deputy District Prosecutor (Zastępca Prokuratora Rejonowego) replied to the applicant's letter of 23 April 1997 in which he complained about the censorship of his correspondence with the European Commission of Human Rights. The prosecutor advised the applicant about domestic legislation, which allowed the authorities to censor his correspondence. 22. On 9 May 1997 the Warsaw Court of Appeal allowed the request submitted by the prosecutor and extended the applicant's detention on remand until 11 July 1997. The court relied on the existence of serious evidence of the applicant's guilt and the nature of charges against the applicant. It also considered that the applicant's case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure. Finally, the court noted that the prosecution service was awaiting an expert opinion from a forensic expert and that one of co-accused was still in hiding. The applicant appealed against that decision. 23. On 16 May 1997 the prosecution service received the results of DNA tests. On 18 June 1997 the District Prosecutor interviewed the applicant and decided to modify charges against him. 24. On 27 June 1997 the prosecuting authorities filed with the Warsaw Regional Court a bill of indictment against the applicant. 25. On 7 July 1997 the Warsaw Regional Court extended the applicant's pretrial detention until 11 September 1998. 26. On 9 July 1997 the trial court dismissed the applicant's challenge to the prosecutor who worked on his case. During the two following days the applicant was consulting the case-file. 27. On 10 July 1997 the Supreme Court dismissed the applicant's appeal against the Warsaw Court of Appeal's decision of 9 May 1997. The Supreme Court relied on the gravity of charges against the applicant, the existence of serious evidence of his guilt and the grounds for detention listed in Article 217 §§ 1 and 2 of the Code of Criminal Procedure. It also pointed out that the Warsaw Regional Court's decision of 7 July 1997 extending the applicant's detention had been taken before the Supreme Court had the opportunity to decide his appeal against the Warsaw Court of Appeal's decision of 9 May 1997 and therefore constituted “an inappropriate practice”. 28. On 15 July 1997 the applicant's counsel appealed to the Warsaw Court of Appeal against the Regional Court's decision of 7 July 1997. On 25 July 1997 the appellate court rejected the appeal. It pointed out that at the time of his arrest the applicant had been of no fixed abode and had been the subject of the arrest warrant. 29. In the meantime, on 22 July 1997 the applicant lodged with the Warsaw Court of Appeal an appeal against the Regional Court's decision of 7 July 1997. On 5 September 1997 the Warsaw Court of Appeal dismissed the applicant's appeal. The court relied on a medical opinion confirming that the applicant's medical problems could be treated in prison. 30. In the meantime, on 20 August 1997 the applicant made an application for release. On 16 October 1997 the Warsaw Regional Court dismissed the application. It relied on a medical opinion. The applicant's appeal against that decision was rejected because it was not provided by law. 31. On 24 March 1998 the Warsaw Regional Court was informed that the applicant had tried to smuggle a message to his accomplices. However, it was seized by the prison service and included in the court's case-file. 32. Between 25 November 1997 and 19 May 1998 the applicant on six occasions attended hearings before the Pruszków District Court in the criminal proceedings against him pending before that court. 33. On 19 June 1998 the Warsaw Regional Court decided to stop the applicant's letter in which he made threats against one of the prisoners. The letter was included in the court's case-file. 34. On 22 July 1998 the Warsaw Regional Court requested the Supreme Court to extend the applicant's pre-trial detention under Article 222 § 4 of the Code of Criminal Procedure which empowered the Supreme Court to prolong detention beyond two years. The request was based, inter alia, on Articles 209 and 217 § 2 of the Code of Criminal Procedure and referred to the gravity of charges against the applicant, the existence of serious evidence of his guilt and the inability to schedule hearings because of holidays and workload of judges involved in the applicant's case. The request also referred to the fact that the next hearing could not be fixed before evidence is taken from an anonymous witness who could not testify before 3 November 1998. 35. On 22 July 1998 the first hearing was held before the Warsaw Regional Court. The applicant and his co-accused asked that the hearing be adjourned as they had not been able to prepare their defence. The court allowed the request and adjourned the hearing until 3 November 1998. The court took into account heavy workload of judges, the holiday period and the fact that an anonymous witness could not be heard before that date. 36. On 28 August 1998 the Supreme Court allowed the Regional Court's request of 22 July 1998 and extended the applicant's pre-trial detention until 15 December 1998. It pointed out that difficulties in fixing hearings caused by holidays and workload of judges could not be considered as grounds for extending pre-trial detention. Furthermore, the Supreme Court agreed with the Regional Court that the applicant's case disclosed the existence of grounds for detention provided in Articles 209 and 217 § 2 of the Code of Criminal Procedure. The Supreme Court concluded that the inability to take evidence from an anonymous witness before 3 November 1998 justified the extension of the applicant's detention under Article 222 § 4 of the Code of Criminal Procedure. 37. On 3 November 1998 the Warsaw Regional Court held the second hearing in the applicant's case. It took evidence from the victim of sexual assault. The court also made arrangements for taking evidence from an anonymous witness. 38. On 17 November 1998 evidence was taken from an anonymous witness. 39. On 19 November 1998 the Warsaw Regional Court dismissed the applicant's challenge to the judges trying his case. The Regional Court considered that the fact that the judges were female did not deprive the applicant of a fair trial on charges of sexual assault. 40. On 23 November 1998 the hearing was adjourned because the prosecution service and witnesses had not been informed about it. 41. The applicant made a further application for release at the hearing held on 1 December 1998 but it was dismissed by the Warsaw Regional Court on 2 December 1998. The court considered that the applicant's detention was justified by the existence of serious evidence of his guilt, the gravity of charges against him and the fact that he had been of no fixed abode at the time of his arrest. Moreover, the court observed that it had not finished taking evidence from certain witnesses. The applicant's appeal against that decision was rejected because it was not provided by law. 42. On 2 December 1998 the Warsaw Regional Court requested the Supreme Court to further extend the applicant's pre-trial detention. On 4 December 1998 the Supreme Court allowed that request and prolonged the detention until 15 February 1999. The Supreme Court referred to its decision of 28 August 1998 and observed that the trial court still had to take evidence form certain witnesses. In addition, the trial court did not know the address of one of those witnesses, whereas another witness had to be transported to the court from the Łódź Prison. 43. On 17 December 1998 a hearing took place before the Warsaw Regional Court. 44. On 22 December 1998 evidence was taken from an anonymous witness. 45. The applicant made a fresh application for release but it was dismissed on 4 January 1999 by the Warsaw Regional Court. It referred to the nature and the gravity of charges against the applicant and noted that his trial was in the final stage. 46. On 7 January 1999 the Warsaw Regional Court dismissed the applicant's challenge to the judges trying his case. The applicant's appeal against that decision was rejected because it was not provided by law. 47. On 12 January 1999 the police informed the Warsaw Regional Court that one of the witnesses for the defence was dead. 48. On 21 January 1999 a hearing was held before the Warsaw Regional Court. It was adjourned until 3 February 1999 because one of the judges was ill. 49. On 25 January 1999 the Warsaw Regional Court requested the Supreme Court to further extend the applicant's pre-trial detention. On 10 February 1999 the Supreme Court allowed that request and prolonged the detention until 31 March 1999. It referred to the reasoning of its decision of 4 December 1998. The Supreme Court also noted the difficulties the trial court experienced in taking evidence from one of the witnesses. Moreover, the court considered that because the applicant had been of no fixed abode at the time of his arrest he could interfere with the proceedings if released from detention. 50. The hearing held on 3 February 1999 was adjourned because the applicant requested that evidence be taken from a new witness. 51. The next hearing was held on 19 February 1999. 52. During the hearing held on 15 March 1999 the applicant applied for release from detention but the court dismissed it. The applicant's appeal against that decision was rejected because it was not provided by law. 53. On 25 March 1999 the Supreme Court prolonged the applicant's detention until 31 May 1999. 54. During the hearing held on 7 April 1999 the Warsaw Regional Court dismissed the applicant's request that the case be remitted to the prosecution service for further investigation. 55. The last hearing before the trial court was held on 28 April 1999. 56. On 4 May 1999 the Warsaw Regional Court convicted the applicant of armed robbery and sexual assault and sentenced him to five years' imprisonment. The applicant appealed against that judgment to the Warsaw Court of Appeal. 57. On 9 November 1999 the Warsaw Court of Appeal held a hearing. The court dismissed the appeal except for the conviction for armed robbery, which it qualified as robbery without the use of arms. 58. The Court's case-file contains the following documents pointing to the monitoring of the applicant's correspondence: (i) the applicant's letters of 5, 22 and 31 January and 7 February 1997 addressed to the European Commission of Human Rights are marked with a handwritten note: “Censored” (Ocenzurowano) and an illegible signature and also bear a stamp: “Assistant Warsaw-Ochota District Prosecutor Grażyna Garboś-Jędral” (Asesor Prokuratury Rejonowej Warszawa Ochota Grażyna Garboś-Jędral); (ii) the applicant's letters of 8, 21 and 24 April 1997 addressed to the European Commission of Human Rights are marked with a handwritten note: “Censored” and an illegible signature; (iii) the applicant's letters of 5 March, 16 May and 3 September 1997 as well as an undated letter received on 19 March 1997 addressed to the European Commission of Human Rights are marked with an illegible signature; (iv) an envelope mailed by the applicant on 5 September 1997 to the European Commission of Human Rights is marked with a handwritten note: “Censored” and an illegible signature; (v) a flap of an envelope with the logo of the Council of Europe bears on the inside a stamp: “Assistant Warsaw-Ochota District Prosecutor Grażyna Garboś-Jędral” and an illegible signature; (vi) an envelope mailed by the European Court of Human Rights on 23 February 1999 to the applicant bears a stamp: “Censored on, signature” (Ocenzurowano dn. podpis), a hand-written date: 5 March and an illegible signature. 59. The Code of Criminal Procedure 1969, which remained in force until 1 September 1998, listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code, which set out general grounds justifying the imposition of preventive measures, provided as follows: “Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” 60. Furthermore, the Code of Criminal Procedure allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 of the Code provided as follows: “A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.” Article 225 of the Code provided: “Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.” Article 217 of the Code, before it was amended on 1 January 1996, provided insofar as relevant: “Detention on remand may be imposed if: 1. there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent domicile, or 2. there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means, or 3. the accused was charged with a commission of a criminal offence or acted as a habitual offender, as provided for by the Criminal Code, or 4. the accused was charged with the commission of an act which constituted significant danger to society.” Article 218 provided: “If there are no special reasons to the contrary, detention on remand should be quashed, in particular, when: 1. it may seriously jeopardise the life or health of the accused; or 2. it would entail excessively burdensome effects for the accused or his family.” 61. Until 4 August 1996, when the Code of Criminal Procedure was amended, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings but only in respect of the investigative stage. Article 222 of the Code of Criminal Procedure, as applicable after 4 August 1996, provided insofar as relevant: “3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years. 4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the case (...) 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 suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.” Subsequently, paragraph 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”. 62. On 1 September 1998 the Code of Criminal Procedure 1997 replaced the 1969 Code. Article 263 of the new Code, insofar as relevant, provides: “§ 1. During investigation the court which decides about detention on remand shall impose it for a period not longer than 3 months. § 2. If the special circumstances of a case made it impossible to conclude the investigation within the time-limit provided in § 1, detention on remand may be prolonged, at the request of the prosecutor and when it is necessary, by: the trial court – for up to 6 months, the appeal court – for a further fixed period necessary to conclude the investigation but not longer than 12 months. § 3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed 2 years. § 4. Detention on remand may be prolonged for a fixed period exceeding periods provided in §§ 2 and 3 only by the Supreme Court at the request of the court dealing with a case (...) – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome”. 63. Article 89 § 2 of the Code of Execution of Criminal Sentences 1969 provided, in so far as relevant, as follows: “(...) [the detainee's] correspondence shall be censored by [the organ at whose disposal he remains], unless the organ decides otherwise.” 64. Rule 33 of the Rules on Detention on Remand 1989, as amended on 29 December 1995, provided, in so far as relevant, as follows: “(1) A detainee has a right to correspond. (2) Detainee's correspondence shall be censored by the organ at whose disposal he remains (...). (3) Correspondence with the Ombudsman and international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, is mailed through the intermediary of [that] organ (...).” 65. On 1 September 1998 the Code of Execution of Criminal Sentences 1997 replaced the 1969 Code. The relevant part of Article 103 § 1 of the 1997 Code provides as follows: “Convicts (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.” Article 105 § 4 provides: “The prison governor shall make decisions concerning the stopping or censorship of the correspondence if it is required by the prison security considerations [and] shall inform about it the penitentiary judge and the convict.” Article 209 “The provisions concerning the execution of sentences shall apply accordingly to the execution of detention on remand, subject to changes resulting from this chapter.” Article 214 § 1 “Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.” Article 217 § 1 reads, in so far as relevant, as follows: “(...) detainee's correspondence shall be censored by [the organ at whose disposal he remains], unless the organ decides otherwise.” Article 242 § 5 of reads as follows: “The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.” 66. On 1 September 1998 the Rules of Detention on Remand 1998 entered into force. § 36 of the Rules provides: “The detainee's correspondence, including the correspondence with the international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, with the Ombudsman and public and local government institutions, is mailed through the intermediary of the organ at whose disposal he remains.” § 37 provides: “1. If the organ at whose disposal [a detainee] remains ceases to censor correspondence, it shall be subject to the supervision or censorship by the prison administration, except for cases referred to in Article 73 of the Code of Criminal Procedure and Articles 102 (11) and 103 of the Code [of Execution of Criminal Sentences]. 2. The correspondence of a detainee shall be supervised by the prison administration when necessary in the interest of protecting social interest, the security of a detention centre or requirements of personal re-education. 3. The supervision referred to in paragraph 2 shall be executed by controlling the content of the correspondence and acquainting oneself with its wording. 4. The correspondence referred to in Articles 8 § 3, 102 (11) and 103 § 1 of the Code [of Execution of Criminal Sentences] may be only subjected to the control of its content, which shall take place in the presence of a detainee.” § 38 provides: “1. Detainee's correspondence shall be censored or seized by the prison administration in the case referred to in Article 105 § 4 of the Code [of Execution of Criminal Sentences]. 2. Censorship shall mean deleting a part of text or making it illegible, whereas seizing correspondence shall mean not transmitting it to a detainee and placing it in his file. 3. The decision to censor or to seize correspondence shall be taken by a Governor, who shall inform a detainee about the reasons for censorship or for seizure. 4. For controlling purposes a copy of the correspondence before it was censored shall be placed in the detainee's personal file; if the detainee consults the file, copies of the correspondence before it was censored and the seized correspondence shall not be made available [to him].” | 1 |
dev | 001-84459 | ENG | CZE | ADMISSIBILITY | 2,008 | JEDLICKA v. THE CZECH REPUBLIC | 4 | Inadmissible | Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova | The applicant, Mr Jiří Jedlička, is a Czech national who was born in 1954 and lives in Přerov. The Czech Government (“the Government”) were represented by their Agent, Mr V.A Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In November 1999 the applicant’s company concluded a contract to provide a sub-delivery of building operations within a large construction project carried out by the company S. The applicant’s company provided all the contracted work in due time and quality, and invoiced the company S., but payment did not follow. On 6 December 2000 the applicant’s company brought an action against the company S. in the Brno Regional Commercial Court (krajský obchodní soud). On 15 October 2003 the court issued a payment order against the company S. However, the latter filed a protest against the order which consequently did not become effective. On 22 July 2004 bankruptcy proceedings were instituted against the company S. The civil proceedings were therefore suspended ex lege. On 28 February 2005 the court received a proposal of the applicant’s company to modify its action. In appears that the civil proceedings instituted by the applicant’s company against the company S., which is now in liquidation, have not yet ended. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
dev | 001-85241 | ENG | CZE | ADMISSIBILITY | 2,008 | MORAVIA SHOP INVEST, S.R.O. v. THE CZECH REPUBLIC | 4 | Inadmissible | Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych | The applicant, Moravia Shop Invest, s.r.o., is a private company incorporated under Czech law with its head office in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 10 May 2000 the applicant company instituted planning proceedings (územní řízení), seeking the delivery of a planning decision on the location of a commercial building. By a public notice (veřejná vyhláška) of 7 August 2000 the Local Planning and Construction Office announced the commencement of the planning proceedings, but suspended them by a public notice of 11 October 2000 until it would be provided with a final judgment of the Brno Municipal Court (městský soud) relating to the ownership title to some of the real estates involved in the planning proceedings. This public notice was put on the notice board on 17 October 2000. On 19 October 2000 the applicant company filed a complaint alleging inactivity on the part of the Planning and Construction Office, pursuant to Article 50 of Act no. 71/1967 on the Administrative Procedure which provided for measures against inactivity of administrative authorities. On 1 November 2000 the Brno Metropolitan Office (magistrát města) dismissed the applicant company’s complaint, sharing the opinion of the Local Planning and Construction Office that the planning proceedings could be resumed after the judicial proceedings would be terminated upon a final judgment. This decision was notified to the applicant company’s representative on 9 November 2000. On 15 November 2000 the Metropolitan Office rejected the applicant company’s request for review of the decision of 11 October 2000 pursuant to Article 65 of Act no. 71/1967 which provided for review of a decision outside the formal appeal procedure (přezkoumání rozhodnutí mimo odvolací řízení). On 11 January 2001 the applicant company lodged a constitutional appeal (ústavní stížnost) in which it complained, under Articles 36 and 38 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) and Article 6 of the Convention, of the inactivity of the administrative authorities as well as the Local Planning and Construction Office’s decision of 11 October 2000. In a decision of 11 June 2002, served on the applicant company’s lawyer on 18 June 2002, the Constitutional Court dismissed the applicant’s constitutional appeal as having been filed outside the sixty-day statutory time-limit provided for in section 72(2) of the Constitutional Court Act finding that the company’s request for review under Article 65 of Act no. 71/1967 did not constitute a remedy for the purpose of section 72(2). Accordingly, the time-limit laid down for introducing a constitutional appeal had started running on 9 November 2000, on the date of the notification of the Metropolitan Office’s decision of 1 November 2000 to the applicant company’s representative, and had expired on 8 January 2001. The Constitutional Court added that the constitutional appeal had been filed outside the time-limit also in respect of the applicant company’s request to quash the Local Planning and Construction Office’s decision of 11 October 2000. On 31 May 2004 the Local Planning and Construction issued, in favour of a third private company, a planning decision on the location of a construction partly situated on the lands involved in the planning proceedings initiated by the applicant company in May 2000. The latter appealed, but on 6 August 2004 the Metropolitan Office upheld the planning decision. On 8 April 1998 A., a private company incorporated under Czech law, instituted proceedings against the applicant company seeking to determine the title to the real estates involved in the planning proceedings instituted by the applicant company in May 2000. On 15 October 2004 the Municipal Court found that A. was the owner of these real estates. The Regional Court upheld this judgment on 12 July 2005. The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
dev | 001-60498 | ENG | TUR | CHAMBER | 2,002 | CASE OF SADAK AND OTHERS v. TURKEY (No. 2) | 1 | Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of the opinion of the people;Stand for election);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Freedom from attachment) | Nicolas Bratza | 11. The applicants, who were born in 1954, 1961, 1955, 1957, 1955, 1961, 1942, 1951, 1956, 1946, 1961, 1959 and 1948 respectively, are Turkish nationals. They were members of the Turkish Grand National Assembly and the DEP (Democracy Party – Demokrasi Partisi), a political party which was dissolved by the Constitutional Court on 16 June 1994. 12. On 7 May 1993 the DEP was founded and the appropriate declaration submitted to the Ministry of the Interior. 13. On 2 November 1993 Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Constitutional Court for the DEP to be dissolved. In his application he accused the DEP of having infringed the principles of the Constitution and the law on political parties. He considered that declarations made by various members of the DEP's central committee and its former chairman during two meetings held abroad (at Erbil in Iraq and Bonn in Germany) were likely to undermine the integrity of the State and national unity. 14. On 1 March 1994 the Constitutional Court decided of its own motion to obtain the oral submissions of certain interested parties. Thus, on 22 March 1994 it took evidence from the applicant Mr Kartal, in his capacity as the vice-chairman of the DEP, and from Mr Kaplan, in his capacity as the party's legal representative. 15. On 2 March 1994 the Grand National Assembly lifted the parliamentary immunity of some of the DEP's MPs, including that of the applicants, in response to a series of applications made by the public prosecutor at the Ankara National Security Court. 16. On the same day Mr Dicle and Mr Doğan were arrested as they were leaving parliament, and taken into police custody. On 4 March 1994 the same thing happened to Mr Sakık, Mr Türk and Mrs Zana. The arrest of Mr Yurttaş and Mr Sadak, who had remained inside the parliament building, was prevented by the Speaker of the National Assembly on the ground that they were still members of parliament. 17. On 16 June 1994 the Constitutional Court ordered the dissolution of the DEP on the ground that it had undermined the territorial integrity of the State and national unity. 18. The Constitutional Court also declared that the parliamentary seats of all the applicants were forfeited as a secondary measure attending the decision to dissolve the DEP. The measure was not applied to four MPs who had recently left the party. 19. On the same day, fearful of the consequences of the criminal proceedings brought against them, Mr Toguç, Mr Güneş, Mr Kılınç, Mr Aydar, Mr Yiğit and Mr Kartal went abroad (to Brussels). 20. On 1 July 1994 Mr Sadak and Mr Yurttaş went to the public prosecutor's office with their lawyer and were placed in custody. 21. On a later date Principal State Counsel filed submissions in which he accused the applicants of separatism and undermining the integrity of the State, both of these being capital offences under Article 125 of the Criminal Code. 22. The Ankara National Security Court gave judgment on 8 December 1994. Applying section 8 of the Prevention of Terrorism Act (Law no. 3713), it sentenced Mr Sakık to three years' imprisonment for separatist propaganda. Mr Türk, Mr Dicle, Mr Doğan, Mr Sadak and Mrs Zana were each sentenced to fifteen years' imprisonment for membership of an armed gang pursuant to Article 168 of the Criminal Code and Mr Yurttaş was sentenced to seven and a half years' imprisonment for assisting and supporting an armed gang, an offence under Article 169 of the Criminal Code. 23. On an appeal on points of law by the applicants and Principal State Counsel on 26 October 1995, the Court of Cassation quashed Mr Türk's and Mr Yurttaş's convictions and ordered their release on the ground that they had contravened only section 8 of the Prevention of Terrorism Act. The Court upheld the other applicants' convictions. 24. The relevant provisions of the Constitution provide as follows: “The fundamental aims and duties of the State shall be to safeguard the independence and integrity of the Turkish nation, its territorial unity, the Republic and democracy, to ensure the well-being, peace and happiness of both individuals and society, and to endeavour to remove any political, economic or social barrier restricting the fundamental rights and freedoms of the individual in a manner incompatible with the principles of equality before the law and justice and to secure the conditions required for the material and spiritual development of the individual.” “Everyone shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds. No privileges shall be granted to any individual, family, group or class. Organs of State and administrative authorities shall be required to comply in everything they do with the principle of equality before the law.” “Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution. ... The decisions and internal running of political parties shall not be contrary to democratic principles. ... Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founder members are consistent with the Constitution and the laws of the land. He shall also monitor its activities. Political parties may be dissolved by the Constitutional Court, on application by Principal State Counsel. Founder members and leaders, at whatever level, of political parties which have been permanently dissolved may not become founder members, leaders or auditors of any new political party, nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved.” “... Members and leaders whose declarations and activities lead to the dissolution of a political party may not be founder members, leaders or auditors of another political party for a period of five years from the date on which the reasoned decision to dissolve the party is published in the Official Gazette ...” “... The term of office of a member of parliament whose words and deeds have, according to the Constitutional Court's judgment, led to the dissolution of his party, and that of other members who belonged to the dissolved party on the date when the action for dissolution was brought, shall end on the date when the Presidency of the Grand National Assembly is notified of the dissolution order.” “... The term of office of a member of parliament whose words and deeds have, according to the Constitutional Court's judgment, led to the dissolution of his party, shall end on the date when that judgment is published in the Official Gazette. The Presidency of the Grand National Assembly shall enforce that part of the judgment and inform the plenary Assembly accordingly.” 25. The relevant provisions of the Criminal Code provide: “It shall be an offence punishable by death to commit any act aimed at subjecting the State or part of the State to domination by a foreign State, diminishing the State's independence, breaking its unity or removing part of the national territory from the State's control.” “Any person who, with the intention of committing the offences defined in Article 125 ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years' imprisonment. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years' imprisonment.” “Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years' imprisonment ...” 26. Section 8(1) of the Prevention of Terrorism Act (Law no. 3713), as amended by Law no. 4126 of 27 October 1995, which came into force on 30 October 1995, provides: “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years' imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.” | 1 |
dev | 001-88690 | ENG | GBR | ADMISSIBILITY | 2,008 | PAY v. THE UNITED KINGDOM | 2 | Inadmissible | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Laurence Pay, is a British national who was born in 1951 and lives in Kirkham. He was represented before the Court by Liberty, a non-governmental organisation based in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott, Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant joined the Lancashire Probation Service (“LPS”) in 1983. He quickly became involved in the treatment of sex offenders and was well regarded by his employers and the courts in respect of this work. In October 1999, probation officers were sent a form in which they were asked to declare whether or not they were freemasons. The applicant stated that he was not a freemason but listed a number of other organisations of which he was a member, including “The House of Roissy”. This organisation subsequently became “Roissy Workshops Ltd” (hereafter, “Roissy”), of which the applicant was a director. On 25 July 2000 Lancashire Police received an anonymous fax, in which it was claimed inter alia that Roissy advertised its services on the internet as the builder and supplier of products connected with bondage, domination and sadomasochism (“BDSM”) and the organiser of BDSM events and performances. The fax included a photograph of the applicant, wearing a mask, with two semi-naked women. On 27 July 2000 the fax was sent by a police officer to one of the applicant’s colleagues, who brought it to the attention of LPS senior management. LPS undertook an investigation, and found that Roissy was registered at the applicant’s address and that its website included links to a number of BDSM websites, including “Birmingham Bizarre” (“BB”), which advertised various events and included photographs of the applicant and others, semi-naked, performing acts which the accompanying text indicated had taken place at a local private members’ club and involved male domination over submissive women. The applicant was immediately suspended on full pay, on the ground that LPS had reason to believe that the above activities might be incompatible with his role as a probation officer and bring LPS into disrepute. The applicant admitted that he was involved in the performance aspect of Roissy’s activities but claimed that he had never authorised photographs of himself of the type included in the fax to be published on the internet and that the owners of the BB website had now removed the photographs at his request. Although the LPS official carrying out the investigation considered that the photographs were in the nature of soft pornography and depicted acts which were degrading to women, the applicant disagreed. The investigating official concluded that the applicant was unwilling to accept that his involvement in activities of this nature was inappropriate. She made a report to the LPS Assistant Chief Probation Officer. The Assistant Chief Probation Officer reviewed the report and concluded that while the Roissy website itself did not contain photographs of sexual activity it was linked to other websites which did. She considered that the activities shown on the BB website were indecent and exploitative. Although she took into account the rights contained in Articles 8 and 10 of the Convention, and the applicant’s 17 years of service, she formed the view that the applicant had acted in a way which was incompatible with his job working with sex offenders and vulnerable people. She considered that the information shown on the website could be “badly misinterpreted”. On 19 September 2000 LPS commenced disciplinary proceedings against him. Following a hearing before the Panel of the Personnel Hearings Sub-Committee (“the Panel”) on 19 October 2000, the applicant was formally dismissed on 23 October 2000. The Panel, which accepted that the applicant’s activities were not contrary to criminal law, considered, however, that, given the nature of the acts shown in the internet photographs and referred to in the Roissy advertisements, the fact that this material was in the public domain was incompatible with his position as a probation officer, particularly an officer working with sex offenders. They held that the Probation Service had a responsibility to the public to maintain confidence in the integrity of its officers and that public knowledge of the applicant’s activities would damage the reputation of the Service. The applicant’s appeal to a differently constituted Panel was dismissed on 8 January 2001. The Panel considered whether the applicant should be given alternative employment within the Probation Service, but took the view that such a proposal would be inappropriate given the conclusion that his activities had been found to be incompatible with the role of any probation officer. On 5 February 2001 the applicant commenced proceedings in the Employment Tribunal (“ET”) to challenge his dismissal. In its judgment of 8 August 2002, following a hearing which concluded in July 2002, the ET made the following findings of fact: “It was clear having listened to extensive evidence from the respondent’s witnesses, and which was probed in great depth on behalf of the applicant, that the investigating officers and the disciplinary and appeal panel had very grave concerns that the activities of the applicant were incompatible with his role as a probation officer. Throughout his interviews the applicant sought to justify his activities and did not accept that these activities could be incompatible with his role as a probation officer. On each interview he sought to justify himself and was not prepared to accept that the view of his employers was a reasonably held view. It was only at a very late stage that he even suggested that he would be willing to take steps to have references to the Birmingham Bizarre website removed.” The ET continued: “Great play was made on behalf of the applicant that the approach of the respondents, both with its investigating officers and the disciplinary panels, were prudish and narrow-minded. ... The [ET] heard from various witnesses of their concern as to the consequences if the applicant’s activities came more fully into the knowledge of the general public. There was a concern for the general reputation of the Probation Service but there was equally a concern as to the effect of these activities upon victims of crime and in particular victims of sex crime as well as on offenders who were receiving the help of the Probation Service”. The ET concluded that the dismissal fell within the range of responses of a reasonable employer. It further concluded that Article 8 of the Convention was not engaged because the activities in question were in the public domain and did not therefore form part of Mr Pay’s private life. Article 10 was engaged, but not infringed. The ET recognised that an employee owed duties to his employer and that the conduct of the employee should not bring the work of the employer into disrepute. The work of the Probation Service was sensitive and it was important that employees did not bring into the public domain views or activities which could have an adverse impact. It was not therefore incompatible with Article 10 to place some limitation on a probation officer’s freedom of expression and it was reasonable of the LPS to have taken the view that the activities of the applicant, taken in the round, could be damaging to it and needed to be curbed. The applicant appealed to the Employment Appeal Tribunal (“EAT”) which dismissed the appeal in a judgment dated 29 October 2003. The EAT found that Article 8 was not applicable and saw no error in the ET’s judgment to that effect. In considering the proportionality of the dismissal under Article 10, the EAT observed that the ET had found as a fact that throughout the disciplinary proceedings the applicant had not been prepared to accept that his employers’ view of his activities had been reasonable and had only offered at a very late stage to take steps to have references to the BB website removed. The EAT continued: “That finding reflects a dispute which arose at the [ET]. It was contended before us that the Respondent had not demonstrated that it was a proportionate response for it to dismiss the Applicant when it could have considered his severing his connections to Roissy, and opportunities for alternative work. Taking those in turn, the finding of the [ET] is amply borne out by the evidence ... It is plain that there had been discussion between the Respondent and the Applicant about his willingness to sever his connection with Roissy entirely; but that his case was that only certain electronic links between Roissy and the BB websites had been severed. He was at no time willing to alter his connection with Roissy. That is consistent with the finding that he sought to justify his activities. As to the possibility of alternative deployment, the respondent considered that his activities were inconsistent with any Probation Officer’s duties. ... Given the finding that the Applicant was unwilling to give up his connection with Roissy, and the Respondent’s attitude to Roissy’s activities, the possibility of alternative work would not logically arise.” The EAT concluded that ET had committed no error of law when it decided that the dismissal had been proportionate under Article 10. On the issue of delay the EAT commented: “Something must be said about the delays in this case. The applicant’s cause of action arose when he was dismissed on 9 January 2001. He presented an Originating Application on 12 January 2001 and so a period of 19 months elapsed before the Tribunal gave its decision. The Notice of Appeal in its original form was lodged on 18 September 2002 and we are giving judgment over a year later. Without a convincing explanation, these delays would be unacceptable. However, neither party makes any criticism of the other, nor is there any criticism by them of the Employment Tribunal or of the EAT. In those circumstances it is inappropriate for us to add anything.” On 12 March 2004 the applicant filed notice of an application to seek leave to appeal to the Court of Appeal. This application was filed outside the 14 day time-limit and was rejected on 23 April 2004. He made a renewed application, claiming that the delay had been caused by the fact that legal aid had not been granted until 6 March. On 26 May 2004 the Court of Appeal provisionally granted the applications for leave to appeal and an extension of time, but allowed the respondent LPS 14 days to oppose this order. Lord Justice Sedley observed: “It seems to me that there is one issue which is capable of engaging the attention of this court. Accepting, as the EAT did, that, in order to be fair, a dismissal has to be Convention compliant ..., it seems to me arguable that, properly appraised, the factors before the Employment Tribunal did not make it proportionate to dismiss Mr Pay, given that the dismissal was held to have been not for incapacity but for some other substantial reason. The substantive reason was, in effect, the damage that would be done to the good name and standing of the Probation Service were it to become public that Mr Pay, working as he did with sex offenders and their victims, was involved in an activity involving bondage and sadomasochism. The question is not unproblematical. Under Article 8, it is debateable whether this is a matter of private life since the activities were publicised on the internet, but it does seem to me arguable that, to the extent that Mr Pay’s own sexual proclivities were in issue, they related to his private life as much as to matters he had publicised. What perhaps is more important is the proportionality of dismissal in a situation in which the dismissal was prompted not by considerations of personal unsuitability for the job, but by legitimate considerations of adverse publicity which would rebound on the Probation Service.” Lord Justice Maurice Kay had greater misgivings about the appeal’s prospects of success but was prepared to grant leave on the above terms. The respondent LPS opposed the applications. On 5 November 2004 an identically constituted Court of Appeal issued a supplementary judgment, without the benefit of oral argument, in which it held that in the light of the full Court of Appeal’s judgment in X v. Y (see below), it now appeared that the applicant’s appeal had no prospect of success and there could therefore be no useful purpose in granting the extension of time. The applicant made a renewed oral application to the Court of Appeal, which was rejected on 7 March 2005. The Court of Appeal again refused to grant an extension, since the question of principle had been decided in X v. Y. In parallel with X v. Y, there had been a waiver or forfeiture of privacy, on different grounds but with the same legal effect. Article 8 was not, therefore, engaged. Although Article 10 was applicable, the LPS had been entitled to react as it did to the consequences for it of the applicant’s exercise of his right to free speech. Under section 94(1) of the Employment Rights Act 1996, an employee has the right not to be unfairly dismissed by his employer. By section 98(1), an employer must show a reason for a dismissal falling within a category set out in section 98(2), which includes “conduct” or “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”. Section 98(4) deals with fairness: “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.” The applicant in the above case worked as a part time development officer for a charity which aimed to promote, through voluntary work, the personal development of young offenders and those at risk of offending in the 16-25 age group. When the applicant had been working for the respondent charity for about three years, his employers discovered that six months previously he had been arrested and cautioned by the police for having committed a consensual sexual act with another man in a public toilet. The caution came to light as a result of normal police checks made by the local Probation Service before providing further funding to the respondent. Disciplinary proceedings were taken against the applicant. He was dismissed and subsequently complained to the ET. The ET found that it had been fair and reasonable for the respondent to treat the applicant’s conduct as grounds for dismissal. He had committed a criminal offence and shown an inappropriate lack of self control and serious lack of judgment. Given the sector in which he was employed, his failure to tell his employer about the caution was a serious matter which had undermined the respondent’s trust and confidence in him. The applicant appealed to the EAT, contending that his dismissal had breached his rights under Articles 8 and 14 of the Convention. The EAT held that Article 8 did not apply, as the conduct, a “transitory sexual encounter” between two strangers in a public toilet, was not covered by the right to respect for private life. Article 14 did not, therefore, apply, but even if it did, the applicant had not been dismissed on grounds of sexual orientation but instead because he had committed a criminal offence and failed to disclose it. The applicant then appealed to the Court of Appeal. The Court of Appeal proposed a framework of questions to assist employment tribunals in dealing with Convention issues in unfair dismissal cases between private litigants, but held, on the facts of the case before it, that Article 8 was not engaged, since X was dismissed for conduct which was a criminal offence and which occurred in a place to which the public had access. Until its repeal on 1 April 2001, the duties and functions of probation officers were regulated by the Probation Service Act 1993. Section 14 provided that: “It is the duty of probation officers – (a) to supervise the probationers and other persons placed under their supervision and to advise, assist and befriend them; (b) with a view to assisting the court in determining the most suitable method of dealing with a person’s case, to enquire (in accordance with any direction of the Court) into, and make reports on, his circumstances or home surrounding; (c) to advise, assist and befriend, in such cases and in such manner as may be prescribed, persons who have been released from custody; and (d) to perform such other duties as may be prescribed.” In its judgment in the present case, the EAT observed: “The modern probation service is a law enforcement agency at the heart of the criminal justice system. It aims to see that offenders receive proper punishment for their offending by the way they are supervised in the community. It works for the effective rehabilitation so they are less likely to offend in the future. Its objectives include Home Office priorities which were to challenge offenders in their behaviour, to enforce community sentences rigorously and to reduce the risk of harm from dangerous offenders. Its responsibilities include the delivery of effective programmes for supervising offenders safely in the community and upholding the interests of the victims of crime.” | 0 |
dev | 001-61818 | ENG | FIN | CHAMBER | 2,004 | CASE OF TAMMINEN v. FINLAND | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. The applicant was born in 1947 and lives in Helsinki. 9. In 1987 the applicant founded a company called “Oy Finnish Options and Futures Exchanges Ltd” (hereinafter “FOFE”). 10. FOFE went into liquidation on 12 August 1993 and was finally dissolved on 16 May 1994. 11. In the liquidation proceedings the applicant filed his claim against the estate, claiming 1,106,715 Finnish marks (FIM; approximately EUR 186,000), plus interest, in respect of unpaid salaries and other claims related to his employment contract with FOFE. As the estate contested most of the applicant’s claims, the parties instituted civil proceedings against each other before the District Court (käräjäoikeus, tingsrätt) of Helsinki. The estate of FOFE argued that the applicant had not been an employee of the company but had rather held an executive position as he had owned all its shares, and insisted that the applicant be ordered to reimburse to the estate certain assets he had allegedly transferred from the company to himself before the company was dissolved. The claims made by the parties against each other were jointly considered by the District Court. 12. It appears that at least one of the main issues in the civil proceedings was whether the applicant had been in an executive position in the company or not. 13. During a preparatory hearing at the District Court, on 15 August 1995, the representatives of FOFE named, among others, Mr J.S., President of the Board of Directors of FOFE, Mr S.L. and Mr A.P., both former members of FOFE’s Board of Directors and Mr A.P. also its former Executive Director, to give evidence on their behalf. The applicant named Mr J.N, former Managing Director of FOFE, the above-mentioned Mr J.S., and Mr E.S., to be heard as his witnesses concerning his position in the company. 14. In his written observations of 26 September 1995 to the District Court in respect of the estate’s claims the applicant stated, inter alia, as follows: “The estate of FOFE has called Mr S.L. and Mr A.P., both of whom were members of its Board of Directors and the latter also its Executive Director, to give evidence. We will also hear them in respect of exactly the same issues on which we will examine Mr J.S. With the support of the above-mentioned witnesses we will prove that [the applicant] has not had any close connections with FOFE since he resigned from its Board of Directors on 3 June 1992, and that he has had no decisive position in the company.” 15. At another preparatory hearing, on 4 October 1995, FOFE repeated that they would call A.P. as a witness. The applicant named the witnesses he had named on 15 August 1995 and further named Mr M.S. who would give evidence about the applicant’s tasks. The District Court decided on the same day that A.P. would be summoned by the court ex officio. 16. At yet another preparatory hearing in the case, on the morning of 11 October 1995, FOFE repeated their intention to hear A.P. as their witness. According to the District Court’s minutes from that last preparatory hearing the applicant had named four witnesses, namely Mr J.N., Mr J.S., Mr E.S. and Mr M.S. Witness Mr A.P. was mentioned in the list of the adverse party’s witnesses only. 17. Thereafter the District Court decided that the preparatory stage of the proceedings had ended and that the main hearing would be held that same day at ten o’clock. 18. A.P. failed to appear before the District Court on 11 October 1995, having informed the court in advance that he would be in Estonia at the time of the hearing and would not be available until 26 and 27 October 1995. The estate of FOFE withdrew their request to call A.P. as a witness. Thereupon the applicant appointed A.P. as a witness on his behalf and requested that the main hearing be adjourned until 27 October 1995. The District Court rejected the applicant’s request, holding, in the light of the other evidence, that the hearing of A.P. was not likely to be of assistance for discovering the truth. The District Court’s decision was repeated in its judgment delivered on 26 October 1995, in which it was found that the applicant had not been an employee but rather had occupied a leading position in FOFE. Most of the applicant’s claims were rejected, with the exception of FIM 300,000 (approximately EUR 50,000) for unpaid salaries. The applicant was, inter alia, ordered to refund FIM 1,191,425 (approximately EUR 200,000) to FOFE in compensation for the assets he had transferred from the company. He was also ordered to pay FIM 137,242.18 (approximately EUR 23,000) in compensation for FOFE’s legal fees and expenses. 19. On 27 November 1995 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätt), requesting an oral hearing and calling A.P. as his witness. He argued that the hearing of A.P. as a former Executive Director of FOFE would be necessary for ascertaining the truth in respect of the applicant’s status in the company. He noted that A.P. had informed the District Court of his journey to Estonia at the time of the hearing but had simultaneously given the dates when he would be available. A.P. had been summoned by phone to appear before the District Court only a few days before the hearing of 11 October 1995. It had been impossible for him to cancel his business meeting in Estonia at such short notice. The applicant alleged that his request to adjourn the hearing in order to call A.P. as a witness had been inconvenient for the presiding judge of the District Court in respect of the timetable for the drafting of the decision. The hearing of A.P. was even more important at this stage as the District Court had not found the statement of J.S. to be credible in every aspect. If the court had heard A.P., who would have confirmed that the applicant had not been in any decisive position in FOFE, it would have been difficult for the District Court to decide as it did. 20. The Court of Appeal upheld the District Court’s decision on 20 February 1997, rejecting the applicant’s request to hold an oral hearing. The Court of Appeal stated as follows: “...[The applicant] has called nine witnesses before the Court of Appeal. In so far as he has called Mr A.P., the Court of Appeal notes that A.P. had been appointed as a witness in the District Court only during the main hearing. According to Chapter 6, Section 9, of the Code of Judicial Procedure a party must not, in a case amenable to settlement, adduce a circumstance or evidence that he has not adduced in the preparation of the case, unless he establishes a probability that he had a valid reason for not doing so. [The applicant] has not established such a valid reason for appointing A.P. as a witness only at the main hearing. Thus, the appointment of A.P. as a witness must be regarded as if it had only taken place during the Court of Appeal proceedings. In so far as new witnesses have been appointed and new evidence appearing in the annexes to the applicant’s letter of appeal has been invoked, [the applicant] has not established a probability that he was unable to adduce the circumstance or evidence in the District Court or that he had a justifiable reason for not doing so. ... No such reason has been established in respect of the written submissions and their annexes submitted by the parties to the Court of Appeal after the relevant time-limit had elapsed, excluding the parts concerning the proposed stay of execution. In accordance with Chapter 25, Section 14, subsection 2, and Section 20, subsection 2, as well as Chapter 26, Section 5, of the Code of Judicial Procedure, the Court of Appeal leaves the submissions and their annexes unexamined, excluding the request concerning stay of execution, and rejects [the applicant’s] request to hold an oral hearing. Thus also the request to return the case to the District Court is rejected as being unnecessary.” 21. The applicant applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, noting that the District Court had refused to call A.P. as a witness because it had found that it was unnecessary in the light of the other evidence invoked. The District Court had, thus, found that the applicant had not been prevented from calling him had the hearing of his evidence been necessary. The Court of Appeal had, however, found that the applicant had appointed A.P. as his witness only at a stage of the proceedings when he was already precluded from doing so, i.e. at the main hearing. The applicant had, however, appointed A.P. as his witness already in a preparatory meeting on 15 August 1995 and repeated the request on 26 September 1995 in his written observations to the District Court. He had also had a relevant reason to request that A.P. be heard as the estate of FOFE – which had originally called A.P. as a witness – had withdrawn their request only at the main hearing. A.P. had been the Executive Director of FOFE and, as such, was in the best position to give a statement of the applicant’s position in the company for the period from 28 October 1992 until the insolvency proceedings. Therefore the applicant found it very important that the Supreme Court would hear A.P. as a witness or, alternatively, return the case to a lower court in order to hear the witness. 22. On 22 October 1997 the Supreme Court refused the applicant leave to appeal. 23. According to Chapter 5, Section 19 (1052/1991) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk), the evidence that is going to be presented and what is intended to be proved with each piece of evidence, must be determined during the preparation of the hearing. This means that the parties must, during the preparatory hearings, name all those persons whom they wish to call as witnesses in the main hearing. 24. According to Chapter 6, Section 9, a party must not in the main hearing adduce a circumstance or evidence that he has not adduced in the preparation, unless he establishes a probability that he had a valid reason for not doing so. Should the party show a valid reason, however, he may adduce the new circumstance or piece of evidence in the main hearing irrespective of the provisions of Chapter 6, Section 9 of the Code of Judicial Procedure. 25. The purpose of the provisions of Chapter 6, Section 9 is to ensure compliance with the fair trial requirements. It is a requirement of a fair trial that the adverse party is informed beforehand of each piece of evidence (including witnesses) to be presented in the main hearing. 26. There are separate provisions concerning the submission of new evidence before a Court of Appeal in Chapter 25, Section 17 of the Code of Judicial Procedure. Before the entry into force of the Act amending the Code of Judicial Procedure (165/1998) the said provisions were contained in Chapter 25, Section 14, subsection 2 (1052/1991). According to these provisions, in a civil case, the appellant shall not in the Court of Appeal refer to other circumstances or evidence than those presented in the District Court, unless he establishes a probability that he was not able to refer to the circumstance or evidence in the district court or that he had a justifiable reason for not doing so. 27. Even if a party to the proceedings, under Chapter 5, Section 19 of the Code of Judicial Procedure, has named his witnesses in the preparatory hearing, or had a valid reason for not invoking a certain circumstance or piece of evidence before the main hearing or the court of appeal hearing, the court may refuse to examine such a circumstance or piece of evidence as it considers clearly unnecessary. According to Chapter 17, Section 7 (571/1948) of the Code of Judicial Procedure, if a piece of evidence that a party wishes to present pertains to a fact that is not material to the case or that has already been proven, or if the fact can be proven in another manner with considerably less inconvenience or cost, the court shall not admit this piece of evidence. 28. Chapter 5, Section 17 (1052/1991) of the Code of Judicial Procedure provides that the court shall conduct the preparation in such a manner that the case can be dealt with in a continuous main hearing. The aim of this provision is to avoid adjournments of the main hearing. 29. Chapter 17, Section 26, subsection 3 (1056/1991) provides that the court shall see to the calling of witnesses to court, unless this has been entrusted to a party in accordance with Chapter 11, Section 2, according to which, on the request of a party, the court may in a civil case entrust the service of a notice to the party, if it deems there to be justified grounds for this. | 1 |
dev | 001-72732 | ENG | AZE | ADMISSIBILITY | 2,006 | GULIYEV AND RAMAZANOV v. AZERBAIJAN | 4 | Inadmissible | Christos Rozakis | The applicants, Mr Latif Guliyev and Cerulla Ramazanov, are Azerbaijani nationals who, respectively, were born in 1947 and 1951 and live in Baku and Sumgayit. They were represented before the Court by Ms L. Claridge and Messrs M. Muller, T. Otty and K. Yildiz of the Kurdish Human Rights Project, lawyers practising in London. The respondent Government was represented by Mr C. Asgarov, Agent of the Republic of Azerbaijan before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants were members of the Adalet (“Ədalət”) political party, which was in opposition to the ruling party. As it appears from the case file, at the time of the events in question, the applicants’ party was not registered with the Ministry of Justice and, therefore, its activity was deemed illegal by the authorities. The party had a regional office in Sumgayit. According to the applicants, on 30 August 2001 some people related to the authorities removed from the office’s entrance door the signboard featuring the party’s name. On 10 September 2001 several police officers allegedly arrived in the office, destroyed some of the assets in the premises, forcefully expelled the party members from the premises and sealed up the office door. On 19 September 2001 the police again unexpectedly arrived in the party’s office in Sumgayit and interfered with the meeting which was held there at that time. The police explained that they had been called by persons in the neighbourhood complaining of the disturbance and noise coming from the office. The meeting participants objected to such interference. Following a dispute between the policemen and the meeting participants, the police took ten men to the police station for search and interrogation. After a few hours of being held at the police station, all arrested were released except for the applicants and one other person. On 22 September 2001 the investigation department of the Sumgayit City Police Station instituted criminal proceedings against the applicants and issued a bill of indictment, accusing the applicants of resistance to the police and violation of public order. On 23 September 2001 the Sumgayit City Court ordered the applicants’ detention on remand for one month pending trial. On 28 September 2001 the Court of Appeal upheld the detention order. On 24 December 2001 the Sumgayit City Court convicted the applicants for hooliganism, including the breaking of the public order, assault and resistance to the police authorities. According to the applicants, although a number of witnesses had testified in their favour, the court relied only on testimonies of seven police officers, all of whom testified against the applicants. The court sentenced each applicant to a one year and six months’ term of imprisonment. The applicants appealed against this judgment, complaining that the case had been fabricated, that the first-instance court had violated a number of procedural rules, and that it had failed to give legal assessment to the testimonies of the defence witnesses. On 13 February 2002 the Court of Appeal dismissed the applicants’ request and upheld the district court’s judgment. The Court of Appeal found that the applicants’ guilt was sufficiently proven by the witness testimonies admitted by the first-d the applicants’ imprisonment sentence to a conditional sentence. The applicants were therefore released. The applicants lodged a cassation appeal with the Supreme Court, seeking acquittal. On 9 July 2002 the Supreme Court dismissed their appeal and upheld the lower courts’ judgments. Thereafter, based on a request by the President of the Supreme Court, the proceedings were reopened and the case was referred to the Plenum of the Supreme Court. On 27 January 2005 the Plenum quashed the Supreme Court’s decision of 9 July 2002 and the related judgment of the Court of Appeal of 13 February 2002 On 17 March 2005, the Court of Appeal re-examined the case. It reassessed the evidence and found that there had not been any significant inconsistencies in witness testimonies admitted by the first-instance court. As to the testimonies of witnesses in the applicants’ favour, the Court of Appeal noted that these witnesses were members of the applicants’ political party and that, therefore, their testimonies were not trustworthy and were in any event refuted by the totality of evidence. The Court of Appeal confirmed the applicants’ conviction and their conditional sentence of one year and six months. It also noted in its judgment that it was open to the applicants to file a cassation appeal with the Supreme Court in accordance with the domestic criminal procedure law. The applicants did not, however, make use of this possibility. According to Article 408.1.1, a cassation appeal or cassation protest may be filed against judgments of appellate-instance courts. Article 409.1 provides that, inter alia, convicted persons shall have a right to file a cassation appeal themselves or through their legal representative. According to Article 410, depending on the substance of the complaints made before the cassation-instance court, the time-limit for lodging of the cassation appeal may constitute up to 18 months from the date of delivery of the appellate-instance court’s judgment. Article 412 provides that the cassation appeal must be submitted, in writing, directly to the cassation-instance court. In accordance with Article 416, the cassation-instance court may quash or amend the appellate-instance court’s judgment, if, inter alia, the latter has refused without justification to examine important evidence presented by a party to the case, breached the procedural rules for assessment of the evidence, delivered a verdict based on inadmissible evidence, and made a mistake in qualification of the crime. | 0 |
dev | 001-109115 | ENG | HRV | ADMISSIBILITY | 2,012 | MILJAK v. CROATIA | 4 | Inadmissible | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 1. The applicant, Mr Eduard Miljak, is a Croatian national who was born in 1978 and is currently serving a prison term in Lipovica Prison. He is represented before the Court by Mr S. Simić, a lawyer practising in Pula. The Croatian Government (“the Government”) are represented by their Agent, Ms Š. Stažnik. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 8 April 1998 the applicant had a motor accident and suffered injuries to his spine. Following the accident, the applicant underwent several operations as well as other medical treatment and rehabilitation. He was diagnosed with vertebral fracture, tetraplegia and spastic paraplegia and is incontinent. He is classified as one hundred percent disabled. 4. On 4 September 2008 the applicant was detained in Pula Prison in connection with a criminal investigation opened in respect of him. On 5 September 2008 the applicant was transferred to Zagreb Prison Hospital (Bolnica za osobe lišene slobode - “the ZPH”). He was accommodated in a room measuring 18 square metres together with five other patients. With no assistance from staff, he could not wash or relieve himself unless his roommates helped him to do so. Owing to his disability, the applicant was unable to leave his bed because the space between the beds was not wide enough for the wheelchair. He alleges that the bathroom and toilet were in a poor state of repair and always dirty and smelly. During his stay in the ZPH the applicant did not leave the surgical ward. 5. The medical documentation submitted confirms that the applicant is severely disabled and reliant on a wheelchair to move around. During his stay in the ZPH the applicant was diagnosed with hepatitis C. 6. On 17 February 2009 the Pula County Court (Županijski sud u Puli) found the applicant guilty of trafficking in illegal substances and sentenced him to four years’ imprisonment. 7. On 18 November 2009 the applicant petitioned a sentence-execution judge of the Pula County Court and complained about the conditions in which he had been kept. He sought immediate transfer to an institution where he could be provided with adequate medical care. It appears that he received no reply. 8. On 7 December 2009 the applicant lodged a constitutional complaint about the conditions of his detention in the ZPH. 9. In a medical certificate of 15 December 2009 the head of the surgical ward of the ZPH stated that the ZPH had no adequate accommodation for the applicant and that they were not in a position to ensure that he could go outside. 10. On 5 March 2010 the applicant was transferred to Lipovica Prison. 11. According to the applicant the conditions of his detention in that prison, as regards the size of his cell and the time he spends outdoors, have ameliorated. However, he had to buy a wheelchair adapted for his needs at his own expense. He also needs an electric bed, which would be more suitable for his condition. The mattress he sleeps on is also inadequate. He does not have a cupboard or a table next to his bed. The medical personnel leave the prison premises every day at 3 p.m. and after that time he is dependent on the two other inmates who share his cell. Thus, they shower him, change his urinary sheath, transfer him from his bed to his wheelchair and clean him when he accidentally relieves himself in bed. Also, since his arrival at Lipovica Prison he has developed a bed sore on his foot and his cellmates change the bandages on that wound. They also help him change his clothes, cut his nails and shave him. In this respect he depends on their goodwill. 12. According to the Government the applicant is held in a cell measuring twenty square metres, together with two other inmates who voluntarily help him in maintaining his personal hygiene and his physiological needs. The cell has central heating and is never locked. The applicant has the opportunity to spend time outdoors anytime between 6 a.m. and 10 p.m. He uses a toilet and shower adapted for wheelchair users and is under the constant supervision of a doctor, a nurse and a paramedic. He has his meals in the prison canteen or sometimes in his cell. In his free time he watches television on his own television set in his cell. He also often goes to a bowling alley adapted for people with disabilities. All the entrance areas at the prison are adapted for wheelchair users. The applicant has the right to go to a nearby town for four hours a month. 13. On 29 May 2009 the applicant gave oral evidence before the Constitutional Court in the proceedings concerning the conditions in the ZPH (see paragraph 8 above). He repeated his complaints as regards the conditions and lack of adequate medical care in the ZPH. He made no complaints as regards his placement in Lipovica Prison. The relevant part of the Constitutional Court decision referring to the applicant’s statement as regards Lipovica Prison reads: “The applicant says that he was transferred to Lipovica Prison on 5 March 2010 and speaks well of the conditions in that institution.” 14. On 3 November 2010 the Constitutional Court accepted the applicant’s complaint and found a violation of his constitutional right to humane treatment and respect for his dignity guaranteed under Article 25 of the Constitution. It found that the ZPH had no facilities for persons in the applicant’s condition and also ordered the Croatian Government to secure the “unhindered movement of prisoners with special needs” in the ZPH within three years. It did not make a decision as to where the applicant should be detained in the future. 15. On an unspecified date the applicant filed a claim for damages with the Pula State Attorney’s Office, asking that a settlement be reached in the matter. The State authorities offered to pay him 70,000 Croatian kuna (HRK) in compensation, which he refused. On 6 July 2011 he brought a civil action against the State in the Pula Municipal Court (Općinski sud u Puli) seeking compensation in the amount of HRK 170,000. These proceedings are still pending. 16. The relevant articles of the Croatian Constitution (Ustav Republike Hrvatske) provide: “No one shall be subjected to any form of ill-treatment ...” “All detainees and convicted persons shall be treated in a humane manner and with respect for their dignity. ...” 17. Section 62(1) of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu, Official Gazette no. 29/2002) reads: “1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) of a State body, a body of local and regional self-government, or a legal person with public authority, which has decided on his or her rights and obligations, or with respect to a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional rights) ...” 18. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005 and 42/2008) read as follows: “(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act. (2) The right to respect for one’s personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one’s name and privacy of personal and family life, freedom, et alia. ...” “Damage is ... infringement of the right to respect for one’s personal dignity (nonpecuniary damage).” 19. The relevant part of section 186(a) of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) reads as follows: “A person intending to bring a civil suit against the Republic of Croatia shall first submit a request for settlement to the competent State Attorney’s Office. ... Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court. ...” 20. The relevant provisions of the Service of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows: “(1) An inmate may lodge a request for judicial review of any acts or decisions unlawfully denying him, or limiting, any of the rights guaranteed by this Act. (2) Requests for judicial review shall be decided by the sentence-execution judge.” (1) A sentence-execution judge protects the rights of prisoners, supervises the legality of the execution of a prison term and ensures equality of prisoners before the law. (2) A sentence-execution judge takes acts and decides in respect of: ... 2. Judicial review of [prisoners’] rights by deciding on appeals lodged against a decision of a prison governor in cases prescribed by this Act; ...” “(1) Proceedings before a sentence-execution judge are initiated at first instance upon a request by a party or by a judge and at second instance upon an appeal. (2) A sentence-execution judge acts so as to, according to basic principles, ensure the effective protection of the rights and interests of the prisoner concerned. ... The judge shall allow the parties to submit their observations about the facts [presented by] and allegations put forward by the opponent, and to present new facts and call for evidence. (3) The parties to the proceedings are the prisoner and the prison or penal institution. (4) A prisoner has the right to a lawyer of his or her own choice. Such a lawyer shall have qualifications required for a defence lawyer in criminal proceedings. When a prisoner does not ensure legal representation within twenty-four hours, the proceedings shall continue without legal representation. (5) A prisoner may ask for a legal-aid lawyer when he does not have sufficient means to pay for legal representation and is not able to represent his own interests. (6) A sentence-execution judge may consult all official documents concerning a prisoner, pay a visit to the prison or penal institution concerned and establish the relevant facts in any other manner. (7) A sentence-execution judge may hold a hearing in appropriate premises of a prison or penal institution.” (1) Parties to the proceedings, a prisoner’s representative and the persons listed in Article 380 §§ 1 and 2 of the Code of Criminal Procedure may lodge an appeal against a decision of a sentence-execution judge adopted at first instance ... (2) The appeal shall be lodged with a sentence-execution judge, who shall immediately forward it to a judicial panel of a county court. That panel shall decide within eight days ...” “(1) A sentence-execution judge, at the request of the convict ... may issue a decision on suspension of the execution of a prison term ... (2) The sentence-execution judge shall adopt a decision under subsection (1) of this section within three days of conducting the proceedings where the reasons for suspension have been established. (3) Suspension may be granted on the following grounds: 1. Serious illness or serious exacerbation of a chronic illness which cannot be treated in prison. ... (4) The execution of a prison term on the ground under subsection 3(1) of this section may be suspended for as long as the illness lasts ... (5) Overall suspension shall not exceed twenty months, save for [a suspension granted] on the ground under subsection 3(1) of this section.” “(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health ...” “Conditional release is the release of a convict before his or her prison term has expired. ...” “(1) A request for conditional release may be lodged by the convict ... ... (5) Exceptionally, a convict suffering from a serious illness may be conditionally released after one third of his or her prison term has expired where the prison regime does not provide conditions for his or her treatment.” “(1) A request ... for conditional release shall be decided on by a commission composed of a president and four members. The commission shall be appointed by the Minister of Justice. Two of its members shall be judges recommended by the Supreme Court, one of whom shall be the President of the Commission. One of its members shall be a Deputy State Attorney recommended by the State Attorney; and one shall be a sentence-execution judge appointed according to the location of the prison. One member shall be from the Central Prison Administration ...” | 0 |
dev | 001-93812 | ENG | GEO | ADMISSIBILITY | 2,009 | NAZARETIAN v. GEORGIA | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | The applicant, Mrs Liana Nazaretian, is a Georgian national who was born in 1959 and lives in Tbilisi. She was represented before the Court by Mr Malkhaz Labadze, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were successively represented by their Agents, Mr David Tomadze and Mr Levan Meskhoradze of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In a judgment of 8 July 1999 the Gldani-Nadzaladevi District Court in Tbilisi ordered that a monthly allowance be paid to the applicant by her former spouse until their child, born in 1993, reached the age of majority. That judgment became binding on 10 August 1999. As disclosed by the case file, since the debtor failed to comply with this judgment, the applicant obtained a writ of execution from the GldaniNadzaladevi District Court and requested, on an unspecified date, the initiation of enforcement proceedings. The bailiffs, resorting to a number of forcible measures, retrieved from the debtor the child allowance for approximately ten months. As further disclosed by the case file, on 2 May 2001 the applicant requested, for unspecified reasons, the discontinuation of the enforcement proceedings. According to a receipt paper signed by the applicant on the same day, the bailiff handed to her all the case materials, including the enforcement writ. On 20 June 2001 the applicant, claiming that her former spouse had a higher income than that acknowledged in the judgment of 8 July 1999, requested that the allowance be increased (“the second set of child allowance proceedings”). Her claim was found to be unsubstantiated by several instances, and, lastly, by the Supreme Court of Georgia on 8 October 2004. Subsequent to the termination of the second set of child allowance proceedings, the applicant requested, either in October or November 2004, the bailiffs to proceed with the enforcement of the judgment of 8 July 1999. The Enforcement Department of the Ministry of Justice (“the Enforcement Department”) replied in late November 2004, reminding the applicant of the fact that the enforcement proceedings had been discontinued at her request. If she wished to have those proceedings re-opened, she had to re-submit the relevant writ of execution, as required by section 20 § 1 of the Enforcement Proceedings Act of 16 April 1999 (“the Enforcement Act”). Pursuant to the applicant’s request, the Gldani-Nadzaladevi District Court issued, on 24 January 2005, another writ of execution for the judgment of 8 July 1999, and on 31 January 2005 the enforcement proceedings were formally reopened. However, since the writ of 24 January 2005 indicated an invalid address for the debtor, the bailiff sent the document back to the applicant on 7 April 2006 unenforced. On 22 June 2005 the Enforcement Department, acting in reply to the General Prosecutor Office’s enquiry about the cause of non-enforcement, reminded the applicant of her obligation to provide an enforcement writ with the debtor’s correct address, without which information no enforcement measures could be undertaken. Section 5 § 1 “Bailiffs at Enforcement Offices [of the Ministry of Justice] shall be responsible for the execution of the decisions provided for hereunder.” Section 17 § 5 “Bailiffs shall take all lawful measures available in order to secure the speedy and effective enforcement of decisions, to explain to parties their rights and responsibilities, and to assist in the protection of their rights and legal interests.” Pursuant to section 18 §§ 1 and 2, an appeal against any procedural decision, action or omission of the bailiff lay to a court. Section 20 § 1 stated that enforcement proceedings could not be launched without the relevant writ of execution. Pursuant to section 37, the reasonableness of the decision to discontinue the enforcement proceedings could be reviewed by a court at the creditor’s request. Pursuant to Articles 207-209, the State could be sued for the harm done by action or omission of any public servant as well as by the implementation of a lawfully issued legal-administrative act. In such proceedings, the relevant provisions of the Civil Code could be applied, if necessary. Pursuant to Article 1005 § 1, damage done to an individual by either negligent or deliberate misconduct of a public servant should be compensated by the State. | 0 |
dev | 001-58372 | ENG | TUR | GRANDCHAMBER | 1,999 | CASE OF FREEDOM AND DEMOCRACY PARTY (ÖZDEP) v. TURKEY | 1 | Preliminary objection dismissed (Article 34 - Victim);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Luzius Wildhaber;Paul Mahoney | 8. The Freedom and Democracy Party (ÖZDEP) was founded on 19 October 1992. Its constitution was lodged with the Ministry of the Interior the same day. Its programme included the following passages. “... Following the war of ‘Liberation’ waged jointly by Kurds, Turks and other national minorities, the Sultanate was abolished in Turkey and the Republic proclaimed. The sole aim of the Republic has been to establish national sovereignty. Efforts to unite Turkey with Europe have come to nothing. Turkey has not succeeded in lifting itself out of mediocrity. From the earliest days of the Republic, certain parties have had a monopoly on power along with the collaboration of civil and military bureaucrats. In order to preserve that monopoly, the policy of those in power has been to refuse to recognise the existence of the Kurdish people and to ignore its most legitimate rights. The dominant ‘Turkish’ philosophy has been maintained up to the present day, overriding the most natural rights and claims of the Kurdish people, by means of militaristic and chauvinistic propaganda and a policy of exile and destruction. State policy, based on a capitalist system designed to oppress minorities – particularly Kurdish minorities, but even Turkish ones – has been pursued in the name of modernisation and westernisation. Owing to this policy, which colours the political, economic and social aspects of Turkey’s territorial integrity, there is no possibility of this monopoly of State power being brought to an end. That power runs counter to the interests of the vast majority of the population. It uses force to impose the present situation on the people in order to preserve its economic interests. Thus, it blocks the way to any democratic process aimed at protecting the interests of Turkish and Kurdish workers. The Freedom and Democracy Party proposes to create a system ruled by peace and fraternity in which our peoples will be entitled to self-determination. The Freedom and Democracy Party uses political, democratic and ideological means to combat all fascist, fundamentalist, chauvinistic and racist movements or organisations hindering solidarity, unity and brotherhood between peoples. Both in domestic and foreign policy, the aim of the Freedom and Democracy Party is to protect the interests of our peoples and those of all workers. ÖZDEP is the guarantor of the cultural, occupational, economic and political values of the various national or religious minorities and of every socio-professional category. It seeks recognition of the right to form a political party. Our Party will guarantee the religious and national minorities the right to worship as they please, to practise their religion freely, to freedom of thought and to respect for their customs, cultures and languages. Every individual will be entitled to use the media, especially radio and television. ÖZDEP has proposals on how to determine and define the prerequisites for establishing a social order encompassing the Turkish and Kurdish peoples. ÖZDEP regards our peoples as the sole owners of the country’s wealth, natural wealth and mineral resources. ÖZDEP supports the just and legitimate struggle of the peoples for independence and freedom. It stands by them in this struggle. Our Party proposes the creation of a democratic assembly of representatives of the people elected by universal suffrage. This assembly will represent the interests of the Turkish people, the Kurdish people and any other minority. This popular and democratic assembly will have the same powers as the current legislature and will be the guarantor of our peoples’ national sovereignty. The media will be the moving force for the consolidation of fraternity and friendship between peoples. They will encourage a better approach to different cultures and languages and will guarantee the national identity of each sector of the population. They will be responsible for ensuring that the political, economic, social and cultural rights of the peoples are recognised. There will be no government interference in religious affairs, which will be placed in the hands of the relevant institutions. In order to preserve the right to self-determination of oppressed peoples, our Party will outlaw any form of cultural, military, political or economic aggression. The Freedom and Democracy Party is campaigning for the voluntary unification of the Kurdish and Turkish peoples, who participated in the foundation of the country. The Freedom and Democracy Party considers that there can be democracy only if the Kurdish problem is solved. This problem concerns every Turk and Kurd who supports freedom and democracy. The Freedom and Democracy Party favours a peaceful and democratic solution to the Kurdish problem, subject to the strict application of international instruments such as the Helsinki Final Act, the European Convention on Human Rights and the Universal Declaration of Human Rights. The Freedom and Democracy Party will fully respect the Kurdish people’s right to self-determination so that a democratic solution based on the self-determination and equality of peoples can be found. Currently, our legislation and the manner in which the legal system operates are inherently undemocratic, contrary to fundamental human rights and freedoms and based on class interests. They deny the Kurdish people an identity and forbid any form of workers’ organisation or association. They are racist and retrograde. An order will be established permitting the Turkish and Kurdish peoples and the minorities to develop and enjoy their particular cultures freely. Each people will be entitled to education in its mother tongue, that being an essential prerequisite for the development of a people and a nation. Everyone will have the right to basic education in his mother tongue. The education system from primary school to university will be based on education in one’s mother tongue. A person’s mother tongue shall be given precedence in court proceedings ...” 9. On 29 January 1993, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Turkish Constitutional Court to have ÖZDEP dissolved on the grounds that it had infringed the principles of the Constitution and the Law on the regulation of political parties. He considered that the content and aims set out in the party’s programme sought to undermine the territorial integrity and secular nature of the State and the unity of the nation. 10. On 25 February 1993 the President of the Constitutional Court sent Principal State Counsel’s application to the Chairman of ÖZDEP inviting him to lodge his preliminary observations in defence. 11. On 29 March 1993 ÖZDEP’s lawyers filed preliminary written observations and requested a hearing. They argued, inter alia, that the Law on the regulation of political parties contained provisions that were contrary to the fundamental rights guaranteed by the Constitution. They also maintained that dissolving the party would infringe the provisions of international instruments such as the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Helsinki Final Act and the Charter of Paris for a New Europe. They submitted that it was unacceptable to force a political party, on pain of being dissolved, to promote an ideology which conformed to the Turkish Constitution. 12. On 30 April 1993, while the Constitutional Court proceedings were still pending, a meeting of the founding members of ÖZDEP resolved to dissolve the party. 13. On 11 May 1993 Principal State Counsel lodged his submissions on the merits of the case with the Constitutional Court. Since ÖZDEP had gone into voluntary dissolution, it did not file any submissions on the merits. 14. On 14 July 1993 the Constitutional Court made an order dissolving ÖZDEP, notably on the ground that its programme was apt to undermine the territorial integrity of the State and the unity of the nation and violated both the Constitution and sections 78(a) and 81(a) and (b) of the Law on the regulation of political parties. The judgment was served on Principal State Counsel, the Speaker of the National Assembly and the Prime Minister’s Office. The Constitutional Court’s judgment was published in the Official Gazette on 14 February 1994. The Constitutional Court held, firstly, that, pursuant to section 108 of the Law on the regulation of political parties, ÖZDEP’s resolution to go into voluntary dissolution did not prevent that court from ruling on the merits of the case as it had been made after the commencement of the proceedings before it. As to the merits, the Constitutional Court began by reiterating the constitutional principles that all persons living on Turkish territory, whatever their ethnic origin, formed a whole united by their common culture. The sum of the persons who made up the Republic of Turkey was called the “Turkish nation”. The different ethnic groups making up the “Turkish nation” were not divided into a majority and minorities. The court reiterated that, under the Constitution, no political or legal distinction based on ethnic or racial origin could be made between citizens: all Turkish nationals, without distinction, could avail themselves of all civil, political and economic rights. With particular reference to Turkish citizens of Kurdish origin, the Constitutional Court held that in every region of Turkey such persons enjoyed the same rights as other Turkish citizens. That did not mean that the Constitution denied the existence of a Kurdish identity, since citizens of Kurdish origin were not forbidden to express their Kurdish identity. The Kurdish language could be used on all private premises, in workplaces, in the press and in works of art and literature. The Constitutional Court reiterated the principle that everyone was bound to observe the provisions of the Constitution even if they did not agree with them. The Constitution did not preclude the celebration of difference but forbade propaganda based on racial difference and aimed at destroying the constitutional order. It pointed out that by virtue of the Treaty of Lausanne having a separate language or ethnic origin was not by itself enough for a group to qualify as a minority. With regard to the content of ÖZDEP’s programme, the Constitutional Court observed that it was based on the assumption that there was a separate Kurdish people in Turkey with its own culture and language. The Kurds were portrayed in the programme as an oppressed people whose democratic rights were being completely ignored. According to the Constitutional Court, ÖZDEP called for a right to self-determination for the Kurds and supported their right to wage a “war of independence”. Its stance was similar to that of terrorist organisations and constituted in itself an incitement to insurrection. In relation to the principle of secularism, the Constitutional Court noted that ÖZDEP’s programme contained a proposal for the abolition of the Religious Affairs Department of the government on the ground that religious affairs should be under the control of the religious institutions themselves. After reiterating what was meant by the principle of secularism, the court said that advocating the abolition of the government Religious Affairs Department amounted to undermining the principle of secularism. It concluded that that aspect of ÖZDEP’s programme was contrary to section 89 of the Law on the regulation of political parties. The Constitutional Court pointed to the fact that the Charter of Paris for a New Europe condemned racism, ethnic hatred and terrorism and that the Helsinki Final Act guaranteed the inviolability of national frontiers and territorial integrity. It concluded that ÖZDEP’s activities were subject, inter alia, to the restrictions referred to in paragraph 2 of Article 11 and to Article 17 of the Convention. 15. The relevant provisions of the Constitution read as follows: “The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.” “The State of Turkey constitutes with its territory and nation, an indivisible whole. The official language is Turkish.” “Sovereignty resides unconditionally and unreservedly in the nation. ... Sovereign power shall not under any circumstances be transferred to an individual, a group or a social class ...” “All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.” “None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a political system based on any of the above concepts and opinions.” “Everyone linked to the Turkish State by nationality shall be Turkish.” “Citizens shall have the right to form political parties and to join them or withdraw from them in accordance with the lawful procedure laid down for the purpose ... Political parties shall be an indispensable part of the democratic political system. Political parties may be formed without prior permission and shall carry on their activities in accordance with the Constitution and the law. The constitutions and programmes of political parties shall not be inconsistent with the absolute integrity of State territory and of the nation, human rights, national sovereignty or the principles of a democratic secular Republic. No political party shall be formed which aims to advocate or establish the domination of one social class or group, or any form of dictatorship ...” “Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution. ... The decisions and internal running of political parties shall not be contrary to democratic principles. ... Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the Constitution and the laws of the land. He shall also monitor its activities. Political parties may be dissolved by the Constitutional Court, on application by Principal State Counsel. Founding members and managers, at whatever level, of political parties which have been permanently dissolved may not become founding members, managers or financial controllers of any new political party, nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved ...” 16. The relevant provisions of Law no. 2820 on the regulation of political parties read as follows: “Political parties (a) shall not aim or strive to or incite third parties to change: the republican form of the Turkish State; the ... provisions concerning the absolute integrity of the Turkish State’s territory, the absolute unity of its nation, its official language, its flag or its national anthem; ... the principle that sovereignty resides unconditionally and unreservedly in the Turkish nation; ... the provision that sovereign power cannot be transferred to an individual, a group or a social class ...; jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept. ... (c) shall not aim to defend or establish the domination of one social class over the other social classes or the domination of a community or the setting up of any form of dictatorship; they shall not carry on activities in pursuit of such aims ...” “Political parties shall not aim to change the principle of the unitary State on which the Turkish Republic is founded, nor carry on activities in pursuit of such an aim.” “Political parties shall not (a) assert that there exist within the territory of the Turkish Republic any national minorities based on differences relating to national or religious culture, membership of a religious sect, race or language; or (b) aim to destroy national unity by proposing, on the pretext of protecting, promoting or disseminating a non-Turkish language or culture, to create minorities on the territory of the Turkish Republic or to engage in similar activities ...” “Political parties shall not have an aim that runs counter to Article 136 of the Constitution, which provides that the Religious Affairs Department, which is bound to carry out the duties assigned to it in conformity with the principle of secularism ..., shall be accountable to central Government.” “The constitution, programme and activities of political parties shall not contravene the Constitution or this Law.” “Where a political party has been definitively dissolved, its founding members, its chairman, the members of its executive committee and central office, the members of its disciplinary and administrative organs at all levels and the members of political groups in the Grand National Assembly of Turkey shall, if still members when the party was dissolved, be disqualified from acting as founders, managers or financial controllers of any other political party. Any members whose actions were responsible for the political party’s being dissolved shall be disqualified for ten years from joining a political party or standing for election to Parliament. No political party shall be formed with a majority of members from a political party that has been dissolved.” “No political party shall be formed with the name ‘communist’, ‘anarchist’, ‘fascist’, ‘theocratic’ or ‘national socialist’, the name of a religion, language, race, sect or region, or a name including any of the above words or similar ones.” “The Constitutional Court shall dissolve a political party where (a) the party’s programme or constitution ... is contrary to the provisions of Chapter 4 of this Law; or (b) its membership, central office or executive committee ... take a decision, issue a circular or make a statement ... contrary to the provisions of Chapter 4 of this Law or the Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions ...” Chapter 4 of the Law, referred to in section 101, includes in particular sections 90(1) and 96(3), which are reproduced above. “All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.” “A resolution by the competent body of a political party dissolving that party after an application for its dissolution has been lodged shall not prevent the proceedings before the Constitutional Court continuing or deprive any dissolution order that is made of its legal effects.” | 1 |
dev | 001-67820 | ENG | GRC | GRANDCHAMBER | 2,004 | CASE OF MAKARATZIS v. GREECE | 1 | Violation of Art. 2 with regard to the failure to protect the right to life;Violation of Art. 2 with regard to the lack of an effective investigation;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 10. The applicant was born in 1967 and lives in Athens. 11. In the evening of 13 September 1995 the police tried to stop the applicant, who had driven through a red traffic light in the centre of Athens, near the American embassy. Instead of stopping, the applicant accelerated. He was chased by several police officers in cars and on motorcycles. During the pursuit, the applicant’s car collided with several other vehicles. Two drivers were injured. After the applicant had broken through five police roadblocks, the police officers started firing at his car. The applicant alleged that the police were firing at the car’s cab, whereas the Government maintained that they were aiming at the tyres. 12. Eventually, the applicant stopped at a petrol station, but did not get out. The police officers continued firing. The applicant alleged that the policemen knelt down and fired at him, whereas the Government maintained that they were firing in the air, in particular because there were petrol pumps in danger of exploding. One of the police officers threw a pot at the windscreen. Finally, the applicant was arrested by a police officer who managed to break into the car. The applicant claimed that he was shot on the sole of his foot while being dragged out of his car. The Government contested that claim, referring to the findings of the domestic court (see paragraph 19 below). The applicant was immediately driven to hospital, where he remained for nine days. He was injured on the right arm, the right foot, the left buttock and the right side of the chest. One bullet was removed from his foot and another one is still inside his buttock. The applicant’s mental health, which had broken down in the past, has deteriorated considerably since the incident. 13. Following the incident, an administrative investigation was carried out by the police. Twenty-nine of the police officers who had taken part in the chase were identified. There were also other policemen who had participated in the incident of their own accord and who had left the scene without identifying themselves and without handing in their weapons. In total, thirty-five sworn witness statements were taken. Laboratory tests were conducted in order to examine thirty-three police firearms, three bullets and four metal fragments. The applicant’s car was also examined. 14. On 12 January 1996 the police laboratory issued a report which contained the following findings: “... The car that has been examined is severely damaged due to collisions/crashes, but also to bullets ... At the front, there is damage to the car’s windscreen, where there are three holes and a mark ... Bullets, directed from the inside of the car outwards, caused the three holes as well as the mark. From the general damage to the car (the rear window is broken and has collapsed), the location of the examined damage and the course (direction) of the bullets that caused it, it may be assumed that the bullets in question broke through the rear window and ended up hitting the windscreen, producing the holes and the mark. ... The rear window is broken and has collapsed. Because of its total destruction, it is not possible to determine exactly why it broke. From the rest of the findings (the damage to the windscreen, etc.) it may be assumed that bullets were responsible ... The trajectory of the bullets that caused the holes is from the rear of the car towards the front ... The shape and size of the holes suggest that the bullets were fired by a 9 mm calibre firearm. ... On the driver’s side of the car, there is a mark on the rear wing, near the wheel; its dimensions are approximately 55 x 25 mm. From the shape of the mark it may be assumed that the bullet that caused it came from the rear of the car towards the front, with an upward trajectory. On the right-hand side of the car, the window of the front passenger’s door is broken. There is a bump on the roof of the car, and a corresponding hole in the upholstery inside. This has been caused by a bullet that travelled upwards from the rear of the car towards the front. It may be assumed that the bullet entered the car through the rear window ...” “In total, twenty-three revolvers, six pistols, four submachine guns and three bullets were sent to us ... Twenty-three of the weapons are revolvers of .357 Magnum calibre; six are pistols, five of which are of 9 mm Parabellum calibre and one of .45 ACP calibre; and four are HK MP 5 submachine guns of 9 mm Parabellum calibre. The serial numbers of the weapons, their make and the names of the police officers to whom they belong are indicated in the above-mentioned document as well as in the delivery and confiscation reports of 14 and 16 September 1995 of the Paleo Faliro police station, copies of which are attached to this report. We performed the same number of trial shots with the twenty-three weapons, using three cartridges in each case. All the weapons functioned properly. The spent cartridges and bullets for each weapon were put into plastic envelopes for identification purposes, and each envelope was marked with the distinctive characteristics of the weapon. ... Two of the three bullets were found in the car and the third was surgically removed from the first metatarsal of the injured driver’s right foot. For identification purposes, the bullets were marked ‘PB1/4722’ (for the bullet from the injured person’s body) and ‘PB2 and PB3/4722’ (for the bullets found in the car). They will be regarded as evidence ... The heads and cylindrical surfaces of all three bullets are more or less deformed as a result of hitting hard surfaces, and have broken sabots and parts missing. The average diameter of the bullet bases is 9 mm. From the measurements and their characteristics it is surmised that the bullets come from 9 mm Parabellum cartridges (9 x 19). These kinds of cartridges are fired mainly by pistols and submachine guns of the same calibre ...” “... Sixteen holes were found on the car, caused by the direct impact of the same number of bullets. It is assumed that the bullets that caused the holes were fired by 9 mm calibre weapons. Inside the car, there are holes due to secondary impact and ricochets from some of the above bullets. ... The exhibit bullet ‘PB2’ and the bullets the metal sabots ‘PP1’ and ‘PP2’ come from were fired by the HK MP 5 submachine gun no. C273917. ... The exhibit the metal sabot ‘PP3’ comes from was fired by the Sphinx pistol no. A038275. ... The exhibit bullet ‘PB1’ that was removed from the injured driver’s body and the bullet ‘PB3’ that was found in the car have a 9 mm Parabellum (9 x 19) calibre and were fired by the same weapon of the same calibre. Despite being deformed, the two bullets exhibit sufficient and reliable traces from the inner part of the weapon barrel from which they were fired; comparison of these traces has led to the conclusion that they are identical. Comparative tests of the traces on these two bullets and those on the sample bullets fired with the examined 9 mm calibre weapons (see above) have not disclosed any similarities, which leads to the conclusion that the bullets in question were not fired by any of these weapons ...” 15. Following the administrative investigation, the public prosecutor instituted criminal proceedings against seven police officers (Mr Manoliadis, Mr Netis, Mr Markou, Mr Souliotis, Mr Mahairas, Mr Ntinas and Mr Kiriazis) for causing serious bodily harm (Articles 308 § 1 (a) and 309 of the Criminal Code) and unauthorised use of weapons (section 14 of Law no. 2168/1993). At a later stage, the applicant joined the proceedings as a civil party claiming a specific amount by way of damages. 16. The trial of the seven police officers took place on 5 December 1997 before the Athens First-Instance Criminal Court. The applicant’s statement was taken down as follows: “I was on Dinokratous Street. I turned right at the traffic lights, and saw two police officers in front of me on Vassilissis Sofias Street. I was driving at a high speed and I couldn’t stop immediately. I moved a little to the left, and they immediately started firing at me. I was afraid, I thought they wanted to kill me, so I accelerated and drove off. They chased me and fired constantly. I moved into the oncoming lane and hit some cars. I was very scared. I had recently been in hospital for depression. I stopped at a petrol station and, while I was taking off my seat belt, I opened the door a little and they injured my arm and chest. They pulled me out of the car; a police officer injured me again, on the leg, and put handcuffs on me. I heard banging noises on the car, but I don’t know what they were. There were gunshots coming from everywhere, also from above. I don’t know exactly who injured me. I didn’t have a weapon. I never carry a weapon. They took me to the General State Hospital. A chief officer of police came and brought me a document to sign, but I didn’t sign it because I didn’t know what they had written in it. This happened at the same place where they took 3.5 litres of blood from me. They removed the bullet from my leg without anaesthetic. It was very painful; I don’t know why they did this. I had internal bleeding and the doctors said it was from my teeth. My father obtained a paper from the public prosecutor so that he could take me from the General State Hospital to the KAT (centre for rehabilitation following injury). A bullet has remained in my lung and the other bullet has caused an internal wound below my waist. The first gunshot was on Vassilissis Sofias Street. Perhaps they were looking for something; perhaps they thought I was someone else. I drove towards Sintagma. They fired at me during the entire chase. When they pulled me out of the car, they made me lie on the ground, shot at me and then put handcuffs on me. It was then that they shot me in the foot. After the incident I suffered from psychological shock and was admitted to the State Hospital. I am still receiving medical attention from [another hospital] and I take medication. Before the incident I worked as a plasterer. Since then I haven’t been able to work. I have never in my life held a gun, apart from when I was in the army, where I served normally. There was no roadblock on Vassilissis Sofias Street. I saw two police officers. One of them waved at me to stop and the other pointed his weapon at me. I was frightened because of the weapon and I didn’t stop immediately. After some time they started firing at me. I don’t remember whether I noticed a police car or not near the War Museum. When I reached Parliament, they had their sirens on and they were following me and firing at me. I moved into the oncoming lane. I wanted to get home quickly. In Siggrou Avenue there was a police roadblock. I didn’t take any notice of it. On Flisvos Street there was another roadblock. I didn’t take any notice of that one either. Further down, at some traffic lights, I wove my way through the traffic in order to get away. I remember colliding sideways with someone, not head on. I don’t remember causing a car to turn over. I don’t remember a seeing a roadblock on Kalamakiou Street. I don’t remember if they were shooting at me there. I stopped at the petrol station because I had already been hit by a bullet and I was in pain. Besides, there were a lot people there and I wasn’t so scared. I stopped and tried to unbuckle my seat belt. Right then, I felt bullets in my back. The windows were broken. A police officer came, pulled me out and, while I was lying on my side, face down, they shot me in the foot. I don’t know which one of them shot me. I didn’t see who shot me because I was lying face down. Before the incident I had been in hospital once only, for minor depression. After the incident I developed persecution mania. Before the incident I had only had minor depression. When I was at the petrol station I did not make any movements that could make the police officers think I was carrying a weapon.” 17. The defendants’ statements were taken down as follows: “I was in police car no. A62. We were in the Paleo Faliro area. We heard about the chase on the radio. We arranged with the control centre to create traffic congestion at the beginning of the road close to Trokadero. We positioned the police car sideways across the road, facing the sea. I also stopped some civilian cars in order to block the road. Suddenly I saw flashing lights, sirens and a car at a distance of 30 metres coming towards me. The driver moved to the right of the street that leads to the marina and drove past me at a distance of 1 metre; I even jumped out of the way so that he wouldn’t run me over. Motorcycles and police cars drove past, following at a distance of 30 to 40 metres. There were no gunshots fired by anyone there. We got in the car and followed the other police cars at a distance of about 300 metres. I remember seeing a red car that had skidded on to the barrier. We lost control briefly, then continued driving. I heard gunshots after seeing the car that was turned upside down on Kalamakiou Street. I used my weapon later. We followed the fugitive’s course. When we reached Kalamakiou Street, we heard gunshots again. We went towards the petrol station. I got out of the car, there was chaos everywhere, and I heard gunshots. Some colleagues had ducked, others were on the ground, others were taking cover. I didn’t know where the gunshots were coming from. They could also have been coming from the Skoda [the applicant’s car]. I saw some of my colleagues firing in the air. Then I fired two shots in the air and threw myself to the ground. I was 50 metres away from the car. I didn’t get close to fire the shots, because there was a block of flats nearby. I heard the shouts of the colleagues who were telling the driver to get out of the car. Finally, I saw the police officers who were at the front walking freely and I realised the incident was over. I believe that the weapons of the colleagues who were summoned, or who had notified the control centre, were checked. From where I was standing, I couldn’t see the victim in the car.” “Since 9 p.m., we had been on duty at the B department of the Flying Squad. We heard on the radio that a chase was in progress, starting from the American embassy, of a car which had almost run over two pedestrians and a traffic warden. We followed the car. Near Trokadero we saw that the police had formed a roadblock. Manoliadis was using his whistle to stop the cars. The Skoda drove over to the right, to the side street, and then suddenly turned left. Manoliadis jumped out of the way instinctively, and the Skoda passed very near him. At Rodeo there was a roadblock similar to the one where Mr Manoliadis was. The victim hit a red car and caused it to turn upside down. The radio of the first police car informed us of the course the Skoda was taking. As we approached the junction of Posidonos and Kalamakiou Streets and we were 50 to 60 metres behind, I heard the first gunshots. We continued driving and entered Kalamakiou Street. There were some police cars ahead of us. Among them, there may have been some that had not been called but had come on their own initiative. When we arrived, I got out of the police car and went towards the vehicle that was being chased. Other colleagues kept calling to the driver to get out of the car. He didn’t get out. I heard someone say, ‘Let’s fire some shots to intimidate him’, and I took my weapon out and shot twice in the air. One of my colleagues took advantage of a break in the shooting to pull the driver out of the car. I was 10 to 15 metres away from the Skoda, or 8; I don’t remember exactly. The control centre issued a warning that the man was carrying a weapon. I have been in many chases, and this particular individual gave me the impression that he was familiar with this kind of thing.” “I ride a motorcycle. On Posidonos Street we heard on the radio that a chase was in progress from the American embassy. Very soon afterwards we heard that the driver had reached Onassio Hospital. I tried to get on to the central reservation to take up my position and wait for him. I saw the car coming. Risking my life, I got down from the high pavement and followed it. A police car and two motorcycles were in pursuit. I heard on the radio that the individual was dangerous and possibly carrying a weapon; he was driving very dangerously. At the traffic lights on Posidonos Street, close to Edem, as we reached the marina of Amfithea and Posidonos, I was struck by his ability to weave in and out of the other cars. I had never seen a chase like this one, although I had spent fifteen years in the service. At the junction of Amfitheas and Posidonos Streets, he collided with a taxi. At the traffic lights at that junction there was a police roadblock. Makaratzis turned right and entered the side street. He was driving into the oncoming traffic and, having gone past the traffic lights, he turned left and created confusion, because the lights changed and the cars were moving off. I didn’t know whether anyone had been killed, or what was happening. I was still in the right side street. The Skoda had been blocked by the other cars, and I shot three times in the air to intimidate him. It was impossible to aim at the Skoda because it was between other cars. Makaratzis drove off, continued down Kalamakiou Street, drove uphill and, as I was approaching at a distance of 30 metres, I saw the car at the petrol station. I got off my motorcycle and entered the petrol station from the right. I went into the workshop and shouted ‘Everyone move out of the way!’. I climbed up a staircase and on to the veranda. While I was climbing up the stairs, I heard gunshots. I didn’t know where they were coming from. When I got up there I heard the others calling to the driver to get out of the car. I saw him leaning over to the side and opening the glove compartment, and I assumed that he was going to take out a weapon and shoot. I shouted at the others to be careful because he might have a weapon. I picked up a big pot and threw it at the car. I was watching the driver’s hands, so as to be able to shout and warn my colleagues if I saw him taking something out to throw.” “Mahairas and I set off together. At 9.15 p.m. I was standing in front of the police car. I saw the Skoda coming from the Naval Hospital, going through a red light and almost hitting a couple. I waved to the driver to stop. He drove straight towards me and almost hit me. I jumped aside. No one took out their weapons. I got in the car and we chased him, not only for contravening traffic regulations, but also because he had almost hit me. At Vassilissis Sofias Street we crossed into the oncoming lane and turned right at a red light. We had the flashing lights on and we were driving very fast, but we couldn’t locate him. Suddenly, we saw the Skoda in front of the War Museum. We turned on the flashing lights and the siren, and we flashed our lights at him. He saw us from his car, braked and turned on his hazard lights, and suddenly he drove off again at high speed, sounding his horn. He reached Sintagma, crossed into the oncoming lane near the flower shops and drove into Amalias Street against the traffic. We turned the flashing lights on again and followed him. We continued driving and notified the control centre. On Kallirois Street he almost collided with another police car. At the traffic lights at Diogenis Palace he went through a red light, crossed into the oncoming lane, hit a car and continued driving. Two motorcycles came close to him. At Trokadero, a police car, two motorcycles and fifteen civilian cars had formed a roadblock. He drove towards the right, mounted the pavement and went past them. At Flisvos he caused a Daihatsu to turn upside down. We thought that whoever was in it must be dead. The control centre told the officers on motorcycles to follow him from a distance because of the danger. At Amfithea he collided with a taxi driver, causing him a neck injury; he later had to wear a collar. He continued down Posidonos Street and Kalamakiou Street. He entered the side street and drove against the traffic. He drove past the other cars and crossed over to Kalamakiou. That was where the first gunshots were fired. I leaned out of the left window at the back and shot at the back left tyre of the Skoda. The tyre burst. I was certain about the direction of the bullet. I knew that no one was in danger. When a bullet hits a tyre, it does not ricochet. I fired from a distance of 5 metres. After firing, I saw that the tyre had been punctured. Mahairas fired at the right tyre at the back. With his tyres burst, Makaratzis stopped at the petrol station. We were almost level with him. I acted as a traffic controller. I stopped the oncoming cars, and once the arrest had been made I saw how many police cars there were. There were more than nine. When all the police cars were at the petrol station, shots were fired in the air, not at the car. The car had been hit at the junction. There were a lot of policemen. They occupied both lanes of the street. The Skoda had to slow down, and they fired at him. I was stopping the cars. If they had aimed at the car when we were at the petrol station, they would have shot me too. I believe all the gunshots, even the ones that hit the windows, were aimed at the tyres.” “I was at the American embassy with Markou. We saw a Skoda going through a red light. The traffic warden waved to him to stop. The Skoda continued driving towards our colleague, at the risk of hitting him. We got in our car and followed him. He crossed into the oncoming lane and went through a red light at Vassilissis Sofias Street. We lost him and then we suddenly saw him at the War Museum. We followed him, turned on the flashing lights and waved to him to stop. At the flower shops he turned on his hazard lights as if he were going to stop. Suddenly, he increased his speed and crossed into the oncoming lane on Amalias Street and continued towards Sintagma and Siggrou. We followed him. Other police cars arrived. At Trokadero he bypassed a roadblock by driving around the side. At Flisvos he caused a Daihatsu to turn upside down and continued on his way. Further down the road there was a roadblock. He collided with a taxi driver and continued on. At the junction of Kalamakiou and Posidonos Streets there was another roadblock. He turned right into a side street and then turned left, crossing Posidonos Street. I heard some gunshots there. We drove to the top of the side street, followed him and, when we reached Posidonos Street, we were 5 metres away from him. I took my weapon out and aimed at his right rear tyre. When you fire shot after shot it is difficult to aim. I put my weapon on to automatic, which makes it fire three or four times. The Skoda stopped 70 metres away, at the petrol station, and we followed. The entire course and his behaviour had seemed extremely dangerous to us, like that of a terrorist. Other police cars and motorcycles arrived. They called to him to get out of the car. He didn’t, and some gunshots were fired. We were 10 metres behind him. If they did fire from the other police cars directly at him, we weren’t in their line of fire. I heard some colleagues say, ‘Let’s fire some gunshots to intimidate him’. Someone got up on the veranda and threw a pot down. One of my colleagues, who was wearing a bullet-proof vest, and whom I did not know, along with someone else, got close, broke the window and called to him to get out. He didn’t, so they pulled him out. One of them attempted to put handcuffs on him. Someone shouted ‘Careful, he is injured’ and they didn’t put them on. The ambulance came. I didn’t know whether he had been injured by a bullet or in a car accident. Neither my weapon nor Souliotis’s fires Magnum bullets. The A-45 is very powerful and has a great force of penetration. I don’t know who said that he was armed and that we should fire in the air.” “Kiriazis and I were on duty as instructed at Neos Kosmos. We received a message to go to Siggrou, where a car which had hit other cars and hadn’t stopped when signalled to by a traffic warden, etc., was being chased. We went to Siggrou and followed the driver. At Interamerican he drove through a red light and continued towards the coastal avenue. At Trokadero we saw a lot of police cars and flashing lights. We remained behind him and, at Flisvos, we saw the car that had been turned upside down. We were left a bit behind. At the junction of Posidonos and Kalamakiou Streets we lost him completely. We asked a civilian, who told us that he had turned right and was heading towards Kalamakiou Street, and we headed that way. I heard some gunshots that I thought were coming from the junction of Kalamakiou and Posidonos Streets. Artificial traffic congestion had been created. The control centre issued a warning that the man was armed and dangerous. We stopped 100 metres to the right of the petrol station and heard gunshots. We didn’t know whether they were coming from the victim or the police officers because we couldn’t see the car. We took cover and heard him being called out of the car. We fired some intimidation shots in order to confuse him, because we knew that a police officer would try to arrest him.” “Ntinas was my chief of crew. We received a message and chased the car, getting close to it at the traffic lights at Amfitheas Street. At Trokadero we were falling behind. The driver went through the roadblock that had been set up. At Flisvos we saw the car that had been turned upside down. There was a problem with the traffic and we were left behind. At the junction of Amfitheas and Posidonos Streets a taxi had been damaged. Further down we heard gunshots. Some civilians told us that the driver had turned left. We followed him. When we got to the petrol station we heard gunshots. Some colleagues were heard shouting, ‘Get out’, ‘Be careful’, and someone else said, ‘Shoot to intimidate him’. So I fired two shots to intimidate him. I have served for fifteen years. I have never seen anything like this. During the chase we heard from the control centre that the individual was extremely dangerous and possibly armed.” 18. The witnesses’ statements were taken down as follows: “I am the driver who chased the victim. Mahairas, Souliotis and I serve in the Flying Squad. The victim’s car was considered suspicious. We consider suspicious anything that moves around the American embassy. One of my colleagues, who was not carrying a gun, signalled the driver to stop. My other colleague and I waited at a distance, outside the car. Instead of stopping, the driver continued towards my colleague and almost hit him. Then he drove off. We considered him dangerous, and had to chase after him. At first we lost him for a while, but then we spotted him again near the War Museum. We waved to him to stop. He hesitated for a while, looked as if he was about to stop, but then drove on. At this point we started chasing him with the sirens on. He reached Parliament, crossed into the oncoming lane and continued towards Siggrou at full speed. We had notified other police cars that were going to Siggrou. At some stage he almost collided with a police car. When he reached the coastal avenue, we had already formed a roadblock. He collided with some civilian cars, got away, and drove on. Further down, at Flisvos, he collided with a red car and caused it to turn over, and then drove off at full speed. There was traffic in the area. There was a lot of traffic in Kalamakiou and he moved on to the hard shoulder. It was in that area, in Kalamakiou, that we heard gunshots for the first time. Until then we hadn’t fired because there was a lot of traffic and we could have injured civilians. We didn’t lose him at any point; we only almost lost him at the beginning of Kalamakiou, where there was an obstacle on the pavement. Mr Mahairas and Mr Souliotis were in the car with me and it was around that area that our colleagues fired at the tyres of the car. I maintain that, with our training, we can hit the target in 99% of cases, if not 100%. The driver stopped at the petrol station. We moved the civilians out of the way and some other colleagues who were wearing bullet-proof vests approached his car, broke the windows and pulled him out of the car, because they had called to him to get out several times but he hadn’t. Gunshots were heard from a distance. I don’t know where they were coming from. A colleague had gone up on to the veranda, but I don’t think he fired. He threw a pot at the driver. When the gunshots were fired, the victim’s car was parked sideways on the right of the petrol station. We were at the left of the petrol station and the others were behind me. I don’t know if others fired at the car. We heard gunshots at the beginning of Kalamakiou, and at the end, when everything was over. The final shots were probably fired to intimidate the victim. [Officer] Boulketis was the one that pulled him out. I don’t think he fired at him. There was no reason to do so. The victim made some movements in the car: he moved right and then left, as if looking for something, and it was conceivable that he had a weapon. That is why colleagues wearing bullet-proof vests went to pull him out of the car. I don’t know about the ballistic investigation. The bullets found inside the car were from the weapons of Souliotis and Mahairas. However, my colleagues were aiming at the tyres. The speed of the chase was approximately 60 km/h in Vassilissis Sofias and Amalias Streets, because there was traffic. We were about 10 metres behind him. Near the columns [of the Temple of Olympian Zeus] motorcycles appeared both ahead of us and behind. At the beginning of Siggrou another police car came up in front of the victim and he almost collided with it. He was moving from left to right in Siggrou, racing at 160 km/h and changing lanes constantly. I can’t say which police cars were behind us at the corner of Kalamakiou, because when we chase someone we don’t see what is going on behind. We stopped at the petrol station; two motorcycles stopped behind us, and another car stopped behind them. The first gunshots were fired at the junction of Posidonos and Kalamakiou Streets. In Kalamakiou Street, before Posidonos Street, when we were 5 metres behind him, Mr Mahairas used his firearm and shot at the tyres of the car. Mr Souliotis must have used his weapon too at the same spot. When the driver reached the petrol station and stopped, I called from the car to the civilians to move out of the way and to the driver to get out, and a colleague who was wearing a bullet-proof vest went to pull him out. I don’t know how many bullets were fired; the front windscreen broke because a pot was thrown at it. I do not know how the front passenger’s window broke, or how the back window broke. I don’t know how the victim’s foot was injured. It couldn’t have been when shots were fired around the car. Finally, we went to the police station to make a statement. Our lives weren’t directly at risk during the incident. The driver had caused accidents, driven into the oncoming traffic and endangered many people. In total, he had been chased by thirty-three policemen, whose weapons were confiscated, but others had also got involved. We had never seen anything like it. They told us on the radio to be careful, that the individual was carrying a weapon and might be extremely dangerous. Souliotis is a traffic warden. Of course he was not carrying a weapon when he waved to him to stop. The police roadblocks were set up because they had been ordered by the control centre. We also created artificial traffic congestion with civilian cars at the traffic lights. During the incident we noticed that civilians were injured, that cars were turned upside down; we didn’t have any other way of stopping him, after the roadblocks and the artificial traffic congestion. The last roadblock was on Kalamakiou Street. There were police officers on foot in the side street. He drove straight at them. That was the moment when the first gunshots were fired. That was also the moment when my colleagues first fired from the car at his tyres. It is possible that other weapons were used besides the thirty-three that were confiscated. For that matter, the bullet that was taken from his leg did not belong to any of the thirty-three weapons that were confiscated. If someone had fired in the victim’s direction at the petrol station, the petrol would have caught fire. At the petrol station they fired shots in the air. Probably in order to cover the colleague that went to pull him out. One of my colleagues climbed up on to the veranda and threw a pot at him to create confusion. Boulketis pulled him out and handcuffed him. We saw that he was bleeding and they took him to hospital. The investigation was carried out by our officers and some other department, not by those of us who had gone to the police station.” “I was on the old coastal avenue in Agia Skepi. I saw a vehicle driving erratically. We got an order from the control centre and went after it. On the way we saw all the accidents, the cars that had been hit and someone who was injured. We reached Kalamakiou from Amfitheas. We were far behind. We didn’t hear any gunshots. Even if there had been gunshots, we would not have heard them. Mr Boulketis, who was with me, had a bullet-proof vest. He put it on, while another colleague broke the window. Mr Boulketis pulled the driver out and put handcuffs on him, but when he saw that he had been injured he removed them. The victim was looking right and left; his hands were on the floor, we could not see them, and we assumed he had a gun. When we reached the petrol station, I heard one or two gunshots; I don’t know where they came from. Boulketis and Xilogiannis were with me in the police car. Xilogiannis and I didn’t have bullet-proof vests and we didn’t move closer, as Boulketis did. There were a lot of police cars and motorcycles. There is no way any weapons could have been concealed or changed hands. Our weapons are given to each of us personally. We do not give them to other colleagues. At the petrol station, when we moved closer so that Boulketis could pull the driver out of the car, nobody fired. No colleague could have become involved in the incident without receiving an order, unless someone heard about it and came on his own initiative. If such a person had used his weapon, there is no way he would have left without handing it over.” “I was the driver of the last police car, where Mr Boulketis was. We received an order from the centre and we followed the chase. We were the last to get to the petrol station where the Skoda was parked. There were a lot of police cars and motorcycles. Everybody was out of their cars; the Skoda was right next to the pump that is on the right-hand side when facing the petrol station. Everyone was out of their cars ... Mr Boulketis put on his bullet-proof vest and I covered him from the back, while behind me there were more officers covering him. When we got there, we heard some gunshots. When we got out of the car and were standing very close to the Skoda two or three gunshots were fired; they were not fired in my direction, because we were very close to the Skoda ... Perhaps the car was hit in the process, I don’t know. I am not in a position to know at which stage the victim was hit; probably during the chase ...” “... The shots fired at the petrol station were for intimidation. I didn’t see any shots fired at the car, the shots were fired towards the car but in the air, that is, the bullets went up in the air. I don’t know the [police officers] who fired. I had never seen them before. I know Markou and Kasoris. The police officer who climbed up on to the veranda didn’t shoot; he threw a pot. We are bound by our duty and have to follow orders when it comes to the areas we are patrolling, but we don’t always follow them and often go on our own initiative to the scene of incidents like this one where colleagues are in danger and all manner of things have happened in the past. The entire operation at the petrol station lasted ten to fifteen minutes; the Skoda had stopped along the kerb at the petrol station. I parked on the right, I arrived almost at the same time as the men in the first police car, and the rest got there immediately afterwards, one after the other. All the men were holding weapons in their hands. Usually all police cars have a light machine gun. After I got there I took cover behind a column. We called to the driver to get out of the car, and then the shooting began. I don’t remember even approximately how long afterwards the shooting began. The victim made some movements in the car. The movements he made while he was unlocking the car and all his other movements could have been seen by us as movements to get his weapon out from a holster under his arm, or to take out a hand grenade. At the junction of Kalamakiou and Posidonos Streets I didn’t notice any shots being fired at the right-hand side of the Skoda, only the ones fired at the tyres on the left-hand side. The first photograph shows that the tyres on the left-hand side are burst, the second one shows that the ones on the right are burst. As to the injury to [the applicant’s] right foot, it is possible that a bullet that was fired at the tyres ricocheted and penetrated through the metal plate of the car, which is only a few millimetres thick. There are bullets that can pierce metal plates of double thickness. In those cars there is no chassis. There are only plain metal plates, which can be pierced by a ricocheting bullet: the victim may have been hit in the buttock in this way. He may have been hit in the armpit area in the same way. At some point I saw him leaning towards the seat; I thought he might have been hit and I shouted.” “I am the petrol station attendant. I was in front of the pump, filling up. Suddenly, I saw the Skoda slowly coming up and stopping next to me, with the front facing the street as you can see in the photograph. The driver was not moving. Then the police cars arrived; the policemen were shouting, ‘Move out of the way, move out of the way!’. I left the pump and went inside, 4 to 5 metres away, and the owner and I moved to an area further at the back. There is a second door, and we went through to the workshop. When I went inside the store I heard gunshots. There was chaos. More gunshots were fired. They were firing, but I don’t know in which direction. I couldn’t see anything. The pumps were next to the store; if they had fired towards the car the bullets would also have hit the pumps. I think someone went up on to the veranda and threw a pot down. I saw it because I had gone out the back but I didn’t go close. I couldn’t see anything and I didn’t witness the arrest or see whether they shot him. When the car arrived I saw the tyres were burst, but I do not remember whether the windows were also broken. In the first photograph, I think the tyres are burst. It was the first statement I had ever made, I was still in a state of panic and I don’t know whether I reported everything accurately. It’s the same today, two years having passed since the incident. When I went to the back, I saw the police officer. He didn’t shoot, he threw a pot, but I couldn’t see the victim’s car. Neither the Vespa, which was half a metre away, next to the car, nor the pumps, of course, had any bullet holes. The end of the veranda where the police officer went overlooked the car. The front of the car must have been protruding a bit under the veranda.” “I am the owner of the petrol station. I was standing a bit further inside than Mastrokostas. I saw the Skoda coming up slowly. It stopped, and seconds later I heard gunshots. The boy heard the shouting, I didn’t. When I heard the gunshots I left, I went up to the house, and then a police officer came and threw a large pot at the roof of the car. He didn’t shoot. I came down when the shooting had stopped and I saw the victim as they were pulling him out of the car. I think the man who pulled him out was wearing civilian clothes. I am not sure. I saw him holding a big machine gun. I don’t know if he fired. I don’t remember. If he had fired, I would remember it. He may have fired; but I didn’t see him do it. I don’t remember whether the windows of the car were broken. I remember that he had crashed ... I didn’t find any cartridge cases anywhere. I didn’t find any bullet holes anywhere. When I saw the police officer who came from the back on to the veranda, I left and didn’t see if he fired. I went downstairs and saw them pulling the driver out of the car. The police officer didn’t shoot him. It may also have been the person that got off the motorcycle. The veranda is wide and it covered more than half of the car.” “I was at the junction of Posidonos and Kalamakiou Streets ... Suddenly, I saw in my rear-view mirror a car coming from the side street at great speed; it drove over the curb, came from the right and crashed into me. It threw me a distance of 10 to 15 metres. There was a police car next to me. The police officers must have been out of the car, and were holding weapons. I heard gunshots and I was frightened. More police cars came and followed the Skoda to the left, towards Kalamakiou Street. He caused great damage to me. If someone had been sitting in the back seat, they would not have survived.” 19. Having deliberated, the court acquitted the seven police officers on both the criminal charges brought against them (see paragraph 15 above). On the first count (causing serious bodily harm), the court found that it had not been established that the accused were the ones who had injured the applicant. A number of police officers who had taken part in the incident had left the scene after the applicant’s arrest without revealing their identity or giving the necessary information concerning their weapons. The bullet that was removed from the body of the victim and a bullet that was found inside the car were fired from the same weapon but were unrelated to the traces from the thirty-three weapons that were examined. The other bullet and some of the metal fragments found in the applicant’s car had been fired from the weapons of two of the accused. However, it had not been shown beyond a reasonable doubt that these officers had injured the applicant, given that many other shots had been fired from unidentified weapons. As regards the second charge (unauthorised use of weapons), the court held that the police officers had used their weapons for no other purpose than trying to stop a car whose driver they reasonably considered to be a dangerous criminal. The relevant passages of the court’s judgment read as follows: “On 13 September 1995 the victim, Christos Makaratzis, was driving a private vehicle with the number plate YIM 8837 in Athens in the area around the American embassy. At the junction of Telonos and Kokkali Streets, a unit of the special police control division of the Flying Squad of Attica was carrying out checks on passing cars. The accused Mahairas, Souliotis and Ventouris were part of this unit. The victim’s vehicle was coming from the direction of the hospital; he drove through a red light and the accused Souliotis signalled to him to stop. Instead of stopping at the signal made by the traffic warden, however, he continued driving towards him and almost hit him. The police crew got into their car immediately and began chasing him. At Vassilissis Sofias Street he entered the oncoming lane and drove through a red light. Because of the traffic, the police officers lost the car, which they were chasing with their flashing lights on, and met with it again near the War Museum. They flashed their lights at the driver in order for him to stop; the siren and the flashing lights of the police car were on. Initially the victim turned his hazard lights on, as if he were going to stop the car. However, he suddenly accelerated and drove off. He reached Sintagma near the flower shops; he entered the oncoming lane at Amalias Street and continued towards Siggrou Avenue. The police car informed the Flying Squad control centre, and the control centre notified other units that were on duty in the area in which the victim was moving, in order for them to come and assist. At Siggrou Avenue the car was moving at a very high speed from one lane to the other. Near Kallirois Street the driver almost collided with a police car; at the traffic lights at Diogenis Palace he drove through a red light, entered the oncoming lane and collided with a car. At Trokadero there was a roadblock formed by a police car, two motorcycles and fifteen civilian cars, which he got past by driving on the pavement, and the crew of the police car were almost run over. At Flisvos he collided with a Daihatsu that was stationary, caused it to turn upside down, injuring the driver, and on Amfitheas Street he collided with a car and a taxi, whose driver was injured. At the junction of Posidonos and Kalamakiou Streets there was a police car in the side street, and the cars moving towards Glifada had been blocked. The victim drove over the central reservation towards the right, in order to head towards the side street, but then he noticed the police car and drove over the central reservation towards the left and collided with two cars that were crossing Posidonos Street and almost ran over Police Constable Stroumpoulis. The first gunshots directed at the pursued car, which were fired in order to stop the victim, were heard at the junction of Posidonos and Kalamakiou Streets. It was in that area that the accused Mahairas, who was riding in the police car and had been chasing the vehicle from the beginning, fired a burst of shots when the car was at a distance of approximately 5 metres, with his firearm no. MP 5 C273917, because the car was moving. He aimed at the rear right tyre. The accused Souliotis, who was riding in the same police car, fired from the left window, with his pistol no. AO 38275, aiming at the rear left tyre, which he punctured. Near that junction the victim had to slow down. Many police officers had reached that spot and occupied both lanes; other police officers, besides those already mentioned, also fired at the car, as many gunshots were fired at that spot. It is also to be noted that, during the entire course, policemen, police cars and motorcycles joined the chase, without being able to stop the vehicle. It continued its course along Kalamakiou Avenue, despite the gunshots, and stopped at the junction of Kalamakiou and Artemidos Streets, at the entrance of a petrol station and near the petrol pumps, with the front facing the street. There, he was surrounded by the police units that were chasing him, and which the control centre knew had taken part in the operation, and also by other units that had come on their own initiative to help their colleagues when they heard about the incident from the control centre. In other words, there were units in the area that had gone to the scene of the incident, without being called. The police officers got out of their cars and off their motorcycles, holding their weapons. The victim made some movements in his car, which gave the police officers the impression that he had a weapon. The police officers asked him to get out of the car, but he did not, and the police officer who was wearing a bullet-proof vest, Nikolaos Boulketis, approached the car. Then, a lot of the police officers who were present began firing in order to intimidate the victim and cover their colleague; Nikolaos Boulketis took the opportunity to break the car window and arrest the victim. Earlier, the accused police officer Christos Markou had climbed on to the veranda which was above the petrol station and had thrown a pot down, which broke the windscreen without making it fall in. When the victim got out of the car, he was immobilised by the police officer who had arrested him, and by his colleagues, and then it became clear that he was injured. He had an exit wound on his right arm, another exit wound on the right of the thorax, with the entry from the back of the armpit. He had an exit wound at the end of his left foot, a wound high up on his left buttock and wounds on the outer surface of the kidney area. The windscreen of the car driven by the victim was broken, but had not fallen in; it had three bullet holes and a mark made by another. There were three bullet holes in the metal part of the left door at the back, and a bullet mark on the metal surface of the chassis. The back window was smashed and on its metal part there were two bullet holes and another one at the left rear lights. There was a bullet mark on the right rear wing above the wheel. The front passenger window was broken and there was a bullet mark on the outside of the roof. There were bullet holes inside the car under the glove compartment on the dashboard, on the radio, the top part of the dashboard, in the driver’s seat, in the front passenger seat and in the back seat. Two bullets and four fragments were found inside the car. Of the police officers who took part in the operation, thirty-three handed over their weapons, that is, all those who had been ordered to take part in the chase or who had notified the control centre and whose departments knew that they had taken part in the operation. However, others had taken part of their own accord in order to help their colleagues, and it is not known who they are or why they left after the arrest of the victim without informing the control centre of their presence at the scene of the incident. Among the thirty-three weapons, there were twenty-three revolvers of .357 Magnum calibre; six pistols, five of which were of 9 mm Parabellum and one of .45 ACP calibre; and four HK MP 5 submachine guns of 9 mm Parabellum calibre. Of the thirty-three weapons, only the weapons of the accused had been fired. The three bullets that were found in the car and the one that was removed from the first metatarsal of the right foot of the driver came from cartridges of 9 mm Parabellum (9 x 19) calibre. Such cartridges are fired mainly from pistols and submachine guns with the same calibre. The four fragments found inside the car are sabot fragments of coated bullets of different calibre and it was not possible to identify the calibre of the bullets, although one of the fragments was assessed as a fragment of 9 mm Parabellum (9 x 19) calibre. The report by the laboratory expert confirmed that the three bullets, two of which were found in the car and one of which was found in the foot of the victim, came from cartridges of 9 mm Parabellum (9 x 19) calibre. The bullet [PB2] and the two metal sabots [PP1 and PP2] found inside the car were fired by the HK MP 5 submachine gun number no. C273917 that belonged to the accused Mahairas. The bullet from which the other metal sabot [PP3] came, which was found inside the car, was fired by the Sphinx pistol no. A038275 that belonged to the accused Souliotis. The bullet that was removed from the body of the victim and a bullet that was found inside the car were fired by the same weapon, of Parabellum (9 x 19) calibre, but bear no relation to the traces left by the thirty-three weapons that were examined. The victim, Christos Makaratzis, was indeed injured by the submachine guns used by the police officers who took part in the chase and which were fired during the pursuit at the junction of Posidonos and Kalamakiou Streets where, apart from Souliotis, Mahairas and Markou [illegible] (third accused) other police officers fired who have not been identified, since there were many police officers who fired at that spot. This emerges indirectly from the fact that the bullet that was removed from the body of the victim and another one were fired by a weapon the owner of which was not identified and were not fired by the weapons of the accused. The fact that bullets and sabots that were found inside the car were fired by the weapons of the accused Souliotis and Mahairas leads to the conclusion that the physical injuries of the victim were caused by the weapons that belonged to the accused, apart from the one to his foot. In addition, since there were many bullet holes in his car that were caused by other, unidentified, weapons, the victim might have been injured by those bullets. As already stated, submachine guns and pistols are also of the same calibre. The first, second, third, sixth and seventh defendants fired shots for the purpose of intimidation in the area of the final operation (the petrol station). It is also to be noted that many others also fired shots there for intimidation purposes in order to assist their colleagues who were closer to the car to arrest the victim. They cannot have fired towards the car, because there was a danger of hitting the pumps of the petrol station, and there were no traces of gunshots in that area. The victim’s foot injury was caused from above, since only the top of the shoe was hit and not the sole, but it cannot be said that the shot was fired by the accused Markou, who had climbed on to the veranda of the petrol station, because the car was parked in such a way that almost half of it was under the veranda and thus the direction of the shot would have to have been almost vertical in order to hit the top part of the foot. If that had been the case, the bullet would also have had to go through a part of the dashboard. There is no trace of this, the closest mark being on the radio. Besides, if this injury had been caused by the weapon of the accused, it would have been confirmed by the expert investigation ... The injury was indeed on the top part of the foot; but it could have been caused by a shot that was fired from behind the car while the victim was driving and his foot was almost vertical to the accelerator, by one of the weapons fired at him at the junction of Kalamakiou and Posidonos Streets. The victim’s allegation that he was shot immediately after he was pulled out of the car must be considered groundless, since, as he stated, he was shot when he was ‘lying on his side, face down’. If that had been the case, the injury would have been different. Having regard to the above, and taking into account the fact that other police officers who have not been identified took part in the operation, some of whom possibly used their weapons, the Court has doubts as to whether the accused caused the victim’s injury. As a result, they should be declared innocent of the first act attributed to them. They should also be declared innocent of the second act because, although they used their weapons, they had attempted to stop the car by creating artificial traffic congestion and roadblocks and had failed, as the victim had continued driving while he was being chased by a large number of police officers, in a manner that was dangerous to the civilians that were in his way. Furthermore, the police officers did not know whether the civilians in the cars that had collided with the victim were killed, and they understandably considered him to be a dangerous criminal because of his behaviour and because they had received that information from the control centre. The Court also doubts whether the accused could have avoided using their weapons, which they did in order to stop him and intimidate him, so that he would stop driving in a manner that was dangerous to other civilians, and to protect the latter, as was their duty. Therefore, the accused must be declared innocent of the acts attributed to them in the indictment.” 20. The applicant, who was present when the judgment was pronounced, did not have the right to appeal under domestic law. The text of the judgment was finalised on 20 May 1999. 21. On 20 April 1997 the public prosecutor instituted criminal proceedings against the applicant. The indictment read as follows: “[The applicant] is accused ... of committing a number of offences and more specifically: A. While driving [his] car in Athens on 13 September 1995, he caused with his vehicle bodily injury and harm to others by his negligence, that is, by failing to take the care he should and could have taken in the circumstances and to anticipate the culpable consequences of his acts. More specifically: (a) while he was driving the vehicle referred to above in Posidonos Avenue, near Paleo Faliro, towards the airport, he did not keep enough distance between himself and the vehicles in front to be able to avoid a crash in case they reduced their speed or stopped, so that he crashed the front of his car into the back of the car with the private registration number IR-8628 that Iliostalakti Soumpasi was driving in the same direction, resulting in injuries to her neck; (b) after the above crash, the accused continued driving the vehicle referred to above and, while he was going along Posidonos Avenue near Kalamaki, he again failed to keep enough distance from the vehicles in front, thus crashing the front of his car into the back of the car with the taxi registration number E-3507 that Ioannis Goumas was driving and that had stopped at a red light in the left lane of Posidonos Avenue, the consequence of which was to cause injury to the aforementioned driver who suffered a cervical hernia and an injury to the head. B. While he was driving [his] car at the time and place referred to above, he did not keep enough distance from the vehicles in front to avoid a crash in case they reduced their speed or stopped. C. While he was driving [his] car at the time and place referred to above, he did not abide by the police officers’ signal to stop and, specifically, while he was driving the vehicle referred to above in Athens, crossing Vassilissis Sofias Street, Amalias Avenue, Siggrou Avenue and Posidonos Avenue, he did not comply with a signal to stop made by police officer Sotirios Souliotis, who was using a car of the Hellenic Police, registration number EA-11000, in Vassilissis Sofias Street, but continued driving, crossing all the streets mentioned above, while the above-mentioned police car and other police cars of the Hellenic Police were chasing him ...” 22. By judgment no. 16111/2000, the Athens First-Instance Criminal Court sentenced the applicant to forty days’ imprisonment. 23. The relevant provisions of the Criminal Code read as follows: “Intentional infliction of bodily harm on another person ... shall be punishable by up to three years’ imprisonment ...” “Where the act punishable under Article 308 has been committed in a way which could have endangered the victim’s life or caused him grievous bodily harm, imprisonment of at least three months shall be imposed.” 24. Section 14 of Law no. 2168/1993 provides: “Anyone who uses a gun ... while committing a serious crime or lesser offence of which he is subsequently convicted shall be punished by a term of imprisonment of at least three months to be added to the sentence imposed for that offence.” 25. At the material time, the use of firearms by law-enforcement officials was regulated by Law no. 29/1943, which was enacted on 30 April 1943 when Greece was under German occupation. Section 1 of that statute listed a wide range of situations in which a police officer could use firearms (for example in order “to enforce the laws, decrees and decisions of the relevant authorities or to disperse public gatherings or suppress mutinies”), without being liable for the consequences. These provisions were modified by Article 133 of Presidential Decree no. 141/1991, which authorises the use of firearms in the situations set forth in Law no. 29/1943 “only when absolutely necessary and when all less extreme methods have been exhausted”. Law no. 29/1943 was criticised as “defective” and “vague” by the Public Prosecutor of the Supreme Court (see Opinion no. 12/1992). Senior Greek police officers and trade unions have called for this legislation to be updated. In a letter to the Minister of Public Order dated April 2001, the National Commission for Human Rights (NCHR), an advisory body to the government, expressed the view that new legislation which would incorporate relevant international human rights law and guidelines was imperative (NCHR, 2001 Report, pp. 107-15). In February 2002 the Minister of Public Order announced that a new law would shortly be enacted, which would “safeguard citizens against the reckless use of police weapons, but also safeguard police officers who will be better informed as to when they can use them”. 26. In the summer of 2002, a group called the “Revolutionary Organisation 17 November” was dismantled. That group, established in 1975, had committed numerous terrorist acts, including the assassination of United States officials in 1975, 1983, 1988 and 1991. 27. On 24 July 2003 Law no. 3169/2003, which is entitled “Carrying and use of firearms by police officers, training of police officers in the use of firearms and other provisions”, came into force. Law no. 29/1943 was repealed (section 8). Further, in April 2004, the “Pocket Book on Human Rights for the Police”, which was prepared by the United Nations Centre for Human Rights, was translated into Greek with a view to being distributed to Greek policemen. 28. Article 6 § 1 of the International Covenant on Civil and Political Rights provides: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” 29. In this connection, the Human Rights Committee of the United Nations noted the following (see General Comment no. 6, Article 6, 16th Session (1982), § 3): “The protection against arbitrary deprivation of life which is explicitly required by the third sentence of Article 6 § 1 is of paramount importance. The Committee considers that States Parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.” 30. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (“United Nations Force and Firearms Principles”) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Paragraph 9 of the Principles provides: “Law-enforcement officials shall not use firearms against persons except in 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.” 31. Paragraph 5 of the Principles provides, inter alia, that law-enforcement officials shall “act in proportion to the seriousness of the offence and the legitimate objective to be achieved”. Under the terms of paragraph 7, “governments shall ensure that arbitrary or abusive use of force and firearms by law-enforcement officials is punished as a criminal offence under their law”. Paragraph 11 (b) states that national rules and regulations on the use of firearms should “ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm”. 32. Other relevant provisions read as follows: “... law-enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law-enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.” “... Governments and law-enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.” “Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.” | 1 |
dev | 001-22093 | ENG | FRA | ADMISSIBILITY | 2,000 | ORGANISATION NATIONALE DES SYNDICATS D'INFIRMIERS LIBÉRAUX (ONSIL) v. FRANCE | 1 | Inadmissible | null | The applicant is a trade union whose head office is in Toulouse and whose object is to defend the interests of self-employed nurses. It is represented before the Court by Mr Christian Bettinger of the Paris Bar. The facts of the case, as submitted by the parties, may be summarised as follows. Since the enactment of the Law of 3 July 1971, relations between members of the medical profession, notably nurses, and the social-security bodies have been governed by collective bargaining agreements made between the trade unions representing the various branches of the profession and the social-security bodies. The agreements do not become effective until they have received relevant ministerial approval. After the Conseil d’État had twice quashed decrees approving the collective bargaining agreement applicable to the nursing profession (in judgments of 17 December 1993 and 29 December 1995) a third agreement was entered into on 5 March 1996 and approved by interministerial decree on 10 April 1996. Immediately after that agreement was signed, the applicant and several other trade unions expressed opposition to it and indicated that they intended to lodge an appeal in the courts once the ministerial decree approving the agreement had been published in the Official Gazette. On 28 May 1996 the French Parliament adopted Law no. 96-452 implementing various health, welfare and regulatory measures. Section 59 of the Law provided: “The ... decree of 10 April 1996 approving the national collective bargaining agreement entered into with the nursing profession on 5 March 1996 is hereby ratified”. On 21 June 1996 the applicant lodged an application for judicial review with the Conseil d’État seeking an order quashing the decree of 10 April 1996 as being ultra vires and an order for the State to pay it 45,000 French francs for the costs incurred. In its written submissions of 9 October 1996 the applicant maintained in particular that section 59 of Law no. 96-452 contravened Article 6 § 1 and Article 13 of the Convention. On 13 June 1997 the Conseil d’État dismissed that application on the ground that: “by virtue of the provisions [of Law no. 96-452], which entered into force before the application was lodged, the lawfulness of the decree which the applicant seeks to have quashed cannot in principle be challenged by way of judicial review as being an ultra vires act”. As to the argument that the statute concerned was incompatible with the provisions of the Convention, the Conseil d’État held that challenging the lawfulness of the impugned regulatory measure did not come within the scope of the Articles relied on. | 0 |
dev | 001-79601 | ENG | AUT | ADMISSIBILITY | 2,007 | GRUNER KLUB IM RATHAUS v. AUSTRIA | 3 | Inadmissible | Christos Rozakis | The applicant, Grüner Klub im Rathaus, is the fraction of an Austrian party to the Vienna Regional Parliament (Landtag). It was represented before the Court by Mrs M. Windhager, a lawyer practising in Vienna. The respondent Government were represented by Mr F. Trauttmansdorff, Head of the International law Department at the Federal Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In the autumn of 2000 a police officer, Mr Kleindienst, revealed that he and some colleagues had repeatedly transmitted data from the central police computer to officials of the Austrian Freedom Party (FPÖ). Subsequently criminal investigations were opened against several persons. In the autumn of 2002 the Vienna Regional Court (Landesgericht) convicted Mr Kleindienst and the FPÖ official Mr Kreiβl and sentenced them to six months’ imprisonment suspended on probation. This judgment was later, in February 2004, quashed upon appeal and Mr Kleindienst and Mr Kreiβl were acquitted. In the meantime, after the first instance judgment, the applicant issued, on 17 September 2002, a press release which read as follows: “Member of the Green Party to the police information scandal:”[A] gift and [a] shame.” Maria Vassilakou: Austria desperately needs a new Minister of Justice Vienna (Member of the Green Party): “A shame. This judgment quite clearly bears the hallmark of Kreiβl’s fellow party member, the Minister of Justice, Böhmdorfer” so [says] the Green Member of the City Council Maria Vassilakou in view of the low [sentences of the] judgments against Kleindienst and Kreiβl. “If one considers the genesis of this incredible police information scandal, one has to wonder very much that after a dozen of suspects, month-long investigations and a long trial only this [judgment] remains.” Vassilakou concludes: “An embarrassing judgment which lets down the persons who have been spied upon and opens the floodgates for further abuse of personal data by ‘political engaged’ or simply ‘currupt’ executive officers” [Grüne zu Spitzelaffäre:”Geschenk und Schande” Maria Vassilakou: Österreich braucht dringend neuen Justizminister. Wien (Grüne) “Eine Schande. Dieses Urteil trägt ganz klar die Handschrift von Kreiβels Parteifreund Justizminister Böhmdorfer”, so die Grüne Stadträtin Maria Vassilakou in Anbetracht der geringen Urteile gegen Kreiβl und Kleindienst. “Betrachtet man die Genesis dieser unglaublichen Spitzelaffäre wundert man sich schon sehr, wenn von mehreren Dutzend Verdächtigen, monatelangen Untersuchungen und ein langwieriger Prozess lediglich dies übrig bleibt.” Vassilakou abschlieβend: “Ein peinliches Urteil, das die bespitzelten Personen im Regen stehen lässt und Tür und Tor für weiteren Missbrauch von vertraulichen Personendaten durch ‘politisch engagierte’ oder schlicht ‘käufliche’ Exekutivbeamten öffnet”] Mr Böhmdorfer subsequently brought proceedings under section 6 of the Media Act (Mediengesetz) with the Vienna Regional Court (Landesgericht für Strafsachen). On 28 November 2002 the Regional Court, having held on oral hearing, found that the statement “A shame. This judgment quite clearly bears the hallmark of Kreiβl’s fellow party member, the Minister of Justice, Böhmdorfer” amounted to defamation within the meaning of Articles 111 and 297 of the Criminal Code (Strafgesetzbuch). It ordered the applicant under section 6 of the Media Act to pay compensation to Mr Böhmdorfer in the amount of 3,000 euros (EUR). It further ordered it to publish the judgment. The court noted that the impugned statement read in its context suggested that Mr Böhmdorfer had abused his authority as Minister of Justice to influence the deciding court. However, the applicant had failed to prove that this had indeed been so. The applicant appealed and submitted in particular that the impugned statement amounted to a value judgment on a political issue and it was therefore, in any event, not possible to prove its veracity. Furthermore, there had been some factual basis for the statement. The applicant referred in this regard to the general political background of the “police information scandal”, the conduct of the criminal investigations and to the fact that Mr Böhmdorfer at the beginning of the investigations had refused all reproaches of illegal data consulting. The applicant finally contended that the court should have interpreted the statement in a broader sense, meaning that the judgment against Mr Kleindienst and Mr Kreiβl corresponded to Mr Böhmdorfer’s political mindset and style. On 8 September 2003 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. It found that the impugned statement, read in its context, did not allow any other conclusion to be drawn than that Mr Böhmdorfer had unlawfully influenced the deciding judge in the criminal proceedings. However, the evidence adduced by the applicant, namely general press releases relating to the conduct of the criminal investigations in the police information case, Mr Böhmdorfer’s statements in the context of these investigations and the fact that Mr Böhmdorfer had himself been criticised for allegedly having used illegal obtained material, did not give any indication for the veracity of this allegation. The applicant’s right to freedom under expression under Article 10 of the Convention did not protect false statements of facts. Moreover, the applicant had not even given Mr Böhmdorfer the opportunity to comment. This judgment was served on the applicant’s counsel on 22 October 2003. | 0 |
dev | 001-57471 | ENG | BEL | CHAMBER | 1,982 | CASE OF VAN DROOGENBROECK v. BELGIUM | 2 | Violation of Art. 5-4;No violation of Art. 5-1;No violation of Art. 4;Just satisfaction reserved | C. Russo | 9. The applicant is a Belgian national, born in 1940. He has no fixed occupation. On 29 July 1970, the Bruges criminal court (tribunal correctionnel) sentenced him to two years’ imprisonment for theft, and attempted theft, committed with the aid of skeleton keys. The court also ordered that he be "placed at the Government’s disposal" for ten years, pursuant to section 23 of the "Social Protection" Act of 1 July 1964 (see paragraph 19 below): it noted that Mr. Van Droogenbroeck was a recidivist (Article 56 of the Criminal Code) who had been sentenced by the Brussels criminal court on 9 April 1968 to two years’ imprisonment for aggravated theft and who manifested a persistent tendency to crime. The applicant and the ministère public (public prosecuter’s department) appealed to the Ghent Court of Appeal, which confirmed the first instance decision on 20 October 1970. It found that the placing at the Government’s disposal was justified by the danger to which society and Mr. Van Droogenbroeck himself would be exposed were he to be released on completion of his sentence (door het gevaar dat, na afloop van de straf die tegen hem uitgesproken wordt, de invrijheidstelling van de veroordeelde voor de maatschappij en voor hem zelf zou doen lopen). An appeal by the applicant on a point of law was dismissed by the Court of Cassation on 19 January 1971. 10. On the completion (on 18 June 1972) of his principal sentence, which he served at St. Giles prison, Brussels, and then at Malines, Mr. Van Droogenbroeck did not remain in detention. It was true, according to the medical officer specialised in psychology (médecin-anthropologue) at Malines prison, that he was incapable of self-criticism and had no sense of responsibility (noch auto-kritiek, noch verantwoordelijkszin). Nevertheless, the Minister of Justice, acting on the advice of the prison governor and following a "policy of securing as far as possible the rehabilitation of released prisoners", agreed to attempt to reintegrate him into society by placing him, as from 1 August 1972, in semi-custodial care; this involved his working as an apprentice in a central-heating installation firm in Brussels and attending intensive vocational training courses in a specialised institution on Fridays and Saturdays. 11. The applicant disappeared, however, on 8 August 1972. Three days later, on the instructions of the procureur général (public prosecuter) attached to the Ghent Court of Appeal, he was placed on the wanted list and, on 3 October 1972, he was arrested, pursuant to a warrant issued by an investigating judge in connection with an attempt to commit aggravated theft, and detained at Forest prison, Brussels. On 17 November, he was found not guilty by the Brussels criminal court, but on 27 November the Minister of Justice decided to send him to Merksplas prison, in the block reserved for recidivists placed at the Government’s disposal (te doen overbrengen naar de afdeling voor TBR - geinterneerde recidivisten te Merksplas); this was because the Ministry’s individual Cases Department had expressed the opinion, on 27 November, that the applicant had abused the opportunity offered to him, that he was totally untrustworthy and that a further period of detention was indicated (dat (hij) werkelijk misbruik heeft gemaakt van de hem geboden kans, dat hij helemaal niet is te betrouwen en dat een nieuwe interneringsperiode gewittigd is). On the strength of a favourable opinion from the Recidivists Board (see paragraph 22 below), before which Mr. Van Droogenbroeck had appeared on 13 June 1973, the Minister of Justice decided on 22 June to release him conditionally on 25 July, since the firm mentioned above was prepared to re-engage him as a trainee heating technician. 12. The applicant disappeared again at the beginning of September 1973. He was arrested on 6 November and brought before the Antwerp criminal court on a charge of aggravated theft, where he was sentenced on 16 January 1974 to three months’ imprisonment. On 4 February, on the expiration of this sentence, he was released as the Minister had agreed to make a further attempt at his reintegration into society, but at the end of March the agency responsible for monitoring his rehabilitation lost trace of him. He was arrested on 21 May 1974 and, until 16 January 1975, served a sentence of eight months’ imprisonment for aggravated theft, imposed by the Brussels criminal court on 9 August 1974; thereafter he returned to Merksplas prison pursuant to a detention decision (te interneren) taken by the Minister of Justice on 11 January. He left prison on 11 July 1975: two days previously and on the recommendation of the Recidivists Board, the Minister had agreed to his conditional release (te ontslaan), in the form of one month’s renewable leave, with a view to rehabilitation in France. 13. Mr. Van Droogenbroeck accordingly went to France, accompanied by a member of the Prisoners’ Aid committee, but the rehabilitation plan proved impracticable and he therefore returned to Belgium. After different setbacks in hostels, he was obliged to live alone in Brussels, without work and completely without resources. On 10 September 1975, the Individual Cases Department, citing the risk of recidivism, proposed that "steps be taken to detain" the applicant at Merksplas; the Minister of Justice gave his consent on the following day. Thereupon, Mr. Van Droogenbroeck disappeared for the third time; the authorities placed him on the wanted list, on account of his conduct. After hiding for some months in the Netherlands and finding himself in dire financial straits, he gave himself up on 21 January 1976 to the police attached to the parquet du procureur du Roi (public prosecuter’s office) in Brussels. He was detained at once in Forest prison before being sent back to Merksplas. On 2 February, as he was unwilling to do the work offered to him, he was placed in the cell block rather than in the recidivists block. On 3 March 1976, the applicant appeared at his request before the Recidivists Board, which decided to re-examine his case in September. At its meeting on 8 September, the Board found that he had saved nothing during his detention and that he had no prospects of finding work outside prison. It therefore declined to recommend his release unless and until he had saved 12,000 BF through his prison work. On 23 September, the applicant was transferred from Merksplas to Louvain prison. 14. On 12 May 1976, Mr. Van Droogenbroeck, relying on section 26 of the Act of 1 July 1964 (see paragraph 23 below), had filed with the procureur général attached to the Ghent Court of Appeal an application for release from the effects of the decision placing him at the Government’s disposal. The Court of Appeal refused the application on 13 December: after rejecting the arguments which he had based on Articles 4 par. 1, 4 par. 2, 5 par. 1 and 5 par. 4 of the Convention (art. 4-1, art. 4-2, art. 5-1, art. 5-4), the Court found that each time the applicant had been released, he had yielded to impulse and committed further offences; it concluded from this that he remained asocial (zodat hij asociaal blijft). On 15 February 1977, his appeal on a point of law was held by the Court of Cassation to be inadmissible on the ground that he was no longer entitled to contest before that Court - as he had attempted to do by pleading the Convention - the validity of the decision complained of, that decision having been final since 19 January 1971. 15. On 13 March 1977, the applicant lodged with the Louvain procureur du Roi a complaint of arbitrary detention and, in the alternative, of abuse of authority (abus de pouvoir). He pointed out that since 28 February the balance on his account had been more than 12,000 BF; in addition, he alleged that the Recidivists Board, not being mentioned in the Act of 1 July 1964, was "unlawful" and he accused the Minister of transforming his sentence into one of "forced labour". On 19 August 1977, the complaint was set aside as requiring no further action. 16. On 4 May 1977, Mr. Van Droogenbroeck appeared again before the above-mentioned Board. Noting that he had by then saved 12,868 BF and had been detained for long enough (lang genoeg), the Board recommended, "without much enthusiasm" (zonder veel enthousiasme), that he be released (te ontslaan). Accordingly, on 1 June 1977, the Minister of Justice granted him one month’s renewable leave, to be preceded by a two month period of semi-custodial care during which he was to be accommodated at night in St. Giles prison (Brussels) but was to work outside the prison during the daytime. However, he disappeared on the day after his first day out and was at once placed on the wanted list for return to the recidivists block at Merksplas. 17. On 22 September 1977, Mr. Van Droogenbroeck was caught in the act of stealing in Bruges and arrested. On 9 December, he was sentenced to three month’s imprisonment by the Bruges criminal court and, on completing that sentence on 21 December, was sent back to Merksplas. The Ministry of Justice had found, on 19 December, that the applicant’s return to detention did not require a fresh Ministrial decision since he had evaded detention on 8 June 1977 (aangezien betrokkene zich op 8. 6. 77 heeft onttrokken aan zijn internering, is geen ministeriële beslissing nodig om hem opnieuw te interneren). The case was re-examined by the Recidivists Board on 3 May 1978, but the matter was adjourned until September. On 13 September, the Board pointed out that, on account of his systematic refusal to work, Mr. Van Droogenbroeck had saved only 2,437 BF and it therefore proposed that he not be granted renewable leave until he had saved 12,000 BF. On 3 October, the Minister gave instructions to that effect; he also stipulated that the applicant’s release should be subject to a series of condition similar to those previously laid down by the Minister, namely submitting to the "guidance" of the Brussels Social Rehabilitation Office, working regularly, not changing employer or address without that Office’s consent, refraining from excessive consumption of alcohol and not associating with former criminals. It proved impossible to implement this decision, since Mr. Van Droogenbroeck failed to satisfy any of the conditions attached thereto. On 14 March 1979, he appeared once more before the Recidivists Board, which confirmed the advice it had tendered on 13 September 1978. 18. On 16 September 1979, the applicant lodged with the procureur général attached to the Ghent Court of Appeal a second application based on section 26 of the Act of 1 July 1964 (see paragraph 23 below). This application was granted on 18 March 1980: after considering the submissions to the contrary on the part of the ministère public and although the Court rejected, as in 1976, the arguments based on the Convention, it held that there were by then reasons for releasing Mr. Van Droogenbroeck from the effects of the decision placing him at the Government’s disposal. He was set free on the same day, but shortly afterwards was again deprived of his liberty, the Brussels criminal court and the Ghent Court of Appeal having sentenced him on 10 September 1980 and 3 June 1981 to one month’s and to one year’s imprisonment for aggravated theft, though without applying to him the Social Protection Act. 19. The placing of recidivists and habitual offenders at the Government’s disposal was substituted for the placing under special police supervision that had been provided for in the Criminal Code of 8 June 1867; it was introduced by section 24 to 28 of the "Social Protection" Act of 9 April 1930 and is today the subject of sections 22 to 26 (Chapter VII) of the Social Protection in respect of Mental Defectives and Habitual Offenders Act of 1 July 1964 ("the 1964 Act"). According to Belgian case-law, being placed at the Government’s disposal is to be classified as a penalty and not as a security measure; this has various consequences in law (Court of Cassation, 4 April 1978, Pasicrisie 1978, I, pp. 858-862; 17 June 1975, ibid. 1975, I, pp. 998-999; 11 December 1933, ibid. 1934, I, p. 96). Under sections 22 and 23 of the 1964 Act, the placing at the Government’s disposal is added on to a principal penalty involving deprivation of liberty imposed at the same time, becomes operative on the expiration of that penalty and applies for a period fixed by the Act, namely twenty years, ten years, or from five to ten years, according to the nature of the case. A person who has committed one indictable offence (crime) after another must be placed at the Government’s disposal (section 22), whereas in other cases - such as the applicant’s - it is a matter for the court’s discretion (section 23): the latter rule applies where a non-indictable offence (délit) has followed an indictable or a non-indictable offence (Articles 56 and 57 of the Criminal Code), where an indictable offence has followed a non-indictable offence and to the case of "anyone who, having committed in the previous fifteen years at least three offences each involving a penalty of imprisonment for a non-indictable offence (emprisonnement correctionnel) of at least six months, is shown to manifest a persistent tendency to crime". In the latter cases, "particulars of the proceedings in respect of the offences which cause the individual concerned to be classified as a recidivist have to be included in the current prosecution file" and the court concerned must give "specific and precise" reasons for ordering the penalty in question (section 24 and Court of Cassation, 3 January 1962, Pasicrisie 1962, I, pp. 525-526). 20. If a recidivist is sentenced to a further principal penalty of imprisonment, the effects of any prior order placing him at the Government’s disposal are suspended until that sentence has been served. Such was the result, in the present case, of the judgments of 16 January 1974, 9 August 1974 and 9 December 1977 (see paragraphs 12 and 17 above). The new sentence of imprisonment may itself be accompanied by a further order placing the individual concerned at the Government’s disposal, the latter penalty to be served after the expiry of the first order, but as regards Mr. Van Droogenbroeck this course was not followed by the Antwerp, Brussels and Bruges criminal courts or the Ghent Court of Appeal in 1974, 1977, 1980 and 1981 (see paragraphs 12, 17 and 18 above). 21. According to the Court of Cassation, the penalty of being placed at the Government’s disposal - which can be the subject of a full appeal or of an appeal to the Court of Cassation on a point of law - and the principal penalty form an "inseparable whole" and the former penalty, like the latter, constitutes a deprivation of liberty (4 April 1978, Pasicrisie 1978, I, pp. 858-862; 17 June 1975, ibid. 1975, I, pp. 998-999; 3 January 1962, ibid. 1962, I, pp. 525-526; 22 July 1955, ibid. 1955, I, pp. 1270-1271, 19 September 1939, ibid. 1939, I, p. 384; 11 December 1933, ibid. 1934, I, p. 96). Under section 25 of the 1964 Act, "recidivists and habitual offenders who are at the Government’s disposal shall, if necessary, be detained in an establishment specified by Royal Decree" - in the instant case the establishment being Merksplas, which had been designated for males not suffering from any mental illness (Royal Decree of 8 February 1952). As is indicated by the phrase "if necessary", the Act confers on the Government - here, the Minister of Justice - a wide measure of discretion in deciding how the penalty shall be implemented, the choice lying between detention, semi-custodial care, and remaining at liberty under supervision or on probation. The Minister may conditionally release the person concerned either at the end of the principal sentence - failing which he will be detained - or during the course of detention; he may also revoke conditional release at a later date. The Minister of Justice takes various decisions in accordance with a procedure which is laid down, in part, by Ministrial Decrees. Conditional release usually occurs: - whilst the principal penalty is being served, on a report from the "medical officer specialised in psychology" and the governor of the establishment where the convicted person is held (see paragraph 10 above); - during detention, on a recommendation by the Recidivists Board (see paragraph 11, 12 and 16 above and paragraph 22 below). A decision to revoke conditional release (see paragraph 11, 12, 13 and 17 above) is generally taken by the Minister in the light of a report from the officer responsible for the "guidance" of the person concerned, or of an recommendation by the procureur général attached to the Court of Appeal within whose district the placing at the Government’s disposal was ordered. These reports and recommendations will cover the manner in which the person in question is observing the prescribed conditions, his means of subsistence, his work, his conduct and the risk of recidivism on his part. If, however, he is in the process of serving a further sentence of imprisonment, revocation is normally based on reports from the "medical officer specialised in psychology" and the governor of the establishment; these reports will contain information on the nature of the offences for which the sentence was imposed, the offender’s criminal record, his personality, his moral character, his family and occupational situation and his future prospects. 22. The Board for Recidivists who have been placed at the Government’s Disposal and are in Detention ("the Recidivists Board") was established by a Ministerial Decree of 12 March 1946 which was modified and supplemented on 20 May 1949 and 11 March 1968. The Board is composed of a judge or retired judge, who acts as chairman, the medical director or retired medical director of the Prison Psychological Service (Service d’anthropologie) and a senior official of the Prison Social Service. A representative of the Ministry of Justice attends meeting of the Board and the Prisoners’ Aid Committees or the Social Rehabilitation Offices may be invited to send a representative - who is entitled to speak and vote (Decree of 20 May 1949) - to those meetings at which the Board is to discuss the position of detainees who have been or are to be placed under their supervision. The Board is convened by its chairman at least once every two months. It is required to supply the Minister of Justice with an opinion - which is not binding - "on the advisability of releasing recidivists and habitual offenders who are in detention ... and on the conditions" which should be attached to their release. Offenders may apply to appear before the Board either at the meeting before the expiry of the first six months of their detention, if it began as soon as they has finished serving their principal sentence, or at the first meeting held after their return to detention, in cases where the Minister has revoked a decision granting conditional release (see paragraph 13 above). They will be heard again at the meeting before the expiry of the first six months of their detention, if it six months, fixed by the Recidivists Board (see paragraph 11, 12, 13, 16 and 17 above). Although the texts are silent on the point, a detainee will be heard without the assistance of a lawyer and without being able to inspect the prison file which contains, inter alia, the results of the social enquiry. The Board’s Secretary will communicate to him at once the opinion adopted by the Board at the end of its discussions. If the opinion is favourable, the matter will be referred to the Minister for decision. The Minister may also give directions for release at any time, without consulting the Board in advance. The governors of the establishments involved inform the persons concerned of Ministerial decisions that they be released. Such decisions will be subject to conditions which will be recorded in a booklet and will always include an obligation to submit to supervision arranged by the Social Rehabilitation Offices or the Prison Social Service. 23. Under section 26 of the 1964 Act, individuals placed at the Government’s disposal pursuant to sections 22 and 23 may apply to the procureur général attached to the Court of Appeal within whose district the decision was rendered to be released "from the effects of the decision". If, as in the present case, the offender has been placed at the Government’s disposal for not more than ten years, such an application "can be made three years after completion of the [principal] sentence" (see paragraph 14 above) and, thereafter, "every three years" (see paragraph 18 above); these periods are increased to five years "in the other cases". The procureur général "shall make such enquiries as he sees fit, add the results to the case-file and lay it, with his submissions, before a criminal chamber of the Court of Appeal; the Chamber shall give a reasoned judgment after hearing the person concerned, who shall have the assistance of a lawyer". 24. The practice followed in implementing the Acts of 1930 and 1964 has developed considerably over the years. Initially, offenders were not released until after a period of detention which varied according to the categories in which they ware placed. Today, on the other hand, where it is the first time that the measure has been ordered and the individual is not very dangerous, the authorities’ general rule is to release him on trial once the principal sentence has been served, subject to detaining him if he commits another offence or fails to observe one of the prescribed conditions and is out of work and without means of subsistence. Moreover, detention for a long period is now exceptional: according to the Government, the offender will in practice be conditionally released - unless there is a serious danger to society - as soon as there is a real possibility of rehabilitation. 25. According to Articles 62 and 63 of the General Prison Rules (Royal Decree of 21 May 1965), read in conjunction with Article 95, persons sentenced to a penalty for a non-indictable offence (peine correctionnelle) and then detained pursuant to section 25 of the 1964 Act, as was Mr. Van Droogenbroeck, may be required to do prison work. 26. The Government maintained that several remedies were available to the applicant: (i) instituting or causing to be instituted a prosecution for arbitrary detention; (ii) referring to the Ghent Court of Appeal any dispute between himself and the ministère public regarding the execution of the judgment of 20 October 1970; (iii) applying to that Court of Appeal for release from the effects of the measure imposed on him; (iv) applying to the President of the court of first instance in his capacity of juge des référés (judge hearing urgent applications); (v) bringing an action based directly on Article 5 par. 4 (art. 5-4) of the Convention. On the third point, the Court refers to paragraphs 14, 18 and 23 above, and, on the fifth, to paragraph 55 below. 27. As regards the first point, anyone who maintains that he has been unlawfully deprived of his liberty, either by a private individual or by a public official, is entitled under Belgian law either to file a complaint, with or without the joinder of a claim for damages (constitution de partie civile), or to bring the matter before a criminal court by means of a direct summons (Articles 147 and 434 to 436 of the Criminal Code; Articles 63, 182 and 609 of the Code of Criminal Procedure; see paragraph 15 above). 28. As regards the second point, the Ghent Court of Appeal held, in 1897 and 1914 that disputes between the ministère public and a convicted person regarding the execution of a sentence could be referred to the court which passed it, but these are isolated decisions which have not been confirmed by other judgments. 29. As regards the fourth remedy mentioned above, the Court confines itself for the moment to noting that under Articles 584 and 1039 of the 1967 Judicial Code it falls to the President of the court of first instance to give a ruling, in the capacity of juge des référés - that is to say, on a "provisional" basis, if the matter is urgent, and without prejudice to the "merits" -, if so requested by anyone claiming to be the victim of, for example, an administrative act constituting a "voie de fait" (manifest illegality). This remedy is available "in all matters, except those which are excluded by law from the competence of the courts". The case-law cited by the Government in this connection is analysed at paragraph 54 below. | 1 |
dev | 001-115649 | ENG | NLD | ADMISSIBILITY | 2,012 | RUSHING v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr Lee Summerfield Rushing, is a citizen of the United States of America (USA), who was born in 1943. He was detained in the Netherlands at the time of the introduction of the application. He was represented before the Court by Mr D.W.H.M. Wolters, a lawyer practising in Hoofddorp. 2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 28 August 1997 an arrest warrant was issued by the USA federal authorities against the applicant who was suspected of having imported into the USA almost 23,000 kg of marihuana from Pakistan. 5. On 21 November 2008, the applicant was apprehended at Schiphol Airport in the Netherlands. 6. On 7 January 2009, the USA Government requested the extradition of the applicant. 7. On 31 March 2009, the Regional Court (rechtbank) of Haarlem considered the applicant’s extradition permissible and advised the Minister of Justice (Minister van Justitie; “the Minister”) accordingly. It held that the applicant had failed to establish that a mandatory life sentence would be imposed on him. 8. The applicant appealed this decision. The Supreme Court (Hoge Raad) accepted the appeal on 22 September 2009, in so far as the Regional Court had failed to set out the applicable domestic law, but dismissed the appeal on all other grounds, considered the extradition permissible and advised in favour of the extradition. 9. On 13 October 2009, the Department for International Legal Aid (Afdeling internationale rechtshulp in strafzaken; “the Department”) of the Netherlands Ministry of Justice (Ministerie van Justitie) asked their USA counterpart the following questions: “The lawyer of Lee Rushing states that extradition would be inhumane since he faces a life time imprisonment (since he will be tried for the third time). Is it correct that due to the third criminal case/conviction against him that the judge will have to apply the life time imprisonment in that state or does he have a choice? The competent judicial authority is the federal district court in Seattle, Washington.” 10. On 15 October 2009, the USA Department of Justice responded as follows: “In answer to your question about the sentencing options for Rushing, once he’s extradited, first, there is NO possibility of a mandatory life sentence. In addition, there is no “3 strikes” rule in the federal system. There is a statutory range of 10 years to life in prison (as stated in the extradition affidavit); there are also federal sentencing guidelines. Below is a brief explanation of the statute and guidelines, which are advisory only. Statutory Penalty: The First Superseding Indictment charges the defendant, Lee Rushing, with conspiracy to import and distribute hashish in violation of Title 21, United States Code, Sections 841 (a)(1), 841 (b)(1)(A), 846, 952, 960 (a), 960(b)(1) and 963. These statutes provide for a penalty of not less than 10 years and not more than life in prison. Sentencing Guidelines: In addition, there are non-mandatory sentencing guidelines that will be relevant to the defendant’s sentence. In this case, the government would anticipate, based on the facts, that the following adjustments would apply: Base Offense Level: The base offense level would be 38 under USSG [United States Sentencing Guidelines] 2D1, based on the quantity of hashish. Leadership: The defendant would likely receive an upward adjustment of four (4) levels under USSG 3B1.1(a), as the defendant was an organizer and leader of a criminal activity involving more than five people. Acceptance of Responsibility. The United States would recommend a downward adjustment for acceptance of responsibility under USSG § 3E1.1(a)(b) of three (3) levels. With these adjustments, the defendant’s adjusted offense level will be 39. If he has no criminal history, his advisory guideline range would be 262 to 327 months in prison. If the defendant has a criminal history, his guideline range may be higher. Again, this is only suggestive. Other statutory factors: Other statutory factors that the court should consider under Title 18, United States Code, Section 3553(a) are: (1) the nature and circumstances of the offenses; (2) the history and characteristics of the defendant; (3) the need for the sentence to reflect the seriousness of the offenses; (4) the need for the sentence to afford adequate deterrence to criminal conduct; (5) the need for the sentence to protect the public from further crimes of the defendant; (6) the need to provide the defendant with educational and vocational training, medical care, or other correctional treatment in the most effective manner; (7) the kinds of sentences available; (8) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct, and (9) the need to provide restitution to any victims of the offense.” 11. By decision of 20 October 2009, the Minister approved the extradition. In his decision the Minister considered that the applicant had not demonstrated that a mandatory life sentence would be imposed upon him. 12. On 23 November 2009, the applicant took interlocutory civil proceedings (kort geding) against the Netherlands Government seeking an injunction on his expulsion to the USA. 13. On 5 January 2010, in the context of the hearing in the interlocutory proceedings, which had been scheduled for 11 January 2010, the Department put fresh questions to the USA Department of Justice, namely: “Rushing has three prior convictions to his name, (...). Supposedly all three convictions are for felony drugs offenses. Questions likely to be raised in the forthcoming summary proceedings: 1. Will the prior convictions mentioned above (if correct) lead to the mandatory term of life imprisonment without release? 2. Is such a mandatory term of life imprisonment ‘de jure and de facto reducible’, does it leave ‘any prospects of release’ or does it not? The European Human Rights Court in Strasbourg (in its Kafkaris ruling, 12 February 2008, no. 21906/04) has ruled that there may be issues under Article 3 of the Human Rights Treaty in the case of an irreducible sentence of life imprisonment. Dutch courts have to take such rulings into consideration. 3. Is a mandatory minimum sentence of 20 years de jure and de facto reducible or not? Since Rushing is born on 22 March 1945 and now 64 years old, such a minimum sentence could be considered a life sentence as well.” 14. The USA Department of Justice, on 6 January 2010, answered as follows: “1. The defendant is not facing a “mandatory” term of life imprisonment; rather, that is the maximum term that the Court may order. In order for the mandatory life term to be invoked, the U.S. Attorney must file an enhancement information under Title 21, United States Code [USC], Section 851, which provides as follows: ‘No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous conviction to be relied upon.’ Historically, the United States Attorney in this district does not file enhancement information under 21.USC.851 unless the United States Attorney specifically finds, after a review of the defendant’s conduct and criminal history, that the mandatory sentence is merited. The information is often not filed if the matter results in a plea agreement in which the defendant accepts responsibility for his actions. 2. Once the sentence is imposed, it is reducible under limited circumstances, including: a) under Rule 35 of the Federal Rules of Criminal Procedure, if within one year of sentencing, the government moves the Court to reduce the defendant’s sentence based on the defendant’s substantial assistance to the government after sentencing; and b) if the President grants the defendant a pardon under Article II, Section 2, of the United States Constitution. 3. The defendant faces a mandatory term of ten (10) years, not twenty (20) years, under Title 21, United States Code, Section 841(b)(1)(B). The Court only has authority to sentence the defendant below the ten year term under the following limited circumstances: a) if the defendant qualifies for safety valve under Title 18 U.S.C. 3553 (f) and United States Sentencing Guidelines [USSG] 5C1.2 (which seems unlikely in this case given the defendant’s leadership role and criminal history); and b) if the defendant provides substantial assistance to the government through cooperation prior to sentencing and the government moves for a sentence reduction under USSG 5K1.1 and 18 U.S.C. 3553.” 15. The Department, upon receipt of the above reply, immediately requested clarification regarding the possibility of a Presidential parole. 16. On 7 January 2010, the USA Justice Department replied as follows: “[...] the power of a President in federal criminal cases, and the Governor in state convictions, to pardon a person convicted of a crime, commute the sentence (shorten it, often to time already served), or reduce it from death to another lesser sentence. There are many reasons for exercising this power, including real doubts about the guilt of the party, apparent excessive sentence, humanitarian concerns such as illness of an aged inmate, to clear the record of someone who has demonstrated rehabilitation or public service, or because the party is a political or personal friend of the Governor.” 17. On 19 January 2010, the judge in interlocutory proceedings (kortgedingrechter) dismissed the applicant’s request to stay his extradition The judge held that the applicant had not established that a mandatory life sentence would be imposed on him or that a Presidential parole was not possible. Therefore, the extradition did not constitute a violation of Article 3 of the Convention. 18. On 20 January 2010, the Acting President of the Chamber to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of the Netherlands, under Rule 39 of the Rules of Court, that the applicant should not be extradited to the USA until 3 February 2010. The Acting President also decided to request the Netherlands Government to inform the Court on the scope and the legally binding nature of the information supplied by the USA authorities. They were specifically asked if they could provide clarification concerning the applicant’s sentence. The Acting President further decided to give priority to the application under Rule 41 of the Rules of Court. 19. On 29 January 2010 the Netherlands Government submitted the requested information. In reaction to the Court’s questions, they had contacted the USA authorities once more. In its relevant part, the information they had received reads as follows: “Under Title 18, United States Code, Section 3553(a), the sentencing court must consider ‘the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.’ The highest sentence served to date in this case was about 12 years in prison and the lowest sentence was one day in jail. In the case of the 12-year sentence, that sentence had originally been 30 years, which was a mandatory sentence under the Federal Sentencing Guidelines. By virtue of a ruling by our Supreme Court, however, the Sentencing Guidelines are now only advisory, which should ensure to Mr Rushing’s benefit. Most recently, in March 2009, the court sentenced co-defendant Frank Falco to ten years in prison. Mr Falco’s case had notable similarities to Mr Rushing’s: both men were leaders and organizers in the same conspiracy and both men transferred large sums of money. In addition, both men were fugitives for many years. Of course, the cases were also different in some respects. Nonetheless, as noted above, under 18 U.S.C. 3553(a), the sentencing judge must consider sentencing disparity when sentencing Mr Rushing. Since the highest sentence to date was 12 years in prison and the lowest was one day in jail, a sentence of life in prison would be a significant leap for the court to make. Title 21, United States Code, Section 841(b)(1)(A) provides for a sentence of ‘not less than 10 years or more than life’. The decision on the term of imprisonment is not within the government’s discretion but rather with the court’s discretion. Congress set the mandatory minimum and maximum sentences for this offense and we are bound to follow the statute. In some circumstances, the parties may conclude a plea agreement under Federal Criminal Rule 11 (C)(1)(c) in which the parties agree that ‘a particular sentence or sentencing range is the appropriate disposition...[and] such a recommendation or request binds the court, once the court accepts the plea agreement.’ In this instance, however, the court cannot accept a plea agreement until the defendant is in the district, so this is not an option. Furthermore, there is nothing in the record to suggest that an 11(C)(1)(c) binding plea would be appropriate in this case.” 20. On 2 February 2010, the Chamber considered the information provided by the Government on 29 January 2010 and decided, in view of that information, to lift the Rule 39 indication issued on 20 January 2010. 21. On 16 February 2010, the applicant informed the Court that he whished to pursue his application. On 5 March 2010, he was extradited to the USA. 22. No further information about his situation in the USA has been submitted. | 0 |
dev | 001-90435 | ENG | UKR | ADMISSIBILITY | 2,008 | SERDYUK v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger | The applicant, Mr Vitaliy Andreyevich Serdyuk, is a Ukrainian national who was born in 1939 and lives in Chernigiv. In 1986 the applicant, at that time a military officer, was engaged in emergency relief operations at the site of the Chernobyl nuclear plant disaster, within the “Chernobyl alienation zone” (тридцятикілометрова зона або зона відчудження). On 25 August 1992 the Cabinet of Ministers adopted Resolution no. 501 on the Procedure for the Issuance of Certificates (“Chernobyl identity cards”) to Victims of the Chernobyl Nuclear Plant Disaster (посвідчення учасника ліквідації наслідків аварії на Чорнобильській АEC). On 31 March 1993 the Plenary Supreme Court (Пленум Верховного Суду України) adopted Resolution no. 5 “On Judicial Practice on the Establishment of Facts that are of Legal Consequence”. According to this resolution, certificates acknowledging a person’s status as a Chernobyl relief worker could be issued on the basis of a court judgment establishing participation of the person concerned in any kind of Chernobyl relief work. In 1993 the applicant applied to the Desniansky District Court of Chernigiv (Деснянський районний суд м. Чернігова, hereafter “the Desniansky Court”) seeking a declaratory judgment, acknowledging the fact that he had been involved in the Chernobyl relief works. In its ruling of 2 December 1993 the Desniansky Court acknowledged the fact that in 1986 the applicant had been engaged for several hours in operations near the Chernobyl nuclear power plant. This decision was mainly based on witness evidence. On 27 December 1993 and on the basis of this ruling, a Chernobyl identity card acknowledging his status as a Chernobyl relief worker was issued to the applicant. It entitled him to special State benefits and social payments. On 8 June 1995 the Cabinet of Ministers amended Resolution no. 501 of 25 August 1992 by adopting Resolution no. 404. By virtue of these amendments, court decisions establishing direct participation in any Chernobyl relief work were removed from the list of grounds upon which a Chernobyl identity card could be issued. In Resolution no. 404, the Cabinet of Ministers further ordered the commissions on disputed issues regarding the determination of the status of persons who assisted in dealing with the consequences of the nuclear power plant disaster (Комісія з спірних питань визначення статусу осіб, які брали участь у ліквідації наслідків аварії на Чорнобильській АЕС, hereafter “the Chernobyl disputes commissions”) of the Ministry for Protection of the Population from the Consequences of the Chernobyl Disaster (Міністерство у справах захисту населення від наслідків аварії на Чорнобильській АЕС, hereafter “the Ministry for Emergencies”) to undertake a case-by-case review of Chernobyl identity cards granted previously on the basis of a judicial ruling. On 10 June 1997, in the context of this review process, the Chernobyl disputes commission annulled the applicant’s Chernobyl identity card, finding that the period during which he had been involved in emergency relief operations (two hours and thirty minutes of work in the alienation zone) was insufficient for the Chernobyl relief worker status. This decision was amenable to an appeal to a court of general jurisdiction. On 25 May 1998 the Plenary Supreme Court amended its Resolution of 31 March 1993 to the effect that courts were no longer competent to establish facts related to entitlement to a Chernobyl identity card. On 15 July 1999 the applicant unsuccessfully challenged the decision to annul his Chernobyl identity card before the Radiansky District Court of Kyiv (Радянський районний суд м. Києва) who found the impugned decision lawful and reasonable. The applicant’s subsequent appeal to the Kyiv City Court (Київський міський суд) was dismissed on 17 November 1999. On 19 January 2001 the applicant filed a request for review of its decision of 2 December 1993 with the Desniansky Court on the ground of new circumstances. He stated that he had learned in November 2000 that his work in 1986 in three villages situated not far from Chernobyl also counted for the calculation of the overall period of relief works. On 18 April 2001 the Desniansky Court granted the applicant’s request, quashed the judgment of 2 December 1993 and reopened the proceedings. The hearing was scheduled for 28 May 2001. By judgment of 6 July 2001 the Desniansky Court established the fact that the applicant had participated in relief works in the alienation zone and had thus been involved in relief works for a period sufficient for eligibility for the Chernobyl relief worker status. As no appeal was brought, this ruling became enforceable on 7 August 2001, whilst it remained possible for a period of one month as from the latter date to file an appeal in cassation with the Supreme Court. On 10 August 2001 and on the basis of the judgment of 6 July 2001, the applicant filed a further request for a Chernobyl identity card with the Desniansky District Council, which informed him on 20 August 2001 that his request had been transmitted to the Department for the Protection of the Population from the Consequences of the Chernobyl Disaster of the Chernigiv Regional State Administration (Управління у справах захисту населення від наслідків Чорнобильської катастрофи Чернігівської обласної державної адміністрації; hereafter “the Department”). On 30 August 2001 the Department refused to issue a Chernobyl identity card to the applicant as, pursuant to the applicable Resolution of the Cabinet of Ministers, a court ruling could not serve as a ground for issuing a card. By letter of 26 September 2001, it further informed the applicant that, if he wished to file a fresh application for a Chernobyl identity card, he should substantiate the period of time during which he had allegedly been involved in relief work in the alienation zone by submitting either a mission order to the alienation zone or a salary slip showing extra payments for having worked in this zone. Although the applicant could have filed an appeal with the civil court against the decision of 30 August 2001, he did not do so. On 18 April 2002 the Supreme Court, acting on a cassation appeal lodged by the Department, quashed the judgment of 6 July 2001 and remitted the case for a fresh consideration, indicating that courts were not competent to establish facts for the purposes of obtaining the status of a Chernobyl relief worker. On 17 June 2002 the Desniansky Court, in the parties’ presence, gave a ruling in which it refused to entertain the applicant’s request to establish the legal fact of his participation in the Chernobyl relief works, holding that it lacked competence in the matter. It pointed out that, for this purpose, a special procedure had been established and that any claim should be substantiated by specific prescribed documents. It further referred to the Resolution of the Plenary Supreme Court. The applicant appealed. On 10 September 2002 the Chernigiv Regional Court of Appeal (Апеляційний суд Чернігівської області), in the applicant’s presence, upheld this decision. It stated, in particular, that specific administrative bodies had been designated by law to determine whether or not a person was entitled to a Chernobyl identity card, and that the courts were not competent to determine such issues. It further pointed out that decisions taken by such an administrative body could be appealed before the courts under the terms of Article 124 of the Constitution. Although this ruling was immediately enforceable, an appeal in cassation lay with the Supreme Court within a one-month time-limit. The applicant did not avail himself of this remedy. Article 124 of the Constitution of Ukraine provides that justice is administered exclusively by the courts. The delegation of the functions of the courts, and also the appropriation of these functions by other bodies or officials is not permitted. The jurisdiction of the courts extends to all legal relations that arise in the State. In accordance with Article 47 of the Law on the Judicial System of 7 February 2002, the Supreme Court is the highest judicial body within the system of courts of general jurisdiction in Ukraine. As prescribed by law, it examines in cassation proceedings decisions taken by lower general jurisdiction courts. Under Article 55 of this law, the Plenary Supreme Court is composed of the President of the Supreme Court, all judges of the Supreme Court, the Presidents of the higher specialised courts and their first deputies. The Plenary Supreme Court provides, inter alia, the courts of general jurisdiction with recommendations and practice directions and supervises the correctness of any recommendation or practice direction issued by higher specialised courts. The Cabinet of Ministers Resolutions nos. 501 and 404, and the text of the Resolution of 31 March 1993 of the Plenary Supreme Court are set out in the Court’s judgment of 9 November 2004 in the case of Svetlana Naumenko v. Ukraine (no. 41984/98, §§ 68, 70 and 71). According to the Plenary Supreme Court’s Resolution no. 15 of 25 May 1998, which amended its previous Resolution no. 5 of 31 March 1995, decisions of special administrative bodies competent to establish legal facts in relation to entitlement to the status of Chernobyl relief worker can be appealed before the first instance civil court and, subsequently, the civil court of cassation. At the material time, these courts had full jurisdiction both as regards the facts and the law. | 0 |
dev | 001-68490 | ENG | SVK | ADMISSIBILITY | 2,005 | KOMANICKY v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Ioan Kornelij Komanický, is a Slovakian national who was born in 1943 and lives in Bardejov. The facts of the case, as submitted by the applicant, may be summarised as follows. On 4 June 2002 the European Court of Human Rights delivered its judgment in application No. 32106/96 filed by the applicant. The case related to the alleged unfairness of domestic proceedings concerning the lawfulness of the applicant's dismissal from a job in which the final decision had been given on 6 March 1996. In its judgment the Court found that (i) there had been a violation of Article 6 § 1 of the Convention in respect of the procedure followed by the national courts when examining the applicant's action, (ii) that it was not necessary to examine separately the applicant's complaint under Article 6 § 1 of the Convention that the dismissal of his action had been arbitrary and (iii) that it was not necessary to rule on the complaint under Article 13 of the Convention. The Court obliged the respondent State to pay the applicant EUR 1,000 in respect of non-pecuniary damage and EUR 100 in respect of costs and expenses. The Court's judgment became final on 4 September 2002. Subsequently the respondent Government paid the sum due to the applicant. The Committee of Ministers of the Council of Europe has not yet concluded its examination of issues relating to the execution of that judgment. On 28 October 2002 the applicant filed a complaint under Article 127 of the Constitution. He claimed that the Constitutional Court should quash the ordinary courts' decisions relating to his dismissal from a job as the Court had found the relevant proceedings to be contrary to Article 6 § 1 of the Convention. Subsequently the applicant also requested that his dismissal should be declared void and that a job corresponding to his previous position should be offered to him. He also claimed 200,000 Slovakian korunas as just satisfaction. On 12 March 2003 the Constitutional Court rejected the complaint for lack of jurisdiction. It held that the Constitutional Court Act contained no provision permitting to examine the legal consequences of a judgment delivered by the European Court of Human Rights concluding that a person's rights under the Convention had been violated by Slovakian authorities or to re-open the relevant domestic proceedings on the basis of such a finding. In the absence of any legal basis, a complaint under Article 127 of the Constitution could not serve as a means of ensuring re-examination of a case in which a final decision had been given notwithstanding the European Court's finding that the domestic courts had in such proceedings violated the human rights of the person concerned. The decision was taken in camera and it indicated that it was adopted by the First Chamber of the Constitutional Court. It was signed by the president of that chamber. Article 127 of the Constitution, as in force since 1 January 2002, reads as follows: “1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person's rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ... Under Article 228(1), a party to civil proceedings can challenge a final decision by means of a request for re-opening of the proceedings where (i) facts, decisions or proofs exist which, for reasons beyond his or her control, the party was unable to use in the original proceedings provided that they can bring about a more favourable decision for such a party, (ii) evidence can be taken which could not be taken in the original proceedings provided that this can result in a more favourable decision for the party concerned and (iii) the decision against a party was given in the context of a criminal offence committed by a judge. Article 230(1) provides that a request for re-opening of proceedings is to be filed within 3 months from the moment when the party concerned learned or could have availed himself/herself of the reason for the request. Under paragraphs 2 and 3 of Article 230, a request for re-opening of proceedings cannot be filed more than 3 years from the final effect of the decision in question with the exception of cases where a civil court granted a right to a person on the basis of a criminal court's judgment and where such a judgment was subsequently quashed in accordance with the criminal law. | 0 |
dev | 001-77072 | ENG | RUS | CHAMBER | 2,006 | CASE OF PRISYAZHNIKOVA AND DOLGOPOLOV v. RUSSIA | 3 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial awards;Non-pecuniary damage - financial awards | Christos Rozakis | 4. The applicants were born 1966 and 1934 respectively, and live in Neryungri in the Sakha (Yakutiya) Republic of the Russian Federation. 5. The applicants brought a civil action against the Government, seeking to enforce State promissory notes for purchase of a Russian-made car or to recover the monetary value thereof. 6. On 17 March 2003 the Ust-Yanskiy District Court of the Sakha (Yakutiya) Republic found for the applicants and awarded 112,441.80 Russian roubles (“RUR”) to the first applicant and RUR 107,327.82 to the second applicant against the Ministry of Finance. 7. On 23 April 2003 the Supreme Court of the Sakha (Yakutiya) Republic (hereinafter – “the Supreme Court”) rejected an appeal by the Ministry of Finance and upheld the judgment. 8. The enforcement proceedings were opened on 15 May 2003, but the judgment was not enforced. 9. By interim decision of 11 August 2003, Judge R. of the Supreme Court of the Sakha (Yakutiya) Republic refused a request by the Ministry of Finance for obtaining the case file for the purpose of initiating supervisory-review proceedings. The Ministry had claimed that the courts had incorrectly applied the substantive law. 10. By letter of 20 October 2003, the Supreme Court's President rejected a renewed request by the Ministry of Finance for launching the supervisory-review proceedings. 11. On 9 June 2004 the Ministry of Finance introduced a new application for supervisory review of the judgments in the applicants' favour, founded on the same grounds as before. 12. On 30 September 2004 the Supreme Court's President issued an interim decision on remitting the applicants' cases for examination on the merits to the Supreme Court's Presidium by way of supervisory review. In the procedural part, the interim decision of 11 August 2003, but not the letter of 20 October 2003, was mentioned. 13. On 14 October 2004 the Presidium of the Supreme Court of the Sakha (Yakutiya) Republic, in a five-judge formation presided over by the Supreme Court's President, found that the lower courts had not taken into account certain provisions relating to reimbursement of State promissory notes. On that ground, relying on Articles 388 and 390 of the Code of Civil Procedure, the Presidium quashed the judgments in the applicants' favour and dismissed their claim as having no basis in the domestic law. 14. A judicial decision becomes legally binding after the appeal court has examined the matter (Article 209 § 1). A judicial decision must be enforced once it became legally binding, unless the law provides for its immediate enforcement (Article 210). 15. The relevant provisions governing the supervisory-review proceedings read as follows: “1. Courts may issue judicial decisions in the form of judicial orders, judgments and interim decisions...” “1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions. 2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...” “An application for supervisory review must contain: (1) the name of the court to which it is addressed; ... (4) a reference to the first-instance, appeal or cassation courts that examined the case and a summary of their decisions; (5) a reference to the judgment or decision which is being appealed against...” “2. Having examined an application for supervisory review, the judge issues an interim decision on – (1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision; (2) refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision. ... 6. The President of the regional Supreme Court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.” “2. Having examined the case file obtained by the supervisory-review court, the judge issues an interim decision on – – refusing to remit the case for examination on the merits by the supervisory-review court; – remitting the case for examination of the application for supervisory review on the merits by the supervisory-review court.” “2. The President of the regional Supreme Court... may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory-review court.” “1. A judicial decision on remitting the case for examination on the merits by a supervisory-review court must contain: (7) a reasoned description of the grounds for remitting the case for examination on the merits...” “1. Having examined the case by way of supervisory review, the court may ... (5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.” 16. Once instituted, enforcement proceedings must be completed within two months upon receipt of the writ of execution by the bailiff (Section 13). | 1 |
dev | 001-22336 | ENG | CHE | ADMISSIBILITY | 2,002 | MIR v. SWITZERLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Zakria Sadiq Mir, is a citizen of the United Kingdom born in 1937. A lawyer and banker by profession, he resides in Zurich in Switzerland. After marrying in 1968 the applicant and his then wife moved to the United Kingdom where they took up residence with their two children, born in 1967 and 1970 respectively. In 1972 they moved to Switzerland, although from 1975-1978 the applicant resided in the United States and the United Kingdom. He then returned to Switzerland where he obtained annual residence permits (Aufenthaltsbewilligung). Meanwhile, having been separated from his wife since 1975, their marriage was dissolved in 1977. Subsequently, the applicant was frequently unemployed and intermittently depended on social assistance. In 1978, and again in 1980, 1983, 1984 and 1990, the Police Directorate (Polizeidirektion) of the Canton of Zurich refused the applicant’s request for a long-term residence authorisation (Niederlassungsbewilligung) in view of his continuing tax and alimony debts and his dependence on public welfare. In 1985 the applicant was in fact warned by the Government (Regierungsrat) of the Canton of Zurich that he would be expelled from Switzerland if he failed to comply with his alimony payments and if he continued to be a burden on the social assistance fund. In 1994 the applicant’s residence permit was renewed until 1995. In 1996 the Aliens’ Police requested the applicant to regularise his status in Switzerland. The applicant’s further request for a domicile authorisation was refused by the Police Directorate on 13 November 1996, which, furthermore, ordered him to leave the Canton of Zurich by 31 January 1997. In its decision, the Police Directorate noted, inter alia, that the applicant was unemployed and had not tried to find employment; he had debts amounting to 53,000 Swiss francs (CHF), and the social assistance had paid out over CHF 140,000 to him. The applicant’s appeal against this decision was dismissed by the Government of the Canton of Zurich on 29 April 1998. On 27 November 1998 the Federal Court (Bundesgericht) rejected the applicant’s administrative law appeal (Verwaltungsgerichtsbeschwerde). In its judgment, the court found that the applicant could not rely on Article 8 of the Convention as he was no longer married and his children were adults. Moreover, the applicant could not claim to have any particular ties with Switzerland in view of his unemployment, his debts, and his dependency on social assistance. Warnings had also not been heeded. On 17 December 1998 the Aliens’ Police of the Canton of Zurich ordered the applicant to leave Switzerland by 28 February 1999. On 22 December 1998 the applicant filed with the Federal Court a public law appeal (staatsrechtliche Bescherde) against the decision of 29 April 1998. When informed by the Federal Court that he had missed the time-limit for appealing, the applicant insisted on pursuing his appeal, pointing out that the decision of 29 April 1998 had not contained a statement as to possible remedies available to him. On 19 January 1999 the Federal Court declared the applicant’s public law appeal inadmissible. On 1 October 1999 the applicant was brought by the police to Zurich airport where he boarded a plane to London. On 10 November 1999 the Zurich District Court (Bezirksgericht) fined the applicant CHF 40 for failing to comply with the order to leave Switzerland by 28 February 1999. On 13 November 1999 the applicant married a Swiss citizen and on the same day moved to Zurich. It appears that he subsequently obtained an annual residence permit. | 0 |
dev | 001-58270 | ENG | TUR | GRANDCHAMBER | 1,999 | CASE OF CEYLAN v. TURKEY | 1 | Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Luzius Wildhaber;Paul Mahoney | 8. The applicant, who was at the time the president of the petroleum workers’ union (Petrol-İş Sendikası), wrote an article entitled “The time has come for the workers to speak out – tomorrow it will be too late” (“Söz işçinin, yarın çok geç olacaktır”) in the 21-28 July 1991 issue of Yeni Ülke (“New Land”), a weekly newspaper published in Istanbul. The article read: “The steadily intensifying State terrorism in eastern and south-eastern Anatolia is nothing other than a perfect reflection of the imperialist-controlled policies being applied to the Kurdish people on the international plane. In order to destroy the Kurdish movement in Iraq, US imperialism first stirred up the Kurds against Saddam’s regime and then set that regime on them, having left it strong enough to crush their movement. As a result, the whole world has been confronted with the heartbreaking sight of tens of thousands of Kurds dying of hunger, exposure and epidemics, tens of thousands more wiped out by the Iraqi army and hundreds of thousands forced to leave their homes and their country. After shedding crocodile tears over these scenes, which they themselves had created, the imperialists are now sitting back with their arms folded, for the whole world to see, as genocide in Turkey continues to intensify. The constant increase in the south-east in the numbers of persons executed without trial, of mass arrests and of persons disappearing while in detention, particularly since the passing of the new Prevention of Terrorism Act, is a harbinger of difficult times ahead. The recent murder in police custody of the president of the Diyarbakır branch of the HEP [People’s Labour Party], probably by anti-guerrilla forces, and the further killings (three according to the police, ten according to local people) at his funeral (the police opened fire on the crowd, injuring hundreds, and took over a thousand people into custody) are the latest examples of State terrorism. Anyone who examines the Prevention of Terrorism Act closely can easily see that it is aimed at crushing not only the struggle of the Kurdish people, but the struggle of the whole working class and proletariat for subsistence, for freedom and for democracy. Consequently, not only the Kurdish people but the whole of our proletariat must stand up against these laws and the ‘State terrorism’ currently being practised. From the trade-union point of view, too, the problem is too important and too vital to be dealt with simply in a few interviews and declarations. The political authorities and the forces of monopolistic capital use a few vague concepts to enable every action to be presented as a terrorist offence and every organisation as a terrorist group. When they feel the time is right, they will not hesitate to turn that weapon against the working class. As we have always said, the Turkish working class and its economic and democratic organisations must bring not only their economic, but also their political and democratic demands to the fore and play an effective role in this struggle. Despite all the hurdles erected by the law, we must unite in action with the democratic mass organisations, political parties and every individual or body with which it is possible to work; we must oppose the bloody massacres and State terrorism, using all our powers of organisation and coordination. If we fail to do so, the circles of monopolistic capital, which, under imperialist orders, aim to gag and suffocate the Kurdish people, will inevitably turn on the working class and proletariat. In saying ‘tomorrow it will be too late’, we are calling on all our people and all the forces of democracy to take an active part in this struggle.” 9. On 16 September 1991, the public prosecutor at the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) indicted the applicant on charges of non-public incitement to hatred and hostility contrary to Article 312 §§ 1 and 2 of the Turkish Criminal Code (see paragraphs 15-16 below). 10. In the proceedings in the Istanbul National Security Court, the applicant denied the charges. He submitted that the article was about human rights violations in the south-east of Turkey and maintained that he had not intended to promote separatism or to sow discord or strife amongst the population. According to him, in a democratic society, any subject should be able to be discussed without restriction. He also argued that it was his responsibility as a trade-union leader to express his opinion on the problem of democracy in south-east Turkey. 11. In a judgment of 3 May 1993, the National Security Court found the applicant guilty of an offence under Article 312 §§ 2 and 3 of the Turkish Criminal Code and sentenced him to one year and eight months’ imprisonment, plus a fine of 100,000 Turkish liras. The court held that in his article the applicant had alleged that the Kurdish people were being oppressed, massacred and silenced in Turkey. In particular, the court interpreted parts of the fourth and thirteenth sentences of the article as meaning, respectively, that “... genocide [was] being carried out against the Kurds in Turkey ...” and that an attempt was being made to “... gag and suffocate the Kurdish people”. It reached the conclusion that the applicant had incited the population to hatred and hostility by making distinctions based on ethnic or regional origin or social class. 12. The applicant appealed to the Court of Cassation, contesting, inter alia, the National Security Court’s interpretation of his article and arguing that it should have obtained an expert opinion as to its meaning. He also submitted that he should have been given only a suspended sentence. 13. On 14 December 1993 the Court of Cassation dismissed the appeal, upholding the National Security Court’s assessment of the evidence and its reasons for rejecting the applicant’s defence. 14. The applicant served his sentence in full. As a consequence of his conviction, he also lost his office as president of the petrol workers’ union as well as certain political and civil rights (see paragraph 17 below). 15. Article 312 of the Criminal Code provides: “Non-public incitement to commit an offence A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras. A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half. The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.” 16. Article 311 § 2 of the Criminal Code provides: “Public incitement to commit an offence ... Where incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled …” 17. The conviction of a person pursuant to Article 312 § 2 entails further consequences, particularly with regard to the exercise of certain activities governed by special legislation. For example, persons convicted of an offence under that Article may not found associations (Law no. 2908, section 4(2)(b)) or trade unions, nor may they be members of the executive committee of a trade union (Law no. 2929, section 5). They are also forbidden to found or join political parties (Law no. 2820, section 11(5)) and may not stand for election to Parliament (Law no. 2839, section 11(f3)). 18. The Government supplied copies of six decisions given by the prosecutor attached to the Istanbul National Security Court withdrawing charges. One of the cases concerned a person suspected of non-public incitement, contrary to Article 312 of the Criminal Code, to hatred or hostility based in particular on a distinction between religions. The other five concerned persons suspected of making separatist propaganda aimed at undermining the indivisible unity of the State contrary to section 8 of the Prevention of Terrorism Act (Law no. 3713). In three of those cases, in which the offences had been committed by means of publications, one of the reasons given for the prosecutor’s decision was that some of the elements of the offence could not be made out. Furthermore, the Government submitted a number of National Security Court judgments as examples of cases in which defendants accused of the offences referred to above had been found not guilty. The judgments in question are: for 1996, no. 428 of 19 November and no. 519 of 27 December; for 1997, no. 33 of 6 March, no. 102 of 3 June, no. 527 of 17 October, no. 541 of 24 October and no. 606 of 23 December; and for 1998, no. 8 of 21 January, no. 14 of 3 February, no. 56 of 19 March, no. 87 of 21 April and no. 133 of 17 June. The judgments acquitting authors of works dealing with the Kurdish problem were based, inter alia, on the absence of “propaganda”, one element of the offence. | 1 |
dev | 001-5588 | ENG | DEU | ADMISSIBILITY | 2,000 | SCHMELZER v. GERMANY | 4 | Inadmissible | Antonio Pastor Ridruejo | The applicant is a German national, born in 1925 and living in Heidesheim (Germany). The respondent Government are represented by their Agent Mr K. Stoltenberg, Ministerialdirigent, of the Federal Ministry of Justice. On 31 January 1994 the Bingen District Court (Amtsgericht) convicted the applicant, a recidivist offender, of having driven a motor vehicle without a driving licence and, having regard to his preceding conviction of such offences, it fixed a global sentence of one year’s imprisonment. The execution of the sentence was suspended until 3 May 1998. The court further ordered that the applicant should not be issued a driving licence before 3 November 1995. The applicant’s appeal was dismissed by the Mainz Regional Court (Landgericht) on 14 November 1994. On 20 November 1994 the applicant left Heidesheim and moved to the Netherlands, where he officially took residence in Brummen. On 14 June 1995 he was issued a Dutch driving licence. On 1 July 1995 he moved back to Germany and took residence at his previous address in Heidesheim. On 16 March 1997 the applicant was stopped by the police when driving a car. Having only the Dutch driving licence, criminal proceedings were commenced against the applicant on the suspicion of having driven a motor vehicle without a valid driving licence. In these proceedings, he was assisted by defence counsel. By indictment of 30 June 1997, the Mainz Public Prosecutor’s Office (Staatsanwaltschaft) charged the applicant of having driven a motor vehicle without a valid driving licence. It further requested the competent Bingen District Court to seize the car in question as there were strong reasons to assume that it was liable to forfeiture and to consider the question of a resale (Notveräusserung). On 16 July 1997 the Bingen District Court issued a warrant to search the applicant’s premises and his cars and to seize the applicant’s car with the registration number MZ-E6605. The court found that there was a strong suspicion that on 16 March 1997 the applicant had driven this car without a valid driving licence. In this respect the court considered that, following his conviction of driving without licence in 1994, he should not have been issued a new one before November 1997. When stopped, he had shown a Dutch driving licence, passed in the Netherlands in June 1995. This licence was, according to the court, not valid in Germany as, at the relevant time, though not having been registered in Heidesheim between 20 November 1974 and 1 July 1975, he had in fact been living there. The car was to be seized as object used when committing the offence, liable to forfeiture on account of his recidivism. The measures were carried out on 17 July 1997. On 25 September 1997 the Public Prosecutor’s Office informed the applicant that, taking into account the costs of storage and the value of the car, its resale was envisaged. The applicant’s representative objected on 17 October 1997. On 2 December 1997 the Bingen District Court committed the applicant for trial. Subsequently, it ordered an opinion as to the value of the car. On 23 December 1997 the District Court ordered the sale of the seized car under section 111 lit. l (1) of the Code of Criminal Procedure (Strafprozessordnung), as the costs of storage by far exceeded its value. In this respect, the court had regard to the opinion of a technical expert according to which the remaining value was zero, whereas at the relevant time the costs amounted to more than 800 DEM and were increasing at a daily rate of DM 5. On 5 January 1998, upon the applicant’s objection, the District Court suspended the resale. On 13 January 1998 the Mainz Regional Court (Landgericht) dismissed the applicant’s appeal, confirming the District’s Court reasoning. It added that in assessing the value of the car, objective criteria were relevant and not the applicant’s subjective impression. On 6 February 1998 the trial opened before the Bingen District Court. Having heard the applicant, an expert and several witnesses, the competent judge proposed to adjourn the proceedings in order to conduct further investigations. The same day, a decision to stay the proceedings provisionally, pursuant to section 154 of the Code of Criminal Procedure, was issued. On 9 February 1998 the District Court ordered the seizure of the applicant’s bank statements to investigate whether he had stayed for a longer period in the Netherlands and issued checks there. The same day, the court ordered that the resale of the car be continued, as the suspicion against the applicant had not been dissipated at the hearing of 6 February 1998. The applicant’s assertion that he had repeatedly returned to Heidesheim in order to fetch his mail was not convincing. On 11 February 1998 the bailiff was instructed to proceed to the resale. Upon the applicant’s objection, the resale procedure was suspended pending the outcome of these proceedings. On 2 March 1998 the Mainz Regional Court dismissed the applicant’s appeal against the decision of 9 February 1998. The Regional Court confirmed the reasons advanced by the District Court. It also found that the resale could be continued irrespective of the provisional discontinuation of the trial. It considered that the reference to section 154 had been erroneous. Section 154 provided that, upon the prosecutor’s request, proceedings could be provisionally stayed where the penalty to be expected in the case of a conviction was almost negligible in comparison with a penalty for another offence. However, the Prosecutor’s Office had not made such a request. Rather, the correct interpretation of the decision at issue was that the District Court had adjourned the proceedings sine die for the purpose of further investigations, which it had ordered the same day. The car was sold on 20 March 1998 for 100 DEM, paid to the Justizkasse. On 27 March 1998 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde). On 18 May 1998, in the context of another set of criminal proceedings pending before the Mainz Regional Court, the applicant was sentenced to two years and six months’ imprisonment. He was found guilty of, inter alia, several offences in connection with having illegally run a dump for dangerous waste, offences under the Firearms Act and twelve counts of driving without licence, committed between November 1994 and April 1996. On 9 July 1998 the Mainz Public Prosecutor’s Office, referring to the applicant’s conviction of 18 May 1998, requested that the proceedings before the Bingen District Court be provisionally stayed pursuant to section 154 § 2 of the Code of Criminal Procedure. On 15 July 1998 the proceedings were provisionally stayed. In the meantime, on 21 April 1998, the Mainz-Bingen District Administrative Authority (Kreisverwaltung), having regard to the Dutch driving licence obtained in June 1995, issued the applicant a German driving licence. According to section 21(1) lit. 1 of the Road Traffic Act (Strassen-verkehrsgesetz), driving a motor vehicle without the requisite licence is a criminal offence punishable with imprisonment not exceeding one year or with a fine. In such cases, the motor vehicle to which the offence relates may be confiscated if the perpetrator drove the vehicle although, inter alia, his driving licence had been withdrawn (section 21(3)(1)). Driving a motor vehicle with a foreign driving licence is governed by section 4 of the Regulations on International Road Traffic (Verordnung über den internationalen Kraftfahrverkehr). According to its paragraph 1 lit. b, a person with a driving licence issued in a Member State of the European Communities is entitled to drive a motor vehicle in Germany if not permanently resident there. According to paragraph 2 lit. a are excepted from this general rule persons who had their permanent residence in Germany at the time when the foreign licence was issued. Persons have their permanent residence where they effectively live for a period of at least 185 days. Section 74 of the Code of Criminal Procedure, as in force at the material time, provided for the confiscation of objects generated by or used or intended for use in the commission of preparation of a criminal offence. Such confiscation was only permissible if, inter alia, the perpetrator owned the object in question (section 74(1) lit. 1). According to section 74b of the Code of Criminal Procedure, as in force at the material time, confiscation of an object under, inter alia, section 74(1) lit.1 should not be ordered if disproportionate to the importance of the offence in question. Confiscation may also be ordered in cases where, for factual reasons, no specific person can be prosecuted or convicted or where the court discontinues the proceedings under provisions granting the prosecutor’s office or the court discretion for doing so (section 76 a of the Code of Criminal Procedure). According to section 111 b, as in force at the material time, objects may be seized pursuant to section 111c, if there are compelling reasons to assume that the conditions for their forfeiture or confiscation are met. Section 111 c provides that the confiscation of movable assets is effected in taking them into public custody or indicating the seizure by seal or in some other way (section 111 c(1)); that objects so seized may be resold before a final judgment inter alia if the cost of storage is excessively expensive or difficult, the proceeds being substituted for the object in question (section 111 l (1)). Section 154 of the Code of Criminal Procedure provides that the public prosecutor may decide not to prosecute where the penalty to be expected if a conviction is secured is almost negligible in comparison with a penalty imposed on the defendant - or which he must expect to be imposed - for another offence (section 154(1)). Once the proceedings have been instituted, the court may provisionally stay them at any stage on an application by the public prosecutor (section 154(2)). | 0 |
dev | 001-58218 | ENG | FRA | CHAMBER | 1,998 | CASE OF SOUMARE v. FRANCE | 3 | Preliminary objection joined to merits (non-exhaustion of domestic remedies);Violation of Art. 5-4;Damage - finding of violation sufficient;Costs and expenses - claim dismissed | R. Pekkanen | 6. Mr Abdourahim Soumare, a Malian national, had no fixed abode in France when he was convicted. He now lives in Mali. 7. He was arrested in Paris and remanded in custody on 22 January 1988 in connection with a heroin-trafficking operation involving five other people. He was charged with illegally importing controlled substances (852 grams of heroin) and of conspiring with a co-accused to import drugs and of being his accomplice. 8. On 10 November 1989 Bobigny Criminal Court sentenced Mr Soumare to ten years' imprisonment and made an order permanently excluding him from French territory. It also ordered confiscation of the drugs that had been seized and imposed a fine of 2,726,000 French francs (FRF) jointly on the applicant and the other convicted defendants in lieu of confiscation and ordered them, pursuant to Article 414 of the Customs Code (“CC”), to pay a like amount, equal to the value of the unlawfully imported substances, to the customs authorities. The applicant’s joint liability was limited to FRF 1,504,000. Lastly, the court ordered Mr Soumare’s continued detention pursuant to Article 388 CC (see paragraph 22 below), for a period not exceeding the maximum period for imprisonment in default – which, under Article L. 627-6 of the Public Health Code (“PHC” – see paragraph 21 below) was two years –, until the customs’ penalties had been paid. 9. On 18 May 1990, on an appeal by Mr Soumare and a cross-appeal by the prosecution, the Paris Court of Appeal upheld both the applicant's conviction and sentence and the orders made in favour of the customs authorities. The applicant's appeal to the Court of Cassation was dismissed on 10 June 1991. 10. On 13 December 1991 the applicant applied to the Ministry of Justice to be transferred to Mali under the Franco-Malian Treaty on the Transfer of Sentenced Persons. On 30 June 1992 the Ministry rejected the application on the ground that the customs fine had not been paid. It added that the application could be reconsidered if all or part of the sum was paid, and that to that end the applicant could, if he so wished, contact the customs authorities with a view to a settlement. 11. On several occasions Mr Soumare, who was held in Toul detention centre, sought a “settlement with the customs authorities”. On 30 June 1992 he applied for the order for imprisonment in default to be discharged offering to pay FRF 6,500. Further applications, in which he offered to pay FRF 7,000 and then FRF 9,000, were unsuccessful as the Director of the Customs Information and Inquiries National Division had fixed the sum required for discharge of the order at FRF 300,000. 12. In a letter of 13 June 1994, Mr Soumare renewed his offer of FRF 9,000 while at the same time asking the customs authorities to advise him urgently what they would consider a “reasonable offer” as his prison sentence for the criminal offences was due to end on 21 June 1994. 13. On 10 August 1994 the customs authorities replied that his offers were too low compared with the penalties imposed, that his tax return showing a nil liability to income tax could not be taken into account as profits derived from drug trafficking were necessarily undeclared and, lastly, that the order for his imprisonment in default would not be discharged until the sum of FRF 300,000, which had previously been indicated, had been paid. That decision would be reviewed once he had served six months’ imprisonment in default. Having regard to the position taken by the customs authorities, the Ministry of Justice also rejected further requests by the applicant to be transferred to Mali. 14. In the meantime the applicant had, on 8 July 1992, lodged an application with the President of the Nancy tribunal de grande instance to have the order for his imprisonment in default discharged as he was insolvent, insolvency being a ground for not enforcing such orders (Article 752 of the Code of Criminal Procedure – “CCP” – see paragraph 20 below). The President rejected that application on 23 July 1992 on the ground that it was devoid of purpose, since the applicant was still detained by virtue of the criminal conviction and sentence, “a sentence unconnected with imprisonment in default”. 15. On 11 August 1994 Mr Soumare renewed his application to the President of the Nancy tribunal de grande instance and enclosed the letter from the customs authorities (see paragraph 13 above) and a certificate attesting that he had no income-tax liability. The President was asked to hear the application in his capacity as urgent applications judge, under Article 756 CCP (see paragraph 20 below). 16. In an order made in that capacity on 23 August 1994 the President asked the public prosecutor’s office, pursuant to the first paragraph of Article 710 and to Article 711 CCP (see paragraph 20 below), to refer the difficulty to the Paris Court of Appeal, which had sentenced the applicant. The order read as follows: “... Mr Soumare asserted that he was insolvent and produced a certificate attesting that he has no liability for ITI (income tax on individuals) for 1993. The urgent applications judge has jurisdiction to order a stay of execution of an order for imprisonment in default if the committal warrant is not prima facie valid. The prima facie validity of a warrant is not in issue if it was issued by a court in a decision that is final... Mr Soumare produced a certificate attesting that he has no liability for ITI for 1993. That document does not by itself suffice to show that he is insolvent or justify discharging the order for imprisonment in default. In these circumstances it is appropriate to ask the public prosecutor’s office to refer the difficulty to the Paris Court of Appeal, which passed the sentence.” 17. At a hearing on 25 November 1994 the Paris Court of Appeal heard the applicant, the lawyer officially assigned to represent him and the customs authorities; the latter submitted that Articles 752 and 756 CCP were not applicable in the case. On 9 December 1994 the Paris Court of Appeal dismissed the application for discharge, holding that: “The Court of Appeal considers that the Criminal Court’s decision to prolong the applicant's detention under Article 388 of the Customs Code is not covered by the ordinary criminal-law procedure laid down in Articles 749 et seq. of the Code of Criminal Procedure giving jurisdiction to the urgent applications judge (Court of Cassation, 2nd Civil Division, 30 June 1993). Consequently, the Court of Appeal holds that Soumare’s application for the order for his imprisonment in default to be discharged is admissible, as it concerns an interlocutory issue over the execution of a sentence, but is unfounded in law.” 18. The applicant was released on 16 January 1995 after paying the sum of FRF 10,000 to the customs authorities. 19. Imprisonment in default is an invention of Roman law originally designed to guarantee execution of a court order to pay a sum of money either to the State or to a private individual. It consists in detaining the recalcitrant debtor in a short-stay prison, where he is not obliged to work. It is not an alternative to payment, as the person against whom the order is made remains liable to pay the sum due (Article 762 CCP – see paragraph 20 below), but it may not be imposed a second time for the same debt. Its scope has gradually been whittled away since the nineteenth century, when it was seen as a real means of punishment available to creditors, who could apply to have insolvent civil debtors committed to prison. It was permanently abolished in civil and commercial proceedings by the Law of 22 July 1867, surviving in respect of debts to the Treasury only (Article 749 CCP – see paragraph 20 below), and the rules governing its enforcement have become more lenient (exempting insolvent individuals from imprisonment in default was the most important feature of a reform introduced on 30 December 1985 by Law no. 85-1407, Article 752 CCP – see paragraph 20 below). Imprisonment in default now serves to guarantee recovery of debts to the State, such as pecuniary penalties – with the exception of those imposed for political or press offences – or any other payment to the Treasury not in the nature of civil damages. It is governed in many respects by the same principles as those governing execution of sentence: it cannot be executed once the time-limit for enforcing sentence has expired. In extradition cases (Law of 10 March 1927) and for the purposes of rehabilitation (Articles 784 and 788 CCP) its execution is deemed the equivalent of payment. The criminal-law principles that sentences must be adapted to the individual and that consecutive sentences must not be imposed apply. In spite of these aspects, imprisonment in default is regarded not as a form of imprisonment in lieu of payment but as a guarantee of enforcement directed at the debtor's person. On 4 January 1995, on an appeal on points of law by an offender sentenced to pay three fines of FRF 300 each for contravening a département health regulation on manure tipping, the Court of Cassation pointed out: “Imprisonment in default is not a penalty. It is a means of enforcement automatically attached to any pecuniary order made by a criminal court and satisfies the requirements of both Article 5 [§ 1] (b) of the Convention ... and Article 2 of Protocol No. 4.” After the judgment in the case of Jamil v. France of 8 June 1995 (Series A no. 317-B, p. 28, § 32), in which the Court held that imprisonment in default was a “penalty” within the meaning of Article 7 § 1 of the Convention, the Criminal Division of the Court of Cassation held that in tax cases imprisonment in default is a “punitive” measure and may be ordered only if there has been a conviction for a criminal offence (29 February 1996, Bulletin criminel (Bull. crim.) no. 100). When a criminal court orders imprisonment in default, it does not have power to vary its duration, which is laid down by law (Articles 749 and 750 CCP – see paragraph 20 below). In certain circumstances, as an exception to the ordinary law, the customs authorities can obtain enforcement of a warrant of committal for default before it becomes final (Article 388 CC). 20. The Code of Criminal Procedure provides as follows: “Any interlocutory issue relating to the execution of a sentence shall be referred to the court which passed sentence, which may also rectify any purely clerical errors in its decisions.” “Where such an issue is referred by the public prosecutor or the convicted person, the court shall rule in chambers after hearing submissions from the public prosecutor’s office, counsel for the convicted person (if counsel so requests) and, where appropriate, the convicted person himself, subject to the provisions of Article 712.” “Where an order to pay a fine or court costs or to pay the Treasury any other sum not in the nature of civil damages is made in respect of an offence which is not political and does not attract a sentence of life imprisonment, the length of imprisonment in default applicable in the event of failure to comply shall be as laid down in Article 750. Where appropriate, the length shall be determined according to the total amount of debt outstanding.” “The length of imprisonment in default shall be: (1) five days, where the fine and the sums whose payment has been ordered amount to at least 1,000 francs, but do not exceed 3,000 francs; (2) ten days, where they amount to more than 3,000 francs, but not more than 10,000 francs; (3) twenty days, where they amount to more than 10,000 francs, but not more than 20,000 francs; (4) one month, where they amount to more than 20,000 francs, but not more than 40,000 francs; (5) two months, where they amount to more than 40,000 francs, but not more than 80,000 francs; (6) four months, where they exceed 80,000 francs.” “Imprisonment in default may not be enforced in respect of convicted persons who prove that they are insolvent by producing: (1) a certificate from their local tax-collector, stating that they are not liable to income tax; or (2) a certificate from their local mayor or police superintendent. The fact that the convicted person is in fact solvent may be proved by evidence in any form.” “If, when in prison, the debtor wishes to lodge an urgent application concerning his imprisonment in default, he shall immediately be brought before the President of the tribunal de grande instance for the place where he was arrested, who shall rule on the application as a matter of urgency, or, if appropriate, refer the case back to the court which shall rule on the application in accordance with the procedure and subject to the conditions laid down in Articles 710 and 711.” “A convicted person who has been imprisoned in default of payment shall not thereby be released from the payment obligation.” 21. Article L. 627-6, second paragraph, of the Public Health Code provides: “As an exception to the provisions of Article 750 of the Code of Criminal Procedure, the length of imprisonment in default shall be two years where the fine and any other pecuniary penalties imposed for an offence mentioned in the above paragraph [breaches of provisions of statutory instruments concerning poisonous substances or plants classified as dangerous drugs] or for related customs offences exceed F 500,000.” Article L. 627-6 was repealed by Law no. 92-1336 of 16 December 1992, known as “the transitional law”, on the entry into force of the new Criminal Code and the amendment of certain provisions of criminal law and criminal procedure made necessary by its commencement. It was replaced by Article 706-31 CCP, which came into force on 1 March 1994 and was amended by Law no. 95-125 of 8 February 1995. Article 706-31 provides: “Prosecution for the serious crimes (crimes) defined in Article 706-26 shall be subject to limitation after thirty years. Sentences passed on conviction for one of these offences shall lapse by limitation after thirty years from the date on which the conviction became final. Prosecution for the other major offences (délits) defined in Article 706-26 shall be subject to limitation after twenty years. Sentences passed on conviction for any of these offences shall lapse by limitation after twenty years from the date on which the conviction became final. As an exception to the provisions of Article 750, the length of imprisonment in default shall be two years where fines and any other pecuniary penalties imposed for any of the offences mentioned in the preceding paragraph or for the related customs offences exceed F 500,000.” 22. The following provisions of the Customs Code are relevant in the present case: “1. Judgments and decisions in customs cases may be executed by any means provided for by law. 2. Judgments and decisions by which persons are convicted of offences against customs legislation shall also be enforceable by imprisonment in default...” “A person convicted of a customs offence or an offence relating to indirect taxation may, where the court makes an express order to that effect, be kept in detention, even if an ordinary appeal or an appeal on points of law has been lodged, until he has paid the fiscal penalties imposed on him; save in the case of drug offences, any period of detention served on that account following conviction shall be deducted from the period of imprisonment in default ordered by the court and may not exceed the minimum period laid down in the Code of Criminal Procedure for failure to comply with an order to pay a sum equal to the fiscal penalties imposed.” 23. The remedy available to a person who seeks, inter alia on the ground of his insolvency, to challenge an order for his imprisonment in default, is an application to the urgent applications judge under Article 756 CCP. If there is an arguable issue over execution of the order, the urgent applications judge refers the case to the trial or appellate court which made the order (see Article 710, first paragraph, CCP). 24. The issue of the applicability of Article 756 and, therefore, of the ordinary procedure to cases of imprisonment in default of payment to the customs authorities has given rise to conflicting case-law (see paragraph 25 below). In its decision of 9 December 1994 in the instant case, the Court of Appeal held that the ordinary courts have no jurisdiction to review orders for imprisonment in default in customs cases (see, to the same effect, the judgment of the Fort-de-France Court of Appeal of 6 December 1993 – which was however set aside by the Criminal Division of the Court of Cassation on 26 October 1995; and the order of the urgent applications judge of the Bayonne tribunal de grande instance of 27 January 1993). In so doing, it referred to a judgment of the Second Civil Division of the Court of Cassation (Gilborson, 30 June 1993), in which it was held: “... The trial court's decision to prolong the applicant's detention, made under Article 388 of the Customs Code, is not covered by the ordinary criminal-law procedure provided for in Articles 749 et seq. of the Code of Criminal Procedure, which gives jurisdiction to the urgent applications judge.” The Criminal Division of the Court of Cassation also came to the same conclusion in a judgment of 28 October 1987 (Bull. crim. no. 377, p. 999): “No appeal on points of law lies from a decision of the Court of Appeal ruling on an appeal against an order of the urgent applications judge made pursuant to Article 756 of the Code of Criminal Procedure...” In an earlier decision of 19 January 1983 the Second Civil Division of the Court of Cassation had held that the Paris Court of Appeal had jurisdiction to order a stay of execution of an order for imprisonment in default after it had found that the order for detention was not prima facie valid as the sentence imposed on the person concerned had been time-barred thus precluding the execution of the order made against him. The Commercial Division of the Court of Cassation initiated a change in the case-law by its judgments of 18 January and 1 February 1994, in which it held: “... The Court of Appeal did not misdirect itself in law in holding that, by introducing a particular form of imprisonment in default, Article 388 of the Customs Code did not preclude the application of Articles 752 and 756 of the Code of Criminal Procedure.” (Commercial Division, 18 January 1994, Bull. IV no. 26) and “The urgent applications judge has the power to suspend the enforcement of an order for imprisonment in default in cases in which he considers that the order has become prima facie invalid in the light of new developments since it was made, in particular, where the debtor claims that he is insolvent. However, in such circumstances, the judge must refer the case to the trial or appellate court which made the order.” (Commercial Division, 1 February 1994, D. 1994, IR 48) That line has also been followed by the Criminal Division of the Court of Cassation in a decision of 26 October 1995, in which it said: “By introducing a particular form of imprisonment in default, Article 388 of the Customs Code did not preclude the application of Articles 710, 752 and 756 of the Code of Criminal Procedure. A judgment declaring inadmissible an application for relief from execution, on the ground of insolvency, of an order for imprisonment in default must be quashed.” (Bull. crim. no. 325) 25. The issue of the extent of the powers of the urgent applications judge on applications for discharge of an order for imprisonment in default has also given rise to inconsistencies in the case-law. The question has been whether the urgent applications judge has jurisdiction only to determine the prima facie validity of the order or whether he also has jurisdiction to decide whether the debtor is insolvent. Some urgent applications judges have held that their jurisdiction is limited to reviewing the prima facie validity of the order for imprisonment in default (see Saintes tribunal de grande instance, 31 October 1994, Gazette du Palais, 10–11 March 1995, p. 26, and Mulhouse tribunal de grande instance, 7 July 1995). Others have referred the insolvency issue to the court that made the order (see Draguignan tribunal de grande instance, 26 May 1993, and Toulouse tribunal de grande instance, 1 July 1994), while still others have held that they were empowered to decide the insolvency issue and to discharge the order for imprisonment in default (see La Rochelle tribunal de grande instance, 12 December 1994, and Mulhouse tribunal de grande instance, 17 February 1995). The Court of Cassation reversed and quashed a judgment of a court of appeal that had held that an urgent applications judge had jurisdiction to decide whether the debtor was insolvent (see the Commercial Division’s decision of 1 February 1994 cited above). The full court of the Court of Cassation held on 5 February 1996 that urgent applications judges do have such power. However, that decision concerned a debtor who was not in prison. | 1 |
dev | 001-104281 | ENG | UKR | CHAMBER | 2,011 | CASE OF SIRYK v. UKRAINE | 3 | Preliminary objection joined to merits and dismissed (victim);Violation of Art. 10 | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 4. The applicant was born in 1959 and lives in Irpin. 5. On 23 March 2005 the applicant sent to the State Tax Administration a letter in which she complained that the management of the Academy of the State Tax Service, which was under the authority of the State Tax Administration and at which her son had studied before being expelled in 2004, were engaging in unlawful and corrupt activities. 6. The relevant parts of the letter read as follows: “I address you concerning the real situation at the Academy ... [This letter] will concern the flagrantly unfair attitude towards students of the Law Faculty, headed by [S.], to students' parents, with the complete ... support ... of the President of the Academy [M.]... The reason for [addressing you] is a television report, broadcasted on 22 March 2005, concerning the student protest organised by [M.] against [his] dismissal from the post of President of the Academy. I really hope that my letter can influence the course of events. My son, Mr Yaroslav Siryk, [who] had successfully and independently entered the Law Faculty of [the Academy], was expelled from it ... I could not even imagine that the methods described below were applied in a State educational institution ... ... My son missed the beginning of studies because of a severe infectious disease ... Subsequently, I was called [to the Law Faculty] and during a private conversation [S.] told me that [students] like my son could not study at her faculty under the normal conditions, and that if I did not want to have problems with [graduation] I had to agree to additional financial conditions, in particular, to pay her 200 [United States dollars] for every exam, and 50 [United States dollars] for every test ... After my unconditional refusal, my road of sorrows began ... Two or three times a week I was called to the office of the Dean [of the Law Faculty] for numerous [discussions of problems], one of the first of which concerned the checking of [my son's] medical documents ... the [professors] shouted at me, called me a swindler and so on ... Because he had been on sick leave ... and because of the enduring tense discussions with the Dean and the Deputy Dean ... my son did not have normal conditions in which to study... When I tried to enter the office of the Dean in order to discuss that matter, she ... simply ... pushed me out of the office ... And I wrote a detailed complaint to the President [of the Academy] ... (a copy is enclosed) ... [T]he President ordered that my son be allowed additional time to take the winter exams... [H]owever, afterwards arbitrariness on a larger scale began: professors were simply receiving from [S.] and [the Deputy Dean B.] ... categorical instructions not to allow my son to take exams... Those instructions were rigorously complied with, as the staff of the Academy was hired on the basis of personal loyalty towards the management or dependency on the management [of the Academy]: numerous relatives ... close friends ... former students [of the Academy] ... about whose knowledge, competence and work experience it is not possible to speak. It is difficult for them to find another job, therefore they are ready to fulfil any assignments, obey any wishes of the management ... ... [S.] and [B.] became so impudent that together they conducted negotiations with me concerning extra-contractual payments [for my son's studies] at the office of [S.]. In a normal civilised country [people] would have already compared the earnings of the State servants and their standard of living. What [amount of] salary enables the Dean of the faculty [S.] to wear different exclusive imported clothes and diamonds every day?! ... This was the rudeness, extortion and derision which I endured during the educational year at the State institution, having paid a substantial amount of money [for the education]. The most alarming thing in this story is that our case is not the only one ... At the same time [as this was happening to us] ... more than twenty persons were simply kicked out of the Academy in the same way ... the teachers received from the Dean or the Deputy Dean categorical instructions not to allow a particular student to take an exam ... The whole process of the intentional expulsion of certain [students] and the admission of others on a contractual basis is ... a system of extorting of money from the parents devised by the management of the faculty and the Academy ... All the actions of [S.], approved by [M.], demonstrate [their] legal incompetence and ruthless abuse of power, though the old [State] regime generously appraised her 'achievements'; during its last days [the old regime] awarded [S.] the title of Distinguished Lawyer, and the President of the Academy promoted her to First VicePresident [of the Academy] I hoped the new authorities would sort everything out, but [people like S. and M.] feel perfectly at home under any regime. In addition to the violations described [above], I ask you to look at the following: 1. On what does [the Academy] spend the budgetary funds and the money from [students'] parents? - why does the President of ... [the Academy, in whose possession] there is an expensive 'Mercedes', additionally buy an 'Audi A-8' for [the price of] 800,000 [Ukrainian] hryvnias?! - what is the source of the money and what is the need for the business trips on which [M.] and [S.] constantly go? - what are the earnings [allowing] the State servant [S.] to wear different expensive ... clothes and diamonds every day? - how did [S.] manage to gain her doctor's degree so soon [after] having completed her higher education at the Academy ... - what benefits does [the Academy] receive from the companies of [M's] brother and sister? - on what grounds did the staff of the Academy obtain double salary payments at the end of 2004 ... As regards the activities of those persons during the [Presidential] election [of 2004] ... [M.] and [S.] ... did not let students take part in meetings in support of Yushchenko ... Students were forced ... to vote in the Academy under the supervision of the professors ... According to the parents of students [wishing to enter the Academy], during the [2004] summer admission campaign [M.] ... openly stated that he was collecting money for the [Presidential] election [of 2004] ... The only thing which I wish to try to achieve [is] that my letter helps to restore justice in our small Irpin region ...” 7. In April 2005 Ms S., who was at the time the First Vice-President of the Academy, instituted defamation proceedings against the applicant in the Kyyevo-Svyatoshynskyi District Court of the Kyiv Region. 8. Ms S. alleged that by a letter of 23 March 2005 the applicant had disseminated untrue and defamatory statements about her, and asked the court to order the retraction of the statements. Ms S. also claimed compensation for non-pecuniary damage. 9. The applicant, in her turn, contended that the information contained in the impugned letter was based on facts, some of which could be confirmed by witnesses. She also argued that her statements were, for the most part, value judgments, for which she should not be held responsible pursuant to section 47 of the Information Act. The applicant, relying on the decisions of courts in similar, according to her, defamation cases, also submitted that by her letter of 23 March 2005 she had simply informed the higher authorities about irregularities at the Academy and had not disseminated the statements about Ms S. within the meaning of Article 277 of the Civil Code of 2003. 10. By a letter of 29 April 2005 the applicant requested the President of the Supreme Court to transfer the case to a district court in Kyiv, stating that Ms S's husband worked as a judge in the Irpin Town Court of the Kyiv Region and could influence the outcome of the proceedings before the Kyyevo-Svyatoshynskyi District Court. By a letter of 3 June 2005 the Deputy President of the Supreme Court informed the applicant that her request had been rejected as unfounded. 11. On 25 June 2005 the Kyyevo-Svyatoshynskyi District Court, relying on Articles 277 and 280 of the Civil Code of 2003, ruled in part in favour of Ms S. It found that the applicant had failed to prove her statements that the latter had treated the students and their parents unfairly; that she had demanded from the applicant a payment for every exam and test which the applicant's son had had to sit; that she had been rude or shouted at the applicant; that she had called the applicant a swindler; that she had pushed the applicant out of the office; that she had given instructions to the professors not to allow the applicant's son to take exams; that she had not allowed students to attend the meetings in support of V. A. Yushchenko during the Presidential election; that the actions of Ms S. had demonstrated that she was legally incompetent; and that she had exceeded her powers. 12. The court further held that the above statements had been publicly disseminated, as the letter had been addressed to a legal entity and the applicant could have foreseen that it would be read by more than one person. It also noted that Ms S. had acquainted herself with the text of the letter in the presence of the President of the Academy and representatives of the State Tax Administration. 13. The court declared the above statements to be untrue and defamatory and ordered the applicant to retract them by rescinding the impugned letter. The court also ordered her to pay Ms S. 1,000 Ukrainian hryvnias (UAH) in compensation for non-pecuniary damage. 14. On 14 October 2005 the Kyiv Regional Court of Appeal upheld the judgment of the first-instance court in full. 15. On 25 July 2006 the Supreme Court dismissed the applicant's request for leave to appeal in cassation as unsubstantiated. 16. The relevant extracts from the Constitution read as follows: “... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for pecuniary and non-pecuniary damage inflicted by the collection, storage, use and dissemination of such incorrect information.” “Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice. The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.” “Everyone has the right to file individual or collective petitions or to personally appeal to bodies of State power, bodies of local self-government, and to officials ... of those bodies, who are obliged to consider the petitions and to give a substantiated reply within the term established by law.” 17. The relevant extracts from the Civil Code of 1963 read as follows: “A citizen or an organisation shall be entitled to demand in a court of law that material be retracted if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the information proves that it is truthful ... A citizen or an organisation concerning whom material that does not conform to the truth and damages their interests, honour, dignity or reputation has been disseminated shall be entitled to demand compensation for pecuniary and non-pecuniary damage as well as a retraction of such information ...” 18. The relevant extracts from the Civil Code of 2003 read as follows: “1. A physical person whose non-pecuniary rights have been infringed as a result of dissemination of untrue information about him or her and (or) members of his or her family, shall have the right to reply, and [the right to] the retraction of that information ... ... 3. Negative information disseminated about a person shall be considered untrue if the person who disseminated it does not prove the contrary. 4. Untrue information shall be retracted by the person who disseminated the information ... 5. If the untrue information is contained in a document which has been accepted (issued) by a legal entity, that document shall be recalled. 6. A physical person whose non-pecuniary rights have been infringed in printed or other mass media shall have the right to reply, and also [the right to] the retraction of the untrue information in the same mass media, in the manner envisaged by law ... Untrue information shall be retracted irrespective of the guilt of the person who disseminated it. 7. Untrue information shall be retracted in the same manner as it was disseminated.” “1. If there has been pecuniary and/or non-pecuniary damage caused to a physical person as a result of a violation of his personal non-pecuniary rights, the damage shall be compensated. 19. The relevant extracts from the Information Act provide as follows: “... Liability for the infringement of the legislation on information shall be borne by persons responsible for the following infringements: ... dissemination of information that does not correspond to reality, [or] defames the honour and dignity of a person ...” “No one may be held liable for making value judgments. Value judgments, excluding insults and libel, are statements which do not contain factual data, in particular, criticism, the evaluation of actions, and also statements which cannot be said to contain factual data because of the way they are worded, in particular, [with] the use of hyperbole, allegory, or satire. Value judgments are not subject to retraction and their truthfulness need not be proved ...” 20. Relevant extracts from the judgment read as follows: “... The Constitutional Court of Ukraine found that: 1. A citizen, [V.A.S.], has lodged with the Constitutional Court of Ukraine a request for an official interpretation of the provision of Article 7 § 1 of the Civil Code [of 1963] containing the phrase “disseminated such information”. ... According to the applicant, the practical need for an official interpretation is justified by the lack of coherence in the application of that provision by the courts of Ukraine ... [The applicant] maintains that the Octyabrskyi Court of Poltava found that his petition to the Poltava Regional Tax Administration against a tax inspector for unlawful actions ... disseminated information which did not correspond to reality, and degraded the honour, dignity and reputation of the tax inspection employee. By its judgment, the court obliged [V.A.S.] to retract the information by sending a petition to the relevant department of the [Tax] administration, and to compensate that official for the damage caused. A judicial panel of the Poltava Regional Court of Appeal and a panel of judges of the Judicial Chamber in Civil Cases of the Supreme Court of Ukraine dismissed the appeal in cassation of [V.A.S.] against the judgment of the district court. ... The Constitutional Court of Ukraine considers that petitions by citizens to a lawenforcement body which contain certain information concerning the failure of officials to comply with the laws, are submitted ... not for the purpose of notifying the community or citizens of such matters, but seeking to have it verified by competent officials. Therefore, such petitions cannot be considered to constitute dissemination of information degrading the honour, dignity or reputation of, or causing damage to, the interests of an official of a law-enforcement body, within the meaning of Article 7 § 1 of the Civil Code ... At the same time, [if] petitions to a law-enforcement body contain knowingly untrue information, this will lead to disciplinary, civil-law, administrative, or criminal liability ... In particular, Articles 173-1 and 212-1 of the Code of Administrative Offences of Ukraine provide for administrative liability for dissemination of untrue rumors which can provoke panic among the population or a violation of public order, and for notification to registration bodies of acts of civic status of knowingly untrue information. The Criminal Code of Ukraine provides for criminal liability for knowingly untrue reports concerning a planned explosion, fire, or other action which may cause deaths or have other grave consequences (Article 259), knowingly untrue reports of crimes to a court, prosecutor, investigator, or body of inquiry (Article 383) etc ... The dissemination of untrue information concerning the private (family) life of an official of a law-enforcement body in his personal or citizen's capacity may constitute a ground for the applicant's civil-law liability under Article 7 of the Civil Code. In the light of the foregoing ... the Constitutional Court of Ukraine decides that: 1. Under Article 7 § 1 of the Civil Code ... 'disseminated such information' shall be understood, within the context of the constitutional appeal, as meaning that statements made in letters, petitions or complaints to a law-enforcement body by a person who is of the view that officials of that body have infringed his rights in the exercise of their functions cannot be considered to be dissemination of information degrading the honour, dignity or reputation of, or causing damage to, the interests of those persons. [The inclusion of] knowingly untrue information in letters, petitions, or complaints to a law-enforcement body shall lead to the liability provided for by the current legislation of Ukraine. 2. The judgment of the Constitutional Court of Ukraine is binding on the territory of Ukraine, is final and may not be appealed against ...” 21. The relevant extracts from the Resolution provide as follows: “... 16. According to Article 40 of the Constitution of Ukraine everyone has the right to file individual or collective petitions or to personally appeal to bodies of State power ... The courts shall take into account that, if a person files a petition with the bodies mentioned [above] which contains certain information, and if that body is competent to verify such information and to give a reply, [the fact that] ... the information has not been confirmed as true ... may not as such constitute a ground for allowing a [defamation] claim, as in such a case the person has exercised his constitutional right under Article 40 of the Constitution, and [has not] disseminated untrue information. If a person files a petition with the law-enforcement bodies, the courts should take into account the conclusions of the judgment of the Constitutional Court of Ukraine of 10 April 2003 ... (the case concerning dissemination of information) ...” | 1 |
dev | 001-77745 | ENG | HUN | CHAMBER | 2,006 | CASE OF FOLDES AND FOLDESNE HAJLIK v. HUNGARY | 1 | Violation of P4-2-2 in respect of the first applicant;Remainder inadmissible;Non-pecuniary damage - financial award | András Baka;Antonella Mularoni;Elisabet Fura;Ireneu Cabral Barreto;Jean-Paul Costa | 4. The applicants were born in 1957 and 1958 respectively and live in Miskolc. 5. On 10 December 1992 a company, E. Ltd., laid charges of fraudulent bankruptcy and other offences against the applicants, then a married couple. Subsequently, the Borsod County Police Department instituted criminal proceedings against the first applicant. On 17 November 1993 he was questioned as a suspect. 6. On 27 December 1993 the Borsod County Police Department prohibited the alienation of the applicants’ real property and their cars. On 22 February 1994 the Miskolc Public Prosecutor’s Office upheld this measure, observing that it was justified because it pursued the aim of guaranteeing the satisfaction of claims brought by the potential civil parties. 7. Meanwhile, on 6 January 1994 the proceedings were extended to include the second applicant as a defendant. 8. On 17 January 1994 the Passport Office of the Ministry of the Interior withdrew the first applicant’s passport until the termination of the criminal proceedings, under sections 2 and 13 of the Foreign Travel Act (Law no. 28 of 1989), in order to secure his availability for trial. That decision was confirmed by the Minister of the Interior on 25 March 1994. 9. On 26 October 1994 the Miskolc Public Prosecutor’s Office preferred a bill of indictment against the applicants, charging them with fraudulent bankruptcy and other offences. 10. Meanwhile, the first applicant requested the Budapest Regional Court to review the administrative decision ordering the withdrawal of his passport. On 9 May 1995 the Regional Court upheld that decision, which in its view had been delivered in accordance with the law. 11. After sixteen hearings between 7 May 1996 and 4 February 2002, on 11 February 2002 the Miskolc District Court convicted the applicants and sentenced them to one year and eight months’ imprisonment and one year and six months’ imprisonment respectively, these sentences being suspended for three years. The court relied on the testimonies of witnesses, extensive documentary evidence and the opinion of three experts. In its reasoning, it appreciated, as a mitigating factor, the “very long time” which had elapsed since the commission of the offences, finding that this delay could not be imputed to the applicants. 12. On appeal, on 11 June 2002, the Borsod-Abaúj-Zemplén County Regional Court quashed the District Court’s judgment on account of a serious procedural shortcoming and remitted the case to the first-instance court. 13. In reply to a request by the applicants to have the case file photocopied, on 17 June 2002 the Regional Court invited them to specify which particular elements they wished to have copied. The court pointed out that the photocopying of the whole case file, which contained several thousand pages (and was in any event available for personal consultation in its entirety), was impossible and also unnecessary, given that many documents were of little relevance. 14. In the resumed proceedings, eighteen hearings were held between 21 October 2002 and 19 May 2005. 15. On 23 May 2005 the District Court convicted the applicants of the offences of breaching accountancy rules (punishable by up to two years’ imprisonment under Article 289 of the Criminal Code) and of fraudulent bankruptcy (punishable by up to five years’ imprisonment under Article 290 of the Criminal Code), and fined them each 270,000 Hungarian forints. 16. On 23 June 2005 the Borsod-Abaúj-Zemplén County Regional Court dismissed an appeal by the applicants. It ordered that the measures attaching the applicants’ assets be discontinued. 17. On 5 January 2006 the Supreme Court’s review bench quashed the second-instance judgment and remitted the case to the Regional Court. 18. In the resumed second-instance proceedings, on 8 June 2006 the Regional Court upheld in essence the applicants’ convictions and fines. It dismissed the civil party’s claims and lifted the prohibition on the alienation of the applicants’ assets. In its reasoning, it reiterated: “[I]n the process of imposing ‘legal detriments’ [joghátrány], the courts fully recognised the extraordinarily protracted nature of the proceedings as an important mitigating factor, and appreciated this circumstance when determining the punishments.” 19. In reply to a complaint in the applicants’ appeal concerning the non-attendance of the experts at the court hearings, the court observed that their opinions had been added to the case file, since they had been extensively presented at the hearing on 10 February 2005. Despite an invitation by the court to do so, the applicants did not comment in writing on those opinions in the ensuing proceedings. Given that the opinions had at all times been available to the defence, copies had been dispatched to the parties, and the opinions had been explained at a hearing, the court was satisfied that the principle of “direct and oral proceedings” had not been infringed. In any event, it was convinced that, given the complexity of the case and the extensiveness of the opinions (amounting to several volumes), any meritorious criticism thereof would only have been possible in writing and the experts – whose views were otherwise essentially convergent – could likewise have reacted to such criticism in writing. The judgment became final on the same day. | 0 |
dev | 001-109909 | ENG | BGR | CHAMBER | 2,012 | CASE OF LOLOVA-KARADZHOVA v. BULGARIA | 3 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law;Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage) | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicant was born in 1947 and lives in Sofia. 6. In 2004 a real estate agent brought a private prosecution against the applicant for insult and defamation punishable by a fine and public reprimand. According to the complaint, in a newspaper announcement the applicant, describing herself as “the deceived citizen”, warned the public that the real estate agent would buy their real estate at very low prices and then would resell it for much larger amounts, making a very large profit for herself. 7. The Asenovgrad District Court postponed hearings scheduled for 20 September and 11 November 2004 because the applicant had submitted medical certificates and had expressed the wish to participate in the proceedings in person. 8. At hearings conducted on 10 January and 10 March 2005 the applicant was not present but was represented by counsel. 9. At a hearing on 27 May 2005 neither the applicant nor her lawyer appeared. The applicant had submitted a medical certificate and had requested postponement. The District Court noted that the applicant’s presence was not mandatory, but postponed the hearing as her lawyer was also absent. It imposed a fine of 500 Bulgarian levs (BGN) on the applicant’s lawyer. The latter appealed to the Plovdiv Regional Court, arguing that she had also been ill, and submitted a medical certificate. On 3 June 2005 the District Court, applying the procedure of Article 347 of the 1974 Code of Criminal Procedure, revoked its own decision, stating that the applicant’s lawyer had given valid reasons for her absence. 10. At a hearing on 27 June 2005 the applicant appeared, but stated that she would make submissions at the final pleading stage. 11. The applicant requested postponement of the hearings scheduled for 15 December 2005, 27 February, 18 May and 19 June 2006, stating that she wanted to address the court but was ill, as was documented by medical certificates she had submitted. The District Court granted her requests. 12. On an unspecified date in September 2006 the applicant submitted to the District Court another medical certificate prescribing her home treatment for hypertension from 15 to 20 September 2006, and requested postponement. 13. At a hearing on 18 September 2006, held in the applicant’s absence but in the presence of her lawyer, the District Court noted the applicant’s statement that she wanted to make submissions at the final stage of the pleadings and found that her hypertension was not an obstacle in this respect. It further noted that the applicant had submitted medical certificates on a number of occasions, thus causing delays in the proceedings. Relying on the Convention, the District Court observed that it was necessary to complete the proceedings within a reasonable time and held that the applicant should therefore be brought before it for the next hearing with the assistance of the police. It did not specify any legal ground for this order. It scheduled the next hearing for 19 October 2006 at 3 p.m. Since the applicant’s lawyer was present at the hearing, the applicant was considered duly informed of the order. 14. Around 10 a.m. on 18 October 2006 the applicant was detained by the police and taken to Sofia Prison, where she remained until the next morning. The applicant contends that the conditions there were humiliating and that she had to use the same toilet as male detainees. 15. In the morning of 19 October 2006 the applicant was escorted by train and car from Sofia to Asenovgrad (160 km), attended the hearing at 3 p.m. and made submissions, after which she was released. In a judgment of the same date the District Court acquitted her, finding that her newspaper announcement had been neither insulting nor defamatory. The plaintiff requested judicial review of the judgment but on 4 December 2006 her appeal was rejected for procedural flaws. 16. Pursuant to Article 269 (1) of the 2006 Code of Criminal Procedure (“the 2006 CCP”), the attendance of the accused person at the trial is mandatory where the charges concern offences punishable by more than five years’ imprisonment. In all other cases, the court may order the accused person to appear if this is necessary for establishing the truth (Article 269 (2) of the 2006 CCP). 17. An accused person may be taken into custody in order to secure his attendance for questioning if he has failed to appear without valid reasons, provided that his attendance is mandatory or is deemed necessary by the competent authority (Article 71(1) of the 2006 CCP). The accused may be taken into custody without prior notice if he has absconded or has no permanent address (Article 71(2) of the 2006 CCP). 18. Orders under Articles 269(2) and 71 of the 2006 CCP are not amenable to appeal before a higher court. 19. Pursuant to Article 347 of the 1974 Code of Criminal Procedure, in force until 29 April 2006, the court could revoke its own procedural order if judicial review had been requested. This provision was superseded by Article 344 of the 2006 CCP, in force since 29 April 2006, which repeats its text almost verbatim. 20. The 1988 State and Municipalities Responsibility for Damage Act (the “SMRDA”) provides for compensation in certain cases of deprivation of liberty ordered by a court or by investigating or prosecuting authorities, where the relevant decision or order has been set aside “for lack of lawful grounds” under domestic law. Deprivation of liberty aiming at securing the accused’s attendance at a hearing is not among those cases. 21. The relevant domestic law and practice concerning State liability for damage in connection with conditions of detention have been summarised in the Court’s judgment in the case of Slavcho Kostov v. Bulgaria (no. 28674/03, § 19-22, 27 November 2008). | 1 |
dev | 001-112204 | ENG | MLT | CHAMBER | 2,012 | CASE OF MUSCAT v. MALTA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | David Scicluna;David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä | 6. The applicant was born in 1970 and lives in Malta. 7. The applicant was one of the parties to civil proceedings instituted against, inter alia, him (as possessor), concerning the recission of a contract of perpetual emphyteusis of a hotel owing to a failure to effect the relevant payments, namely John Bugeja et proprio et nomine v Caral Ltd and for any interest they might have Paul Muscat [the applicant] and Joseph Muscat. In these proceedings the address of the applicant (the then defendant in the proceedings) was correctly marked as “Olinda Hotel, St. George’s Road, St. Julians”, and the claimant’s address correctly marked as “43, George Borg Olivier Street, St Julians”. 8. By a judgment of 31 October 2002, the first-instance court found against the defendants and ordered the property to be returned to the claimant. The defendants had forty days to vacate the property. 9. Caral Ltd, the holder of the emphyteusis and main defendant, did not appeal. In consequence, the rescission of the emphyteusis and the eviction of Caral Ltd became final. 10. On 20 November 2002 the applicant appealed. The appeal application was signed by Dr M., the Assistant Advocate for Legal Aid. On the same date, through the assistance of Dr M. (in his capacity as Assistant Advocate for Legal Aid), the applicant requested legal aid (Article 911 of the Code of Organisation and Civil Procedure “COCP”). In both the appeal application and the legal-aid request, signed by Dr M., the addresses of the applicant and the respondent were inverted. 11. On 28 January 2003 the applicant was granted legal aid and Dr A. and Ms T. were nominated as advocate and legal procurator respectively for this purpose. The applicant was informed that he should enquire at the court registry for details of those nominated. It would appear that he did not make an enquiry at the relevant time. 12. On 29 April 2003 the court bailiff unsuccessfully attempted to serve notification of the appeal on the respondent at “Olinda Hotel, St. George’s Road, St. Julians” (the applicant’s address). In consequence, he marked the notification as undelivered “riferta negattiva” (see Relevant domestic law) and noted that the venue was derelict. 13. No further attempts at notification were made. 14. On 20 November 2003, at the first appeal hearing conducted in the absence of both parties, the appeal was declared to have lapsed (been deserted), on the basis that no notification of the appeal application had been made to the respondent within the peremptory one-year period. 15. On 7 September 2004 the applicant lodged an application with the ordinary courts requesting the revocation of the decision of 20 November 2003, in that it had been issued on the basis of a lack of notification as a result of an error in the address of the respondent as submitted in the appeal application signed by the Assistant Advocate for Legal Aid. 16. By a decision of 15 September 2004, the applicant’s request was rejected as unjustified on the basis that it had been the applicant, through his legal representative, who had supplied the erroneous address and during the rest of the year the applicant had not taken any steps to rectify the error. 17. On 1 November 2004, the applicant lodged another application with the ordinary courts, requesting the revocation of the decision of 20 November 2003. He argued, inter alia, that the error had been made by the Legal-Aid Office and not by himself, and that he had never been given a copy of the procedural acts presented in his name, which would have enabled him to rectify the error. On 4 November 2004 the applicant’s case was dismissed as it was substantially the same as his previous request. 18. On 27 June 2005 the applicant instituted constitutional redress proceedings before the Civil Court (First Hall). Referring to the European Court’s judgments under Article 6 §§ 1 and 3 (c), he complained that the decision of 20 November 2003 and the decisions confirming it denied him the right to a fair trial, to legal assistance and to access to court as guaranteed by Article 6 of the Convention. He therefore requested the court to revoke the said decision. 19. On 4 May 2009 the Civil Court rejected the applicant’s claims. Having considered the evidence, the court noted that the relevant addresses in the appeal folder had been incorrect and that at the time (after the appeal application against the decision of November 2003) the applicant was not in contact with the Assistant Advocate for Legal Aid but with legal counsel who had acted for him previously, and maybe Dr A., his appointed advocate for legal aid. However, neither of these advocates advised the applicant to verify the acts of the proceedings. Thus, neither the applicant nor a legal representative had ever verified whether the respondents had been successfully notified. In consequence, the Civil Court found that the applicant was mostly responsible for causing the case to lapse, as he had failed to conduct the necessary verifications and had failed to prove that what had happened had been beyond his control. Even assuming that the initial error was imputable to somebody else it was up to the applicant to follow up his appeal proceedings. Moreover, unlike in the case of Czekalla v. Portugal (no. 38830/97, ECHR 2002VIII) the error in the present case did not make the appeal null and void, and it could have been avoided if the applicant had been careful to monitor the state of his case. 20. On 11 May 2009 the applicant appealed to the Constitutional Court. He argued, inter alia, that in view of an error on the part of an agent of the State, the application of “lapsed” status (desertion) provisions to his case had had disproportionate consequences. 21. On 30 October 2009 the Constitutional Court dismissed his claims on the merits. It reiterated that throughout an entire year the applicant had done nothing to correct the underlying error or to follow up his appeal proceedings. The case was the applicant’s and not the lawyer’s and therefore it was the applicant’s responsibility to show assiduous interest in what was going on and to follow the case scrupulously. The error in the present case was a minor one and could have been corrected. It was, therefore, irrelevant who had originally made the mistake. A simple check could have easily been made with the court’s registry. However, nothing had been done, and in consequence only one attempt to notify the respondent had been made. 22. As to the application of Article 963 (see Relevant domestic law) of the Code of Organisation and Civil Procedure (“COCP”), the Constitutional Court held that the provision used the word “may” and therefore the court was not obliged to make any assessment to decide whether the use of the provision would be justified. In any event, in the present case, it had appeared that notwithstanding the first failed notification (riferta negattiva) nothing had been done to request a second notification. It followed that the court’s decision not to make use of the provision had been justified. Moreover, procedural rules safeguarded the interests of both parties and those of legal certainty. 23. At the time of the present case, Article 963 of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, regarding desertion of causes, read as follows: “(1) Saving the provisions of sub-article (3) and of articles 416 and 420, the written pleadings in any cause shall be closed, in first instance, within the peremptory time of six months, and, in second instance, within the peremptory time of one year. (2) The time shall commence to run, in first instance, from the day on which the sworn application is filed, and, in second instance, from the date of the application of appeal for the reversal or variation of the judgment appealed from. (3) If it is found that the written pleadings in any cause set down for hearing are not closed, the court may order such cause to be again placed with the causes the pleadings whereof are not yet closed and fix for the closing of the pleadings of that cause a peremptory time not exceeding one month. (4) Notwithstanding the provisions of sub-article (3), the pleadings shall be deemed to be closed if the party not served with the pleading necessary for the close of the record appears at the trial and does not raise the question that the pleadings are not closed and proceeds or knowingly allows others to proceed to further acts without raising such question.” 24. In 2007, sub-article 3 above was amended to read as follows: (3) If, even where the peremptory times referred to in sub-article (1) shall have lapsed, it is found that the written pleadings in any cause are not closed, the court shall once only give such orders which it may deem fit so that such pleadings may be closed as soon as possible in order to avoid that such cause be deserted by reason of some failure to notify or by reason of the failure of performance of a procedure or formality. (3A) The desertion of a cause shall be declared by means of a decree delivered in open court if, after the orders referred to in sub-article (3) shall have been given, the written pleadings are not closed. 25. Following the 2005 amendments, Article 178 of the COCP, regarding the signing of pleadings, read as follows: Article 178 “The written pleadings and the applications whether sworn or not shall be signed by the advocate and also by the legal procurator, if any.” 26. According to Maltese practice, once an advocate or legal procurator pays the dues relevant for the notification (notifika) of an act, the bailiff will attempt to deliver notification to the address indicated. Subsequently, the bailiff must record the outcome of his attempt in the court file. Thus, an individual can learn whether the bailiff has successfully notified the other party or otherwise by virtue of a note (ir-riferta) that the bailiff sticks on the back of the document in the case file, which may be consulted in the registry. In the event that notification was unsuccessful, the stamp on the back of the document will be in red (riferta negattiva). If notification is successful the stamp on the back of the document will be in blue (riferta pozittiva). In the case of a “riferta negattiva”, the bailiff normally notes down the reason why notification was unsuccessful. Further notification will require payment and the relevant instruction depending on the bailiff’s written comments. Article 188 (1) of the COCP reads as follows: “The officer charged with the service of an act shall, on the same day when he serves or unsuccessfully seeks to serve the act, or, at the latest, on the following day, draw up a certificate stating whether the service was effected or not. In the affirmative, the certificate shall state the name and surname of the person on whom service was effected and, if the act was not served directly on the person on whom service was to be effected, the name and the surname of the person to whom the copy was delivered and the place where the act was served; in the negative, the certificate shall state the reason why service was not effected.” 27. Article 925 of the COCP, concerning the duties of legal-aid representatives, reads as follows: “(1) The advocate or legal procurator assigned to the person admitted to the benefit of legal aid shall: (a) act in the best interest of the person admitted to the benefit of legal aid, and may not demand any form of payment from that party; (b) appear in court when the case of the person admitted to the benefit of legal aid is called; (c) make the necessary submissions and file the requisite notes, applications, replies, notices, applications, and other written pleadings as circumstances require. (2) The advocate or legal procurator shall remain responsible for a cause assigned to him as aforesaid, until the same has been finally disposed of, even though the period of his appointment may have expired.” 28. In the judgments of Nardu Balzan Imqareb v Commissioner of Police, of 4 July 2006 and Nardu Balzan Imqareb v the Registrar of Courts, of 18 May 2006, both cases decided by the Civil Court (First Hall) in its Constitutional Jurisdiction, in the same single judge formation, the Civil Court entered into the admissibility and where necessary the merits of the applications, notwithstanding that the applications to the court had been presented by the claimant without the assistance of a lawyer. However, the Civil Court did not deal specifically with the respondents’ objection that the application was null and void, on the basis that it had not been signed by an advocate, as required by law and confirmed by the judgment in Bruce Clark v The Registrar of Courts of 28 March 2006. | 0 |
dev | 001-66831 | ENG | POL | CHAMBER | 2,004 | CASE OF DUDEK v. POLAND | 4 | Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the fairness of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Nicolas Bratza | 4. The applicant was born in 1920 and lives in Katowice, Poland. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. Since 1965, the applicant’s relatives, Z.D. and L.D, have occupied a part of the applicant’s property, with the agreement of the applicant. It appears that Z.D. and L.D. carried out construction work on the property which provoked a conflict between them and the applicant. 7. On 4 January 1994 the applicant lodged a civil action with the Katowice District Court (Sąd Rejonowy) in which he asked the court to order the eviction of Z.D. and L.D from his property. 8. On 31 January 1994 the trial court held a hearing at which it gave a default judgment (wyrok zaoczny). The court allowed the applicant’s action and ordered that the judgement be immediately enforceable. 9. The defendants lodged an objection against the judgment. 10. On 7 March 1994 the Katowice District Court held a hearing at which it allowed the applicant’s motions to hear witnesses and to hold a viewing of the property. Subsequently, the trial court requested a copy of the casefile concerning another set of civil proceedings instituted by the defendants against the applicant. 11. On 27 April 1994 the court decided to stay the proceedings until the termination of the second set of proceedings, instituted by the defendants, in which they claimed that they had acquired the title to the property in question by prescription (stwierdzenie nabycia własności poprzez zasiedzenie). 12. The applicant appealed against the decision to stay the proceedings; however, on 6 July 1994 the Katowice Regional Court dismissed his appeal. 13. Subsequently on several occasions, the applicant applied to resume the proceedings. 14. In August 1994, February 1995, February, June, October and December 1996 and May 1997 the trial court requested the Second Division of the Katowice District Court to provide information concerning the state of the proceedings concerning the acquisition of property by prescription. 15. On 10 October 1997 the applicant applied to resume the proceedings. He submitted that the second set of proceedings for acquisitive prescription had ended on 24 September 1997 with the secondinstance court’s decision. 16. On 15 October 1997 the Katowice District Court allowed his application and resumed the proceedings. 17. At the hearing held on 9 December 1997 the defendants informed the court that the second set of proceedings was still pending because they had lodged a cassation appeal. Consequently, on 12 January 1998, the District Court again decided to stay the proceedings. 18. The applicant appealed against this decision, but on 23 March 1998 his appeal was rejected as he had failed to pay the fees for the appeal. 19. Subsequently, the applicant applied to the court to issue a writ of enforcement of the default judgment of 31 January 1994. On 22 May 1998 the Katowice District Court dismissed his application on the grounds that the proceedings were stayed. 20. The applicant lodged an appeal against this decision. 21. On 8 October 1998 the Katowice Regional Court (Sąd Wojewódzki) quashed the decision of 22 May 1998 and remitted the application concerning the writ of enforcement for reconsideration. 22. On 11 January 1999 the applicant applied to resume the proceedings. He submitted that the second set of the proceedings had ended with the Supreme Court’s decision of 14 October 1998. 23. On 12 January 1999 the court allowed the application and resumed the proceedings. 24. On 26 February 1999 the Katowice District Court held a hearing and gave judgment. It upheld the default judgment of 31 January 1994 and suspended the enforcement order. 25. The defendants lodged an appeal against the judgment with the Katowice Regional Court. 26. On 17 December 1999 the appellate court stayed the proceedings because the defendants had instituted yet another set of proceedings against the applicant. They sought a judgment stipulating that the applicant was obliged to make a declaration of will (oswiadczenie woli) in the form of a consent to the sale of the property in question. The Regional Court found that the proceedings for eviction should be stayed as the determination of the case depended on the outcome of this third set of proceedings. 27. In March 2001 the applicant applied to resume the proceedings. 28. Several times in 2001 and 2002 the trial court requested information regarding the state of the third set of proceedings. Apparently, they were still pending at the time. 29. On 6 March 2003 the Katowice Regional Court was informed that the third set of proceedings had ended. As a result, on 10 March 2003, the court resumed the eviction proceedings. 30. On 10 March 2003 the court held a hearing at which it appointed a lawyer under the legal aid scheme for the defendants. 31. On 28 August 2003 the Katowice Regional Court gave judgment in which it dismissed the defendants’ appeal. 32. It appears that subsequently the defendants tried to re-open the proceedings. 33. Under Sections 173 et seq. of the Code of Civil Procedure the court may stay civil proceedings either ex officio or at the parties’ request. 34. Section 177 § 1 of the Code, in so far as relevant, provides: “1. The court shall ex officio stay the proceedings: 1) if the determination of the case depends on the outcome of other pending civil proceedings;” 35. Section 180 para. 1 of the Code, insofar as relevant, provides: “1. The court shall ex officio resume the proceedings if the reason for staying them has ceased to exist, in particular when: 4) a final decision has been given in the proceedings on whose outcome the determination of the claim depends; however, if it is justified, the court may resume the proceedings before [any such decision is taken].” | 1 |
dev | 001-107753 | ENG | SVK | ADMISSIBILITY | 2,011 | KOBIDA v. SLOVAKIA | 4 | Inadmissible | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 1. The applicant, Mr Peter Kobida, is a Slovak national who was born in 1948 and lives in Prešov. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant is handicapped and wheelchair-bound. Since 1982 he has been living, at his request and for payment, in an establishment providing social services (Dom sociálnych služieb – “the care home”). 4. Between 1994 and 1999, following an agreement with the director of the care home, the applicant himself paid for a person to prepare vegetarian food for him instead of buying the lunches which the home provided to residents and which did not include vegetarian meals. 5. In 1999 a new director was appointed who informed the applicant that the care home was obliged to provide at least two meals a day to him. 6. In 1999 the applicant concluded several consecutive agreements with the home in which he undertook to buy meals. As he had not paid the sums due for the period from July 1999 to March 2000, the home sued the applicant. The Prešov District Court granted the action on 18 June 2004, and the Prešov Regional Court upheld that decision on 18 January 2006. 7. In the meantime, on 19 January 2000 the applicant signed an agreement in which he undertook to buy two meals a day in the care home, namely lunch and an afternoon snack. On 21 January 2000, on the basis of that agreement the care home determined the sum which the applicant had to pay for his board. The Prešov Regional Office upheld that decision. 8. According to the applicant, the director had verbally promised to ensure that vegetarian food was made available to him with reference to section 3(3) of Regulation no. 198/1998. Since vegetarian meals were not made available, the applicant informed the director on 1 February 2000 that he no longer wished to receive lunches in the establishment. 9. An addendum to the internal rules of the care home of 3 July 2000 specified that a resident could refuse to receive food for serious reasons only and subject to the approval of the director. Another addendum to the internal rules of 4 August 2000 indicated the following as relevant grounds for not receiving food for a period exceeding 42 days: absence from the home, placement in a hospital, the death or illness of a member of the resident’s family, attending cultural or sports events, or any other serious ground accepted by the director. 10. On 22 September 2000 the care home sued the applicant as he had not paid the sum due for meals in the period from April 2000 to July 2000. On 28 April 2006 the Prešov District Court granted the claim. 11. In the meantime, on 3 August 2000 a physician issued a certificate confirming that the applicant suffered from chronic dyspepsia requiring protective foods. 12. In decisions of 7 August 2000 and 13 December 2000 the care home re-determined the sums due from the applicant for the services it provided, including meals. On 3 October 2000 and 1 February 2001 the Prešov Regional Office dismissed the applicant’s appeals against those decisions, which thus became final. In the decision of 1 February 2001 the Regional Office held that buying meals from other sources under section 3(3) of Regulation no. 198/1998 was only possible where such sources were duly authorised to offer catering services. However, that condition was not met in the applicant’s case. 13. On 21 August 2001 the social services department of the Prešov Regional Office informed the applicant that vegetarian food would be made available in his care home from 1 October 2001. 14. On 31 October 2001 the care home and the applicant concluded a new agreement under which the latter undertook to buy breakfast and lunch in the establishment. As the applicant failed to pay the sum due, the care home sued him before the Prešov District Court on 19 February 2002. On 6 September 2006 that court approved a settlement under which the applicant undertook to pay the sum in issue in monthly instalments. 15. In 2006 three sets of execution proceedings were brought with a view to enforcing the sums which the courts had ordered the applicant to pay to the care home. 16. On 29 May 2001 the establishment sued the applicant for unpaid meals for the period from August 2000 to March 2001. 17. The applicant argued that he had revoked the agreement on buying food as the lunches served in the care home did not correspond to his health needs and beliefs. 18. On 14 April 2005 the Prešov District Court granted the above action and ordered the applicant to pay the plaintiff 9,388.8 Slovakian korunas (SKK) in monthly instalments of SKK 1,000. The court established that, under the above agreement signed on 19 January 2000, the applicant had undertaken to buy two meals a day in the care home, namely lunch and an afternoon snack. Those decisions had been upheld by the Prešov Regional Office and had become final. During the period between August 2000 and March 2001 the applicant had not paid the sum due for meals, namely SKK 9,388.8. 19. The court further noted that under the relevant regulation persons permanently living in a social care establishment were to be provided with at least two meals a day, one of which had to be lunch. The applicant had thus been obliged to buy such meals. His own decision to stop buying lunches during the period in issue had not been a reason for excusing the applicant from the obligation to pay the costs of his stay in the establishment, including the meals which the care home had been obliged to provide and which the applicant had been obliged to receive. The District Court further held that the applicant had not shown that his state of health obliged him to eat exclusively vegetarian food. 20. The applicant appealed. He argued that the District Court’s judgment was discriminatory and breached his human rights as he had been obliged to pay for meals which he had not wished to receive and which had not corresponded to his health needs and beliefs. 21. The plaintiff maintained that, in accordance with the statutory provisions in force, serving meals was a part of the comprehensive care services which were provided to the applicant. The applicant had undertaken to pay for the two meals which the law obliged him to buy. The food offered respected the principles of healthy nutrition and it was prepared with due regard to the age and state of health of the residents. Upon medical recommendation the care home provided, as required by the law, special food which corresponded to diabetic, high-protein or high-calorie diets. The applicant’s preference for vegetarian food was therefore a lifestyle choice and did not constitute special dietary needs. 22. On 17 January 2006 the Prešov Regional Court upheld the first-instance judgment. It noted that the Prešov Regional Office, on 1 February 2001, had approved the decision delivered on 13 September 2000 by the care home in which the applicant lived. Those decisions had determined the amount which the applicant was liable to pay for staying in the care home. It included the price of two meals a day which the applicant was obliged to buy in accordance with section 7 of Regulation 198/1998. The plaintiff had been obliged to prepare the meals, including lunch, for the applicant as he was receiving permanent care in the establishment and his stay there had not been interrupted during the relevant period. The refusal by the applicant to receive the meals for the above-mentioned reasons was not a relevant ground, within the meaning of section 27(5) of Regulation no. 198/1998, for absolving him from the obligation to pay the sum due. 23. Finally, the Regional Court noted that the applicant had not submitted any evidence indicating that his state of health was such that he needed to eat exclusively vegetarian food. 24. On 6 April 2006 the applicant lodged a complaint with the Constitutional Court. He complained that in the proceedings leading to the Regional Court’s judgment of 17 January 2006 he had been obliged to pay for meals which he did not wish to buy and which were not suitable from the point of view of his health, beliefs and religion. The applicant alleged a breach of several constitutional provisions, including the right to respect for one’s private life, the right to own property and the prohibition of discrimination. 25. On 24 May 2006 the Constitutional Court dismissed the complaint. It held that the ordinary courts involved had addressed and determined the relevant aspects of the case. The Constitutional Court could not deal with the case on the mere ground that the applicant disagreed with the Regional Court’s conclusion. 26. Under section 20(3)(a) of the Social Assistance Act 1998 (Law no. 195/1998 Coll.), social service establishments must provide indispensable welfare assistance to residents, which includes meals, accommodation and care. 27. Section 20(4) provides that meals served in such homes have to comply with the requirements of a healthy diet and take into account the age and state of health of the residents. 28. Paragraph 5 of section 20 obliges persons who receive care all year round or on a weekly basis to receive at least two meals a day in the establishment. 29. Pursuant to section 40(2), services provided in social service establishments must be paid for unless the law provides otherwise. 30. Section 43(3)(a) provides that food, accommodation and care is to be paid for in social service homes with the exception of homes for children. 31. Regulation no. 198/1998 issued by the Ministry of Labour, Social Affairs and Family provides in section 3(1) and (3) that care homes can obtain meals for persons in their care from different legal or natural persons authorised to provide catering services on the basis of a written agreement specifying the conditions and price. 32. Pursuant to section 7 of that Regulation, where a care home provides social services to a person all year round or on a weekly basis, that person has to be provided with all meals or, as a minimum, two meals a day, one of which must be lunch. 33. Under section 27(5), where a person has informed the social service establishment in a timely manner that he does not wish to receive meals, the sum corresponding to such meals must be restored to him or her by the end of following month. | 0 |
dev | 001-68394 | ENG | LTU | CHAMBER | 2,005 | CASE OF JANKAUSKAS v. LITHUANIA | 3 | Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | null | 8. The applicant was born in 1972. He lives in Šiauliai. 9. The applicant, a former police investigator, was suspected of abuse of office and bribery. His detention on remand was ordered by the Šiauliai City District Court on 12 March 1999 on the fear of his absconding and influencing witnesses. His remand in custody was thereafter prolonged. 10. On 3 October 2000 the Šiauliai Regional Court convicted the applicant of abuse of office and bribery, sentencing him to eight years’ imprisonment. On 29 June 2001 the Court of Appeal upheld the lower judgment. On 18 December 2001 the Supreme Court rejected the applicant’s cassation appeal in the case. The sentence was subsequently reduced in view of an amnesty law. The applicant was released from prison after having completed the sentence on 18 August 2003. 11. According to the applicant, all his letters to and from the State authorities, non-governmental organisations as well private persons - namely his family, relatives, friends and legal counsel - were opened up and read in his absence while he was in the Šiauliai remand prison during the period from 12 March 1999 until 20 July 2001. The applicant states that a total of 362 of his letters had been opened and read. The applicant has submitted a letter addressed to his lawyer by the Šiauliai remand prison administration on 18 February 2004, attesting that during the period from 15 March 1999 to 20 July 2001 the applicant had sent letters to 241 addressees, including the State authorities, NGOs, the European Court of Human Rights, and various third persons. All of these letters were listed in detail by the prison administration, with reference to their date, addressee, and their number in the applicant’s file. 12. Article 22 of the Constitution guarantees the right to respect for one’s private life, family life and correspondence. According to Article 15 of the Detention on Remand Act 1996 and Rule 72 of the Remand Prisons Internal Rules 1996, which were applicable at the material time, remanded persons’ letters could be subject to censorship. Rule 75 of the Remand Prisons Internal Rules provides that the remand centre administration cannot open letters of detainees addressed to the European Court of Human Rights if those letters were given to the administration to be sent in a closed envelope. Rule 83 provides that the remand prison administration shall familiarise the detainee with a reply to his correspondence within three days following receipt of the letter addressed to the detainee. Therefore, all letters received by the detainees are not given to them and are kept in their files by the remand centre administration. | 1 |
dev | 001-81912 | ENG | BGR | CHAMBER | 2,007 | CASE OF ANDREI GEORGIEV v. BULGARIA | 3 | Preliminary objection allowed (non-exhaustion of domestic remedies);No violation of Art. 3;Violation of Art. 13+3;Remainder inadmissible;Damage - financial award;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 6. On 3 October 1999 an individual was found bleeding in front of a discotheque with a broken jawbone. The applicant had previously had a confrontation with that person in the discotheque and both had been seen leaving at approximately the same time. 7. The victim's father filed a complaint with the police on an unspecified date naming the applicant as one of the perpetrators of the beating. 8. On 5 October 1999 a police enquiry or a preliminary investigation was opened into the incident. In a decision of the same day, the Slivnitsa Prosecutor's Office brought charges against the applicant and another individual for median bodily injury (Article 129 of the Criminal Code) and ordered their arrest. A police report of the same day considered them to have absconded as they had not been found at their known addresses. The applicant claimed, however, that the police never visited his official residence nor sent him a notice inviting him to appear for questioning. Thus, he claimed not to have been informed of the proceedings or that the authorities were looking for him. 9. On 22 November 1999 the applicant was placed on the national mostwanted list. 10. The applicant claimed, which the Government did not expressly challenge, that during this period he presented himself to the authorities and was charged with offences stemming from two other preliminary investigations which were being conducted against him at the time. In spite of being on the national most-wanted list, the authorities did not arrest him. 11. In a decision of 30 May 2000 the Slivnitsa Prosecutor's Office suspended the criminal proceedings until the arrest of the applicant. 12. The applicant claimed that after he found out that criminal proceedings for median bodily injury had been initiated against him he presented himself voluntarily at the Slivnitsa police station on 26 June 2000, accompanied by his attorney. He was detained immediately, separated from his attorney and, soon thereafter, transferred to the Slivnitsa Investigation detention facility. The fact that the applicant had presented himself to the police on his own accord was reflected in a police report of the same day. The applicant was not allowed further access to his attorney on that day. 13. On the next day, 27 June 2000, the applicant was charged with median bodily injury. 14. While in detention, the applicant was questioned on two occasions without his attorney, even though he requested her presence. He refused to give any statements to the authorities. 15. On unspecified dates, two witnesses were questioned by the authorities of which the applicant was not informed. 16. The preliminary investigation against the applicant was concluded on 16 May 2002. The resulting report of the investigator, which proposed that the criminal proceedings be discontinued due to insufficient evidence that the applicant was the perpetrator, was presented to the latter on 18 August 2002. 17. On the next day, 19 August 2002, the Slivnitsa Prosecutor's Office terminated the criminal proceedings against the applicant on the grounds that the accusation was not proven (Article 237, § 1 (2) of the Code of Criminal Procedure). 18. The applicant filed an appeal against his detention on the day he was detained – 26 June 2000. He claimed that there was no risk that he would abscond because he lived together with his family at a known registered address and had voluntarily presented himself to the authorities. The applicant also challenged the lawfulness of the order for his arrest and detention, because it had been issued solely on the basis of the complaint of the victim and he had never been invited to present himself to the authorities for questioning. 19. The applicant's appeal was examined on the next day, 27 June 2000. In a decision of the same day the Slivnitsa District Court dismissed the applicant's appeal on the basis that he had absconded and had been placed on the national most-wanted list as a result. From the minutes of the hearing it becomes apparent that there was some degree of confusion on the part of the parties as to whether the applicant had already been placed in pre-trial detention or was still being held in preliminary twenty-four hours police detention. The applicant claimed, which the Government did not expressly challenge, that the police report evidencing that he had presented himself voluntarily to the authorities on 26 June 2000 had not been presented for consideration by the court. In addition, he claimed that the examination of his appeal had been transferred to a new formation at the very last minute and that the presiding judge had previously ruled against him in a different set of criminal proceedings whereby he had imposed on him an administrative sanction. 20. Following the hearing on 27 June 2000, the applicant's attorney filed four petitions with the court seeking, inter alia, (1) to be allowed access to the investigation file, (2) a correction to the minutes of the hearing so that they reflected the applicant's assertions that he had voluntarily presented himself to the authorities, and (3) a copy of said minutes. Only the last request was granted. 21. The applicant appealed against the decision of the Slivnitsa District Court on 28 June 2000. 22. The appeal was examined and dismissed in a decision of 3 July 2000 by the Sofia Regional Court. During the hearing the prosecution presented the domestic court with a list of pending criminal investigations against the applicant which allegedly supported their argument that he might re-offend or abscond. His lawyer, however, challenged that assertion and noted that in some of those cases the applicant had presented himself to the authorities during the period when he was allegedly in hiding (see paragraph 10 above). In any event, the court found, in spite of the fact that the applicant had voluntarily presented himself to the authorities, that there was sufficient evidence that he might abscond or re-offend considering that he had already absconded in the context of the proceedings, had been placed on the national most-wanted list, had a prior conviction and there were other criminal proceedings opened against him. The court also considered that there was sufficient evidence that the applicant had perpetrated the offence with which he had been charged. 23. The applicant filed a second appeal against his detention on 13 July 2000, which was examined on 14 July 2000. In a decision of the same day the Slivnitsa District Court found in favour of the applicant and ordered his release on bail, which was to be paid within five days. 24. The applicant was released on 19 July 2000 after he deposited the bail amount. 25. The applicant was held at the Slivnitsa Investigation detention facility from 26 June to 19 July 2000. 26. The applicant contended, which the Government challenged, that (1) for the duration he was detained together with another three individuals in the same cell, (2) the cell had an area of six sq.m., (3) there were no windows or lighting, the cell being illuminated only from the light in the corridor, and (4) there were no beds, but just wooden racks on which to sleep and that the bed covers were lice-ridden. 27. The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice before 1 January 2000 are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)). 28. As of 1 January 2000 the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation). The effected amendments and the resulting practice of the Bulgarian courts are summarised in the Court's judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 32-35, 10 August 2006) and Yordanov v. Bulgaria (no. 56856/00, §§ 21-24, 10 August 2006). 29. The State and Municipalities Responsibility for Damage Act of 1988 (the “SMRDA” : title changed in 2006) provided, as in force at the relevant time, that the State was liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts in specific, exhaustively listed situations (sections 1-2). 30. In respect of conditions of detention, the relevant domestic law and practice under the SMRDA at the relevant time has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 7680, 2 February 2006) and Yordanov (cited above, §§ 29-30). 31. In respect of the regime of detention, section 2 of the SMRDA 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 [an] unlawful: 1. pre-trial detention..., if [the detention order] has been set aside for lack of lawful grounds; 2. indictment for a criminal offence if... the opened criminal proceedings have been terminated [on the ground] that the act was not perpetrated by the [accused] person...” 32. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SMRDA have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). 33. The reported case-law of the Supreme Court of Cassation under section 2, item 1 of the SMRDA prior to 2005 suggested that the term “lack of lawful grounds” referred to unlawfulness under domestic law (решение № 859/2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС, решение № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС). 34. At the same time, the reported case-law during the same period under section 2, item 2 of the SMRDA excluded its applicability to instances when the criminal proceedings were discontinued at the pretrial stage on the grounds that the accusation was not proven (решение № 1085/2001 г. от 26 юли 2001 г. по г.д. № 2263/2000 г. на ВКС ІV г.о.). 35. On 22 April 2005 the General Assembly of the Civil Chambers of the Supreme Court of Cassation (the “Supreme Court of Cassation”) adopted Interpretative decision no. 3/2004 (Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС), which is binding on the domestic courts. It decreed the following under item 7 of the said decision: “The respective organ [of the investigation, the prosecution or the courts] is also liable in the instances when the criminal proceedings have been terminated on the grounds that the accusation was not proven. The grounds for discontinuing [criminal proceedings] under Article 237, § 1 (2) of the Code of Criminal Procedure corresponds to the basis for seeking damage under section 2, item 2, alternative 3 of the SMRDA, namely '...that the act was not perpetrated by the [accused] person'”. 36. The Supreme Court of Cassation also decreed the following under item 13 of the said decision: “The pre-trial detention is unlawful when it does not adhere to the requirements of [the Code of Criminal Procedure]. The State is liable under section 2, item 1 of the SMRDA when the pre-trial detention has been revoked as unlawful, irrespective of the [subsequent] development of the pre-trial and court proceedings. In such case, the compensation is determined separately. If the person has been acquitted or the opened criminal proceedings have been terminated, the State is liable under section 2, item 2 of the SMRDA. In such case, the compensation for non-pecuniary damages includes the damage [stemming] from the unlawful pre-trial detention. If pecuniary damages have been suffered, the compensation for them is not included, but is awarded separately taking into account the particulars of each given case”. 37. The statute of limitations for actions for damage under the SMRDA is five years. In respect of persons seeking redress for criminal proceedings opened against them that are later terminated on the grounds that the act was not perpetrated by him or her, the time limit begins to run from the date of the decision for termination of the proceedings (section 110 of the Obligations and Contracts Act in connection with paragraph 1 of the Final Provision of the SMRDA and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). 38. The CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006. All but its most recent visit report have since been made public. 39. The Slivnitsa Investigation detention facility was visited in 2006, but the CPT report of that visit has not been made public. 40. There are general observations about the problems in all investigation service establishments in the 1995, 1999 and 2002 reports, which are summarised in the Court's judgment in the case of Dobrev (cited above, §§ 44-48 and §§ 52-55). | 1 |
dev | 001-84196 | ENG | CZE | ADMISSIBILITY | 2,007 | SEBIK AND STERNOVA v. THE CZECH REPUBLIC | 4 | Inadmissible | Peer Lorenzen | The applicants are: Mr Jaroslav Šebík and Ms Jana Šternová, born in 1946 and 1949 respectively, living in Zlín and represented by V. Jablonský, a lawyer practising in Prague; Mr Josef Krejčí, born in 1928 and residing in Čachtice; Mr Jiří Beran, born in 1945 and living in Prague; Ms Johanna Kammerlander, born in 1947 and living in Vienna, Austria. They are Czech nationals. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the cases, as submitted by the parties, may be summarised as follows. On 18 October 1950 the Supreme Court (Nejvyšší soud) convicted the applicants’ father of treason, sentencing him to confiscation of all his property, which was subsequently sold and assigned to a certain P. and M. On 12 December 1988 the applicants’ father died. On 19 September 1990 the Brno Regional Court (krajský soud) declared that, pursuant to the Judicial Rehabilitation Act, his conviction and all ancillary decisions had been quashed with retrospective effect. On 31 October 1995 the applicants brought restitution proceedings before the Zlín District Court (okresní soud) against P. and M. In a judgment of 10 November 1999 the District Court dismissed the applicants’ restitution action. The court had requested an expert opinion aimed at determining whether or not the property at issue had been sold to P. and M. at an unlawfully preferential price. With reference to the expert opinion, the court held that P. and M. had acquired the property lawfully. On 14 August 2001 the Regional Court upheld the merits of the District Court’s judgment, which became final on 6 November 2001. On 11 June 2002 the applicants’ appeal on points of law (dovolání) was dismissed by the Supreme Court as filed outside the one-month statutory time-limit laid down by Article 240 § 1 of the Code of Civil Procedure then in force. On 5 December 2002 the Constitutional Court (Ústavní soud) rejected the applicants’ constitutional appeal. It held that in respect of the Regional Court’s judgment the appeal had been filed outside the sixty-day time-limit provided for by the Constitutional Court Act, taking into account the dismissal of the applicants’ appeal on point of law for their failure to respect the one-month statutory time-limit. The court further held that the applicants’ argument relating to the proceedings before the Supreme Court were manifestly ill-founded. On 18 December 1985 the applicant’s wife died. Judicial proceedings regarding her inheritance were started on 7 February 1986 and were meritoriously terminated on 23 June 2003 when the decision of the Prague Regional Court (krajský soud) of 28 May 2003 on the distribution of the inheritance became final. On 11 January 1993 a notary initiated inheritance proceedings following the death of a certain A.K. On 28 April 1994 the Písek District Court (okresní soud) held that the applicant and his wife were heirs to A.K. At the same time, it determined the net value of A.K.’s assets. The inheritance proceedings terminated with a decision of the District Court dated 30 June 2003 which became final on 9 July 2003. The applicant’s husband was the owner of real estate in various places in the Czech Republic. These estates were confiscated from him in 1945. In 1949 some of the estates were transferred to the ownership of natural persons in an assignment procedure. On 6 February 2000 the applicant’s husband died, designating the applicant as his universal heir. The application concerns the following sets of proceedings. 1. Restitution proceedings before the Semily Land Office On 10 March 1992 the applicant’s late husband initiated restitution proceedings concerning the estates in Daliměřice and Bukovina. It appears that the proceedings are still pending. 2. Restitution proceedings before the Jablonec nad Nisou Land Office On 14 July 1992 the applicant’s late husband lodged a claim for the restitution of the real estate in Besedice, Chlístov u Železného Brodu, Jenišovice u Jablonce nad Nisou, Koberovy, Líšný, Vranové, Vrát and Železný Brod with the Jablonec nad Nisou Land Office. It appears that the proceedings are still pending. 3. Restitution proceedings before the Liberec Land Office On 23 November 1992 the applicant’s late husband lodged a claim for the restitution of the estate in Žďárek u Sychrova with the Liberec Land Office. It appears that the proceedings are still pending. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
dev | 001-110459 | ENG | TUR | ADMISSIBILITY | 2,012 | CHARALAMBOUS AND OTHERS v. TURKEY | 4 | Inadmissible | David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Loukis Loucaides;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicants are Cypriot nationals. Their names, dates of birth and places of residence are set out in the Annex. They are represented by Mr Christos M. Triantafyllides, Mr Andreas Angelides, Mr Achilleas Demetriades, Mr Achilles Emilianides, Mr Christos Clerides, Ms Kallistheni Demetriou Stivarou, Mr Constantinos Tambourlas and Mr Loukis Loucaides, lawyers practising in Cyprus. 2. The facts of the case may be summarised as follows. 3. The applicants stated that they are relatives of 29 Greek-Cypriot men, both civilians and army personnel, who went missing in July-August 1974 following the invasion of northern Cyprus by Turkish armed forces. These men were listed as missing persons, the information being given to the Red Cross and the United Nations. 4. The respondent Government stated that the relatives of Christakis Contementiotis had already known that he had died at the time of the events in 1974 but that his body could not be recovered due to the conflict. They pointed out that his name was not submitted to the authorities as one of the men who had gone missing. 5. The remains of the missing men have been found during exhumations carried out by the United Nations Committee for Missing Persons (“CMP”) between 20059. Further details are set out in the Annex. 6. On 19 March 2011 the lawyer for the applicants in the group of applications ((nos. 7048/08, 4584/10, 5281/08, 4649/10, 5189/10, 6081/10, 7839/10, 4852/05 and 5210/08) landed from Athens at Istanbul international airport for a two-day business and private trip as he had done before. At passport control, he was held up for two hours and then confined to the airport terminal. In the afternoon, after seven hours, his passport was returned and he was put on a plane back to Athens. He was questioned by the Greek police on arrival as the Turkish authorities had described him to the airline and Greek authorities as “unwanted”. | 0 |
dev | 001-4716 | ENG | POL | ADMISSIBILITY | 1,999 | RUDZINSKA v. POLAND | 1 | Inadmissible | Matti Pellonpää | The applicant is a Polish citizen born in 1975. She is a student residing in Toruń. A. In 1984 the applicant’s father opened on her behalf a special housing savings account in the State Savings Bank in Toruń, with the purpose of financing a future purchase of a house or apartment for the applicant after her coming of age. Until November 1987 he effected monthly payments to the account. On 12 May 1997, on the applicant’s request, the Toruń branch of the State Savings Bank informed her that her savings accumulated on the account amounted to a sum of 5,693 of new Polish zlotys (PLZ), including a housing award, in case she was entitled to it. In a letter to the Director of the Toruń branch of the Bank of 8 July 1997, the applicant submitted that the then real value of a house in Toruń was equivalent to 108,500 PLZ. Thus, there must have been an error in the calculation of her savings, as the terms of the housing savings account guaranteed her that at the closing of the account the monies deposited on it would be reassessed so as to maintain their purchasing power to the level of price of seventy square metres of an individual house. She pointed out that the sum she had on her account was not in reasonable proportion to the current price of housing. She therefore requested that the error be rectified. In his reply of 17 July 1997, the Director informed the applicant that the calculation of her savings, and in particular of sums due to her as housing award, had been correct. Under the applicable regulations contained in the Ordinance of the Council of Ministers of 7 May 1996, concerning the manner of calculation and payment of housing award and on clearing of accounts between the National Bank of Poland and the State Savings Bank, the following factors were taken into account in the calculation of the award: the length of the period of saving, the sums deposited by the client, the sums paid each year, the average price of housing and the interest rate applicable throughout the relevant period. It was further stressed that the owner of the account was entitled to the housing award calculated on the basis of sums paid in years during which the average price of one square metre of housing had been rising more quickly than the interest rate to be paid on the sums deposited on the housing savings account. In conclusion, the calculation of the sums accumulated on the applicant’s savings account which had been effected according to the formula set forth in the Ordinance, was correct. In a letter to the Minister of Finance of 18 September 1997, the applicant submitted that the sums as calculated by the bank would cover the price of only four square metres of housing at current market prices. Therefore, contrary to the terms of the housing savings account, guaranteed by the State, she would not be able to purchase a house. She complained that this amounted to fraud, which should not be countenanced by the State. She requested that her savings be reassessed. In a letter of 7 October 1997 the Department of Finances of the National Economy of the Ministry of Finance informed the applicant that the savings accumulated on the housing savings accounts were subject to two forms of reassessment with the purpose of offsetting the effects of inflation. The first one was the privileged interest rate which, since 1983, was equal to that applicable in respect of long-term savings accounts. Secondly, the owners of the accounts could be awarded housing awards paid directly from the State budget. These awards were designed to compensate the reduction of value of sums accumulated on the housing savings accounts caused by inflation and by augmentation of prices of housing resulting therefrom. However, the sums of awards due to individual clients were to be calculated on the basis of the savings accumulated by the client. It was further stressed that, in practice, most often the owners of such accounts accumulated sums equivalent to ten to twenty per cent of the necessary minimum contribution to be paid to housing co-operatives in order to become a full member (“wkład”). The expectation that the housing award would cover in full the difference between this sum and the actual full costs of building of a house was not justified. The applicant was further informed that it was only the bank at which the account had been opened which was competent to reassess the sums of savings deposited on the account. On 3 November 1997 the applicant complained to the Ombudsman about her situation. In reply of 21 November 1997 the Ombudsman informed the applicant that he had repeatedly drawn the attention of various State authorities, including the Prime Minister, the Minister of Finances, the Minister of Construction and Planning, to the issues raised by her. These problems arose out of the fact that the persons who had been saving, frequently for years, on the housing savings accounts, were often not in a position to pay the entire price of housing. This was, in part, due to the fact that the issues relating to housing awards, the interest rate applicable to housing savings accounts and the reassessment of the sums deposited on these accounts so as to offset in full the results of inflation had not been comprehensively resolved by the legislator in a manner which would be entirely compatible with the initial obligations of the State. Regrettably, the Ombudsman did not have at his disposal any effective means which would enable him to oblige the legislative and executive authorities to take any steps to solve the problems of persons in the applicant’s situation, who had expected that they would be able to finance their housing under the scheme put in place by the 1983 legislation. Consequently, he could take no further action in the applicant’s case. B. Relevant domestic law Pursuant to the terms of the housing savings account, as set out in the Ordinance of the President of the National Bank of Poland of 24 February 1983, the State guaranteed that the monies accumulated on the housing savings account in the State Savings Bank were to be reassessed so as to maintain their purchasing power. This guaranty covered only sums up to the costs of construction of either 70 square metres at an individual family house or 55 metres of an apartment built by a housing co-operative. This guarantee was to be paid in the form of a housing award. The owner of the account was entitled to obtain the housing award if, in the year in which he or she wished to close his or her account and allocate the monies accumulated on it to finance the purchase of a house or apartment, the average price of one square metre of housing was higher than it had been in the preceding years, and this increase had been higher than the increase of the interest rate applicable to the monies deposited on the housing savings account. Under the Council of Ministers' Order of 22 June 1993 the persons who have accumulated savings on the housing savings accounts in the State Savings Bank opened before 23 October 1990, which had remained opened for not less than five years, were entitled to housing award if they had bought or built a house or apartment, or adapted non-housing space to housing purposes and had paid for it from their own resources. It was the State Treasury which financed those payments and technically they were to be carried out by the State Savings Bank. In its resolution of 29 July 1993 the Supreme Court decided that under the provisions of the Civil Code as amended in 1990, the housing savings were not subject to reassessment by the State Treasury which would offset the results of inflation in full. In taking this decision the Court had regard to the provisions of the Civil Code pertaining to a possibility of reassessment of pecuniary obligations in view of inflation. These provisions expressly excluded such a possibility in respect of sums deposited on bank accounts. As regards the housing savings awards, the Supreme Court further decided that those awards were not subject to reassessment either. The Court observed, inter alia, that the problem concerned approximately five million citizens who had accumulated housing savings. A reassessment of the housing awards for all the persons concerned by the State Treasury would not be economically feasible as it would put an undue burden on the State budget. The Court further observed that, in any event, the Council of Ministers' Order of 22 June 1993 provided for a partial reassessment of such awards in the circumstances and on the conditions set forth therein. | 0 |
dev | 001-57902 | ENG | NLD | CHAMBER | 1,994 | CASE OF PELLADOAH v. THE NETHERLANDS | 3 | Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 6-2;Non-pecuniary damage - finding of violation sufficient | R. Pekkanen | 8. Mr Satyanund Pelladoah is a Mauritian national born in 1947 and resident in Quatre Bornes, Mauritius. 9. On 27 December 1985 Mr Pelladoah was arrested at Schiphol Airport after customs officials found more than twenty kilograms of heroin, some of it mixed with methaqualone (a synthetic psychotropic drug), in a suitcase which he was carrying. He was charged primarily with bringing into the country, with or without criminal intent as the case might be, a quantity of a substance containing heroin. This amounts to an indictable offence (misdrijf) carrying a maximum penalty of twelve years’ imprisonment (gevangenisstraf) and a fine of NLG 100,000 if committed with criminal intent (opzettelijk - section 2 (1) (A) and section 10 (4) of the Opium Act - Opiumwet) but a summary offence (overtreding) carrying a maximum penalty of only six months’ detention (hechtenis) and a fine of NLG 25,000 if committed without such intent (section 2 (1) (A) and section 10 (1) of the Opium Act). In the alternative, he was charged with possession (aanwezig hebben) of such a substance, with or without criminal intent as the case might be, which is an indictable offence carrying a maximum penalty of four years’ imprisonment and a fine of NLG 100,000 if committed with criminal intent (section 2 (1) (C) and section 10 (2) of the Opium Act), but a summary offence carrying a maximum of six months’ detention and a fine of NLG 25,000 if criminal intent is absent (section 2 (1) (C) and section 10 (1) of the Opium Act). 10. On 14 August 1986 Mr Pelladoah was tried by the Haarlem Regional Court (arrondissementsrechtbank); he admitted having "taken a suitcase off the luggage conveyor ... [which, when examined by customs,] turned out to contain a large quantity of a substance subsequently found to be heroin". 11. The Regional Court gave judgment on 21 August 1986, acquitting Mr Pelladoah of bringing a quantity of heroin into the country with criminal intent, but finding him guilty of doing so without criminal intent; it sentenced him to six months’ detention. By the same judgment it ordered his immediate release as he had already spent that length of time in detention on remand. 12; Both the prosecution and the defence appealed against the Regional Court’s judgment to the Amsterdam Court of Appeal. The applicant was expelled from the Netherlands pursuant to the Aliens Act (Vreemdelingenwet) before the appeals were heard. 13. The Amsterdam Court of Appeal held a hearing in the case on 10 February 1987. The official record of the hearing states that Mr Pelladoah was declared to be in default and contains the following passage: "Mr K. [counsel for Mr Pelladoah] declares - in essence - : ... I request the court to allow me to conduct the defence, as my client, in view of his place of residence, is unable to appear at the hearing." The Court of Appeal refused this request since "no compelling reason (klemmende reden) had become apparent" to allow it. Witnesses were heard; the prosecution was allowed to question them but Mr Pelladoah’s lawyer was not. 14. The Court of Appeal gave judgment on 24 February 1987. In view of information to the effect that an extensive investigation into the drugs trade was under way in Mauritius, in the course of which Mr Pelladoah had made statements to the Mauritian authorities, the Court of Appeal held that the case had not been fully examined and ordered the case to be reheard. A new summons was issued for Mr Pelladoah to appear. 15. The second hearing of the Court of Appeal in the case was held on 20 November 1987. Since two of the three judges had not been present at the first hearing, the examination of the case was commenced anew. This time Mr Pelladoah’s lawyer asked to be allowed to represent his client pursuant to section 270 of the Code of Criminal Procedure (Wetboek van Strafvordering, CCP - see paragraph 23 below) as regarded the alternative charge. This request was refused because "it had not been stated, nor did it appear, that [the lawyer] had been specifically authorised by the accused to represent him; moreover, the primary charge, for which representation was not allowed, fell to be examined first". One of the witnesses who had been heard at the previous hearing was heard again; the prosecution was granted the opportunity to question him and make observations as to his statements but again Mr Pelladoah’s lawyer was not. The prosecution asked that Mr Pelladoah be sentenced to twelve years’ imprisonment. 16. The Court of Appeal then suspended the hearing until 22 January 1988 so as to enable the prosecution to have relevant parts of the report of the Mauritian authorities translated into Dutch. 17. The hearing was continued on 22 January 1988. The lawyer asked to be allowed to represent Mr Pelladoah at the hearing and submitted a written declaration authorising him to do so. The Court of Appeal again refused to accede to the lawyer’s request on the ground that "the primary charge, which carried a sentence of imprisonment and for which, consequently, representation [was] not allowed, fell to be examined first". 18. On 5 February 1988 the Court of Appeal delivered a default judgment. It found Mr Pelladoah guilty on the primary charge, committed with criminal intent, and sentenced him to nine years’ imprisonment. According to its judgment, it based the sentence on "the seriousness of the act concerned and the circumstances in which it was committed, and the person of the accused"; it drew attention to the quantity of the heroin-containing substance brought into the country and observed that Mr Pelladoah had made unlawful use of his diplomatic passport. 19. Through his lawyer, Mr Pelladoah filed an appeal on points of law to the Supreme Court (Hoge Raad). In his grounds of appeal (cassatiemiddelen) he complained essentially of the following: firstly, that at its first hearing on 10 February 1987 the Court of Appeal had erred in not considering the reason for the applicant’s failure to appear - the trouble and expense of a journey from Mauritius to the Netherlands - to be sufficiently "compelling"; secondly, that representation by the lawyer should have been allowed because even if criminal intent was proven the primary charge did not concern an indictable offence which carried a sentence of imprisonment. 20. The Supreme Court gave judgment on 24 October 1989. As to the applicant’s first complaint, it observed that on 20 November 1987, a different chamber of the Court of Appeal had begun a completely new examination of the case and that the judgment of that court had therefore not been based on the hearing of 10 February 1987. It held that a complaint concerning the refusal of a request made at the latter hearing could therefore not entail the nullity of that judgment. It also rejected the applicant’s second complaint, citing the legal provision according to which the primary charge, in case of criminal intent, constituted an indictable offence carrying a term of imprisonment. 21. In general, the accused - if he is not a juvenile (section 500 h of the Code of Criminal Procedure) - is not under an obligation to appear at the hearing. The court must examine of its own motion the validity of the summons (geldigheid der dagvaarding - section 348 CCP). If, in spite of having been properly summoned, the accused does not appear at the hearing, the court will declare him to be in default (verstek verlenen) and proceed with the case in his absence. This is the rule even if the accused gives prior notice of his absence and asks for the hearing to be deferred (see, inter alia, the judgment of the Supreme Court of 26 February 1985, NJ (Nederlandse Jurisprudentie, Netherlands Law Reports) 1985, 567) or submits his defence in writing (see the judgment of the Supreme Court of 9 October 1990, NJ 1991, 133) and even if the accused cannot be blamed for his absence (see, inter alia, the judgments of the Supreme Court of 20 December 1977, NJ 1978, 226, and 10 October 1989, NJ 1990, 293). The court has the power to order the accused to appear or to be produced before it by the police (section 272 CCP) but it is rarely made use of unless the accused is a juvenile. 22. An accused who has been convicted in his absence by the first-instance court may file an objection (verzet - section 399 (1) CCP); this is an ordinary legal remedy in Netherlands law. Such an objection entitles the accused to a full retrial by the same court (section 403 CCP). An objection may not be filed by an accused who has, or has had, the opportunity to appeal to a higher court with jurisdiction as to both fact and law (hoger beroep - section 399 (2) CCP). This means that the possibility of an objection is limited to those cases in which the law does not admit of such an appeal, i.e. where the sentence is nothing more serious than a small fine or where a summary offence has been dealt with in first instance by the Regional Court. It follows from section 339 (1) CCP that no objection may be filed against a default judgment given on appeal. 23. In certain cases the accused may be represented in his absence. In cases which are dealt with at first instance by the Regional Court, this possibility exists if the act with which the accused is charged does not carry a prison sentence. However, the representative must be a lawyer who must state that he has been specifically empowered to act as such (bepaaldelijk daartoe gevolmachtigd - section 270 CCP). At the hearing the procedural position of the representative is that of the accused himself, i.e. - even if the representative is a lawyer - not that of counsel (see, inter alia, the judgment of the Supreme Court of 25 April 1989, NJ 1990, 91). This means that like the accused, he may be cross-examined by the court and the prosecution and his statements may be used as evidence (see the judgment of the Supreme Court of 13 February 1951, NJ 1951, 476); he may also be assisted by a lawyer - or another lawyer - as counsel. If representation is allowed at first instance before the Regional Court, it is also allowed on appeal before the Court of Appeal (section 415 CCP). 24. The question - which was in dispute among learned writers - whether the defendant, having been declared in default, is entitled to have his defence conducted for him by counsel was decided by the Supreme Court in its judgment of 23 November 1971 (NJ 1972, 293). Although the Procurator General (procureur-generaal) had suggested an answer in the affirmative, the Supreme Court came to the opposite conclusion. It reasoned that, were such an entitlement to be recognised, trial in absentia would take on an adversarial character incompatible with the basic idea of the Code of Criminal Procedure that a defendant who had been declared in default and convicted might always file an objection if he felt that he would not have been convicted had the court heard his defence. The Supreme Court went on to hold that it was true that since the introduction of the Code of Criminal Procedure the right to file an objection had been considerably curtailed, but pointed out that in so doing the legislature had not changed the character of trial in absentia. In conclusion, no section of the Code of Criminal Procedure nor any principle of unwritten law entitled a defendant who had been declared in default to have his defence conducted in his absence by counsel. 25. The Supreme Court has accepted, however, that a trial court may, at its discretion, allow counsel to speak in defence of an accused who has been declared in default. This discretion is quite frequently made use of. The Supreme Court strictly maintains the rule that if in such cases a trial court allows counsel to speak at all, it must afford him all rights available to the defence. It may not impose any limitations as to what subjects he may address (judgment of 19 May 1987, NJ 1988, 217); it may not deny him the right to speak last (judgment of 22 March 1988, NJ 1989, 13); if there are witnesses, counsel must be permitted to cross-examine them (judgment of 28 May 1991, NJ 1991, 729). 26. In principle the Supreme Court has held to its rule (see paragraph 24 above) that a defendant who has been declared in default is not entitled to have his defence conducted by counsel, but since its judgment of 26 February 1980 (NJ 1980, 246) it is its established case-law that there is one exception: in that judgment, it ruled, on the basis of, inter alia, Article 6 (art. 6) of the Convention, that a trial court is obliged to allow counsel to conduct the defence of an accused who has been declared in default if it is of the opinion that "compelling reasons" prevent the accused from appearing at the hearing and it sees no reason to defer its examination of the case. The Supreme Court has accepted the corollary that counsel should in any case, if he so requests, be allowed the opportunity to argue that such reasons exist (judgments of 10 October 1989, NJ 1990, 293, and 19 December 1989, NJ 1990, 407). 27. The Supreme Court, in its judgment of 16 February 1988 (NJ 1988, 794), has held that a "compelling reason" exists not only if it is impossible for the accused to appear, but also if such an important interest is at stake for the accused that - in view of all circumstances that may be considered relevant - he cannot reasonably be expected to appear for trial and may therefore expect either that his trial will be adjourned until some later time when he will be able to attend or that his counsel will be allowed to conduct the defence. In its judgment of 30 November 1993, DD (Delikt en Delinkwent, Offence and Offender) 94.147, Bijl. NJB (case-law supplement to the Nederlands Juristenblad, Netherlands Law Review, 14 January 1994, no. 2, p. 17), the Supreme Court has recognised that the expulsion of the accused pursuant to the Aliens Act generally constitutes a "compelling reason" for his absence at the trial. 28. If counsel wishes to act for the defence in the absence of his client, he should expressly ask for permission to do so. His presence alone is not sufficient (see, inter alia, the judgments of the Supreme Court of 14 November 1986, NJ 1987, 862; 25 November 1986, NJ 1987, 686; 8 December 1987, NJ 1988, 704; 18 September 1989, NJ 1990, 145; 14 December 1993, DD 94.166). Neither is a request made by counsel for the hearing to be deferred, as was held in, inter alia, the Supreme Court’s judgment of 21 December 1993, DD 94.176. | 1 |
dev | 001-77903 | ENG | SVK | ADMISSIBILITY | 2,006 | SIRMIUM SPOL.S R.O. v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant is a commercial private limited liability company which was established in 1996. Its registered name is SIRMIUM, spol. s r.o. and it was represented before the Court by Ms Z. Kupcová, a lawyer practising in Bratislava. The respondent Government were represented by Mrs A. Poláčková, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. In 1993 the National Council of the Slovak Republic (“Parliament”) enacted a law (Law no. 189/1993 Coll. – “the Act”), by which it established the Fund for Children and Youth (Fond detí a mládeže – “the Fund”). The Fund had its own legal personality and its principal task was to manage State property, as defined in the Act, in order to promote children’s and youth activities. In pursuit of that task, the Fund was authorised to engage in business activities. On 22 June 2000 Parliament enacted an amendment (Law no. 220/2000 Coll.) to the Act. It entered into force on 21 July 2000. Under section 3a(1) of the amended Act, any lease of property administered by the Fund for a period of more than 5 years necessitated the approval of the Ministry of Administration and Privatisation of National Property (Ministerstvo pre správu a privatizáciu národného majetku – “the Ministry”). Pursuant to section 15a(1) of the amended Act, existing leases with a term of more than five years would be terminated automatically ex lege six months after the entry into force of the amendment, unless they were approved by the Ministry. Under section 15a(2) and (3), if a lease was terminated as described above, the tenant was to vacate the property on pain of a financial penalty equal to ten times the monthly rent for each commenced month of default. The Fund was to compensate the tenant for improvements and repairs on the leased property, provided that the Fund had approved them and had undertaken to reimburse their cost. According to the explanatory note (dôvodová správa) on the amendment, the aim of the amendment was to lay down basic rules and minimum standards for effective management of the State’s property in furtherance of the aims pursued by the Act. It was noted that the core of the Fund’s economic activities consisted in leasing out the property it managed. However, the leases had frequently been concluded on inadequate terms and for an excessive period, aspects which had to be regularised. On 18 September 2000 a group of members of parliament challenged the amendment in the Constitutional Court (Ústavný súd). They were later joined in their challenge by the Prosecutor General. On 12 October 2000 the Constitutional Court accepted the challenge for further examination. On 17 January 2002 the Constitutional Court declared the whole of section 15a and certain other sections of the Act, as amended in 2000, contrary to several provisions of the Constitution. It held, inter alia, that these provisions infringed the principles of the division of State power, the prohibition of retroactivity, legality and access to a court. It was observed that they retroactively interfered with contractual arrangement of a private-law nature and bypassed the jurisdiction of the ordinary courts. Section 3a of the amended Act remained unaffected. On 1 February 2002 the judgment (nález) of the Constitutional Court was published in the Collection of Laws. By operation of Article 125 § 3 of the Constitution, the unconstitutional provisions of the Act thus lost their legal effect. As Parliament took no steps to rectify them, six months later these provisions became void. On 30 October 2003 Parliament passed a special law repealing the whole of the Act and winding up the Fund. This law (Law no. 4562/2003 Coll.) entered into force on 1 December 2003. As a consequence, the Fund entered into liquidation. The relevant procedure is still pending. In 1996 the applicant company concluded an agreement with the Fund for the lease of commercial premises comprising a hotel for a term of 20 years. The applicant company took over the leased premises, invested substantially in their renovation, and ran a hotel in them. Following the entry into force of the 2000 amendment to the Act, the applicant company sought the Ministry’s approval of the lease. On 18 August 2000 the Ministry declined to approve the lease. Consequently, the lease expired on 21 January 2001. The applicant company then made several requests for the Fund to take over the premises. The Fund did so, but no earlier than 5 April 2001. The applicant company claims that until then it had to maintain the premises in order to prevent their deterioration and that it consequently incurred added expense and sustained material damage. The applicant company also submits that, at that time, it did not know that the amendment had been challenged in the Constitutional Court and that the challenge had been accepted for further examination. The applicant company subsequently ceased its commercial operations. Another company, E.-M., leased commercial premises from the Fund. The lease was for a fixed term of 30 years. On 7 March 2001, at the company’s request, the Bratislava I District Court (Okresný súd) indicated an interim measure ordering the Fund to allow the company to enjoy the premises peacefully. At the same time, the company was invited to bring, within 30 days, an action for a declaratory ruling that the lease agreement existed. The interim measure would stay in place until the final settlement of that action. In its rulings the District Court observed that the 2000 amendment to the Act had been challenged in the Constitutional Court and that the proceedings were still pending. The E.-M. company brought the action as it had been invited to do and the proceedings are still pending. Another company, Y., leased commercial premises from the Fund. The lease was likewise for a fixed term of 30 years and the Ministry declined to approve it. The Fund brought an action for Y. to vacate the premises. On 17 December 2004 the Bratislava I District Court dismissed the action. It observed that the 2000 amendment was aimed at terminating leases such as the one concluded by Y. However, it had no actual effect on the lease in question because it had been automatically renewed by virtue of Article 676 § 2 of the Civil Code, which provided for the renewal of leases where, as in the present case, the landlord failed to apply within 30 days of the purported expiry of the lease for the premises to be vacated. The District Court also took notice of the Constitutional Court’s judgment of 17 January 2002 and held that legal relationships could not be based on unconstitutional laws. An entrepreneur, M., leased commercial premises from the Fund. The lease was likewise for a fixed term of 30 years and the Ministry did not approve it. M. then vacated the premises. On 5 August 2003 M. brought an action against the State, in the person of Parliament. He made further submissions on 28 February 2005. Relying on the Constitutional Court’s judgment of 17 January 2002, he argued that the termination of the lease in 2001 had been unconstitutional and, as such, unlawful. He invoked the State Liability Act of 1969 (Law no. 58/1969 Coll.) and claimed damages. The action is still pending. Another company, E.-B., also had a long-term lease on premises administered by a subsidiary of the Fund. It declined to leave them, and in 2001 the Fund brought an action for its eviction. The action was dismissed by the Liptovský Mikuláš District Court on 11 September 2002 and, on appeal, by the Žilina Regional Court on 13 September 2005. The courts observed that the relevant provisions of the 2000 amendment were unconstitutional and legally void. They could therefore not be used as a basis for a finding that the lease had expired and, consequently, for an order to vacate the premises. With reference to section 41b(2) of the Constitutional Court Act (Law no. 38/1993 Coll. – see “Relevant domestic law and practice” below), the courts found that even if an eviction order had been made in the circumstances of the case, it would not have been enforceable. Article 125 of the Constitution provides: “1. The Constitutional Court shall decide on the conformity of (a) laws with the Constitution, constitutional laws and international treaties to which the National Council of the Slovak Republic has expressed its assent and which have been ratified and promulgated in the manner laid down by law, ... 3. If the Constitutional Court finds a lack of conformity between legal instruments referred to in paragraph 1, the relevant instruments, parts of them or certain of their provisions shall lose their effect. The bodies that issued these legal regulations shall be obliged to harmonise them with the Constitution, with constitutional laws and with international treaties promulgated in the manner laid down by a law, and also, in the case of instruments referred to in paragraph 1 (b) and (c), with other laws, and in the case of instruments referred to in paragraph 1 (d), with government regulations and with generally binding legal regulations issued by ministries and other central State administrative bodies within six months from the promulgation of the decision of the Constitutional Court. If they fail to do so, these instruments, parts of them or their provisions shall lose their effect six months after the promulgation of the decision.” Chapter (hlava) 2 of Part (časť) 3 lays down rules concerning the review of conformity of legislation. It contains, inter alia, the following provisions: “(1) The legal instrument, parts of it or some of its provisions shall lose their legal effect on the date on which the judgment of the Constitutional Court is published in the Collection of Laws. ... (3) The fact that a legal instrument loses its legal effect or validity on the basis of the judgment of the Constitutional Court shall not entail the renewal of the validity of any legal instruments which it repealed. However, if the original legal regulations were merely changed or amended, they shall be valid in the form prior to the [annulled] amendment. ...” “(1) If a court has delivered a judgement in criminal proceedings on the basis of a legal instrument which later lost its effect pursuant to Article 125 of the Constitution, and the judgment has become final but has not been executed, the loss of the legal effect of the said instrument shall constitute a ground for reopening the case under the relevant provisions of the Code of Criminal Procedure. (2) Other final decisions which were given in civil or administrative proceedings on the basis of a legal instrument that has lost its legal effect either totally or in part shall remain unaffected. Obligations imposed as a result of such decisions cannot, however be enforced.” Chapter 7 of Part 8 lays down rules concerning lease agreements. Section (oddiel) 3 deals with termination of leases and contains, inter alia, the following provisions: “1. A lease shall terminate on the expiry of the term for which it was concluded, unless the parties agree otherwise. 2. If the lessee uses the object of the lease after the termination of the lease and the lessor does not bring an action for restitution of the object within 30 days, the lease agreement shall be renewed on the same terms as agreed originally...” Article 80 contains general rules concerning the types and the scope of actions (návrh na začatie konania) in civil courts. It provides: “Civil actions may be aimed at obtaining rulings concerning, in particular: (a) personal status..., (b) fulfilment of an obligation which stems from law, contract or breach of law; (c) determination of whether a particular legal relationship or a right exists or does not, provided that the determination is justified by a pressing legal interest.” The scope of the Act is defined in section 1, which provides that the State is liable for damage caused by unlawful decisions by its bodies and agencies in civil proceedings, administrative proceedings, criminal proceedings (with the exception of decisions concerning detention and penalties) and proceedings before notaries. Under section 4(1), a claim for damages can be brought only if the impugned decision was quashed for being unlawful by the competent authority. Section 18(1) renders the State liable for damage caused by wrongful official conduct on the part of State bodies and authorities in carrying out their functions. A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act by a public authority, quantifies its amount, and shows that there is a causal link between the damage and the wrongful act in question. | 0 |
dev | 001-71522 | ENG | RUS | ADMISSIBILITY | 2,005 | ELSANOVA v. RUSSIA | 3 | Inadmissible | Nicolas Bratza | The applicant, Aminat Madarovna Elsanova, is a Russian national, who was born in 1955. She currently lives in Samashki, Achkhoy-Martan District, Chechnya. Before March 2000 she used to live in Grozny. She is represented before the Court by William Bowring and Kirill Koroteyev, lawyers of the Human Rights Centre Memorial (Moscow) and the European Human Rights Advocacy Centre - EHRAC (London). The respondent Government are represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights. The facts of the case are partially disputed by the parties. They may be summarised as follows. In summer 1999 the applicant, who used to live in Grozny, set up a farm in the village of Nizhaloy, Shatoy District. In April 1997 – July 1999 she, together with her sister Marem, bought 100 cows at a collective farm in Dagestan, which she brought to Nizhaloy. The applicant submits that in Nizhaloy she owned a house of two rooms and a summer and a winter cow-shed. She also owned a Belarus tractor, a caterpillar tractor and a Niva car. The applicant’s brother Mayrbek Elsanov and neighbour G. permanently lived in Nizhaloy with their families and took care of the applicant’s cattle, for which she paid them a monthly salary. In September 1999 hostilities started in Chechnya between the Russian military and the armed groups of the Chechen rebel fighters. Grozny and other towns and villages came under attack from the Russian military forces, which were trying to regain control over the Republic. In March 2000 the applicant left Grozny because of the hostilities and went to Nizhaloy. The applicant submits that on 16 March 2000 the village unexpectedly came under attack from the air. As a result of a blast the applicant’s brother Mayrbek Elsanov received a splinter wound in the back and bled heavily. The applicant’s niece Laura Shakhgiriyeva, aged four, was also wounded by a blast. They both died within a few hours without receiving medical help. Their neighbour G. was also killed by a blast on the same day. The strikes continued all day long and the applicant and her family members had to hide in a cave. During the night the applicant and her relatives brought the bodies of her brother and niece to the family cemetery and hastily buried them. According to the applicant, the attack on the village continued until 26 March 2000. All her property and her father’s house, situated nearby, were destroyed. Her cattle were killed and the vehicles owned by her were destroyed. When the attack was over the applicant and her relatives walked from their village to Mekhety. From there the applicant arrived at the village of Samashki, Achkhoy-Martan District, where she currently resides. In October 2000 the Civil Registration office of the Shatoy District issued death certificates in respect of Laura Shakhgiriyeva - born on 12 January 1996, died on 16 May 2000 in Nizhaloy (the applicant submits that there was a mistake in the recorded date of death) - and in respect of Mayrbek Elsanov - born on 27 October 1963, died on 16 March 2000 in Nizhaloy. On 11 April 2001 the military commissariat of the Achkhoy-Martan District confirmed that, for pension purposes, the applicant’s brother Mayrbek Elsanov had been taken off the military draft register as of April 2000 because of his death. The applicant submits that she applied to the prosecutor’s office and to the court of the Shatoy district on unspecified dates in 2001 and 2002. The applicant is not aware of the results. She submits that an officer at the prosecutor’s service told her to stop complaining or she would “disappear”. At some date a group of soldiers on armoured personnel carriers (APC) came to her house, produced a copy of her application to the Shatoy District Court and tore it up. They threatened her with revenge if she continued to complain. The applicant did not pursue any domestic remedies afterwards, fearing for her life. The Government submit in their Memorandum of 1 September 2004 that the information contained in the applicant’s complaint, namely the attack on Nizhaloy, the death and wounding of its residents, including the applicant’s relatives, and the destruction of her property was not brought to the attention of the competent authorities. There is no record of her alleged complaints to the prosecutor’s office or to the court. Following the communication of the complaint the local prosecutor’s office has been carrying out a verification of the complaints. The Government further state that the courts in Chechnya started functioning in November 2000. There is no record of the applicant’s application to any district court in Chechnya. On 3 August 2004 the applicant was questioned by a judge of a district court and stated that she had never applied to a court with a complaint. The applicant submits that as a result of the sustained shock she became ill and was operated on. In 2003 she was classified as disabled due to her illness. The applicant submitted the following documents to support her claims. First, she submitted two application forms: a brief one dated 27 April 2000, and a more detailed one dated 7 January 2004. In her application form of 27 April 2000 the applicant alleged a violation of Article 1 of Protocol No. 1 concerning the damage to her property and of Article 13 and did not mention the death of her relatives. Her complaints under Articles 2, 3 and 8 of the Convention are set out in the second application form. The applicant submitted her own statements of facts, dated December 2003 and January 2004. She also submitted a statement by her sister Marem Elsanova, who was not herself a witness of the events in Nizhaloy. The applicant also submitted a statement by Raisa K., who was in Nizhaloy on 16 March 2000, which corroborated the applicant’s account. The statement does not indicate the witness’s address or identity document. It is dated December 2003. The applicant submitted medical documents indicating that in 2001 she underwent an operation for cancer and that in 2003 she received post-operational treatment. As a proof of her ownership of the property in Nizhaloy and its destruction the applicant submitted a letter issued in March 2001 by an enterprise in Dagestan which stated that in the period April 1997 – July 1999 the applicant had purchased there a hundred head of cattle for the sum of roubles (RUR) 97,000. In March 2001 the administration of the village of Samashki issued a note to confirm that in the period 1997 – 2000 the applicant had regularly travelled to the Shatoy District to take care of the cattle and her farm there, which was destroyed in March 2000. The Government submitted a letter from the Chechnya Supreme Court which stated that the applicant had never applied to a court in Chechnya with a claim for compensation by way of damages. They also submitted a copy of the applicant’s written explanations addressed to the chairman of the Achkhoy-Martan District Court, dated August 2004 and collected by a judge of that court. The applicant stated that on 19-26 March 2000 she had been subjected to an air attack in Nizhaloy, Shatoy District. As a result of the attack the applicant’s house and farm, one hundred cows, two tractors and a “Niva” car were destroyed. Eight persons had been killed as a result of the attack. The applicant further stated that she had applied to the Shatoy District Prosecutor’s Office which had failed to react. The applicant had not applied to the law-enforcement bodies in the Achkhoy-Martan district, because they were not functionning in early 2000. In June 2000 the applicant talked to a representative of the NGO Memorial and decided to apply to the international court. | 0 |
dev | 001-59219 | ENG | TUR | CHAMBER | 2,001 | CASE OF CICEK v. TURKEY | 2 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment;Inhuman treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Security of person);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Life) | Elisabeth Palm;Feyyaz Gölcüklü | 7. The applicant, Mrs Hamsa Çiçek, who was born in 1930, is a Turkish citizen and lives in Dernek, a village in Lice District of the province of Diyarbakır in South-East Turkey. Her application is brought on behalf of herself, as well as of her two sons, Tahsin (44 years old in 1994) and Ali İhsan Çiçek (20 years old in 1994) and her grandson Çayan Çiçek, who have allegedly disappeared in circumstances engaging the responsibility of the State. 8. The facts surrounding the disappearance of the applicant’s two sons and her grandson are disputed. The facts presented by the applicant are contained in Section 1 below. The facts as presented by the Government are set out in Section 2. 9. A summary of the documents that are submitted by the applicant and the Government in support of their assertions and the evidence gathered from the witnesses at hearings conducted in Ankara by the Commission is given below in Part C. 10. On 10 May 1994 at approximately 6.00 a.m., about a hundred soldiers from the Lice District Gendarmes Headquarters raided the applicant's village. Leaving their vehicles at the entrance of the village, they arrived on foot. 11. The soldiers went round the houses to wake villagers up, telling them to gather by the mosque and to bring their identity cards with them. When about 400 villagers gathered by the mosque, the soldiers collected the identity cards of the male villagers. The women and children were sent home, as a result of which they were not able to witness what happened next. According to what the applicant was told by the male villagers who were present, the soldiers carried out an identity check by calling out the villagers’ names one by one from a list. Thereafter, the soldiers gave back the villagers’ identity cards except for those of Ramazan Akyol, Fevzi Fidantek, Mehmet Özinekçi, Mehmet Demir and Ali İhsan Çiçek (the applicant's son). These five villagers were told to stand aside. The identity card of Tahsin Çiçek (the second son of the applicant) was initially returned but he was immediately called back and sent to join the other five. 12. The soldiers left the village, taking these six villagers into custody. Witnesses confirmed that the detainees were taken to Lice Regional Boarding School. It is alleged that Tahsin Çiçek, Ali İhsan Çiçek and Ramazan Akyol were ill-treated there. 13. It appears that, on the second day of their custody, the soldiers separated Tahsin and Ali İhsan Çiçek from the other detainees saying that they were releasing the two brothers and would release the rest of them as well. 14. On the following day, the other four villagers were released. When they returned home, they were surprised to find that Tahsin and Ali İhsan Çiçek had not come back although they had been released. 15. After about 20 days subsequent to the detention of her sons, the applicant contacted a villager who had been released from Lice Regional Boarding School, where she believed her sons had been detained. Upon the applicant’s description of her sons, the villager affirmed that he had been detained with two brothers, who corresponded to her description. 16. The applicant also met another villager released a month earlier from custody at Lice Regional Boarding School. When the applicant described her sons and asked whether he had seen them, this villager confirmed that he had been detained with someone who resembled Tahsin. 17. The applicant was told by witnesses that, on 27 May 1994, Tahsin's son Çayan (i.e. her grandson) was taken away by security forces from the garden of their family house. Çayan, who was sixteen years old at the time of the events, is visually impaired; he cannot see at all at night and his vision is limited to approximately one meter in daylight. 18. The applicant has made several applications in search of her sons and grandson. She went to Lice District Gendarme Headquarters on two occasions and asked about them. She was told that they could not help her. The applicant is elderly, lives in a village and cannot speak Turkish. This limits the enquiries she can make. Her daughter, Feride Çiçek, who lives in Diyarbakır, submitted verbal petitions to the Diyarbakır State Security Court Public Prosecutor. She was given a verbal reply to the effect that her brothers and nephew (i.e. the applicant's sons and grandson) were not in custody. 19. The Government state that the applicant’s sons and grandson were not taken into custody by the security forces and deny that an operation had been conducted in Dernek on 10 May 1994 by the security forces. They note that this village did not fall within the zone between Kulp and Lice districts in Diyarbakır, where military operations were conducted between 23 April - 10 May 1994. In this respect, the Government refer to custody records that do not mention the names of Tahsin Çiçek, Ali İhsan Çiçek and Çayan Çiçek and to the testimonies of two villagers from Dernek, who confirm that no operation was carried out in their village on 10 May 1994. 20. A full scale investigation based on the applicant’s allegations was first initiated by the Gendarme General Commandment and later a preliminary investigation was initiated by the Lice public prosecutor under file number 1997/182. The village muhtar Behçet Yılmaz and another habitant of the Dernek village, Şükrü Çelik, were heard by the gendarmes on 29 September 1995. Another subject living in Dernek, Raif Aksu, stated before the gendarmes that he did not remember any operation taking place in his village and those names read to him had not been detained as alleged. The public prosecutor of Lice heard on 8 July 1997 Ramazan Akyol, Fevzi Fidantek, Mehmet Özinekçi and Mehmet Demir as witnesses in this case. 21. The Government also maintain that there are strong grounds to believe that the applicant’s sons, Tahsin and Ali Ihsan Çiçek, have moved to Syria, where they have relatives. 22. The parties submitted various documents concerning the investigation following the disappearances of Ali İhsan Çiçek, Tahsin Çiçek and Çayan Çiçek. 23. The custody records of the Lice Gendarmerie Station concerning tthe period between 24 April 1994 and 3 July 1994 show that Tahsin Çiçek had been taken into custody on 24 April 1994 and released on 26 April 1994. 24. The custody records of the Lice Security Directorate Anti-Terrorism Department and the Interrogation Unit of the Provincial Gendarmes Headquarters in Diyarbakır for the period between 1 April - 31 May 1994 do not contain the names of Tahsin Çiçek, Ali İhsan Çiçek and Çayan Çiçek. 25. Upon the request of the Commission delegates the Government submitted the plan of the Lice Regional Boarding School. The plan includes the ground floor, the first floor and the second floor, whereas it does not contain the basement. 26. The second commando regiment reported that between 23 April - 10 May 1994 military operations had been conducted in Sağgöze, Kaygısız, Daltepe, Mizagül Dağı, Çotuk and Herpinos regions, situated between Kulp and Lice Districts, in the Diyarbakır province. According to this report, Dernek and Arıklı villages, albeit near, remained outside the operation area. 27. In this statement, the witness was asked about his knowledge and observations as regards Hamsa Çiçek’s allegations as stated in her application to the European Commission of Human Rights. He replied that he did not recall whether or not an operation had been carried out in the village on 10 May 1994. He maintained that Ramazan Akyol, Fevzi Fidantek, Mehmet Özinekçi and Mehmet Demir had not been taken into custody. He further stated that these persons were not actually living in the village. 28. In his statement, the witness was asked about his knowledge and information about the allegations of Hamsa Çiçek as stated in her application to the European Commission of Human Rights. In reply, the witness stated that he did not remember an operation being conducted on 10 May 1994. He stated that the persons mentioned in the application had not been taken into custody by the security forces. 29. In his statement, the witness explained that three years earlier soldiers had come to Dernek and questioned the villagers about terrorists who made frequent visits to the village. Subsequently, he was arrested together with Ramazan Akyol, Fevzi Fidantek, Mehmet Özinekci, Ali İhsan Çiçek and Tahsin Çiçek and taken to Lice Boarding School. The witness explained that, on their arrival, the soldiers blindfolded them and placed them all in the same room. On the third day of their detention they were taken to another military base in Lice and released from there. According to him, Ali İhsan and Tahsin had been released the day before. The witness further maintained that no one had been ill-treated in custody. He had not seen Ali İhsan or Tahsin after their release and had no information concerning Çayan’s disappearance. 30. The witness explained that about three years earlier, on a Thursday, early in the morning, soldiers had come to their village, carried out an identity check and arrested Fevzi Fidantek, Ramazan Akyol, Mehmet Demir, Ali İhsan Çiçek, Tahsin Çiçek and himself. They were then taken to Lice Regional Boarding School, together with some other detainees from neighbouring villages. At the boarding school, they were all blindfolded and put in a room close to the hamam, in the basement of the building. The witness maintained that during the two nights they spent in custody, the detainees were not interrogated by the soldiers. They were released from the Regiment on Saturday, whereas Tahsin and Ali İhsan had already been released on Friday. He had no information on their whereabouts or on Çayan Çiçek’s disappearance. Moreover, he had not heard or seen Ali İhsan Çiçek and Tahsin Çiçek being ill-treated in custody. 31. In his statement to the public prosecutor, Fevzi Fidantek stated that about three years earlier, soldiers had come to their village and asked the villagers to gather by the mosque. The soldiers then separated Ramazan Akyol, Mehmet Demir, Mehmet Özinekçi, Ali İhsan Çiçek, Tahsin Çiçek and himself from the others and took them to the Lice Regional Boarding School. The witness stated that there had also been other detainees from neighbouring villages. The soldiers kept the detainees in the basement of the boarding school for two nights and three days. According to the witness, Tahsin and Ali İhsan had been released on Friday and the remaining detainees, including the witness, on Saturday. The witness stated that Tahsin had a taxi and had been travelling quite frequently. The witness further maintained that about twenty days subsequent to their detention, a new operation was carried out in Dernek, after which Tahsin’s son Çayan also disappeared. Fevzi Fidantek stated that his eyes were blindfolded while in custody but, as there were no soldiers in the room, the detainees were able to communicate with each other. He also maintained that no one had been ill-treated while in detention. The witness finally stated that he had no idea as to the whereabouts of the two brothers. 32. The documents contain a description of steps taken by Feride Çiçek in her search for her relatives. 33. On 20 July 1994 Feride Çiçek filed two petitions with the Diyarbakır Public Prosecutor asking whether her brothers, who had been taken away by the security forces on 10 May 1994, were actually held in custody. She only received a verbal reply to the effect that they were not in custody. The same day she filed another petition with the public prosecutor as regards the disappearance of her nephew, Çayan Çiçek. Again, verbally, she was told that Çayan was not in custody. 34. In her statement to the HRA, Hamsa Çiçek stated that she had been living in the village of Dernek, in Lice District, Diyarbakır and gave the following account concerning the disappearance of her two sons, Ali İhsan Çiçek and Tahsin Çiçek, and her grandson, Çayan Çiçek. 35. On 10 May 1994 soldiers from the Lice District Gendarme Headquarters raided their village and told the villagers to gather by the mosque. An identity check was carried out and, subsequently, the women and children were sent home. Hamsa could therefore not see what followed. According to what she heard from other villagers, the soldiers arrested Ramazan Akyol, Fevzi Fidantek, Mehmet Özinekçi, Mehmet Demir and her two sons Ali İhsan Çicek and Tahsin Çiçek, and took them to Lice Regional Boarding School. Hamsa was told that her sons had been released on the second day of their detention and the remaining detainees on the following day. 36. After about twenty days following the detention of her two sons, Hamsa Çiçek met a villager who had been detained with her sons. Upon her description, the villager told Hamsa Çiçek that he had seen her sons in custody. He also said that he had been ill-treated in custody like almost everyone who had been there. 37. Subsequently, Hamsa Çiçek met another villager released from Lice Regional Boarding School a month earlier. This villager told Hamsa that, while in custody, he had seen someone who could have been Tahsin and who seemed to be in suffering due to ill-treatment. This villager confirmed that he had last seen the person who resembled Tahsin at the Lice Gendarme Headquarters. 38. According to what Hamsa was told on 27 May 1994, Tahsin’s son Çayan had also been taken away by the security forces from the garden of their house. 39. Hamsa further stated that she had requested information from the Lice District Gendarmes Headquarters as regards her two sons and her grandson. In reply, she was told that the Lice District Commander could do nothing to help her. Moreover, Hamsa Çiçek’s daughter, Feride Çiçek, filed two petitions with the Diyarbakır State Security Court Public Prosecutor, who informed them that Tahsin Çiçek and Ali İhsan Çiçek were not in custody. Hamsa Çiçek stated that she was concerned that her sons might have been killed in custody by security forces. 40. The Commission conducted two hearings in Ankara between 16-20 June 1997 and 15-19 June 1998 and took oral evidence from eight witnesses. The evidence of the witnesses may be summarised as follows. 41. The applicant, who was born in 1930, was currently living in Dernek. At the time of the events, she was in the village. She confirmed that she had lodged a petition with the Diyarbakır Human Rights Association (HRA) about the disappearance of her two sons, Tahsin Çiçek and Ali İhsan Çiçek, and her grandson, Çayan Çiçek. She further stated that she had instructed Ms Hampson to represent her before the European Commission of Human Rights. 42. In May 1994 Tahsin Çiçek was living in Dernek in his own house situated opposite that of the applicant’s. He was married and had seven children. Ali İhsan, who lived with the applicant, was preparing for his military service. The applicant had also four more daughters. Çayan was Tahsin’s son and lived with his father. 43. On the day of the incident, early in the morning, leaving their vehicles at the entrance of the village, soldiers came to the village on foot. They ordered the villagers to gather by the mosque. The applicant assumed that these soldiers came from Lice. They carried out an identity check. Making five of the villagers stand aside, including the applicant’s son Ali İhsan, they told the rest of the villagers to return home. Although the soldiers released Tahsin at first, they called him back a few minutes later and ordered him to join the group of five. 44. From a distance, the applicant had seen Ali İhsan and Tahsin being arrested. The soldiers ordered the detainees to strip naked to search them. When they left, the applicant tried to follow but was blocked by three gendarmes. Later, she heard that the detainees had been taken to the regional boarding school. On two occasions, she went to the commandos from the Lice Gendarme Station and asked about her sons. She was referred to the Lice District Gendarme Commander. 45. The applicant explained that Lice Regional Boarding School was partially used by the military. The building housed students and teachers as well as soldiers. According to what the applicant had heard, her sons had been released one day ahead of the rest of the detainees, who showed surprise at not seeing Tahsin and Ali Ihsan in Dernek on their return. 46. The applicant had also heard that her sons suffered ill-treatment in custody. Some other detainees claimed seeing them in wet clothes. 47. When the applicant went to see the Lice Gendarmes Commander, a captain received her. The mayor of the village accompanied her, as she could not speak Turkish. The captain told the applicant that he had no information about her sons, but that it was possible that gendarmes from the Bolu region might have information about this incident. However, when she visited the commander a second time, the gendarmes from Bolu were not mentioned. 48. The applicant explained that Tahsin had disputes with some of the villagers. He had been taken into custody about a month before his disappearance, on his way home from a wedding. She was told that a young man, called Cihat, son of the village mayor at the time, denounced Tahsin to the gendarmes. When Tahsin was released from custody a week later, he accused the mayor, Behçet Yılmaz, of spying on him and the mayor had to leave the village. The applicant further claimed that, when she went to Lice in search of information on her sons, she came across Cihat, who told her that Ali İhsan had been killed and that Tahsin was in the hands of the soldiers. 49. About a month after the disappearance of her sons, the applicant learned that her grandson, Çayan, had been arrested by the soldiers. She was not in the village at the time of the incident, but was told that Çayan had been taken away from their garden by soldiers. The applicant explained that she was concerned about her grandson’s fate as he suffered from poor health. 50. The witness, who was born in 1964, was the applicant’s daughter. She lived in Diyarbakır, where she had moved five years ago. She gave the following account as regards the disappearance of her two brothers and her nephew. At the time of the events, her brothers, Ali İhsan and Tahsin, lived in Dernek. Tahsin lived with his family in a house close to their mother's and Ali İhsan lived with his mother. Approximately three or four weeks before the alleged incident Tahsin had been arrested on his way home from a wedding, upon a complaint filed against him by a young man. The witness had last seen her two brothers a couple of days prior to their disappearance, when they brought her belongings to Diyarbakır. The witness explained that the family had no enemies in Dernek and that there was no conflict within the family. 51. On 10 May 1994 towards noon, she received a telephone call from Seithan Özinekçi, the son of Hacı Mehmet Özinekçi. Seithan told her that six people from the village had been arrested including his father and her two brothers. She went to Dernek immediately. 52. She reached the village that afternoon, and was told by her mother that the soldiers had raided the village in the morning, searching all the houses and ordering everyone to gather at the square by the mosque bringing their identity cards. The men and women had been separated. After an identity check, five men were set apart, including Ali İhsan. These five men were stripped naked and searched. 53. According to her mother’s account, there had been more than 100 soldiers. The villagers also told her that there had been different types of soldiers; the first group wore blue berets, while those in the second had none. She was further told that the soldiers had then gone to Tahsin’s house to arrest him as well. The detainees were then taken away on foot. Although her mother and some other villagers tried to follow the group, they were told to turn back. The testimony of other villagers confirmed her mother's story. 54. The witness explained that she had stayed in Dernek for two nights and then returned to Diyarbakır. A few days later, when a minibus driver coming from Dernek told her that four of the detained villagers had been released, she went back to Dernek. 55. In Dernek, she spoke to Ramazan Akyol, released from custody that very day. He told her that her brothers had been released the day before. Ramazan Akyol also affirmed that they had been taken to the boarding school together and kept there blindfolded until noon the following day. He recalled that first Ali İhsan and then Tahsin had been taken away for interrogation. He told the witness that Ali İhsan had been ill-treated and a statement had been taken from him. Ramazan did not mention what happened to Tahsin, though he told the witness that Ali İhsan and Tahsin had been taken away. He did not know where they went but when he was given back his identity card, he got the impression that the two brothers had already been released. 56. The witness submitted that apart from the four villagers, a crippled man, also detained in the regional boarding school, had seen her brothers. A minibus driver, who drove this person to his house after his release, informed the applicant that there was someone who had seen her brothers in custody. Consequently, the witness went to see this man, who told her that he had been detained with two brothers. The man said that one of the brothers told him that he came from a village, which was not Dernek. He recalled that although he had not spoken to the other one, he had the chance to see both of them from beneath his blindfold. He described one as a bit on the short side, plump and balding, and the second as very slim. The witness decided that the first description corresponded to Tahsin and the second to Ali İhsan. 57. Moreover the witness learned from her mother that a certain Ramazan, also detained in Lice Prison, told her mother that he and Tahsin had been chained together in prison for 30-40 days. Tahsin had been more or less unconscious and had kept repeating the name of his daughter. 58. The witness further explained that about sixteen days after the arrest of her brothers, her nephew Çayan, Tahsin's son, had also been arrested. At that time she had been in the village. In the morning his mother put Çayan on a donkey and sent him to the fields. Çayan did not come back. Later that evening, they were contacted by a relative who claimed she saw Çayan being taken away by soldiers from the field along with two other women. The witness recalled that the soldiers had passed through the village on the day when Çayan was arrested. 59. The witness maintained that her mother had tried everything to locate her sons. She explained that she, herself, applied to the Human Rights Association, where a lawyer prepared petitions for her. She took these petitions to the Diyarbakır State Security Court Public Prosecutor, who verbally replied that these people were not in custody. The petitions were not registered and nothing was written on them. However, she was given a paper and told to go to the security forces. 60. The witness was a non-commissioned senior gendarme sergeant. He was commander of the central gendarme station in Lice at the time of the events. He explained that in May 1994, Lice was a very considerable PKK activity area, and the gendarmes from Lice paid frequent visits to the villages in and around the district. Military units, which came from time to time to Lice were lodged at the regional boarding school for a period of ten or fifteen days. These units participated in operations with the gendarmes. However, they were under the command of their own unit commander, who generally held a higher rank than the district gendarmes commander. The witness explained that prior to an operation, the two units studied maps of the area and shared out tasks. Before such a unit arrived or left the region, a written message was sent to all other units who had to ensure their security. 61. During operations all soldiers wore the same uniform for security reasons, including the commandos, who normally wore “blue berets” When gendarmes paid a visit to a village, they acted in accordance with the orders received. Sometimes they just talked to villagers to warn them not to support or help the PKK. 62. The witness stated that about twenty-five villages were within his jurisdiction. He dealt with their judicial and security problems, taking over the duties of the police. He recalled having gone to Dernek a couple of times, as it was his duty to visit the villages frequently. There were a few PKK supporters in that village and he had heard about Tahsin Çiçek. He explained that if Tahsin and Ali İhsan had been taken into custody, their names would definitely appear in the custody records. 63. When soldiers planned to enter a village, the superior commander was immediately informed by a written message, which indicated the number of persons who would take part in the operation and the leader of the group. All messages were registered. They also kept a logbook, in which all incidents were recorded, if necessary, hour by hour. To verify whether soldiers had been to Dernek on 10 May 1994, it would suffice to check records, which would indicate exactly where the gendarmes had been on that day. The soldiers lodged in the regional boarding school also kept records as they assisted gendarmes during operations. 64. The witness further submitted that the district gendarme headquarters had custody facilities for only two or three detainees. If there were more, they were put in an office under the supervision of a soldier. Detainees were initially kept in the offices and then placed in the detention area. At that stage, their names were not registered. Following the interrogation, if it was established that the detainee had committed an offence, he was transferred to the Public Prosecutor’s office. If not, he was released. The commando units did not have the authority to take people into custody. If they found a person who had committed an offence, they would hand this person over to the gendarmes. 65. There were no detention facilities at Lice Regional Boarding School. If an army unit, based at the boarding school, took part in an operation with the gendarmes and arrested a number of villagers, then it could be possible that these people were first brought to the regional boarding school before being referred to the gendarmerie. 66. If the military found people on the “wanted” list during an identity check, they had to inform the gendarmes by phone or radio who would then take over. When placed in detention, a person’s name would be registered in a custody ledger book and he would be searched. Only after these steps, could he be placed in custody. Some detainees might be referred to the intelligence unit of the gendarmerie in Diyarbakır for further investigation. 67. The witness, who was a captain at the time of the incidents, was commander of Lice District Gendarme Headquarters. He was based in Lice between August 1993 and August 1995. 68. The witness, who knew Dernek, had never actually entered it, though he had passed by frequently. Dernek was known to give considerable support to the PKK. He had not met Tahsin Çiçek personally although he had heard that the Çiçek family had connections with the PKK. He recalled that Çiçek was a name used by several families, not all of whom were PKK supporters. On the dates in question he had not taken part in an operation where suspected terrorists had been arrested or detained. 69. All military units, when engaged in an operation, sent a message or an operation information form / pro forma document indicating the time, place and purpose of the operation and the units that would be involved in it. This was conveyed to the superior officer. Such operations should be distinguished from the regular visits made by gendarmes to villages for administrative and judicial purposes. When the witness received information on terrorist presence in the area, he had to complete a pro forma message for his superiors. Whenever someone was taken into custody, be it during an ordinary visit or during an operation, soldiers had to inform their superior of this. Anyone taken into custody was registered in the ledger and the public prosecutor was subsequently notified. 70. Lice consisted of a settlement area involving 65 villages divided into ten or twelve sections and each section was attached to a gendarme station. There were six gendarme stations under the command of the witness, including the central gendarme station commanded by Hasan Çakır and to which Dernek was attached. 71. From time to time military units were based in the regional boarding school. In general, the gendarmes alone were responsible for security in rural areas. However, if the forces were insufficient to control a particular situation, reinforcements would be requested and infantry or ground forces deployed in the area. In joint operations, the most superior officer of the participating units would take command. Although the witness was independent in the execution of his administrative/judicial powers, he nevertheless had responsibility towards the Governor for his administrative acts and to the district public prosecutor for judicial ones. 72. The reinforcement units could never perform the gendarmes' judicial duties. If these units went out on an operation in the mountain areas and found a suspect, they would wire the gendarmes to check whether the individual was wanted and, if so, then could bring him in. The reinforcement units had a totally different system of records and, as far as the witness knew, did not use service ledgers or custody records, given that they had no judicial functions to perform. During operations, the “blue beret” gendarme commanders removed their caps and wore normal army caps for camouflage. 73. The witness did not accept that anybody detained during a joint military and gendarme operation could be taken even temporarily to the regional boarding school. He explained the difference between taking a person into custody and putting him in a custody room. To render a suspect ineffective and perform a body search, the witness had the authority to keep the person near him, for example in the cafeteria under guard. That suspect might then be released within 24 hours. Such a person would not be put in a custody room and therefore would not be mentioned in a custody ledger. The witness said that this was “taking somebody in for observation” and not custody. The suspect’s statement would be taken and, if guilty of an offence, he would be put in the custody room and mentioned in the ledger. If someone was clearly dangerous and required interrogation or was to be kept overnight, he would definitely be placed in the custody room and registered in the ledger. However, if somebody were to be sent straight to Diyarbakır for interrogation for terrorist offences, he might not be mentioned in the Lice records. As there was no interrogation unit in Lice, people were sent to Diyarbakır or sometimes an interrogation team was invited to come to Lice. Sometimes a person's interrogation would reveal other names, in which case Diyarbakır Security Department might request their arrest and dispatch to Diyarbakır. 74. The witness further explained that he had not checked the records before coming to the hearing and did not remember exactly what he was doing on 10 May 1994. However, he had checked that he had not been in Dernek on that day. He could not recall anyone who had asked information about their relatives in detention. He had no comment on the fact that some people had disappeared in the Lice area in 1994. 75. The witness stated that he had been commander of the Gendarme Commando Company in May 1994. His whole unit consisted of about 140 men. Mr Yaralı was his district commander and Hasan Çakır, his station commander. His job was to secure an area. The administrative and judicial tasks were performed by other gendarmes. He had never seen commandos search or detain people or carry out identity checks. The “blue berets” of the commando units were not used in operations as they were too conspicuous. 76. It was possible that commando units based in the regional boarding school be sent out on an operation. There was a unit of about 40 soldiers stationed at the regional boarding school to ensure security in the region, given the number of schools that had been burned down. Commando units did not keep separate written records or daily service ledgers. They reported to the superior officer after completing their activities. If they had taken part in an operation, it would be indicated on the operation pro forma beforehand. However, the preparation of this form was not his task but that of the district gendarmes commander. His duty was training and exercise of his men. Anyone caught by his forces would be taken directly to the gendarmes headquarters. The district gendarmes had exclusive authority to detain people. 77. He knew the village of Dernek but had never actually gone into it. He had passed by. He had not participated in any operation in that village around 10 May 1994. It would be difficult to say which units had been involved in such an operation. If it was a major operation, then all the commando units in the area would have participated; otherwise, it would have been just the local gendarmes. 78. The witness lived in Dernek. He knew Tahsin and Ali İhsan Çiçek, both fellow villagers. Tahsin was married and had six children; he lived in a house close to his mother’s, near the mosque. He owned a taxi and was occasionally away from the village. Ali İhsan was a bachelor and lived with his mother. 79. On 10 May 1994, about 300 gendarmes came to the village on foot early in the morning. The villagers were already up for their morning prayers. The witnesses could not recall whether the soldiers were commandos or gendarmes from Lice. He did not recognise any of the gendarmes or their commanders. He stated that, before 10 May 1994, when soldiers came to the village, they had gone straight to the mountains in search of terrorists. The villagers had not been disturbed. 80. The witness could not remember exactly on which day of the week they had been detained. He thought it might have been a Tuesday. On the day of the operation, the soldiers ordered all the villagers to gather by the mosque. They took everyone’s identity cards and compared the names with a list. The soldiers then returned most of the identity cards except for those of Ali Ihsan Çiçek, Tahsin Çiçek, Mehmet Özinekçi, Mehmet Demir, Ramazan Akyol and himself. The rest of the villagers went home. The soldiers also searched the houses, and subsequently took the six villagers directly to the regional boarding school on foot. 81. The witness said they were not blindfolded at first. They walked to the boarding school, which he knew well as his children had studied there. He confirmed that part of the building was used by the military. At the school they were blindfolded, but their personal belongings were not registered. Neither did they undergo a medical examination. 82. They were kept all together in the basement of the building near the toilet and washing area. Their hands were free but their eyes were blindfolded The witness asserted that he knew Ali İhsan and Tahsin Çicek had been with him because they sat side by side and could talk quietly. At night they slept on chairs. They were given bread, biscuits and water. 83. During their detention no explanation was given as to the reason of their arrest. He was the only one to be interrogated. He was asked whether his son had joined the guerrillas in the mountains and he told the soldiers that his son was in İstanbul. Then he was asked about his son’s precise address; he told the soldiers that he did not know and was released. The soldiers only took his statement. He emphasised that no one had been ill-treated while they were in the boarding school. 84. The witness stated that they had stayed at the school for two or three days. The soldiers released Tahsin and Ali İhsan on Friday. He had heard someone say "Tahsin Çiçek, Ali İhsan Çiçek, take your identity cards, you're free". The others stayed one more night in the boarding school. On Saturday the rest of the detainees were taken to the regiment on the border of Lice and released from there. The witness could not make out whether the soldiers were commandos or army regulars. A helicopter came and they were told that the villagers from Dernek were to go out. They were then told that they were free. The witness and the other detainees went to the Lice station a week later to get their identity cards back. The witness explained that the Lice gendarme station and the regiment were distinct organisms. 85. When the witness returned home, the villagers asked him about Ali İhsan and Tahsin. He told them that Ali İhsan and Tahsin had already been released. The witness stated that he never said to Hamsa that either he or her sons had been ill-treated. 86. Tahsin had a son, called Çayan. The witness had not been in the village at the time when Çayan disappeared. When he returned, he was told that Çayan was not in the village any more. 87. The muhtar of Dernek in May 1994 was Behçet. He was a neighbour of the witness, who also knew the muhtar’s son, Cihat. Although Cihat had not been taken into custody, he had followed the group to the regional boarding school. When the soldiers asked him why he was coming with them, Cihat answered that he had lost his identity card and wanted to have a new one issued. He consequently went with the detainees to Lice. The witness had not seen him after the operation day. Cihat was not kept with the detainees at the regional boarding school. 88. The witness lived in Dernek and was in the village during the incident of 10 May 1994. Tahsin and Ali İhsan Çiçek were sons of his uncle's daughter, Hamsa. 89. In April - a month before they were taken into custody - Tahsin had been arrested during the wedding of the witness’ son in the district. The witness explained that some men had come and taken Tahsin away and released him four or five days later. He did not know the reason of this arrest. 90. In May 1994 the witness was in the village when the operation took place. According to the witness there were around 1000 soldiers, some of them commandos, though he could not be sure. The soldiers gathered the villagers and carried out an identity check. A soldier had a list of names but the witness could not see the list. The soldiers separated five or six villagers and the witness from the rest and took them to Lice. Tahsin and Ali İhsan were amongst those arrested. The soldiers also brought people from other hamlets. The witness could not remember how many detainees there were in total. The detainees were taken to the square near the school on the lower side of the village. The soldiers searched all the houses. From the square they were taken on foot to the Lice Boarding School. As soon as they were inside the building, they were blindfolded. In the boarding school there were students as well as soldiers. From the room where they were kept, the detainees could hear the children talking outside. 91. When they arrived at the boarding school, the soldiers did not take down their details or enter their names in a register. Their identity cards were not given back. They were taken to the basement of the building near the toilet and washing area. They were all kept together in the same room, together with villagers from other hamlets. There were no chairs or tables in the room. The floor was concrete and they sat on the floor. They were all blindfolded. Ali İhsan and Tahsin were in the same room with the witness, sitting next to him. The witness was not interrogated. The detainees managed to talk quietly to each other although it was forbidden. When necessary, the detainees collected money and the soldiers bought food for them. The witness gave some money to Ali İhsan and asked him to give it to a soldier to buy bread. A soldier brought them bread. However, they never talked about why they had been taken into custody. 92. According to the witness, they were taken out one by one to give statements. The soldiers did not question him, but the witness confirmed that Tahsin and Ali İhsan had been taken for questioning. However, he had no knowledge as to what they had been asked about. The witness stated that he could not recall how many times the two brothers had been taken away for interrogation. 93. The witness submitted that he had not been subjected to ill-treatment whilst he was held in the regional boarding school. For two nights they waited in the room and were then taken to the regiment and released from there. The witness continued that he had not heard anyone else being ill-treated. However, he stated that he had not seen anything because of the blindfold. Tahsin had been sitting next to him and Ali İhsan’s coat lay near him. The soldiers took Tahsin and Ali İhsan away from the room for about twenty minutes and later brought them back. The witness stated that he did not know whether they had taken them to another room or outside. They were detained on a Thursday, and on Friday Tahsin and Ali İhsan Çiçek were released. The soldiers read out their names and probably returned their identity cards too. The witness heard a voice say, "Go now. You're both free." He was sitting on Ali İhsan's coat when they took him away. Ali İhsan must have told the soldier about his coat as the soldier came back and told the witness to give Ali İhsan's coat. The witness stated that he did not know where the brothers were taken and added that he had not seen them since then. Thereafter, on Saturday, the soldiers released the rest of the detainees. The soldiers removed their blindfold when they arrived at the regiment. The witness explained that the regiment was in the centre of Lice. They waited there for about half an hour and were then released. They were told to come back in a week's time to get their identity cards. 94. All the detainees then returned to the village. Ali İhsan and Tahsin’s mother came and asked the witness about her sons’ whereabouts. The witness told Hamsa that her sons had already been released on Friday. Hamsa told him that they had not come home. 95. The witness explained that he did not say to Hamsa that Ali İhsan, Tahsin or himself had been ill-treated at the boarding school. He had not been subjected to ill-treatment. The witness further pointed out that it was possible that the brothers might have been ill-treated when the soldiers took them out of the room. However, he had not heard or seen anything. 96. The witness further stated that he did not know where Çayan was. Tahsin had many sons, including Çayan, who was blind. He had heard that Çayan had disappeared from the village. He, however, had not seen anything. He had no knowledge as to why they had taken Çayan. He had heard that Çayan had disappeared 6 or 7 days after the operation. By that time, the witness was in Diyarbakır. He was not aware that there had been an operation. 97. The witness confirmed that he had talked to Feride Çicek, Hamsa’s daughter once or twice. He last talked to her two years ago. In reply to Feride’s question, he replied that he had witnessed the soldiers taking her brothers away. Feride then went to the Diyarbakır HRA and told them about the incident. She also asked him to testify in Diyarbakır. The witness confirmed that he repeated the story to the public prosecutor and insisted that he was not scared to testify on this matter. 98. The witness, a farmer, lives in Dernek and was in the village during the incident of 10 May 1994. 99. He knew that Ali İhsan lived with his mother, Hamsa. Tahsin lived in his own house with his own family and had six children. Tahsin Çiçek used to work in the village but sometimes found jobs elsewhere. He had sheep, goats, animals and some agricultural land. He also had a taxi, which was taken from him before his custody. The witness explained that he had no knowledge of whether Tahsin had ever been in trouble with the authorities before May 1994. He had not attended the wedding of Mehmet Özinekçi's son. 100. He was in the village when the operation took place. The soldiers came on foot during morning prayers. There were a lot of soldiers, however he could not discern whether they were gendarmes or regular soldiers. The soldiers had come to the village before this operation but had had nothing to do with the villagers; they had gone up into the mountains. On that day, however, they came and gathered the villagers. They carried out an identity check and kept some identity cards (including the cards of the witness and four or five other villagers). Finally the soldiers took them away. There were also other villagers from other hamlets. Ramazan Akyol, Fevzi Fidantek, Mehmet Özinekçi, Tahsin Çiçek and Ali İhsan Çiçek were among those arrested. They were taken to the Lice Boarding School on foot. Although it was a boarding school, a part of the building was used by the soldiers. The witness had never been in the school before. 101. The soldiers did not take down the details of the detainees or register them in a record or ledger. They took away their belongings. In the school, they first blindfolded Tahsin and then the witness. He never had the chance to remove his blindfold. 102. The detainees were taken to a room in the basement of the building. It was made of concrete. It was a place like a bath (hamam). As the witness was blindfolded, he couldn't really see but noted that there was no furniture. All the detainees were fellow-villagers and there were a few people from nearby hamlets. Their hands and feet were not bound. The guards and soldiers remained near them to stop any attempts at conversation. However, the room was small and the detainees could speak covertly. The witness could hear the voices of Tahsin and Ali İhsan, who were kept in detention for one night. The witness was not taken to interrogation at any stage. The detainees were not informed of the reasons of their arrest. The witness stated that he did not know whether Tahsin and Ali İhsan had been interrogated. The soldiers took them elsewhere; he had no knowledge of what could have happened to them. He did not see Ali İhsan or Tahsin being taken away for questioning at any stage of the detention. 103. The witness stated that he did not hear the soldiers call out Ali İhsan’s and Tahsin’s names since his hearing was not good. It is possible that that they did so without his being aware. At some point he heard some detainees say that Tahsin and Ali İhsan had been released and sent home. The soldiers later said that they had released the brothers. The other detainees stayed for one more night. They were then conveyed to the regiment in vehicles, still blindfolded, and released. Their identity cards were returned later. The witness went to his village and asked about Tahsin and Ali İhsan. He was told that they had not come back. Their mother came to his house and asked him where her sons were. The witness told her that they had been released the day before. The witness stated that he had not been subjected to ill-treatment in detention. Neither had he told Hamsa that others had been ill-treated. The soldiers had treated people well. After that date the witness did not see or hear anything about Ali İhsan or Tahsin. 104. Tahsin had a son called Çayan, who was blind. The witness did not know where he was. At the time when Çayan disappeared, the witness had been tending animals on the mountain. In the evening, he came down and was told that Çayan had disappeared. A long time had elapsed after their detention. The witness was not aware of a military operation in the village on the day Çayan disappeared. 105. The witness knew the muhtar’s son Cihat as well. He had not heard anything about him either joining the PKK, or accompanying the soldiers during an operation; nor did he know whether he had been the one who informed against Tahsin and Ali Ihsan. He did not know where Cihat was. When they were taken into custody, Cihat came with them in order to get his identity card. When they were released, he wasn't with them. 106. The witness stated that he was not frightened to testify and had not told anyone that he was scared to testify. 107. The witness finally explained that as Hamsa Çiçek's sons have disappeared, she lives by others’ charity. Her husband had died a long time ago in a traffic accident and she has five or six grand children with health problems. 108. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces. 109. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmerie Public Peace Command are at the disposal of the regional governor. 110. The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8: “No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.” 111. Article 125 of the Turkish Constitution provides as follows: “All acts and decisions of the administration shall be liable to indemnify any damage caused by its own acts and measures.” 112. This provision is not subject to any restrictions even in the state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 113. The Turkish Criminal Code makes it a criminal offence - to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants), - to subject an individual to torture and ill-treatment (Articles 243 and 245). - to commit unintentional homicide (Articles 452,459), intentional homicide (Article 448) and murder (Article 450). 114. In respect of all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 115. Generally, if the alleged author of a crime is a State official or a civil servant, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court, a refusal to prosecute is subject to an automatic appeal of this kind. If the officer is a member of the armed forces, he would fall under the jurisdiction of the military courts and would be tried in accordance with the provisions of Article 152 of the Military Criminal Code. 116. Any illegal act by the civil servants, be it a criminal offence or a tort, which causes material or moral damage may be subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Civil Code, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Civil Code and non-pecuniary or moral damages awarded under Article 47. 117. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing. 118. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State security prosecutors and courts established throughout Turkey. 119. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 50 above) shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants, chaired by the governor. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. | 1 |
dev | 001-90636 | ENG | UKR | ADMISSIBILITY | 2,008 | VITRENKO AND OTHERS v. UKRAINE | 3 | Inadmissible | Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva;Zoryana Bortnovska | The first applicant, Ms Nataliya Mykhaylivna Vitrenko, is a Ukrainian national who was born in 1951 and lives in Kyiv. The second, third, fourth and fifth applicant are, respectively, Mr Volodymyr Romanovich Marchenko, Ms Liudmila Yakivna Bezugla, Mr Mykhailo Yuriyovich Sydoruk and Mr Petro Mykhailovych Romanchuk, who were born on different dates between 1949 and 1957 and are Ukrainian nationals. They all live in Kyiv. The respondent Government are represented by Mrs Y. Zaytsev, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant is the leader of the Progressive Socialist Party of Ukraine. In 2002 the Nataliya Vitrenko Bloc political party nominated the applicants as candidates for the elections to the Verkhovna Rada of Ukraine (Parliament) that were to be held on 31 March 2002. On 7 March 2002 the Studiya 1+1 TV Channel (the “1+1 Channel”) had scheduled a political debate on television. Ms Tymoshenko, the leader of another political party (the Yuliya Tymoshenko Bloc) was due to appear for the debate with the first applicant, but failed to do so. As was later found in the court proceedings the 1+1 Channel cancelled this debate at the last minute by agreement with another TV channel, which planned to hold a debate between the first applicant and Ms Tymoshenko the following day. Therefore, Ms Tymoshenko was in fact not allowed on to the premises of the 1+1 Channel by the security. Apparently being unaware of these facts, the first applicant reacted during the live broadcast to the non-appearance of her counterpart by saying “She [Ms Tymoshenko] definitely knew that I would prove that she was a thief (воровка), that because of her, Pavel Lazarenko and other oligarchs robbed Ukraine, there will be no way out for Ukraine until order is restored. She staged a piece of theatre here and she deliberately did not come here and she will never wash out her guilt, therefore tomorrow [on another TV channel] I will prove who she is. ... It is all planned with American technology. We will not participate in this provocation”. Ms Tymoshenko lodged a complaint with the Central Electoral Commission that the first applicant had infringed electoral legislation and breached electoral rights. On 16 March 2002 the Central Electoral Commission gave an official warning to the first applicant finding that she had infringed electoral legislation (in particular, Article 51 § 1 of the Parliamentary Elections Act) and the principle of presumption of innocence enshrined in Article 62 of the Constitution of Ukraine. This warning was published in the Ukrainian national newspapers Golos Ukrainy and Uryadovyi kur'er. The first applicant lodged a complaint against this decision with the Supreme Court. On 26 March 2002 the Supreme Court, composed of one judge, found against the first applicant. It also ruled that the Central Electoral Commission had acted lawfully and that the first applicant had infringed electoral legislation by publicly disseminating untrue statements about Ms Tymoshenko. In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal. On 28 March 2002 a panel of three judges of the Supreme Court rejected the applicant's request for extraordinary review of this decision for lack of grounds. Following these events, Ms Tymoshenko instituted defamation proceedings in the Obolonsky District Court of Kyiv (the “Obolonsky Court”) against the first applicant, seeking to protect her honour, dignity and business reputation and claiming that statements disseminated by the first applicant were untrue. She also requested the court to be given an opportunity to rebut these statements. On 28 March 2002 the court held a hearing in which both parties participated. During the hearing the applicant challenged the videotape of her speech provided by the plaintiff. The court rejected this challenge by a separate ruling. The same day the first applicant tried to appeal against the separate ruling, but her appeal was rejected as that ruling was not subject to separate appeal. The first applicant's representative requested an adjournment of the hearing. On 12 April 2002, during the next hearing, the first applicant lodged a petition with the court in which she requested the court to obtain from the General Prosecutor's Office and the State Tax Administration copies of the decisions related to investigation of the criminal cases against Ms Tymoshenko and other leaders of the United Energy Systems of Ukraine Company and violation of the tax legislation by them “[t]o confirm (на підтвердження) the words said by me with respect to [Ms] Tymoshenko Y. V. in the live broadcast of the 1+1 Channel during the TV debates on 7 March 2002”. This request was rejected on the ground that it was irrelevant to the proceedings in question. The first applicant also requested the court to adjourn the hearing. On 16 April 2002, during the next hearing, the first applicant lodged another, similar request with the court for documents from the General Prosecutor's Office and the State Tax Administration stating “[s]ince I used the word “thief” in its other generally accepted meaning, to confirm (на підтвердження) the words said by me with respect to [Ms] Tymoshenko Y. V. in the live broadcast on the 1+1” Channel during the TV debates on 7 March 2002...”. It was rejected on the same ground. During the hearing the applicant's representative also requested the court to summon a representative of the Tax Administration who could explain about violations of the tax legislation by Ms Tymoshenko and her company. This request was also refused as irrelevant to the claim under examination. Following refusal of her requests the applicant sought withdrawal of the judge. By a separate ruling the same day the challenge was rejected as unfounded. During its next hearing, on 17 April 2002, the court decided to join the 1+1 Channel as co-defendant. That hearing was adjourned until 8 May 2002. On 8 May 2002 the court postponed the hearing due to the absence of the first applicant and her representatives. On 28 May 2002, having established that the first applicant and her representatives had failed to appear before the court for the second time without a plausible reason, the court decided to examine the case in their absence. The court found in part against the first applicant. In particular, it established that Ms Tymoshenko had never been convicted of theft or a similar criminal offence. Thus, the statements of the first applicant “she is a thief” and “she will never wash out her guilt” violated Article 62 of the Constitution of Ukraine (presumption of innocence). It also found untruthful the part of the first applicant's speech in which she had accused Ms Tymoshenko of deliberate failure to appear for the TV debate in question. The court ordered the 1+1 Channel to ensure that Ms Tymoshenko had 50 seconds of live broadcast to correct the statements disseminated about her by the first applicant. It also ruled that the first applicant had to pay for the 50-second broadcast which would be given to Ms Tymoshenko. The first applicant appealed against this decision. She stated, in particular, that the term “thief” had been used to criticise the “political amorality” of Ms Tymoshenko's leadership of United Energy Systems of Ukraine in 1995-1997, and thus had been a value judgment. She further complained that the first-instance court had refused to obtain the evidence from the law-enforcement bodies that she had requested, had unlawfully refused her request for withdrawal of the judge and had held a hearing in her absence. On 6 December 2002 the Kyiv Court of Appeal, having held a hearing in which all parties participated, upheld the decision of the Obolonsky Court. The court also considered that the refusal of the request for withdrawal of the judge and the decision to continue examination of the case in the applicant's absence were in compliance with the relevant law. On 13 June 2003 a panel of three judges of the Supreme Court upheld the decisions of the lower courts. On 31 March 2002 the Central Electoral Commission informed the applicants' party that they had received approximately 3.22 % of the ballots, while the electoral threshold was 4%. The applicants alleged that the election results had been falsified. On 10 April 2002 they lodged a complaint with the Central Electoral Commission against its resolution announcing the results of the elections. They further sought annulment of the election results and demanded that the Central Electoral Commission announce new elections. The Central Electoral Commission allegedly failed to react promptly to this complaint. On 12 April 2002 the applicants lodged a complaint against the Central Electoral Commission with the Supreme Court challenging this omission. On 15 April 2002 their claim was rejected on formal grounds as they had failed to comply with the procedural requirements stipulated by law. As the Central Electoral Commission had not accepted the results of the elections in the majority electoral constituencies nos. 18, 35 and 201, new elections were scheduled there for 14 July 2002. On 22 July 2002 the Central Electoral Commission adopted resolution no. 975, rejecting the first applicant's complaint against the resolution of the regional electoral commission of 15 July 2002 announcing that Mr S. had obtained a majority of the votes during the repeated elections of 14 July 2002. On 22 July 2002 the first applicant lodged a complaint with the Supreme Court against the Central Electoral Commission challenging its decision, on the grounds that Mr S. and his representatives had allegedly bribed voters. On 30 July 2002 the Supreme Court found against the first applicant. In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal. On 8 December 2002 additional parliamentary elections were held in constituency no. 82. On 13 December 2002 the Central Electoral Commission adopted resolution no. 1030, rejecting the first applicant's complaint against the resolutions of the regional electoral commission of 9 December 2002 announcing that Mr Kh. had obtained a majority of the votes during the repeated elections of 8 December 2002 and rejecting the applicant's complaints about the election results. The first applicant lodged a complaint with the Supreme Court against the Central Electoral Commission. On 23 December 2002 the Supreme Court found against the first applicant. In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal. Additional elections had been announced in constituency no. 206 and the first applicant was registered as a candidate on 24 April 2003. On 4 June 2003 the Deputy Prosecutor of the Chernigiv Region informed the constituency election commission about a violation of the electoral law in publishing campaign materials by the first applicant. On 5 June 2003 the constituency commission, having established that Mr M. - the authorised agent of the first applicant in the election campaign - had published campaign material in support of the first applicant in violation of the electoral law, decided to cancel the applicant's registration for repeated violation of the requirements of the electoral law (resolution no. 68). On 6 June 2003 the Desnyansky District Court of Chernigiv Region considered a complaint from Mr. P, another candidate from the same constituency, of violation of electoral legislation by the first applicant, namely several publications of campaign materials in the Dosvitni Ogni newspaper which were paid for with money not included in the official election expenses of the candidate. The court found against the applicant, confirming a violation of electoral legislation. It based its findings on the facts that the newspaper published this material at its own expense, that this newspaper was founded by the party of which the applicant was a leader, and that the editor-in-chief of the newspaper was Mr M. - the authorised agent of the first applicant in the election campaign. On 7 June 2003 the Central Electoral Commission cancelled resolution no. 68 of the constituency commission of 5 June 2003, having established that the constituency commission had misinterpreted relevant legislative provisions. On 7 June 2003 the constituency commission, by its resolution no. 72, cancelled the applicant's registration as a candidate on the basis of the court's decision of 6 June 2003 and in accordance with Article 49 § 3 (12) and (14) of the Parliamentary Elections Act. The same day the Central Electoral Commission upheld the resolution of the constituency commission by its resolution no. 50. The applicant appealed to the Supreme Court. On 7 June 2003 the Supreme Court, in the presence of the first applicant's representatives and members of the Central Electoral Commission, considered the applicant's appeal and found that the decisions of the relevant electoral commissions were well-founded and in compliance with law. Therefore, the Supreme Court upheld the decisions on the cancellation of the applicant's registration. Article 32 ... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for material and moral damage inflicted by the collection, storage, use and dissemination of such incorrect information. Article 62 A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty. Article 77 ...The procedure for conducting elections of People's Deputies of Ukraine shall be established by law. Article 32. Financing of Elections of Deputies 1. Expenditures for the preparation and conduct of elections of deputies shall be incurred exclusively from the funds of the State Budget of Ukraine as well as the resources of election funds of parties (blocs) the candidates for deputy of which are registered in the multi-mandate constituency, and candidates for deputy registered in single-mandate constituencies. 2. In order to finance their election campaign, a party (bloc) of the candidates for deputy, which are registered in the multi-mandate constituency, as well as candidates for deputy registered in single-mandate constituencies, shall establish their election funds, which shall be formed in accordance with the procedure set forth by this Law. Article 49. Cancellation of the Decision on Registration of a Candidate (Candidates) for Deputy ... 3. A constituency election commission shall cancel its decision regarding the registration of a candidate for deputy in the following cases: ... 12) establishment by the court that the candidate for deputy used other sources of financing besides the resources of his/her election fund to budget the election campaign; ... 14) if a candidate for deputy, upon getting a warning from the constituency or the Central Election Commissions, mentioned in paragraph four of this Article, repeatedly violated the same requirements of this Law. ... 4. In the event of the violation of other provisions of this Law on the part of a candidate for deputy or a party (bloc), a corresponding election commission may issue a warning, which shall be made public in the state-owned and municipal media or in a different way... Article 51. Forms and Means of Election Campaign Campaigning may be performed in any forms and by any means not conflicting with the Constitution of Ukraine and laws of Ukraine. Citizens of Ukraine shall have the right to discuss political programmes of parties (blocs), political, business, and personal features of candidates for deputies freely and thoroughly, to campaign in support or against parties (blocs), candidates for deputies... Article 7. Protection of honour, dignity and reputation A citizen or an organisation shall be entitled to demand in a court of law that a statement be refuted if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the statement proves that it is truthful. ... Statements disseminated about a citizen or an organisation that do not conform to the truth and cause damage to their interests, honour, dignity or reputation shall be subject to rectification, and pecuniary and non-pecuniary damage can be recovered. A limitation period of one year shall apply to claims concerning rectification of such data and compensation. The relevant extracts of the resolution read as follows: “The Committee of Ministers ... Recommends to member governments, as a minimum, that the position of the individual in relation to the media should be in accordance with the following principles: 1. In relation to information concerning individuals published in any medium, the individual concerned shall have an effective possibility for the correction, without undue delay, of incorrect facts relating to him which he has a justified interest in having corrected, such correction being given, as far as possible, the same prominence as the original publication. 2. In relation to the information concerning individuals published in any medium, the individual concerned shall have an effective remedy against the publication of facts and opinions which constitute: ... ii. an attack upon his dignity, honour or reputation ...” The relevant extracts of the recommendation read as follows: “1. Scope of the right of reply Any natural or legal person, irrespective of nationality or residence, should be given a right of reply or an equivalent remedy offering a possibility to react to any information in the media presenting inaccurate facts about him or her and which affect his/her personal rights.” | 0 |
dev | 001-95031 | ENG | MLT | GRANDCHAMBER | 2,009 | CASE OF MICALLEF v. MALTA | 1 | Preliminary objections dismissed (victim, non-exhaustion of domestic remedies, ratione materiae);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient | András Sajó;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Giorgio Malinverni;Giovanni Bonello;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Kristaq Traja;Lech Garlicki;Matti Pellonpää;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä;Vladimiro Zagrebelsky;Zdravka Kalaydjieva | 9. The applicant was born in 1929 and lives in Vittoriosa. 10. The applicant is the brother of Mrs M., who lived in an apartment above Mr F. 11. On 17 July 1985 Mr F. applied for an injunction to restrain Mrs M. from hanging out clothes to dry over the courtyard of his apartment, thereby allegedly interfering with his property rights. Mr F. relied on the provisions of Article 403 of the Maltese Civil Code in this connection. 12. On one occasion following a hearing on the injunction, and after Mrs M. and her lawyer, Dr A., had already left the courtroom, the presiding magistrate changed the date of a future hearing, which had already been fixed. As a consequence, Mrs M. was not aware of the new date and was not present at the hearing. In her absence, on 29 November 1985 the presiding magistrate issued the injunction in favour of Mr F. 13. According to Maltese law as it stood at the time, Mr F. had to institute proceedings in respect of the property claim preserved by the warrant within four days of the issuing of the injunction; otherwise the injunction would cease to have effect. Accordingly, on 5 December 1985, Mr F. lodged a writ of summons to start proceedings. 14. On 6 March 1992 the relevant court trying the merits of Mr F.’s civil action found against Mrs M. and issued a permanent injunction against her. On 24 March 1992, as no appeal had been lodged, the case became final. 15. On 6 December 1985 Mrs M. instituted proceedings before the Civil Court (First Hall) in its ordinary jurisdiction, claiming that the injunction had been issued in her absence and without giving her the opportunity to testify (see paragraph 77 below). 16. By a judgment of 15 October 1990, the Civil Court upheld her claim. It held that the audi alteram partem principle was applicable to the procedure for issuing an injunction. Referring to Article 873 § 2 of the Code of Organisation and Civil Procedure, which stated that an injunction should not be issued unless the court was satisfied that it was necessary in order to preserve any right of the person seeking it (see paragraph 27 below), the Civil Court held that the relevant test was a matter for the court’s discretion. However, if the court found it necessary to hear the parties, they should be duly heard in accordance with the principles of natural justice. In the present case the court held that, through no fault of her own, Mrs M. had been denied her right to be heard and therefore the said warrant was null and void. 17. Mr F. appealed against the judgment of 15 October 1990. In the first-instance proceedings Mr F. had been assisted by Dr U., while at the appeal stage he had appointed the latter’s son, Dr C. The Court of Appeal was presided over by the Chief Justice, who sat with two other judges. The Chief Justice was Dr U.’s brother and Dr C.’s uncle. 18. At the appeal hearing of 12 October 1992, the Chief Justice, after asking some questions, alleged that the conduct of Dr A. was unethical, as he had impugned, without justification, the conduct of Mr F’s lawyer. When it was noted that in the first-instance proceedings Mr F. had been represented by the Chief Justice’s brother, the Chief Justice threatened to refer the case to “the competent authorities”. Furthermore, he dictated a note to this effect, which read as follows: “The court is asking Dr A., who himself is declaring that the date of the hearing at first instance had been changed when he and his client had already left the courtroom, why he insisted that the said change of date occurred consequent to a request by a lawyer. Dr A.’s reply is: ‘I deduce so, as there were two lawyers present: Dr U. and myself.’ ... Mrs M.’s lawyer asserts facts and has no problem hypothesising about the behaviour of another lawyer and the judge, after he and his client had walked out of the courtroom.” 19. Dr A. said a few words in his own defence, but no oral submissions regarding the merits of the appeal were heard. The Chief Justice suspended the hearing and went to his chambers. A few minutes later the lawyers of both parties were called into the Chief Justice’s chambers. Explanations were heard and no further action appears to have been taken. 20. By a judgment of 5 February 1993, the Court of Appeal found against Mrs M. and reversed the judgment of the Civil Court. It held that principles of natural justice were not mandatory and could not be invoked in preliminary proceedings that were essentially conditional and of a temporary nature. Moreover, the Court of Appeal did not agree with the issue of fact mentioned in the first-instance judgment, in respect of the change in date leading to Mrs M.’s absence at the hearing. In this respect the judgment repeated in part the note which had been dictated during the hearing – “Mrs M.’s lawyer asserts facts and has no problem hypothesising about the behaviour of another lawyer and the judge, after he and his client had walked out of the courtroom”. The Court of Appeal further ordered the removal from the records of the case of a report which supported Mrs M.’s claim, which had been drawn up by the judicial assistant appointed by the Civil Court. 21. On 25 March 1993 Mrs M. instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. Relying on Article 6 of the Convention, she alleged that the President of the Court of Appeal (the Chief Justice) lacked objective impartiality and that this had been manifest in the incident of 12 October 1992. Observing that the Court of Appeal had denied facts which had already been proved, she further submitted that her right to a fair trial had been violated. 22. Mrs M. died on 20 January 2002, before her constitutional claim could be determined. On 22 May 2002 the applicant intervened in the proceedings before the Civil Court in his capacity as brother of the plaintiff. 23. In a judgment of 29 January 2004, the Civil Court dismissed Mrs M.’s claim as frivolous and vexatious. Although it noted that the plaintiff had failed to request the Chief Justice to withdraw from the case before the pronouncement of the final judgment, it rejected the Government’s plea of non-exhaustion of ordinary remedies and decided to exercise its constitutional jurisdiction. As to the merits, it made a thorough analysis of the notions and rights emanating from Article 6 of the Convention, including equality of arms, but placed particular emphasis on the requirement of impartiality of the Civil Court. However, it was unable to find any link between the incident of 12 October 1992 and the content of the judgment of 5 February 1993. As confirmed by Dr A. himself, the incident had been defused; however, this could not have given Mrs M. or her lawyer any expectation that the Court of Appeal would rule in her favour. Furthermore, the Court of Appeal was composed of two other judges, who had not been involved in the incident, and there had been no doubt that the judgment, which appeared to be well-reasoned, had been delivered by the bench as a whole. 24. The applicant appealed to the Constitutional Court. 25. By a judgment of 24 October 2005, the Constitutional Court declared the appeal inadmissible. It reiterated that in accordance with Article 46 § 5 of the Constitution, no appeal lay against a decision dismissing an application as frivolous and vexatious. 26. Article 403 of the Civil Code reads as follows: “(1) Tenements at a lower level are subject in regard to tenements at a higher level to receive such waters and materials as flow or fall naturally therefrom without the agency of man. (2) It shall not be lawful for the owner of the lower tenement to do anything which may prevent such flow or fall. (3) Nor shall it be lawful for the owner of the higher tenement to do anything whereby the easement of the lower tenement is rendered more burdensome.” 27. Article 873 of Title VI, Sub-Title V of the Code of Organisation and Civil Procedure, regarding warrants of prohibitory injunction, reads as follows: “(1) The object of a warrant of prohibitory injunction is to restrain a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant. (2) The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to preserve any right of the person suing out the warrant, and that prima facie such person appears to possess such right.” 28. Under Maltese law, as it stood at the time of the present case, a judge could be challenged or could abstain from hearing a case if one of the parties was represented by the former’s son or daughter, spouse or ascendant. Nothing prevented a judge from sitting in a case if the representative in issue was his or her brother or nephew. The pertinent Articles of the Code of Organisation and Civil Procedure, in so far as relevant, read as follows: “The judges may not be challenged, nor may they abstain from sitting in any cause brought before the court in which they are appointed to sit, except for any of the reasons hereinafter mentioned.” “(1) A judge may be challenged or abstain from sitting in a cause – ... (e) if he, or his spouse, is directly or indirectly interested in the event of the suit; (f) if the advocate or legal procurator pleading before a judge is the son or daughter, spouse or ascendant of the said judge; ...” 29. The relevant Article of the Code of Organisation and Civil Procedure was amended in 2007 to include another ground: “(g) if the advocate or legal procurator pleading before a judge is the brother or sister of the said judge; ...” 30. Article 39 § 2 of the Maltese Constitution, in so far as relevant, reads as follows: “Any court or other adjudicating authority prescribed by law for the determination of the existence or the extent of civil rights or obligations shall be independent and impartial; ...” 31. On the basis of the material available to the Court in respect of the legislation of a relevant number of member States of the Council of Europe, it appears that there is widespread consensus on the applicability of Article 6 safeguards to interim measures, including injunction proceedings. This conclusion is inferred from constitutional texts, codes of civil procedure and domestic case-law. In the majority of States (Albania, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Estonia, France, Germany, Hungary, Ireland, Italy, The Netherlands, Poland, Russia, San Marino, Serbia, Spain, Sweden, Switzerland and the United Kingdom) legislation suggests that Article 6 procedural safeguards (particularly the impartiality requirement) apply to interim and injunction proceedings either because the legislation makes no distinction as to the stage or type of proceedings to which the safeguards apply (such as the Constitutions of Greece, Italy, Spain and Switzerland), or because specific provisions governing interim measures reflect in some way the main safeguards embedded in Article 6 – as, for example, legislation which specifies that provisions governing proceedings on the merits apply mutatis mutandis to injunction proceedings (such as Poland), or will do so, unless otherwise stipulated (such as Germany). The Belgian courts have explicitly dealt with the issue (see the judgments of the Court of Cassation in the cases of Greenpeace Belgium and Global Action in the Interest of Animals, of 14 January 2005) and held that Article 6 of the Convention was in principle applicable to interim proceedings (référé). 32. Article 47 of the Charter of Fundamental Rights of the European Union guarantees the right to a fair trial. Unlike Article 6 of the Convention, the provision of the Charter does not confine this right to disputes relating to “civil rights and obligations” or to “any criminal charge” and does not refer to the “determination” of such. In Bernard Denilauler v. SNC Couchet Frères (ECJ, Case C 125/79, 21 May 1980) the European Court of Justice (“the ECJ”) held that provisional measures given ex parte without hearing the defendant could not be recognised according to its case-law. This implies that such safeguards should apply also outside the context of final decisions. | 1 |
dev | 001-77950 | ENG | UKR | CHAMBER | 2,006 | CASE OF BELUKHA v. UKRAINE | 3 | Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1 (length);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings;Costs and expenses (domestic proceedings) - claim dismissed | Peer Lorenzen | 4. The applicant was born in 1957 and lives in the town of Artemivsk, the Donetsk region. 5. On 14 August 1997 the applicant was transferred from her position of deputy director of the Joint Stock Company “Artemivska Raiagrotekhnika” (“the Company”) to the position of economist. 6. On 17 September 1997 she instituted proceedings in the Artemivsk Town Court (“the Artemivsk Court”) against the Company, seeking reinstatement in the position of deputy director. 7. On 20 October 1997 the applicant was dismissed from the position of economist, as she refused to take up her new duties. 8. In November 1997 she lodged with the Artemivsk Court a new claim against the Company, seeking annulment of her dismissal, recovery of salary arrears and compensation. The new claim was joined to the initial proceedings. 9. On 27 January 1998 the applicant challenged the judge, Mr B., who was dealing with her case, and the Artemivsk Court, alleging that they lacked impartiality, as the Company had produced and installed window grids in the court's new building free of charge. On 30 January 1998 the President of that court, Mr V.L.G., rejected the applicant's motion on the grounds that it did not contain any reasons for the disqualification of the judge. 10. By letter of 16 February 1998, the President of the Artemivsk Court requested the Chairman of the Executive Board of the Company to provide the court with a computer. The letter read as follows: “The Artemivsk Town Court of the Donetsk Region requests you to provide a computer for the court's use.” 11. The letter also contained a handwritten resolution, allowing the request. 12. On 2 March 1998 the court found in part for the applicant. It annulled the Company's order of 14 August 1997. On 20 April 1998 the Donetsk Regional Court quashed the decision of the first instance court and remitted the case for a fresh consideration. 13. On 16 December 1998 the Artemivsk Court found in part for the applicant. It ordered the Company to pay the applicant UAH 440.77 in salary arrears and other payments. The court further rejected the applicant's claim against her dismissal. 14. The applicant appealed in cassation. On 25 January 1999 the Donetsk Regional Court quashed the decision of 16 December 1998 concerning the pecuniary award and remitted that part for a fresh consideration. 15. On 2 April 1999 the Artemivsk Court found against the applicant. On 24 May 1999 the Donetsk Regional Court rejected the applicant's appeal in cassation. 16. On an unspecified date the President of the Donetsk Regional Court lodged a protest (a request for a supervisory review) with the Presidium of that court, seeking annulment of the decisions of 2 April and 24 May 1999. On 14 July 1999 the Presidium allowed the protest, quashed those decisions and remitted the case for a fresh consideration. 17. On 6 September 1999 the applicant challenged the impartiality of the Artemivsk Court. On 19 October 1999 the President of the court rejected the applicant's motion as unsubstantiated. 18. On 6 March 2000 the applicant changed her claim, seeking modification of the reasons for her dismissal, recovery of salary arrears and compensation. 19. On 9 March 2000 the Artemivsk Court found in part for the applicant. It ordered that the reasons for the applicant's dismissal be changed and awarded her UAH 8,071.75 in salary arrears and other payments. That decision was not appealed against and became final. 20. On an unspecified date the Deputy President of the Donetsk Regional Court lodged a protest with the Presidium of that court, seeking annulment of the decision of 9 March 2000 as regards the pecuniary award. On 5 July 2000 the Presidium allowed the protest, quashed the decision of 9 March 2000 in respect of the award and remitted that part for a fresh consideration. 21. On 24 October 2000 the Artemivsk Court found in part for the applicant and ordered the Company to pay her UAH 8,689.08 in salary arrears and other payments. That decision was not appealed against. 22. On an unspecified date the Acting President of the Donetsk Regional Court lodged a protest with the Presidium of that court, seeking annulment of the decision of 24 October 2000. On 20 June 2001 the Presidium allowed the protest, quashed the decision of the first instance court and remitted the case for a fresh consideration. 23. On 7 September 2001 the applicant lodged with the Artemivsk Court an appeal in cassation against the decision of 20 June 2001. On 13 September 2001 the President of the Artemivsk Court rejected the applicant's appeal in cassation, as the disputed decision could not be appealed. 24. The Artemivsk Court scheduled a hearing in the case for 31 July 2001. Following the applicant's request, the hearing was postponed until 5 October 2001. 25. On 5 November 2001 the President of the court, sitting as a single judge, found against the applicant. 26. In her appeal against the decision of 5 November 2001, the applicant raised a complaint of actual bias of the President of the Artemivsk Court, alleging that the court had received certain goods due to 'unofficial' relations between the Company's management and Mr V.L.G. 27. On 21 February 2002 the Donetsk Regional Court upheld the decision of 5 November 2001. The court did not deal with the applicant's allegations of bias on the part of the President V.L.G. 28. On 14 May 2002 the applicant appealed in cassation. On 19 August 2002 the Supreme Court of Ukraine refused to consider the applicant's appeal for being lodged out of time. It further held that the first instance court should have ruled on the admissibility of the applicant's appeal in cassation. 29. On 18 September 2002 the applicant requested an extension for lodging an appeal in cassation. On 19 September 2002 the Artemivsk Court granted her the extension requested, finding that the applicant had complied with the statutory time-limit for lodging her appeal in cassation. 30. On 1 October 2002 the applicant lodged with the same court her new appeal in cassation, in which she reiterated her complaint about actual bias of the President V.L.G. 31. On 21 April 2003 the panel of three judges of the Supreme Court of Ukraine, sitting in camera, rejected the applicant's request for leave to appeal in cassation, having found that there were no grounds for referring the case to the Civil Chamber of the Supreme Court. 32. According to the records provided by the Government, out of around fifty-three hearings held between September 1997 and April 2003 seven were adjourned due to the absence or at the request of the applicant. Twelve hearings were adjourned because of the absence of the representatives of the defendant company. 33. Article 18 of the Code provided five grounds on which a judge could be challenged and should withdraw from the case: if he participated at an earlier stage of the proceedings as a witness, expert, interpreter, representative, prosecutor, court secretary; if he was personally interested, directly or indirectly, in the outcome of the proceedings; if his relatives took part in the proceedings; if he had particular relations with the persons who took part in the proceedings; or if there were other reasons for which his impartiality could be doubted. 34. Under Articles 20-21, the persons who took part in the proceedings could lodge a motivated application for withdrawal of a judge. The application should be examined by the court hearing the case. 35. According to Article 291, the resolutions adopted by the courts concerning the applications for withdrawal of a judge could not be appealed against. The parties could, nonetheless, submit their objections against such resolutions together with their appeal against the judgment in their case. 36. Pursuant to Articles 301 and 305, the court of appeal verified whether the decision of the first instance court was lawful and duly reasoned. The court of appeal had the power to examine new evidence, and the evidence which allegedly had not been examined in compliance with the Code. It was entitled: to reject an appeal; to quash the judgment of the first instance court and to remit the case for a fresh consideration, if a procedural violation prevented the court of appeal to examine new evidence or the evidence which the first instance court had not examined; to quash the judgment of the first instance court and to discontinue the proceedings; to change the judgment or to adopt a new judgment. 37. According to Article 307, the judgment of the first instance court should be quashed and the case should be remitted for a fresh consideration: if the case had been considered by a person, who had not been entitled to sit as a judge in the case; if the judgment had been adopted or singed by a judge who had not heard the case; if the case had been heard in absence of a person who had not been duly informed about the time and place of a hearing; or if the judgment concerned the rights and obligations of persons who had not participated in the case. 38. Under Article 320, the grounds for an appeal in cassation were incorrect application of substantive law by the lower courts or violation of procedural rules. Article 328 provided that the case should be referred to the Chamber of the Supreme Court: if the appeal raised an issue of incorrect application of the procedural rules by lower courts; if a similar case was pending before the Chamber; if application of the law by lower courts run contrary to the practice of the court of cassation; or if the court of appeal had acted as a first instance court in the case. The case could also be referred to the Chamber if the decisions had significant importance for uniform application of the law, or if the appeal contained information about the erroneous application of substantive or procedural law which had led or could have led to the wrongful decision in the case. 39. Pursuant to Article 321 of the Code, an appeal in cassation was to be lodged within three months after the decision of a court of appeal had been pronounced. By the Act of 7 March 2002, which came into force on 4 April 2002 and was later repealed as of 1 September 2005, the above time-limit was reduced to one month. The time-limit for lodging an appeal in cassation could be extended by a first instance court, if it found that the initial time-limit had not been complied with for good reasons. 40. Article 329 of the Code provided for the filter of appeals in cassation by a panel of three judges of the Supreme Court who were entitled to decide whether or not leave to appeal should be granted. No participation of the parties was foreseen at that stage of proceedings. Leave to appeal was granted unless the panel unanimously decided otherwise. 41. Pursuant to Article 334, the court of cassation had power: to reject an appeal; to quash, in full or in part, the decision at issue and to remit the case for a fresh consideration to the court of first instance or the court of appeal; to quash the decision of the court of appeal and to uphold the judgment of the first instance court; to quash the decisions in the case and to discontinue the proceedings; or to change the decision on the merits of the case. 42. According to section 19 of the Act, the regional departments of justice (territorial branches of the Ministry of Justice) were responsible for technical maintenance of the district and town courts. 43. Under section 26 of the Act, the president of a district or town court exercised specific managerial and procedural functions. The president presided in court hearings, appointed judges to preside in a hearing, and distributed work among judges. He was also responsible for regular meetings with citizens, explanation of the law to them, and receiving complaints and propositions from them. The president oversaw the work of the registry and bailiffs. He organised the work on judicial statistics, standardisation of judicial practice, and training of the court staff. | 1 |
dev | 001-110313 | ENG | AUT | ADMISSIBILITY | 2,012 | MICHAJLOV v. AUSTRIA | 4 | Inadmissible | Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | 1. The applicant, Mr Valentin Michajlov, is an Austrian national who was born in 1952 and lives in Krems. He is represented before the Court by Mr H. Blum, a lawyer practising in Linz. The Austrian Government (“the Government”) are represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 4 May 2005 the Vienna Regional Criminal Court (Landesgericht) convicted the applicant of various offences under the Drugs Act and sentenced him to eight years’ imprisonment. It found him guilty of having commissioned various persons between May and November 2001 to import cocaine to Austria and to have sold some seven kilos of cocaine to various individuals in Austria. In fixing the sentence, the court had regard to the fact that the applicant had four previous convictions two of which also concerned offences under the Drugs Act. It also revoked the suspension of a term of three months’ imprisonment resulting from a previous conviction. The applicant’s imprisonment was due to be terminated on 14 November 2011. 4. The applicant was detained at Sonnberg Prison when he was diagnosed with multiple sclerosis in December 2006. Subsequently, he was regularly taken to the public hospital in St. Pölten, which has an out-patient department specialised in the treatment of multiple sclerosis. Examinations took place on 11 January, 14 March and 25 September 2007 and on 23 January 2008. 5. By decision of 28 January 2008 the Korneuburg Regional Court, noting that the applicant required more intensive medical treatment and care, ordered his transfer to Stein Prison for the further execution of his sentence, as that prison centre was equipped with a hospital of its own. However, the Regional Court refused the applicant’s request for a suspension of the execution of his sentence pursuant to section 5 § 3 taken together with section 133 § 1 of the Execution of Sentences Act (Strafvollzugsgesetz). 6. The Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal on 3 March 2008. It noted on the basis of a medical expert opinion that the applicant, suffering from multiple sclerosis, was unfit for detention. However, he was to be considered dangerous within the meaning of section 5 § 3 of the Execution of Sentences Act. He had been convicted five times. His last conviction for importing and selling seven kilos of cocaine concerned a particularly serious crime. Although the applicant’s mobility was reduced by his illness, he could use his contacts within the criminal scene to commit or instigate further crimes. 7. On 3 April 2008 the applicant was transferred to Stein prison. From that date he was detained in the hospital of Stein prison. The Government submitted a statement of the head doctor of the Stein prison: The hospital has its own medical and nursing staff. Doctors carry out daily visits and medical and nursing assistance is available 24 hours per day. All sanitary facilities in the prison hospital are suitable for persons with disabilities. The preparation of food takes special needs into account. 8. Until 20 January 2009 the applicant was placed in room no. 117 of the prison hospital, which is equipped with sanitary facilities (shower and toilet) suitable for persons with disabilities. Subsequently, he was placed in two other rooms of the prison hospital, namely room no. 129 until 9 May 2009 and room no. 134 until his release. While staying in these rooms the applicant could use the hospital’s common shower room with the assistance of prison staff. 9. The applicant continued to receive treatment at the multiple sclerosis department at the St. Pölten public hospital. An examination scheduled for 22 April 2008 was refused by the applicant. Further examinations took place on 27 May and 26 November 2008 and on 17 February and 18 June 2009. The applicant’s therapy was fixed and continuously adapted by the specialists of the multiple sclerosis department and was carried out at the prison hospital. Moreover, the applicant was treated by the prison hospital’s pain specialist several times. 10. In addition to medication, the applicant received physiotherapy from 2009. This was available in the prison hospital. A first set of ten therapy units was prescribed. The applicant underwent five units between 2 and 17 March 2009 but renounced to make use of the remaining units. Subsequently, physiotherapy was resumed and the applicant received eleven therapy units between 4 and 29 May 2009. 11. On 10 June 2008 the applicant, represented by counsel, requested anew that the execution of his sentence be suspended due to his illness pursuant to section 5 § 3 taken together with section 133 § 1 of the Execution of Sentences Act and that he be released. 12. He joined an opinion by an expert on neurology and psychiatry, Dr. K. According to the expert’s opinion dated 8 January 2008 the applicant was unfit for detention. Since he had been diagnosed with multiple sclerosis in December 2006 his state of health had deteriorated considerably. In particular, the mobility of his arms and hands was restricted and he could no longer perform simple gestures necessary for everyday life, such as handling cutlery for instance. His general mobility on the EDSS scale was 4 (0 being full mobility, 7 meaning dependency on a wheel-chair). He received medication, however this was not sufficient as according to medical opinion a multidisciplinary approach, encompassing neurology, physiotherapy and psychology, was necessary for treating multiple sclerosis. The support by close relatives was also crucial. 13. As to the question whether there was still a danger that he would commit further offences, the applicant submitted that all his energy was devoted to combating his illness. Should the court have doubts in respect of his dangerousness, he requested that the opinion of an expert be taken. 14. On 23 July 2008 the Krems Regional Court dismissed the applicant’s request. It noted that according to the prison administration, the applicant’s conduct was good. According to the prison doctor, the applicant’s condition was stable for the time being but could deteriorate at any time. Referring to the expert opinion, the court acknowledged that the applicant was unfit for detention due to his illness. However, he was to be considered particularly dangerous. In that respect, the court referred to the decision by the Vienna Court of Appeal of 3 March 2008, which had found that even if his mobility was reduced there was a danger that the applicant might use his contacts to organise further drug trafficking. Therefore the conditions for suspending the execution of his prison term as laid down in section 133 § 1 taken in conjunction with section 5 § 3 of the Execution of Sentences Act were not met. 15. The applicant appealed, claiming in particular that his illness had weakened him substantially and all remaining energy was required to cope with the illness. Consequently, it could no longer be assumed that he would commit further offences. In that connection he complained that the Regional Court had assumed that his dangerousness persisted without having taken a further expert opinion. 16. By decision of 25 August 2008 the Vienna Court of Appeal dismissed the applicant’s appeal. It noted that the applicant suffered from multiple sclerosis and was unfit for detention. However, it confirmed the Regional Court’s view regarding the applicant’s dangerousness. It observed that he had been convicted five times. The prison term he was serving related to the trafficking of a substantial amount of drugs, namely seven kilos of cocaine which he had imported though third persons and sold in Austria. Pursuant to section 5 § 3 of the Execution of Sentences Act, the sentence had to be executed even where the detainee was unfit for detention if he presented a danger to the security of others having regard to the nature of his offences or the motive for which they were committed or in view of his prior conduct. The court referred to the applicant’s recidivism and the large amount of drugs which he had sold, and found that his dangerousness was not offset by the effects of his illness. 17. In sum, the Court of Appeal found that despite the fact that the applicant was unfit for detention, his substitute confinement (Ersatzhaft) – if need be in a public hospital – was required for the protection of others. 18. By application of 1 April 2009 the applicant again requested that the execution of his sentence be suspended pursuant to section 5 § 3 taken together with section 133 § 1 of the Execution of Sentences Act and that he be released. 19. He submitted a private expert opinion by Dr. H, a neurologist, psychiatrist and physiotherapist. The opinion, dated 26 March 2009, stated that the danger that the applicant would commit further offences had considerably decreased. While his prior convictions indicated a certain risk, all other relevant factors rather allowed a positive prognosis. His severe and progressive illness required all his energy and had led to a profound change. Moreover, the applicant’s age, his reduced mobility, the need of constant medical treatment and his dependency on help from others made it unlikely that he would commit further offences. 20. The Krems Regional Court appointed a psychiatric expert Dr. B. In his opinion, dated 15 September 2009, Dr. B. noted that the applicant was detained in the prison hospital and that according to the prison doctor his state of health had deteriorated over the last months. By now he was able to walk only with great difficulty. The expert confirmed that the applicant was unfit for detention due to his illness. Regarding his dangerousness, the expert found that the applicant still made an astonishingly energetic impression. Although his progressive illness and his age could be considered as a factor reducing the probability of a relapse into crime, his personality did not necessarily indicate that he would refrain from committing further offences. In sum, the remaining danger had to be compensated by stabilising factors such as assistance by a probation officer (Bewährungshelfer). 21. On 12 October 2009 the Krems Regional Court ordered the applicant’s release. It noted that the applicant was detained in the prison hospital. The hospital’s head doctor had submitted comments in favour of release. Furthermore, expert Dr. B. had found that the applicant’s inclination to commit further offences had decreased but not totally disappeared and had recommended that a probation officer be appointed in case of release. 22. Referring to its previous decision, the Regional Court noted that the applicant suffered from multiple sclerosis and was unfit for detention. While that decision had refused the applicant’s release on account of his dangerousness, the applicant’s good conduct in the meantime and Dr. B.’s expert opinion led to the conclusion that the applicant’s dangerousness had decreased. On the condition that he would reside with his mother and be assisted by a probation officer it could be assumed that he would not commit further offences. The execution of his sentence was therefore suspended pursuant to section 133 § 1 of the Execution of Sentences Act. 23. In order to allow for the necessary preparations, the court ordered that the applicant be released on 20 October 2009. 24. The applicant was released on that day. 25. Section 5 § 1 of the 1969 Execution of Sentences Act provides that the execution of a prison term is to be suspended if the convict is unfit for detention due to invalidity or a physical or mental illness. Pursuant to section 5 § 3 of the said Act a convict who is unfit for detention may nevertheless be deprived of his liberty if he presents a danger to the security of the State or to the security of third persons, having regard to the nature or the motive of the offence committed by him, or in view of his prior conduct. If need be, confinement is to be carried out at a public hospital. 26. Pursuant to section 133 § 1 the execution of a sentence has to be suspended if a prisoner becomes unfit for detention while serving his prison term. The conditions set out in section 5 apply. | 0 |
dev | 001-113901 | ENG | POL | ADMISSIBILITY | 2,012 | PIKIELNY AND OTHERS v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano | 1. The application was lodged by five applicants – Henryk Pikielny (“the first applicant”), Simon Pikielny (“the second applicant”), Yael Star (“the third applicant”), Irit Fenton (“the fourth applicant”) and Ruth Leshem (“the fifth applicant”). The first applicant is a Brazilian national, the second, third and fifth applicant are Israeli nationals. The fourth applicant has dual Israeli and British nationality. They were born in 1928, 1923, 1932, 1937 and 1936 respectively. The first applicant lived in Paris, the second in Hertzila, the third in Ashdod, the fourth in Haifa, and the fifth in Tel Aviv. The first applicant died on 12 June 2010. On 20 October 2010 the applicant’s wife, Ms Helena Pikielny, expressed the wish to pursue the application in his stead. The applicants were represented before the Court by Ms A. SucheckaTarnacka and Mr B. Kordasewicz, lawyers practising in Warszawa, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicants’ ancestors owned a textile manufacturing factory in Łódź, Poland, consisting of some 15 various buildings, including wool weaving mills, a plot of land of 6,437 sq. m. and a garden. The factory, which was originally intended for the manufacture of silk scarves, was founded by the first, the second and the fourth applicants’ grandfather, Mojżesz Pikielny, in 1889. 4. Shortly before the Second World War the factory operated under the name “Factory of Wool and Cotton Manufactures M. i. T. Pikielni Joint Stock Company” (“Fabryka Wyrobów Wełnianych i Bawełnianych M. I T. Pikielni Spółka Akcyjna”) and, following various acquisitions and transactions, was eventually co-owned by Mojżesz Pikielny and his sons – Maks Pikielny (the first and second applicants’ father) and William Pikielny (the fourth applicant’s father). 5. Following the outbreak of the Second World War, the factory owners and the applicants’ other relatives were taken by the Nazis to concentration camps or ghettos. The factory was taken over by Germans and throughout the war operated under the Nazi-appointed trustee (“Treuhender”). 6. William Pikielny was killed during a bombing of Łódź in 1939. Mojżesz Pikielny perished in the Warsaw ghetto in 1943. Maks Pikielny and the first and second applicants survived the concentration camps and returned to Łódź at the end of the war. They found the factory functioning largely as it had been during the Nazi occupation. It was then taken over and managed by the communist authorities. In recognition of his former role as owner and chief executive of the factory Maks Pikielny was designated by the Workers’ Committee as manager of operations. In fact, he actively managed the business until he and the first and second applicants left Poland for Brazil in June 1946. 7. On 12 February 1948 the factory was nationalised by virtue of the Minister of Light Industry’s (Minister Przemysłu Lekkiego) decision no. 22 (“the 1948 decision”), issued pursuant to section 3(16) of the Law of 3 January 1946 on the nationalisation of basic branches of the State economy (Ustawa o przejęciu na własność Państwa podstawowych gałęzi gospodarki narodowej) (“the 1946 Act”). The decision was published in the Cabinet’s Official Gazette (Monitor Polski) no. 44 of 30 April 1948. 8. The former owners were neither notified about the take-over of their property nor were they compensated for it. Throughout the years of the communist regime the factory remained operating, having been transferred by the State Treasury from one State-owned enterprise to another. Finally, in 1963 it was assigned to “Lodex”, a State-owned Wool Trade Plant (Zakłady Przemysłu Wełnianego “Lodex”). However, the relevant entry recording the owner in the Łódź District Court Land and Mortgage Register had not been amended and the company “M. i T. Pikielny Joint Stock Co.” remained listed as the factory’s owner until the beginning of the 1990s. At around the same time the applicants started to make first attempts to have the land and factory restored to them or, alternatively, to obtain compensation for its nationalisation. 9. On 31 May 1991 winding-up proceedings were instituted in respect of the “Lodex” Wool Trade Plant. In the course of the proceedings, “Lodex” lodged an application with the Łódź District Court for acquisition of the property in question by prescription. The claim was dismissed on 3 March 1992. 10. Subsequently, the plant’s representatives asked the Łódź District Court to open a new book (księga wieczysta) for the property and to make an entry recording the State Treasury as its owner. 11. On 17 April 1992 the Łódź District Court ordered that the old books and records kept for the property and listing the applicants’ family as the owners be closed, that a new book no. 87708 be opened and that the State Treasury be entered in the Land and Mortgage Register as the owner of the property. The applicants appealed against that order. 12. On 10 December 1993 the Łódź Regional Court dismissed their appeal (rewizja). Subsequently, on 30 April 1994, the applicants asked the Minister of Justice to lodge an extraordinary appeal (rewizja nadzwyczajna) against the contested order but their request was to no avail. 13. In the meantime, on 17 December 1992, the Governor of Łódź (Wojewoda) had given a decision declaring that the “Lodex” Wool Trade Plant had acquired perpetual use (użytkowanie wieczyste) of the land in question “with ownership of the buildings and machines having been acquired by ‘Lodex’ through payment”. The applicants sought to have the administrative proceedings reopened. On 23 March 1993 the Governor of Łódź refused their application. 14. On 14 December 2004, following the applicants’ inquiry into the possibility of obtaining pecuniary compensation for the nationalised property, the Minister for Economy and Labour (Minister Gospodarki i Pracy) informed them by letter that until that time no laws regulating this matter had been enacted. Admittedly, the 1946 Act in sections 3 and 7 stated that an appropriate body would be set up to deal with such compensation claims and that the relevant rules governing the principles for payment of compensation would be established. However, the Cabinet had not yet fulfilled that statutory obligation. Accordingly, there was no body that could be authorised to act in respect of compensation or related matters. The Minister added that it should be assumed that this lacuna would be removed once Parliament had adopted a law on restitution and compensation. Currently, the Minister for the State Treasury was working on the relevant bill and it was likely that that bill would soon become a formal proposal by the Government. Since then, the applicants have not made any further attempts to claim compensation for the nationalised factory before the domestic authorities. 15. Following the establishment of the communist regime in Poland nearly all branches of industry, as well as banking, insurance, transport and commercial companies were taken over by the State under the 1946 Act which, in its section 1, stated the purposes of nationalisation as follows: “ In order to ensure the planned rebuilding of the state economy, the economic sovereignty of the State and to foster the general well-being, the State shall take over ownership of enterprises on the conditions laid down in this law.” Pursuant to section 2(1), only those industrial, mining, transport, banking, insurance and commercial enterprises that belonged to the Third Reich and the former Free City of Gdańsk, their citizens (except for those of Polish or other nationality who had been persecuted by the Germans), German and Gdańsk legal persons (except for those set up under public law), companies controlled by German or Gdańsk citizens or administration or those owned by persons who had defected to the enemy were to be taken over by the State without payment of compensation. 16. Section 3(1) of the 1946 Act (as amended) states that the owners of the remaining enterprises were to be compensated for their nationalised property. That provision reads, in so far as relevant, as follows: “1. The State shall compensate [the owners] for taking over ownership of the following: A. Mining and industrial enterprises in the following sectors of State economy: 1) mines and mining leases subject to mining law; 2) oil and gas industry, including mines, refineries, gasoline production and other processing plants, gas pipes and synthetic fuel industry; 3) companies that generate, process, transmit or distribute electricity ...; 4) companies that generate, process, transmit or distribute gas ...; 5) water supply companies serving more than one municipality ...; 6) steelworks and non-ferrous metals smelting plants; 7) armaments, aviation and explosives industry; 8) coking plants; 9) sugar factories and refineries; 10) industrial distilleries, spirit refineries and vodka production plants; 11) breweries with an annual output exceeding 15,000 hectolitres; 12) yeast production plants; 13) grain plants with a daily output exceeding 15 tons of grain ...; 14) oil plants with an annual output exceeding 500 tons and all refineries of edible fats; 15) cold stores; 16) large and medium textile industry; 17) printing industry and printing houses; ... B. Industrial enterprises not listed in subsection “A” if they are capable of employing in the production more than 50 persons on one shift. ... C. 1) Transport enterprises (standard gauge and narrow-gauge railways, electric railways and aviation transport enterprises); 2) communication enterprises (telephone, telegraph and radio enterprises). 17. Section 7 lays down general principles for compensation to be paid for nationalised property. It states, in so far as relevant, as follows: “1. The owner of an enterprise whose ownership has been taken over by the State (section 3) shall receive compensation from the State Treasury within one year from the date on which a notice of final determination of the amount of compensation due has been served on him. 2. Such compensation shall in principle be paid in securities; however, in exceptional and economically justified cases it may also be paid in cash or other values. 3. The amount of compensation due shall be determined by special commissions. The persons concerned shall have the right to participate in proceedings before those commissions. If need be and in any case if so requested by the persons concerned, the commission shall appoint appropriate experts. 4. The composition of the commissions, the rules for the appointment of their members, the quorum, the rules of procedure before the commissions and rules for appeals against their decisions shall be determined by an ordinance issued by the Cabinet. 5. The following factors shall be taken into account in determining compensation: a) general deterioration of the value of State property; b) net value of the corporate property on the date of nationalisation; c) deterioration of the value of the enterprise cause by war losses or losses incurred by the enterprise in connection with the war, occupation in the period from 1 September 1939 to the date of nationalisation; d) value of expenditures made after 1 September 1939; e) special circumstances affecting the value of the enterprise (concession terms, licenses etc.). 6. A Cabinet’s ordinance shall determine detailed rules governing the calculation of compensation, assessment of the circumstances listed in subsection 5 and means of payment of compensation (subsection 2) and depreciation of securities.” 18. Pursuant to section 10, the Cabinet and the relevant Ministers shall be entrusted with the implementation of the 1946 Act. However, since 5 February 1946, the date of entry into force of the 1946 Act, until the present day the Cabinet has not yet issued an ordinance on the organisation of the compensation commissions and determination of compensation referred to in section 7(4) and (6). 19. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.” 20. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. The relevant amendments were in essence aimed at enlarging the scope of the State Treasury’s liability in tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and provision being made for the State’s tortious liability for failure to enact legislation, a concept known as “legislative omission” (zaniechanie legislacyjne). 21. Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows: “4. If damage has been caused by failure to enact a law [akt normatywny] where there is a statutory duty to do so, the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for damages.” However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 applies to all events and legal situations that subsisted before that date. 22. The concept of the State’s civil liability for a constitutional tort was introduced into the Polish legal order on 17 October 1997, the date of entry into force of the 1997 Polish Constitution. Article 77 § 1 of the Constitution states, in so far as relevant, as follows: “Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law.” 23. In its resolution of 24 November 2005 (“the 2005 Resolution”), the Supreme Court (Sąd Najwyższy), sitting as a bench of three judges, dealt with the following legal questions submitted to it by the Warsaw Court of Appeal (Sąd Apelacyjny): “ Is the State Treasury liable for damage caused by failure to enact a law [akt normatywny] if the duty to enact that law, laid down in section 7(4) and (6) of [the 1946 Act] was not fulfilled until the date of entry into force of [the 2004 Amendment], and, if so, When this duty should have been performed and whether damages for failure to enact the above law corresponds to unreceived compensation for the enterprise nationalised by the State, determined in accordance with the principles laid down in section 7(2) and (5) of [the 1946 Act]?”. The question arose in the context of a case brought by a certain E.K., who sought damages for the nationalisation of her family’s printing house and, as one of the basis for her claim, invoked Article 4171 of the Civil Code, relying on the State’s legislative omission consisting in its failure to issue the relevant ordinance. 24. The Supreme Court’s answer in the operative part of the resolution reads: “Until the date of entry into force of [the 2004 Amendment] the Cabinet’s failure to issue an ordinance foreseen in section 7(4) and (6) of [the 1946 Act] did not constitute a basis for a claim by an owner of the nationalised enterprise for damages arising from [nationalisation].” 25. The resolution contains extensive reasoning, the main thrust of which reads as follows: “[As regards the time-frame for the issue of the ordinance]. The determination of the beginning of that situation carries with it a certain element of arbitrariness since [the 1946 Act] does not lay down any term within which the ordinance referred to in section [7] (4) and (6) should be issued. Assuming that in general the absence of a term is tantamount to a duty to enact a law without undue delay, it can be considered that the discharge of the statutory authorisation, assuming the existence of willingness of the authorised body (the Cabinet) should have taken place in 1946 or in 1947 at the latest. This is supported by the fact that the Cabinet issued ordinances implementing other provisions (including section 2(7) of the Act, a fundamental provision for the interest of the State). [As regards the State’s civil liability for legislative omission], ... it should be concluded that before the entry into force of the 1997 Constitution the State had not been liable under civil law for the consequences of its legislative inactivity. ... 17 October 1997, marking the entry into force of the Constitution is the relevant date as its constitutes the beginning of the existence in the legal order of, inter alia, Article 77 § 1 of the Constitution, proclaiming the right of “everyone” to compensation for any harm done to him by any act of a public authority in breach of the law .... Assuming that Article 77 § 1 does not contain a provision making it possible to draw from it a direct basis for a claim for damages for the legislature’s inactivity, it must be said that the rules for the State’s liability in the sphere of law-making should be established by means of an ordinary statute, determining in a more detailed manner than Article 77 §1 premises for an effective claim. ... Article 4171 § 4 of the Civil Code, as introduced by [the 2004 Amendment] satisfies the requirement of detailed premises. The relevant temporal consequences have been clearly set out in its section 5, evidently indicating the prospective operation of Article 4171 § 4 of the Civil Code. A formulation laying down a non-retroactive character of the provision is telling in that it refers to “events and legal situation that subsisted before its entry into force” ... In consequence, the assessment of the effects of legislative omission subsisting before 1 September 2004 was governed by [earlier provisions]. The relevant Article 417, in its version before the amendment, did not include legislative omission as it was based on a completely different premise, namely, the absence of the State’s civil liability for the legislature’s acts. ... “ 26. On 5 December 2007 the Supreme Court, sitting as a bench of three judges, dealt with a cassation appeal (kasacja) lodged by Lubelska Fabryka Maszyn i Narzędzi Rolniczych “Plon”, a limited liability company which was at that time subject to a winding-up procedure. The appellant contested the judgment of the Warsaw Court of Appeal of 2 February 2007, rejecting its appeal (apelacja) against the judgment of the Warsaw Regional Court of 30 May 2006 whereby its claim for damages arising from the State’s failure to issue the relevant ordinance, pursuant to section 7(2) and (5) of the 1946 Act, had been dismissed. The claim was based on Article 77 of the Constitution and Articles 417 and 4171 § 4 of the Civil Code. In dismissing the cassation appeal, the Supreme Court essentially reiterated the grounds stated in the 2005 Resolution (see paragraph 25 above), stressing that the impugned legislative omission occurred in 1946 or, at the latest in 1947 and since then had continued. However, Article 77 § 1 of the Constitution could not be considered a legal basis for a claim deriving from an “omission” by public authorities since that provision clearly covered only their “acts”. The provision of Article 4171, enabling a plaintiff to seek damages for legislative omission, had been introduced only on 1 September 2004 by virtue of the 2004 Amendment. The terms of section 5 of the Amendment 2004 were unambiguous: Article 4171 of the Civil Code did not apply to events and situations that had subsisted before its entry into force. Consequently, its operation was excluded in respect of legislative omissions that originated in facts that had occurred earlier, even if this state of affairs continually existed until the present day. 27. On 13 June 2011 the Constitutional Court (Trybunał Konstytucyjny) heard a constitutional complaint lodged by a company Elektrownia w Kielcach spółka akcyjna, challenging the constitutionality of section 5 of the 2004 Amendment in so far as it excluded the application of Article 4171 of the Civil Code to situations that had subsisted before the entry into force of that Amendment, i.e. 1 September 2004 (see also paragraphs 20-26 above). The claimant invoked, in particular, Article 77 § 1 of (right to compensation for unlawful action of public authority) read in conjunction with Article 2 (rule of law), Article 64 §§ 1 and 2 (right of ownership) read in conjunction with Article 21 §§ 1 and 2 (protection of ownership) and Article 32 § 1 (equality before the law) and Article 45 § 1 (right of fair trial) of the Constitution. Before lodging the complaint, the company, which had been nationalised under the 1946 Act, unsuccessfully sought compensation for the Prime Minister’s legislative inactivity in that he had failed to enact an ordinance on rules for compensation as required by the 1946 Act. On 4 April 2008 the claim was finally rejected by the Warsaw Court of Appeal on the grounds stated in the 2005 Resolution (see paragraphs 23-25 above). The Constitutional Court’s decision (no. SK 26/09), in its relevant part, reads as follows: “4.7. ... Consequently, in the light of the provisions of the Constitution it is difficult to assume that non-fulfilment of the duty to enact an ordinance on compensation for nationalised property derived from [the 1946 Act] amounted to “[an] act of a public authority in breach of the law” linked with the State’s liability for [constitutional] tort under the Constitution. Even assuming that the state of legislative omission still persists, it should at the same time be concluded that the duty is non-enforceable. Thus, it is evident that on the basis of the applicable laws only a statute could regulate compensation for the claimant’s nationalised property. ... Accordingly, the Constitutional Court considers that the assumption that a legislative omission “in breach of the law” still continues is unwarranted, in particular after the entry into force of the Constitution, in the light of its standards. ... In the light of the constitutional standards as applicable at present it is difficult to accept that there is any legal force attached to the duty imposed on the Cabinet by section 7 of the 1946 Act.” 28. Article 156 § 1 of the Code of Administrative Procedure (“the CAP”) (Kodeks postępowania administracyjnego), which sets out grounds on which a final administrative decision is subject to annulment, states: “1. A public administration authority shall declare a decision null and void if: 1) it has been issued in breach of the rules governing competence; 2) it has been issued without a legal basis or in flagrant breach of the law; 3) concerns a case already decided by means of another final decision; 4) it has been addressed to a person who is not a party to the case; 5) it was unenforceable on the date of its issuance and its unenforceability is of a permanent nature; 6) it would give rise to a punishable offence in the event that it has been enforced; 7) it has a flaw making it null and void by the force of law. There is no time-limit for a party’s request to have an administrative decision declared null and void under Article 156 § 1. However, there are situations where, even if certain grounds listed in Article 156 § 1 exist, the lapse of time or irreversible effects of the contested decision have consequences for the formula used in a decision given in the annulment procedure. Article 156 § 2 provides for the following exceptions: “ A decision shall not be declared null and void on the grounds listed in paragraph 1 (1), (3), (4) and (7) if 10 years have expired from the date of its service or promulgation, as well as if the decision has produced irreversible legal effects.” Article 158 reads as follows: “1. A ruling on annulment of a decision shall be given by means of a decision. 2. If it is impossible to declare a decision null and void because of the circumstances referred to in Article 156 § 2, a public administration authority shall only declare that the contested decision has been issued contrary to the law and indicate circumstances because of which it has not declared the decision null and void.” For the purposes of compensation, the effects of declaring the original administrative decision “null and void” or “issued contrary to the law” are the same. 29. Article 160 set out principles for compensation for loss caused by the issuance of an administrative decision subsequently annulled on the grounds listed in Article 156 § 1. This provision was repealed by the 2004 Amendment with effect from 1 September 2004 (see also paragraphs 20-21 above) and replaced by new Article 4171 § 2 of the Civil Code. However, under section 5 of the 2004 Amendment, which sets out transitional rules, Article 160, in the version applicable on the repeal date, still applies to “events and legal situations” that subsisted before the entry into force of the 2004 Amendment. Article 160, in the version applicable on the relevant date, read as follows: “1. A party who has suffered a loss on account of the issuance of a decision in breach of Article 156 § 1 or on account of annulment of such a decision shall have a claim for compensation for actual damage, unless he has culpably caused the circumstances mentioned in this provision. 2. The provisions of the Civil Code, except for Article 418 [provision repealed], shall apply to [such] compensation. 3. Compensation is due from an authority that issued a decision in breach of Article 156 § 1, unless the other party to the proceedings concerning the decision culpably caused the circumstances mentioned in this provision; in the latter case a claim for compensation shall be directed against the culpable party. 4. A public administration authority that has declared a decision null and void or declared, pursuant to Article 158 § 2, that it has been issued contrary to the law shall rule on compensation due from the authority referred to in § 1. The vindication of compensation from a person who has culpably caused the circumstances mentioned in Article 156 §1, shall be effected before a court of law. 5. A party who is not satisfied with compensation granted by a public administration authority referred to in § 4, may lodge a claim with a court of law within 30 days from the date of service of a decision given on that matter. 6. A claim for compensation shall be time-barred after 3 years from the date on which has become final the decision declaring null and void the decision issued in breach of Article 156 § 1 or decision whereby an authority has declared, pursuant to Article 158 § 2, that the contested decision has been issued in breach of Article 156 § 1.” 30. On 30 March 2011 the Civil Chamber of the Supreme Court, sitting in plenary, gave a resolution (no. III CZP 112/10) on the application of Article 160 of the CAP and rules regarding compensation. The resolution was given in response to legal questions submitted by the First President of the Supreme Court in connection with certain problems and divergences arising in judicial practice, in particular in respect of the temporal effects of Article 160 as determined in section 5 of the 2004 Amendment, the application of Article 4171 § 2 of the Civil Code which replaced Article 160 (see paragraphs 20-21 and 29 above) and rules for adjudicating compensation. The resolution contains an extensive reasoning which, in so far as relevant, may be summarised as follows: 1) Article 160 §§ 1,2,3 and 6 of the CAP applies to all claims for damages arising from an issuance of a final administrative decision given before 1 September 2004, which has been declared null and void or has been declared as being issued in breach of Article 156 § 1 of the CAP. In contrast, paragraphs 4 and 5 of Article 160, setting out the procedure for vindicating such claims, should be considered as no longer applicable. Consequently, a party seeking compensation under this provision should file an action directly with a civil court. 2) Where an annulled administrative decision has been given before the entry into force of the Constitution (17 October 1997), compensation defined in Article 160 of the CAP shall not include loss of profits sustained in consequence of its issuance, even if such loss has occurred after this date. 31. The Government, in their observations, supplied data concerning the annulment procedure and claims for compensation for nationalisation asserted by former owners or their heirs under the provisions of the CAP. Their submissions may be summarised as follows. From 1989 to 30 September 2006 the Ministry for Economy registered 3,167 cases where applicants asked for the annulment of nationalisation decisions issued under the 1946 Act and other nationalisation laws adopted under the communist regime. Many other cases were registered in other Ministries. The Government assumed that one half of those cases concerned the 1946 Act. By 30 September 2006 the relevant Minister annulled 1,394 nationalisation decisions, declaring them either null and void or being issued in breach of the law. A further 1,100 similar cases were at that time pending. In 625 cases the applicants initiated the compensatory procedure under Article 160 of the CAP. In 374 cases compensation was granted, 151 cases were dismissed as time-barred since the applicants had not complied with the statutory time-limit of 3 years for lodging a compensation claim. _ Between 1995 and 2006 the Minister for Economy paid to claimants 227,000,000 Polish zlotys (PLN) by way of compensation for nationalised property. 32. In the years 1990-2005 Parliament dealt with 11 bills on reprivatisation, restitution and compensation for property taken over by the communist authorities under nationalisation laws passed in 19441962. None of them was successfully enacted mostly because fresh elections were called and the work on them had to be discontinued. In the case of the 1999 bill on the restitution of immovable property and certain kinds of movable property taken from natural persons by the State or by the Warsaw Municipality, and on compensation (Projekt ustawy o reprywatyzacji nieruchomości i niektórych ruchomości osób fizycznych przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach – “the Restitution Bill 1999”) the relevant Act of Parliament never entered into force because it had been vetoed by the President of Poland. Each of those bills, although they differed in specific modalities, contained provisions for compensation for nationalisation of property under the 1946 Act. 33. In 2007 the Polish Parliament started the first reading of the Government’s bill on compensation for property or other assets taken over by the State (projekt ustawy o rekompensatach za przejęte przez państwo nieruchomosci oraz inne składniki mienia) (“the 2006 Compensation Bill”). In general, compensation claims were to be subject to a statutory ceiling of 15% of the value of the original property taken over by the State. The claims of the owners of property nationalised under the provisions of the 1946 Act were included in the list of claimants entitled to compensation. The work on the 2006 Compensation Bill was discontinued in September 2007 since snap parliamentary elections were called following the collapse of the government coalition. 34. In 2008 the new Government started preparatory work on fresh restitution legislation, i.e. the “Bill on pecuniary benefits to be granted to some persons who were subject to nationalisation procedures” (projekt ustawy o świadczeniach pieniężnych przyznawanych niektórym osobom, których dotyczyły procesy nacjonalizacji) (“the 2008 Compensation Bill”). 35. The 2008 Compensation Bill provided for no restitution of nationalised properties and was based on the principle of limited compensation, corresponding to a certain – not stipulated in the bill but to be determined in the Minister for Treasury’s future ordinance – percentage of the value of the property in question on the date of its nationalisation. 36. In the Minster for Finance’s report on the assessment of the budgetary impact of the implementation of the 2008 Compensation Bill (drawn up in 2008) the total value of the claims to be covered by the 2008 Compensation Bill was estimated at PLN 100,000,000,000. It was expected that some 80,000 applications for compensation will be submitted under the provisions of the new legislation. The process of the realisation of cash payments was to be spread over the period of 15 years and instalments were to be indexed each year in accordance with the consumer price index. The entry into force of the bill was tentatively foreseen for 2012. 37. In February 2010 the Minister for Finance was asked to make an analysis of the consequences of the implementation of the 2008 Compensation Bill. 38. On 5 March 2010 the Minister for Finance submitted a report stating that if the bill entered into force in 2012, there would be an abrupt increase in the public debt by PLN 18,000,000,000 which would correspond to 1.001.10% of the Gross National Product (GNP). In the circumstances, the allocation of PLN 20,000,000,000 for securing nationalisation claims might result in Poland’s exceeding the permissible limits of the national debt in relation to GNP as set by the European Union. 39. In March 2011 the Minister for Treasury issued a press release on the Ministry’s website, informing the public that the Government had decided not to submit the 2008 Compensation Bill to Parliament. That statement gives the following explanation: “In view of the considerable savings that have been made in recent years, connected with the global financial crisis in many sectors of our social and economic life and the large financial burden resulting from the planned legislation, in the present economic situation, [the 2008 Compensation Bill] cannot be enacted.” | 0 |
dev | 001-104101 | ENG | UKR | ADMISSIBILITY | 2,011 | OMELCHUK v. UKRAINE | 4 | Inadmissible | Angelika Nußberger;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger | The applicant, Mr Oleksandr Borysovych Omelchuk, is a Ukrainian national who was born in 1977 and lives in Kozyatyn. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 May 2004 the applicant participated in a hearing before the Zhytomyr Regional Court of Appeal (“the Regional Court”) as a legal representative. The judge dealing with the case found him to be in contempt of court. The applicant, in turn, approached the police officers in charge of keeping order on the court’s premises and told them that the judge had committed a crime. A dispute followed, as a result of which the applicant was arrested for disobeying the police. Later on 6 May 2004 the applicant was taken to the Zhytomyr City Police Department, where he was allegedly placed in a cage for several hours without any food or access to toilet facilities. On 7 May 2004 the Korolyovskyy District Court of Zhytomyr (“the Korolyovskyy Court”), by a final ruling delivered following a hearing at which the applicant was present, found him guilty of disobeying police orders and sentenced him to ten days’ administrative detention. On 15 May 2004 it issued another final ruling, again doing so after a hearing at which the applicant was present, by which it found him guilty of contempt of court and sentenced him to fifteen days’ administrative detention. While waiting for the hearing on that date, the applicant was allegedly held in a cage in the court’s basement without food. On 11 April 2006 the Supreme Court quashed both rulings of the Korolyovskyy Court under the extraordinary review procedure sought by the applicant and remitted the case for fresh examination. It noted, in particular, that the first-instance court had failed to duly establish the facts of the case, to indicate in a clear manner exactly what had amounted to contempt of court and disobeying police orders, to give adequate reasons for its treatment of the applicant’s arguments or to consider applying less restrictive sanctions. On 3 May 2006 the Korolyovskyy Court examined the case in the applicant’s absence and issued two final rulings, by which it terminated the administrative offence proceedings against him as time-barred. On 5 July 2004 the applicant introduced with the Bogunskyy District Court of Zhytomyr (“the Bogunskyy Court”) and with the Korolyovskyy Court two identical complaints against the Zhytomyr Regional Police Department, alleging, in particular, that they had subjected him to ill treatment during his arrest on 6 May 2004. On 30 September 2004 the Bogunskyy Court forwarded the complaint to the Korolyovskyy Court in accordance with the rules of territorial jurisdiction. According to the applicant, the Korolyovskyy Court handled both of his complaints separately. By a ruling of 5 October 2004 it stayed the examination of one of the complaints and invited the applicant to specify his complaint and substantiate the violations he was complaining of by 20 October 2004. As this was not done, on 21 October 2004 the court decided to deem the complaint as having not been lodged and to return it to the applicant. On 8 December 2004 the Regional Court upheld that ruling. As to the second complaint, on 28 December 2004 the Korolyovskyy Court refused to accept it for examination, having noted that it contained allegations of criminal offences and therefore had to be submitted to the prosecution authorities for criminal investigation. On 21 April 2005 and 26 July 2007 the Regional Court and the Higher Administrative Court respectively upheld that ruling. The applicant acted as the legal representative of Ms B. and Ms K. in civil proceedings. He also represented a private company, L., before the domestic tax authorities. Following a refusal by the local tax office to register the aforementioned company as a taxpayer, the applicant unsuccessfully sought the initiation of criminal proceedings against the officials involved. On 25 November 2004 the Court received the first letter from the applicant expressing his intention to introduce an application and outlining the substance of his complaints. The letter, which was dated 14 October 2004, had among its enclosures copies of certain newspapers issued on 21 October and 12 November 2004. Its envelope was postmarked 17 November 2004. The provisions of the Administrative Offences Code (“the AOC”) concerning administrative arrest as punishment for an administrative offence and the lack of an ordinary appeal procedure are summarised in the judgment in the case of Gurepka v. Ukraine, no. 61406/00, §§ 28-32, 6 September 2005. Article 267 of the AOC provided, inter alia, that an arrest on grounds of an administrative offence could be challenged by the arrestee before the supervising authority, a prosecutor or the courts. By virtue of the Amendment Act enacted on 17 November 2008, a second level of jurisdiction was introduced into the administrative offence procedure (Article 287 of the AOC). | 0 |
dev | 001-115353 | ENG | RUS | ADMISSIBILITY | 2,012 | KULEVSKIY v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos | 1. The applicant, Mr Igor Anatolyevich Kulevskiy, is a Belarusian national, who was born in 1966 and lived in Gomel, Belarus. He is represented before the Court by Mr V.S. Korchevskiy, a lawyer practising in Tula, Russia. 2. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In 2004 the applicant left Belarus for Russia. 4. In the same year the Prosecutor General’s Office of the Republic of Belarus started an investigation of the activities of a criminal gang which operated in 1989-2004 in the Gomel region. As a result of the investigation fortysix members of the gang stood trial before the Supreme Court of the Republic of Belarus. Proceedings against the remaining alleged members of the gang, including the applicant, whose whereabouts could not be established, were separated. 5. On 12 January 2005 the Prosecutor General’s Office charged the applicant in absentia, issued an order for him to be remanded in custody and declared him a wanted person. The charges against the applicant, as amended on 15 March 2007, included, in particular, attacks on businesses and citizens (under Article 286 of the Criminal Code of the Republic of Belarus), acquisition, transfer, storage, transportation and carrying of firearms (under Article 295 § 4 of the Criminal Code), murder of one person in February 1994, murder with particular cruelty of four persons in September 1994 and three more persons in April 1995 (under Article 100 of the 1960 Criminal Code punishable by fifteen to twenty-five years’ imprisonment, life imprisonment or death). 6. On 6 August 2010 the applicant was arrested in the Tula region in Russia. 7. On 16 August 2010 a deputy Prosecutor General of Belarus, relying on Articles 56 and 80 of the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the 1993 Minsk Convention”), requested a deputy Prosecutor General of the Russian Federation to extradite the applicant to Belarus so that he could be prosecuted for the offences with which he was charged. The Prosecutor General’s Office of Belarus guaranteed that the applicant would only be prosecuted for offences in connection with which he would be extradited, that after his trial or after serving his sentence, if convicted, he would be free to leave Belarus and that he would not be transferred to a third state without the Russian Federation’s consent. It was stated further that the request was not aimed at persecuting the applicant on the grounds of his race, religion, ethnic origin or political convictions, and that the statute of limitation for his prosecution had not expired. 8. On 28 October 2010 the Aleksin Town Court, Tula region, convicted the applicant of forgery of a Russian passport, using which he had lived in Russia under a false name, and sentenced him to one year’s imprisonment. A decision on the applicant’s extradition was postponed. His conviction became final on 6 April 2011. 9. On 23 May 2011 the deputy Prosecutor General of the Russian Federation (“the RF”), relying in particular on Articles 56 and 66 of the 1993 Minsk Convention and Articles 462463 of the RF Code of Criminal Procedure, granted the request for the applicant’s extradition. The decision noted that the offences with which the applicant had been charged in Belarus constituted crimes under the Russian criminal law punishable with more than one year’s imprisonment, and that the statute of limitation for their prosecution had not expired. The applicant was a Belarusian national and did not have Russian citizenship. 10. On the same day the RF deputy Prosecutor General communicated his decision to the Belarus Deputy Prosecutor General, inviting the latter to inform him, under Article 69 of the 1993 Minsk Convention, of the outcome of the criminal proceedings against the applicant. The extradition was to take place once the applicant’s sentence for passport forgery had been served and the extradition decision had entered into force. 11. On 8 July 2011 the Belarus Deputy Prosecutor General, in reply to the RF Deputy Prosecutor General’s inquiry, supplemented his request for the applicant’s extradition with additional assurances, notably that in the event of the applicant’s extradition to Belarus the requirements of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms would be observed, the applicant would not be subjected to torture, inhumane or degrading treatment or punishment. If convicted, he would not be sentenced to death. He would be given a fair trial and, if necessary, provided with appropriate medical care. 12. The applicant appealed against the extradition decision to the Tula Regional Court. A judge to whom the case had been allocated enquired with the RF Prosecutor General about the possibility of obtaining additional assurances from Belarus, to the effect that the relevant court there would not impose the death penalty on the applicant, or that the death penalty would not be carried out. Following that inquiry the RF Ministry of Foreign Affairs obtained a Note of 26 July 2011, no. 04-21/1379-k, of the Embassy of the Republic of Belarus in the Russian Federation which states as follows: “The Embassy of the Republic of Belarus in the Russian Federation presents its compliments to the Ministry of Foreign Affairs of the Russian Federation and, in reply to Note no. 8372/2 дснг of 19 July 2011, has the honour to present the following information. The Embassy of the Republic of Belarus in the Russian Federation confirms that compliance by all Belorussian law-enforcement organs, including courts and organs of execution of sentences, with the undertakings given by the Republic of Belarus Prosecutor General’s Office on behalf of the Republic of Belarus of the nonapplication of the death penalty to Igor Anatolyevich Kulevskiy, is both lawful and compulsory. By virtue of the law of the Republic of Belarus, in particular Article 494 § 4 of the Code of Criminal Procedure of the Republic of Belarus, only the Republic of Belarus Prosecutor General’s Office has the power to give a written undertaking on behalf of the Republic of Belarus of the nonapplication of the death penalty to a person whose extradition is being sought. In this connection, the written undertaking by the Republic of Belarus Prosecutor General’s Office on behalf of the Republic of Belarus of the non-application of the death penalty to Igor Anatolyevich Kulevskiy has in essence the force of an international legal obligation of the Republic of Belarus which is subject to rigorous observance. Taking into account the aforementioned circumstances, the written undertaking by the Republic of Belarus Prosecutor General’s Office specifically indicates that in the event of delivery of a “guilty” verdict a court with jurisdiction to examine the case will not sentence I.A. Kulevskiy to death («... в случае вынесения обвинительного приговора в нем компетентным судом Республики Беларусь не будет назначено наказание И.А. Кулевскому в виде смертной казни ...»). That court will be bound to examine that undertaking at the [Kulevskiy’s] trial and regard it as an obligation of the Republic of Belarus not to apply the death penalty to him. We should also inform you that the Ministry of Foreign Affairs of the Republic of Belarus and its diplomatic representation offices are not vested by Belorussian law with powers to give additional legally binding guarantees of non-application of the death penalty. The Embassy of the Republic of Belarus in the Russian Federation avails itself of this opportunity to renew to the Ministry of Foreign Affairs of the Russian Federation the assurances of its highest consideration.” 13. From 15 September 2011, after serving his sentence for the passport forgery, the applicant was in custody pending extradition. He was released on 22 September 2012 when the maximum time-limit for detention had been reached. 14. The applicant’s request for refugee status was refused by a final decision of the Russian Federal Migration Service on 29 November 2011; on an appeal by the applicant that decision was upheld by the Moscow Basmanniy District Court on 11 January 2012 and the Moscow City Court on 24 February 2012. 15. On 6 March 2012 the Tula Regional Court, sitting in a panel of three judges, held an open hearing. Having heard the applicant, his counsel and the prosecutor and having examined other evidence, the Regional Court upheld the extradition decision, which it found to be in compliance with the European Convention on Extradition of 1957, the Minsk 1993 Convention and the RF Code of Criminal Procedure. The Regional Court examined the assurances given by the Belarus Prosecutor General’ 16. In particular, as regards the applicant’s argument that three leaders of the gang convicted of the murders, which offences formed part of the charges against him, had been sentenced to death and executed, the Regional Court established, on the basis of official information from the Belarusian authorities, that those individuals had never been extradited; they had been arrested in Belarus in 2004 and detained there until their conviction and execution. 17. The applicant’s allegations that he had been persecuted in Belarus for his political activity, detained unlawfully and illtreated were found by the Regional Court to be incoherent, unsubstantiated and lacking essential details. No evidence of his detention or illtreatment had been provided. Political motives for leaving his home country had for the first time been raised at the last hearing before the Regional Court, without any details being provided. He had stated to the court previously that he had left Belarus to find a job. He admitted at the hearing that he was not a member of any political, religious, non-governmental or military organisation, and had never distributed materials or appeals in the context of agitation. He had made the same statements when detained with a view to extradition. His wife, daughter and sister were Belarusian nationals, resided in Belarus and had never been persecuted. Upon arrival in Russia he had not applied for refugee status or for Russian citizenship, but had lived under a forged Russian passport. 18. The Regional Court examined human rights organisations’ reports submitted by the defence, which indicated that the human rights situation in Belarus was unstable. Relying on the Convention case-law, the Regional Court noted that the reference to a general problem concerning human rights observance in a particular country could not alone serve as a basis for refusal of extradition. The charges against the applicant did not relate to political activity. The applicant’s allegation that any detainee would be subjected to ill-treatment in Belarus was too general. He was accused of banditry, illegal weapons trafficking and the murder of eight people with aggravating circumstances. There was no evidence that the applicant had engaged in any political activity. His allegations of earlier instances of illtreatment in Belarus were vague, totally unsubstantiated and unconvincing. The Regional Court concluded that there were no grounds to believe that the applicant would be subjected to treatment dangerous to his health or life, or that his trial would be unfair. The applicant had no health issues requiring him to stay in Russia on humanitarian grounds. 19. On 26 April 2012 the Supreme Court of the Russian Federation dismissed the applicant’s appeal against the Regional Court’s judgment, having endorsed the Regional Court’s findings. 20. On 21 May 2012 the Court, acting upon the applicant’s request, decided to apply Rule 39 of the Rules of Court, indicating to the Government of the Russian Federation that the applicant should not be extradited to Belarus until further notice by the Court. 21. The CIS 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, “the 1993 Minsk Convention”), to which both Russia and Belarus are parties, provides as follows: “1. The Contracting Parties shall ... on each other’s requests extradite persons, who find themselves in their territory, for criminal prosecution or serving a sentence. 2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.” “1. Extradition shall not be carried out if: (a) the person whose extradition is being requested is a citizen of the requested Contracting Party; (b) At the moment of receipt of the request criminal prosecution cannot be initiated according to the legislation of the requested Contracting Party ... as a result of the expiry of the statute of limitations or on another legal ground; (c) a judgment or a decision on termination of proceedings have been delivered and entered into force on the territory of the requested Contracting Party in respect of the person whose extradition is being requested for the same crime; (d) in accordance with the legislation of the requesting and requested Contracting Parties the crime is being prosecuted by way of private prosecution (on a victim’s request) ...” “1. A request for extradition shall include the following information: (a) the title of the requesting and requested authorities; (b) the description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law; (c) the [name] of the person to be extradited, the year of his birth, citizenship, place of residence, and, if possible, the description of his appearance, his photograph, fingerprints and other personal information; (d) information concerning the damage caused by the offence. 2. A request for extradition for the purpose of criminal persecution shall be accompanied by a certified copy of a detention order ...” “1. Without the requested Contracting Party’s consent the extradited person must not be prosecuted or punished for the crime committed before his extradition for which he had not been extradited. 2. Furthermore, without the requested Contracting Party’s consent the person cannot be transferred to a third state ...” “The Contracting Parties shall notify each other of the outcome of the criminal proceedings against the extradited person. On request, a copy of the final judgment shall be sent. ” “Relations concerning extradition and criminal prosecution are performed by Prosecutor Generals (prosecutors) of the Contracting Parties.” 22. Similar provisions are contained in chapter 54 (Articles 460-468) of the Code of Criminal Procedure of the Russian Federation, which governs the procedure to be followed in the event of extradition. Under Article 462 § 4 of the Code, the extradition decision is taken by the Prosecutor General of the Russian Federation or his deputy. 23. Under Article 59 of the Criminal Code of the Republic of Belarus, the death penalty is applied, until its abolition, as an exceptional punishment for certain very grave crimes. The death penalty cannot be imposed on anyone who has committed offences when under the age of eighteen, on women, or on men who have reached the age of 65 by the date of delivery of a judgment. The death penalty can be replaced by a life sentence by way of clemency. The last two executions reportedly took place in March 2012. 24. Under Article 494 § 4 of the Code of Criminal Procedure of the Republic of Belarus, the Prosecutor General’s Office of the Republic of Belarus encloses with a request for extradition a written undertaking on behalf of the Republic of Belarus that the death penalty will not be applied to a person whose extradition is being sought, if such an undertaking is a condition of the requested state’s granting the extradition request. 25. Under Article 34 of the Code of Criminal Procedure of the Republic of Belarus, prosecution in criminal proceedings and the bringing of criminal charges before the courts are carried out by prosecutors on behalf of the State. Under Article 17 of the 2007 Law on the Prosecutor’s Office of the Republic of Belarus, the Prosecutor General’s Office supervises the activities of all prosecutors’ offices in the Republic of Belarus. 26. The Coordination Council of the Prosecutor Generals of States Parties to the Commonwealth of Independent States (CIS) was created in 1995 and given the status of CIS interstate organ in 2000. One of its tasks is to assess the efficiency of the CIS 1993 Minsk Convention and to propose measures for improvement of regulation of the relations governed by that Convention. It organises cooperation between the prosecutors of the States members and facilitates the defence of rights of their citizens. | 0 |
dev | 001-71427 | ENG | NLD | ADMISSIBILITY | 2,005 | RAMADAN & AHJREDINI v. THE NETHERLANDS | 4 | Inadmissible | null | The applicants, Mr Heyridin Ramadan and Mrs Sevdie Ramadan-Ahjedini, are husband and wife. They originate from what is now the Former Yugoslav Republic of Macedonia (“the FYR of Macedonia”) and are of ethnic Albanian origin. They were born in 1957 and 1966 respectively and live in Huizen. They introduced the application also on behalf of their daughter Djemile Ramadan, born in 1991, and their son Enes Ramadan, born in 1995. They are represented before the Court by Mr P.B.Ph.M. Bogaers, a lawyer practising in Nieuwegein. The respondent Government are represented by Mr R.A.A. Böcker and Mrs J. Schukking of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants, accompanied by their daughter Djemile, arrived in the Netherlands on 12 December 1992. They applied for asylum on 21 December 1992. In an interview with an immigration official on 7 July 1993 they stated, inter alia, that their parents and siblings were living in the FYR of Macedonia. On 6 April 1994 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the asylum application and informed the applicants that they would not be allowed to await the decision on any objection (bezwaar) they might lodge. The applicants lodged an objection and also requested the Regional Court (arrondissementsrechtbank) of The Hague, sitting in Haarlem, to issue a provisional measure in order for them to be allowed to await the outcome of their objection in the Netherlands. The President of the Regional Court rejected the applicants’ request on 18 November 1994. From that moment on, the applicants were no longer authorised to stay in the Netherlands. However, no action was taken to expel them. On 10 April 1995 the applicants’ son Enes was born. The Deputy Minister dismissed the objection against the refusal of the applicants’ request for asylum. The appeal against that decision was rejected by the Regional Court of The Hague sitting in Haarlem on 29 May 1997. No further appeal lay against this judgment. In a letter of 3 July 1997 the applicants’ lawyer requested the Deputy Minister to seek advice from the Ministry of Justice’s Medical Advice Bureau (Bureau Medische Advisering; “MAB”) in order to see whether the medical situation of the applicants and Enes should not lead to their expulsion being deferred in accordance with Article 25 of the Aliens Act 1965 (Vreemdelingenwet 1965). The lawyer referred to a letter of 30 June 1997 from the applicants’ general practitioner according to which – due to the tense and insecure situation in which they had found themselves in recent years – the applicants were experiencing difficulties in dealing with Enes, who was a difficult baby. A return to their country of origin meant that the applicants, for the time being, would not be capable of looking for different ways of dealing with Enes which, in these critical years, would entail consequences for the rest of his life. The Deputy Minister informed the applicants that she perceived no cause to consult the Medical Advice Bureau. The applicants lodged an objection against the Deputy Minister’s refusal, which was declared inadmissible. The applicant’s subsequent appeal and request for a provisional measure were rejected by the Acting President of the Regional Court of The Hague, sitting in Haarlem, on 27 March 1998. The Acting President held that, as long as the applicants were not actually being expelled, the refusal of the Deputy Minister did not affect their interests. No further appeal lay against this decision. In a letter of 29 May 1998 to the applicants’ lawyer, a psychiatrist working at the Regional Institute for Outpatient Mental Health Care (Regionale Instelling voor Ambulante Geestelijke Gezondheidszorg – “RIAGG”), wrote that both applicants were suffering from an adjustment disorder. Although the applicants’ daughter Djemile was doing reasonably well, a forced return to the country of origin might, especially for her, lead to serious psycho-traumatic consequences. On 25 February 1999 the applicants lodged a request for a residence permit on compelling humanitarian grounds or, alternatively, for the purposes of receiving medical treatment in the Netherlands. When, on 13 December 1999, the Deputy Minister had still not taken a decision, the applicants filed an objection against the implied refusal (fictieve weigering) of their request. In early 2000 the second applicant underwent an operation for a slipped disc. In view of her long case history, the neurologist treating her considered it likely that she would continue to have an increased vulnerability to physical and psychological violence. The neurologist was of the opinion that a forced return of the second applicant to the FYR of Macedonia, where such a situation pertained, might lead to her becoming physically disabled. A report dated 22 April 2000 from the Medical Advice Bureau concluded that both applicants were suffering from an adjustment disorder. The first applicant had emotional and behavioural problems and the second applicant was suffering from anxiety and depression. The applicants had initially been treated by a RIAGG psychiatrist and subsequently by their general practitioner. To the best of the Medical Advice Bureau’s knowledge, the applicants were not receiving specialist treatment at the time of the report. The medical conditions from which the applicants were suffering could be treated in their country of origin in more or less the same way as in the Netherlands. The Medical Advice Bureau further stated that a failure to provide immediate treatment to either of the applicants would not lead to an acute medical emergency (a situation where a person is suffering from a disorder which in its pertaining phase, if not treated immediately, would lead to death, invalidity or another form of serious psychological and/or physical harm). Neither applicant required intensive psychiatric or in-patient treatment, and they showed no symptoms of psychological decompensation or obsessive-compulsive suicidal tendencies. The longer term consequences of a failure to provide treatment would probably be the applicants’ being afflicted for longer and/or more seriously compared with the situation in which they received counselling. It could not be excluded that in the longer term a medical emergency might arise. In a letter of 12 July 2000, the RIAGG psychiatrist informed the applicants’ lawyer that, to his consternation, he had found that the psychological state of health of both applicants and their children had seriously deteriorated since he had last examined them in 1998. This had been caused by the chronic uncertainty with which the applicants had been confronted since 1992. The first applicant was suffering from a depression with psychotic characteristics, and the second applicant from a depressive disorder. Both required immediate and continuing specialist help, which would be provided by a psychiatric nurse and the psychiatrist in the form of consultations and medication. On 14 July 2000 the applicants’ general practitioner confirmed that the situation of, in particular, the first applicant had deteriorated. He was currently so frantic that the doctor feared the worst if he were to be expelled. The doctor further thought it likely that the first applicant would attempt to evade expulsion, if necessary through suicide. Should the first applicant nevertheless reach the FYR of Macedonia, it was doubtful that adequate help would be available there. The Deputy Minister transmitted the information from the RIAGG psychiatrist and the general practitioner to the Medical Advice Bureau. By letter of 9 August 2000 the Medical Advice Bureau commented on the new information. While conceding that the applicants’ condition had deteriorated, it concluded that there was no reason to amend the earlier recommendations and it was still felt that the applicants could be treated in their country of origin. As regards the possibility of the first applicant committing suicide, the Medical Advice Bureau noted that this was not related to the discontinuation of treatment but to a negative decision on his request and return to his country of origin. The Medical Advice Bureau further provided information on the system of health care in the FYR of Macedonia, which was stated as being well-developed, although a person’s ethnic origin did play a role when it came to the question of availability of health care. Anti-depressants could be obtained from private pharmacies (at a fairly high price) and from state hospitals, albeit that stocks were running low in the latter establishments and anti-depressants were therefore only used to treat serious cases. Treatment for various psychological disorders was said to be available, with psychotherapy commonly used as a treatment modality. A hearing on the applicants’ objection took place on 23 March 2001. On this occasion the applicants submitted, inter alia, that regard should also be had to the fact that they had been living in the Netherlands for eight years and to the effects which an expulsion would have on their minor children who were going to school in the Netherlands. In a letter of 27 March 2001 to the applicants’ representative, the psychiatric nurse treating them reported a further deterioration of their psychological situation. The applicants were being treated in accordance with a PTSD-protocol. It was expected that their complaints would deteriorate if they had to return to their country of origin. The second applicant was quoted as saying she would prefer to be dead in that case. On 1 June 2001 the Deputy Minister upheld the applicants’ objection in so far as it was directed against the failure to decide in a timely fashion on the request for a residence permit, but dismissed the objection for the remainder. Noting that according to the Medical Advice Bureau, treatment for the applicants’ medical and psychological complaints was available in the FYR of Macedonia, the Deputy Minister found that the applicants were ineligible for a residence permit for the purpose of receiving medical treatment in the Netherlands, since it could not be said that the latter country was the most appropriate country (het meest aangewezen land) for the applicants to receive such treatment. The applicants also did not have sufficient financial means to pay for treatment and neither did they hold valid passports. The Deputy Minister further considered that the applicants had failed to establish that compelling reasons of a humanitarian nature existed, on the basis of which they should be granted a residence permit. The applicants appealed this decision to the Regional Court of The Hague, sitting in Amsterdam, submitting, inter alia, that the Medical Advice Bureau had not itself examined the applicants but had based its conclusions on information obtained from others. Furthermore, the applicants maintained that treatment would not be available to them in the FYR of Macedonia, not in the last place because they were ethnic Albanians. The Regional Court rejected the appeal on 16 June 2003, finding that the Minister for Immigration and Integration (Minister voor Immigratie en Integratie; the successor of the Deputy Minister of Justice) could reasonably have refused the requested residence permits. The applicants lodged a further appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State; “the Division”). In these proceedings they argued that there was no question of there being available in the FYR of Macedonia treatment more or less similar to that provided in the Netherlands. In this context the applicants submitted a number of reports from which they concluded that the health-care system in the FYR of Macedonia had fallen below western-European standards in recent years due to the conflict in the Balkans. Treatment of psychological disorders only took place in the form of medication. According to a report drawn up in October 2002 by the Swiss Refugee Council, there were barely adequate therapy possibilities for the treatment of post-traumatic stress disorders. Moreover, the national system of health insurance was only open to officially registered nationals of the FYR of Macedonia. According to the applicants, they were unable to obtain the nationality of the FYR of Macedonia as they did not comply with certain requirements. Nevertheless, even insured persons generally needed to resort to bribery in order to obtain specialist treatment. The applicants concluded that an expulsion to the FYR of Macedonia, where they would arrive penniless and without employment and where they would not have access to any kind of treatment of their psychological problems, constituted degrading or inhuman treatment in breach of Article 3 of the Convention. Finally, the applicants argued that the physicians working at the Medical Advice Bureau were not independent specialists, as was illustrated by the fact that this Bureau had completely misjudged the situation in the FYR of Macedonia. The Division rejected the further appeal on 30 September 2003, holding that the Regional Court had been correct in finding that the fact that treatment methods in the FYR of Macedonia were different than in the Netherlands did not mean that no treatment was available in the FYR of Macedonia. The reports submitted by the parties for the first time in the proceedings before the Division could not lead to their further appeal being upheld, as the Regional Court had not been able to have regard to the information contained therein. The applicants’ complaint to the effect that the question whether or not they would have access to health care facilities in the FYR of Macedonia had not been addressed by the Minister was also rejected, as the Division held that this issue must be assumed to have played a role in the starting points of the Minister’s policy. Moreover, the applicants were found to have failed to substantiate their complaint that the advice of the Medical Advice Bureau was not objective. Finally, the Division held that it could not examine the applicants’ argument relating to their inability to obtain the nationality of the FYR of Macedonia as this argument had not been raised by them in the proceedings before the Regional Court. In an e-mail message of 9 October 2003 from the Officer of International Affairs of the (Netherlands-based) Pharos Knowledge Centre for Refugees and Health, the applicants’ representative was informed that in the FYR of Macedonia psychological problems were mainly treated with medication. In a letter of 11 November 2003 from a RIAGG physician to the applicants’ representative, the first applicant was described as utterly desperate, extremely nervous and tense. He experienced the decision to remove the family to the FYR of Macedonia after such a long time as a death sentence and considered himself a failure as head of the family. In the opinion of the physician, the possibility of the first applicant acting on impulse or suicidally if the family were to be expelled should not be discounted. The Mental Health Atlas-2005 states, inter alia, the following as regards mental health care in the FYR of Macedonia: “A mental health policy has been reviewed and it is in the process of being adopted by the Government. The document is constituted of three parts, namely National Policy, Strategy with Action Plan and Legislation on Mental Health. ... A National Master Mental Health Plan is already prepared by the National Task Force Team (assigned by the Minister of Health) in collaboration with WHO. It is expected to be adopted shortly by the Government. There is a list of essential drugs covered by the Health Insurance Fund as part of the health insurance scheme. Currently, this list is under revision to reflect prevailing needs. ... There are budget allocations for mental health services ... The country has disability benefits for persons with mental disorders. ... Mental health patients according to the newly developed law are treated in the same way regarding employment as persons with somatic disabilities. There are examples from practice in the cities of Gevgelia and Skopje where there are companies that facilitate the employment possibilities of mentally ill persons, an issue that previously was available only for persons with somatic disabilities. ... The country had traditional hospital-based mental health services. New policy developments recognise the need for reform in this sector especially towards decentralisation and community-based services. ... A National Board for promotion and implementation of community-based services on mental health has been created. ... ... traditional hospital-based mental health services ... are not efficient and largely depend on a centralised organisation; they have not been able to meet ... extensive needs. The services are unsatisfactory from the medical, psychological, human, outcome, efficiency or economic points of view. ... The country has specific programmes for mental health for children. The host families, local health and social services, the local communities and society in general are all involved in tackling the refugee and internally displaced persons problem. ... [A number of] therapeutic drugs are generally available at the primary health care level of the country.” | 0 |
dev | 001-60762 | ENG | ITA | CHAMBER | 2,002 | CASE OF TOSI v. ITALY | 4 | Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award | Christos Rozakis | 8. The applicant was born in 1931 and lives in Milan. 9. The applicant is the owner of an apartment in Milan, which she had let to M.A.H. on 1 March 1987. 10. In a writ served on the tenant on 13 February 1991 the applicant informed the tenant that she intended to terminate the lease and summoned the tenant to appear before the Milan Magistrate. 11. By a decision of 15 March 1991, which was made enforceable on 19 March 1991, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 30 September 1991. 12. On 10 July 1991, the applicant served notice on the tenant requiring him to vacate the premises. 13. On 18 November 1991 she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 29 November 1991. 14. Between 29 November 1991 and 22 January 1999 the bailiff made twenty-four attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession. 15. On 22 November 1999, the applicant repossessed the premises with the assistance of the police. 16. The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, 28.7.99, §§ 18-35, ECHR 1999-V. | 1 |
dev | 001-103776 | ENG | ALB | CHAMBER | 2,011 | CASE OF ELTARI v. ALBANIA | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 13+6-1 - Right to an effective remedy (Article 6 - Right to a fair trial;Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved | Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | 6. The applicant was born in 1956 and lives in Tirana. 7. On 28 December 1994 the Vlora Commission on Property Restitution and Compensation (“the Commission”) recognised the applicant’s and other heirs’ inherited title to a number of plots of land, amongst which a plot of land measuring 10,500 sq. m. As the restitution of that plot of land was impossible since it was occupied, the Commission decided that the applicant and the other heirs would be compensated in one of the ways provided for by law. 8. On 11 September 1997, relying on the right of first refusal, the applicant concluded a sale contract with the Vlora regional office of the National Privatisation Agency for the purchase of a pharmacy and its corresponding plot of 79.5 sq. m, which was allegedly part of the plot of land measuring 10,500 sq. m. 9. The chemist of the pharmacy lodged a complaint with the Vlora prosecutor office alleging that the sale contract was unlawful. 10. On 12 February 1998 the Vlora prosecutor initiated civil proceedings with the Vlora District Court (“the District Court”) seeking the nullity of the sale contract and the nullity of the Commission decision. The chemist intervened as a third party. 11. On 15 December 1999 the District Court declared null and void, in part, the Commission’s decision in so far as it had restored to the applicant the plot of 79.5 sq. m which corresponded to the site of the pharmacy. Relying on an expert’s report, it found that the plot of 79.5 sq. m had been expropriated in 1920, as a result of which the Property Act was inapplicable ratione temporis. Thus, the applicant could not claim a property right over that plot of land pursuant to the Property Act in so far as it had not been expropriated by the communist regime. Furthermore, the court decided to annul the contract for the purchase of the pharmacy since any such contract was based on the premise that only the owner of the site had the right of first refusal over the buildings constructed on it. However, the operative part of the judgment stated that the applicant would be compensated only in respect of 79 sq. m, the remainder of the property rights over 10,500 sq. m having been declared null and void. 12. On 21 March 2000 the Court of Appeal upheld the District Court’s decision. It found that the prosecutor had locus standi to lodge a civil action in accordance with the Prosecutor’s Office Organisation and Operation Act. It also held that the civil action was not time-barred as it had been lodged pursuant to the Property Act. It further dismissed the applicant’s complaint about the assessment of evidence and the credibility of the expert’s report. 13. On 20 March 2001 the Supreme Court dismissed the applicant’s appeal since it did not contain any lawful ground of appeal in accordance with Article 472 of the Code of Civil Procedure. 14. On 21 May 2001 the applicant filed a supervisory review request (rekurs në interes të ligjit) with the Supreme Court Joint Benches. 15. On 28 January 2003 the Supreme Court Joint Benches dismissed the applicant’s supervisory review request in the light of impending review proceedings that she had instituted (see “The review proceedings” below). 16. On an unspecified date the applicant filed a constitutional appeal. 17. On 4 November 2005 the Constitutional Court, sitting in plenary session, dismissed the applicant’s appeal finding that there had been no breach of the right to fair hearing. It found that the prosecutor’s civil action had been supported by the intervention of the chemist who had full interests in the case and did not disclose any breach of the applicant’s right to a fair trial. It further held that there was no other compelling evidence that the fairness of the proceedings had been tainted. 18. On an unspecified date the applicant requested revision of the decision of 15 December 1999. 19. On 6 February 2002 the District Court dismissed the revision request. 20. On 13 May 2003, following the applicant’s appeal, the Court of Appeal upheld the decision of 15 December 1999. 21. It would appear that the applicant’s appeal to the Supreme Court was dismissed on an unspecified date. 22. On 12 January 2005 the applicant lodged a request with the District Court for the interpretation of its decision of 15 December 1999, arguing that there existed a discrepancy between the reasoning and the operative part of the decision. 23. On 18 February 2005 the District Court entertained her request and rectified the operative part of the decision of 15 December 1999. It confirmed that the applicant’s property rights could not be recognised in respect of 79 sq. m and that the applicant should be compensated as regards the plot of land measuring 10,500 sq. m in one of the ways provided for by law. 24. The decision became final and binding on 7 March 2005, no appeal having been filed against it. 25. To date, the authorities have still not complied with the District Court decision of 15 December 1999, as rectified and interpreted by the decision of 18 February 2005. 26. The relevant provisions of the Albanian Constitution read: Article 42 § 2 “In the protection of his constitutional and legal rights, freedoms and interests, or in the case of a criminal charge brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” Article 142 § 3 “State bodies shall comply with judicial decisions.” Article 131 “The Constitutional Court shall decide: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” 27. The relevant domestic law as regards property restitution and compensation in Albania has been described in the judgments of Gjonbocari and Others v. Albania, no. 10508/02, §§ 36-43, 23 October 2007, Driza v. Albania, no. 33771/02, §§ 36-43, 13 November 2007, Ramadhi and Others v. Albania, no. 38222/02, §§ 23-30, 13 November 2007. 28. New and substantial legislative measures have been enacted amending the principal 2004 Property Act since the adoption of those judgments. The principal amendments are as follows: 29. Section 3 extended until 31 December 2007 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of the amount of compensation, the time-limit for which was fixed for 2015. 30. Section 13 established the Agency for the Restitution and Compensation of Properties (“the central Agency”) which replaced the State Committee on the Restitution and Compensation of Properties (“the State Committee”). The central Agency, which was headed by a Director, had its seat in Tirana and was made up of twelve regional Agency offices. 31. According to section 14, the regional Agency office was responsible for the initial examination of applications for the recognition of property rights, in response to which it decided on the restitution of property and/or compensation in lieu thereof. Section 15 set the time-limit for the submission of applications for the recognition of property rights for 1 October 2007. 32. Section 16 stipulated that an appeal against a decision of the regional Agency office could be lodged with the central Agency. The decision of the central Agency could be appealed against to the Tirana District Court within thirty days of its notification. 33. Section 21 extended until 31 June 2008 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of compensation. 34. Section 22 provided for the establishment of the In-kind Compensation Fund (IkCF) alongside the Financial Compensation Fund (“FCF”). Within sixty days from the Act’s entry into force, the Government had to approve the list of properties to be allocated to the IkCF. 35. Section 1 provided that the central Agency was responsible for examining claims for in-kind and financial compensation. The central Agency was also responsible for examining appeals against the decisions of regional Agency offices. 36. Section 2 reiterated that the regional Agency offices continued to be responsible for the initial examination of applications for the recognition of property rights. The claimant or the State Advocate’s Office had the right to appeal against that decision within thirty days to the central Agency, which was the highest administrative body. Such an administrative decision was amenable to judicial review in accordance with the provisions of the Code of Civil Procedure. 37. Section 1 extended until 31 December 2008 the time-limit for the submission of applications for the recognition of property rights and the restitution of properties by the regional Agency offices. It also provided for the possibility for a claimant to be given a new time-limit by way of a court decision. 38. According to section 2, the completion of the examination of applications for the recognition of property rights and restitution of properties would be finalised on 30 June 2009, with the exception of the payment of the amount of compensation, the deadline for which was fixed for 2015. 39. Section 3 extended until 31 December 2008 the deadline for the allocation of properties to the IkCF. 40. Section 2 provided that in addition to the budgetary appropriations, the allocations obtained by virtue of this law and other donors, the FCF would also be made up of proceeds obtained through auctions of State properties’ which had not been the subject of a Commission decision. 41. Section 6 abolished the regional Agency offices. It stated that the archives of those offices would be transferred to the central Agency. According to section 1, the central Agency would complete the examination of applications for recognition of property rights and restitution of properties lodged with the former regional Agency offices. The central Agency continued to examine appeals lodged with it against former regional Agency offices’ decisions. 42. According to section 5, the claimant or the State Advocate’s Office had the right to appeal against the central Agency’s decision within thirty days of its notification to the Tirana District Court. 43. Section 7 set the deadline for the completion of the examination of applications for the recognition and restitution of properties for 31 December 2011. 44. The 2010 Property Act chiefly introduced the possibility of requesting a revision of decisions of former Commissions / regional Agency offices. 45. Section 4 extended until 31 December 2011 the deadline for the allocation of properties to the IkCF. 46. Pursuant to Article 23 of the 2004 Property Act which established the Financial Compensation Fund, the Government adopted the above-mentioned decisions, between 2005 and 2009, in respect of the award of financial compensation to former owners. 47. In 2005 financial compensation was awarded in respect of compensation claims arising out of the Tirana Commission’s decisions. In 2006 financial compensation was awarded in respect of compensation claims arising out of the decisions of the Tirana and Kavaja Commissions. In 2007 the group of beneficiaries was expanded to include former owners who were in possession of a Commission decision issued with respect to cities for which a property valuation map had been approved and issued. In 2008 and 2009 all former owners, who were entitled to compensation, following a Commission / regional Agency’s decision, were eligible to apply for financial compensation. 48. According to the CMDs adopted between 2005 and 2008, a claimant was required to lodge a standard application for financial compensation with the central Agency in Tirana, furnishing, inter alia, the Commission / regional Agency’s decision that recognised his right to compensation. Only those former owners who had not previously received compensation were entitled to financial compensation from 2005 to 2008. The 2009 CMD provided that a former owner was entitled to financial compensation on the condition that he had not benefited from: a) previous compensation; b) partial restoration/restitution of the property; c) the right to first refusal; d) the implementation of the Act on the Distribution of Land (Law no. 7501 of 19 July 1991). 49. Applications would be examined in chronological order on the basis of the Commission’s / regional Agency’s decision date and number. The amount of financial compensation, which was to be calculated on the basis of property valuation maps, was limited to a maximum of 200 sq. m. 50. The lodging of an application entailed the payment of a processing fee. Former owners who had been unsuccessful in their application for financial compensation in a preceding year could re-submit their application in the following year(s) once they had paid the processing fee. 51. None of those decisions provided for the award of compensation to holders claims arising out of a final, enforceable court decision. 52. By virtue of the above-mentioned decisions, two of which were adopted in 2007 and two in 2008, the Government approved and issued property valuation maps as listed above. The maps included the reference price per square metre throughout the country. 53. The first decision fixed the price of land for the regions of Berat, Gjirokastër, Vlorë and Dibër; the second decision fixed the price of land for the regions of Lezhë, Dibër, Korçë and Kukës; the third decision fixed the price of land for the regions of Fier, Elbasan, Tirana, Vlorë, Durrës and Shkodër. The fourth decision contained an updated price list for certain cities. 54. The 2006 Property Act provided for the establishment of an In-kind Compensation Fund (“IkCF”). The Government would adopt the procedures for the allocation of properties covered by the IkCF. 55. By decision of 5 September 2007 the Government laid down the criteria and the procedures for the determination of State properties covered by the IkCF (CMD no. 567 of 5 September 2007). Section 1 lists the types of properties, for example: a) public immovable property which is located in tourist areas; b) properties of the Ministry of Defence which are not used by the armed forces and have been approved by the President of the Republic; c) available agricultural land belonging to the Ministry of Agriculture; d) forests, pastures and meadows; and e) property of State institutions which falls outside their intended activity. 56. The Agency and its regional offices are responsible for checking the legal status of each property as submitted by the respective State institution. The Agency submits the final list of immovable properties for inclusion in the IkCF to the Minister of Justice. The Government are to approve the list and publish it in the Official Journal. 57. To date, it would appear that no such list has yet been approved. 58. Articles 324-333 govern the adjudication of administrative disputes, following exhaustion of all administrative remedies. Article 324 provides that a party may bring an action before a court with a view to revoking or amending an administrative decision. Under Article 325 a party must argue that the decision is unlawful and that his or her own interests and rights have been violated directly or indirectly, individually or collectively. 59. With regard to the appeal procedure before the Supreme Court, the Code of Civil Procedure, in so far as relevant, reads as follows: Article 472 “Decisions of the Court of Appeal and the District Court may be appealed against to the Supreme Court on the following grounds: (a) the law has not been complied with or has been applied erroneously; (b) there have been serious breaches of procedural rules (pursuant to Article 467 of the Code); (c) there have been procedural violations that have affected the adoption of the decision. ...” Article 480 “An appeal [to the Supreme Court] shall be declared inadmissible if it contains grounds other than those provided for under the law. The inadmissibility of appeals shall be decided upon in deliberations in camera.” | 1 |
dev | 001-22974 | ENG | GBR | ADMISSIBILITY | 2,002 | BLAND v. THE UNITED KINGDOM | 4 | Inadmissible | Gaukur Jörundsson;Nicolas Bratza | The applicant, John Bland, is a United Kingdom national, who was born on 12 April 1940 and lives in Cowling, North Yorkshire. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant applied to the Benefits Agency for a retirement pension, but was informed, by a letter dated 17 May 2000, that the Agency would not consider his claim until four months before his sixty-fifth birthday. At present, women in the United Kingdom become eligible for a State pension at the age of sixty, whereas men are not eligible until sixty five. In their Observations, the Government submitted that the applicant received a total of GBP 236.15 per week in State benefits, including income support, disability living allowance and invalid care allowance. They claimed that the applicant would be in an identical financial position if he were a woman, the only difference being that part of the money paid to him by the State would be paid in the form of retirement pension rather than income support. The applicant has not denied the Government’s account of his income. He claims, however, that if he were in receipt of State pension he would in addition be entitled to other financial benefits, such as a bus pass and discounts in shops, restaurants and hairdressers. | 0 |
dev | 001-96577 | ENG | POL | CHAMBER | 2,010 | CASE OF BAKOWSKA v. POLAND | 3 | Remainder inadmissible;No violation of Art. 6-1 | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1949 and lives in Słupsk. 6. On 5 November 2000 the applicant filed a claim for payment against a housing cooperative of which she was a member. By a judgment of 27 February 2001 the Słupsk Regional Court dismissed the claim. The judgment was upheld on 7 September 2001 by the Gdańsk Court of Appeal. On 21 November 2001 the applicant was served with that judgment together with its written grounds. 7. On 10 December 2001 she filed a request with the Słupsk Regional Court to be granted a legal-aid lawyer for the purpose of lodging a cassation appeal. Her request was subsequently forwarded to the Gdańsk Court of Appeal as the Słupsk court lacked jurisdiction to deal with it. The request was allowed by a decision of 17 December 2001. 8. On 18 December 2001 the decision of 17 December 2001 was served on the local Bar Association. At the same time the Gdańsk Court of Appeal informed the Bar about the date on which the applicant had been served with the second-instance judgment. On 3 January 2002 the Bar Association informed the applicant that a legal-aid lawyer had been assigned to her case. By a letter of 19 January 2002 to the court the lawyer refused to lodge a cassation appeal, finding no grounds to do so. The letter read: “Having examined the file in detail, I have not found grounds for lodging a cassation appeal. The judgment given on 7 September 2001 by the Court of Appeal did not breach any provisions of substantive law. Nor were any provisions of procedural laws violated during the proceedings. The findings of fact made by the courts show without any ambiguity that the applicant had never had the right to a co-operative apartment which could be assimilated to ownership. She had admitted, both before the first-instance and the appellate court, that at the time of the exchange of apartments she had been aware that her right was only assimilable to the rights arising out of a rental contract. (...) It had been open to her to take steps in order to have her right transformed into an ownership-like right, but she had not done so. Hence, the first instance court was right in finding that the defendant housing co-operative was not obliged to pay compensation to the applicant. The appellate court accepted these findings. In these circumstances, a cassation appeal would not offer any prospects of success.” 9. On 23 January 2002 the applicant requested the Gdańsk Court of Appeal to assign a new legal-aid lawyer to her case. 10. On 29 January 2002 the court informed the applicant that she should file a request with the Bar Association for a new lawyer to be appointed. On 4 February 2002 the applicant accordingly submitted her request to the local Bar Association. 11. By a letter of 19 February 2002 the Bar Association dismissed the request, having found that the applicant's previous legalaid lawyer had been entitled to refuse to draft a cassation complaint. 12. On 4 March 2002 the applicant again requested the court to assign a legalaid lawyer to the case. On 15 March 2002 the Gdańsk Court of Appeal informed the applicant that the refusal to lodge a cassation appeal could not justify assigning a new lawyer for the same purpose. 13. Pursuant to Article 5 of the Code of Civil Procedure, a court should give all necessary procedural instructions to a party acting without a lawyer and, in particular, should indicate the consequences of that party's acts or failures to act. 14. Article 113 § 1 of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family's standard of living. 15. Pursuant to Article 117 of the Code, persons exempted from court fees may request that legal aid be granted to them. The court will then request the relevant District Bar Association or the District Chamber of Legal Advisers to assign an advocate or a legal adviser to the claimant's case. 16. At the material time a party to civil proceedings could lodge a cassation appeal with the Supreme Court against a final judicial decision of a secondinstance court which terminated the proceedings. 17. Under Article 393 4 § 1 of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within one month from the date on which the decision with its written grounds was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected. 18. Article 1 of the Bar Act of 1982, as amended, reads, insofar as relevant: “1. The Bar is established to provide legal assistance, co-operate in protecting a person's rights and freedoms as well as to formulate and apply the law. 2. The Bar is organized as a self-governing association. 3. An advocate whilst executing his/her professional duties is accountable only to the law.” 19. Article 3 of the Act provides as follows: “The general tasks of the professional Bar Council are as follows: 1) creation of conditions for the statutory performance of the Bar's tasks, 2) representation of the Bar and protection of its rights, 3) supervision over the observance of the rules regulating the practice of the profession, 4) development of professional skills and training of advocates, 5) determination and promotion of professional ethics and ensuring their observance, 6) management (...) of the Bar's assets.” 20. Article 28 of the Act reads: “1. An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party. Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local Bar Council, and in situations where time is of the essence, by the Dean of that Council. 2. In cases where legal assistance is granted on the basis legal regulations concerning legal aid, only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance.” 21. Under Article 21 § 3 of the Act, an advocate shall provide legal aid services in the jurisdiction of a court where he or she has their office. 22. Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by the Bar Association. They may be held accountable for professional misconduct or a breach of ethical principles in the proceedings before the bar disciplinary court. 23. Under Article 57 of the Body of Ethical Rules adopted by the National Bar Council on 10 October 1998, when an advocate, either privately hired by the client or appointed under the legalaid scheme, considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view, the lawyer shall give notice of termination of the power of attorney, terminate the representation, or notify the refusal to the body which appointed him or her. 24. In 2000 the Supreme Court issued a resolution in reply to a legal question whether a legalaid lawyer could refuse to lodge a cassation appeal. It replied to the question in the positive. 25. The court observed that issues involved in the grant of legal aid concerned not only the proper administration of justice, but also touched on human rights, and the right of access to a court in particular. Nevertheless, there was no comprehensive and coherent regulation of legal aid available under Polish law. 26. The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism. However, a certain conceptual confusion was to be noted in the provisions governing legal aid as a whole, mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure. In particular, the scope of legalaid lawyers' obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure. 27. As a result, the scope of legalaid lawyers' obligations to provide a party to the proceedings with “legal aid” in civil proceedings was unclear. In particular, the provisions on lawyers' legalaid obligations in connection with cassation proceedings before the Supreme Court lacked clarity. The application of the relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case-law of the Polish courts. 28. The court observed that the issue of the possible conflict between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law. The notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client's wishes. The role of a legalaid lawyer had rather to be understood as obliging him or her to provide legal advice to the party, including as to the prospects of success offered by a cassation appeal against a given judgment. 29. The constitutional role of the Supreme Court, the highest judicial authority, was also an argument in favour of the conclusion that a legalaid lawyer was not compelled by the will of the party to have a cassation appeal lodged if such an appeal was bound to fail. In case of a disagreement between the party and the lawyer, it was open to the party to complain to the local Bar under Article 28 of the Bar Act. The Bar could then appoint a new lawyer who could lodge a cassation appeal, requesting at the same time to be granted leave to appeal out of time under Article 169 of the Code of Civil Procedure. It was true that the practice of the Supreme Court was not coherent in that in some cases it had rejected such requests and in others it had accepted them. However, it did not prevent the parties from having recourse to this course of action. 30. Pursuant to Article 169 of the Code of Civil Procedure, a party to the proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed time-limit; this measure shall be performed simultaneously with the lodging of the request. 31. Article 133 § 3 of the Code of Civil Procedure reads, in so far as relevant: “If a legal representative ... has been appointed in a case, the court correspondence shall be served on [him or her]. 32. However, in a number of decisions the civil courts have held that the running of the time-limit for lodging a cassation appeal is not affected in any way by a request for legal aid submitted by a hitherto non-represented party and its subsequent grant or refusal. That time-limit starts to run on the date when the party was served with the judgment of the appellate court together with its written grounds, also where the request for legal aid has subsequently been granted (the Supreme Court's decisions of 15 April 1997, II CZ 35/97; 18 April 1997, I PKN 120/97; 10 September 1998, II UZ 101/98; 6 July 1999, II UKN 332/99; 9 August 2000, I CKN 747/00; 23 March 2001; II UZ 17/01; 19 June 2001, I PZ 33/01; 27 September 2001, II UZ 51/01; 28 November 2001, II UZ 85/01, 15 December 2005, I UZ 33/05). 33. The Supreme Court has repeatedly held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the timelimit could be admitted for examination (21 April 1997, II CZ 38/97; 27 September 2001, II UZ 51/01). In a further series of decisions the Supreme Court considered that it would be unfair for the legally-aided party to be penalised for the fact that legalaid applications could not be processed quickly enough to make it possible for a cassation appeal to be lodged within thirty days counted from the day of service of the judgment on the party. A request to appeal out of time should therefore be submitted within seven days from the date on which the lawyer could obtain effective access to the case file or had an effective possibility of drafting an appeal (4 March 2005, II UZ 72/04; 27 June 2000, I CZ 62/00), or from the date when the lawyer was informed that he had been assigned to the case by the local bar association (11 October 2001, IV CZ 163/01; 17 November 1998, II UZ 122/98; 11 October 2001, IV CZ 163/01). | 0 |
dev | 001-23407 | ENG | UKR | ADMISSIBILITY | 2,002 | GAYDUK AND OTHERS v. UKRAINE | 1 | Inadmissible | null | The facts of the case, as submitted by the parties, may be summarised as follows. All the applicants are Ukrainian nationals and residents who opened savings accounts with the Ukraine Savings Bank, which until 1992 was an integral part of the USSR Savings Bank. With the exception of the cases expressly referred to below, all the accounts were opened in the 1980s. Under the terms of the agreements: “The State guarantee[d] that deposits [would] be repaid in full on demand by the account holder”. The rule was not stated to be subject to any restrictions. In 1996 the Ukrainian authorities implemented a monetary reform intended to replace the former monetary unit, the karbovanets coupon, with a new currency, the Ukrainian hryvna (українськa гривнa, UAH), at an exchange rate of 100,000 karbovanets coupons for 1 hryvna. The conversion also had an impact on the applicants’ deposits, which had already considerably depreciated as a result of inflation. On 21 November 1996 the Ukrainian Parliament enacted the Ukrainian Citizens’ Deposits (State Guarantee of Reimbursement) Act (Law no. 537/96). Pursuant to section 3 of that Act, the applicants’ deposits were indexed at a ratio of 1 karbovanets coupon to 1.05 hryvnas. Section 7 established a system for the indexed savings to be repaid progressively, taking into account the account holder’s age, the amount on deposit and other criteria. Each year the Government brings in regulations specifying the categories of account holders entitled to receive compensation in the coming year. Under the regulations, only account holders aged 80 or over are entitled to recover a part of their savings (UAH 48, equivalent to approximately 10 euros (EUR) per person). In addition, on an account holder’s death, his or her heirs are entitled to UAH 150 to pay for the burial. In the late 1990s each of the applicants issued proceedings against the Ukraine Savings Bank in the relevant courts seeking payment of all or part of their indexed deposits in hryvnas. Their claims were dismissed both at first instance and on appeal on points of law. In most of the decisions, the courts held that the claimants concerned were not entitled to compensation under Law no. 537/96 for the fall in value of their deposits, as they were under 80 and thus had no valid legal claim granted by the Government under the Act. As regards the fifth, twelfth, thirteenth and fourteenth applicants, who had attained the qualifying age, the courts found that they were entitled to compensation limited to UAH 48, as the legislation in force did not provide for the repayment of the full value of their deposits. Subsequently, some of the applicants made one or more unsuccessful applications for supervisory review of the final decision to the President of the Ukrainian Supreme Court or the president of the relevant regional court. ... The first paragraph of Article 41 of the Constitution (Конституцiя Украïни) reads as follows: “Everyone has the right to own, use and dispose of his or her property...” The relevant parts of Article 384 of the Civil Code (Цивiльний кодекс) read as follows: “Private persons may deposit sums of money in State savings banks and other financial institutions, have access to their deposits... The State guarantees the confidentiality and safekeeping of deposits and their repayment on demand by the account holder...” The third paragraph of section 39 of the Banking Activities Act (Закон “Про банки i банкiвську дiяльнiсть” – Law no. 872-XII of 20 March 1991), which was in force until January 2001, provided: “... Ukraine shall guarantee the safekeeping of deposits ... lodged by private persons with the Ukraine Savings Bank and their repayment to account holders on demand.” The relevant provisions of the State Guarantees of the Reimbursement of Ukrainian Citizens’ Deposits Act (Закон “Про державнi гарантiï вiдновлення заощаджень громадян Украïни” – Law no. 537/96 of 21 November 1996) provide: Section 1 “This Act sets out the State’s obligations to Ukrainian citizens who, following the devaluation, have lost money which they deposited before 2 January 1992 in branches of the USSR Savings Bank ... carrying on business on Ukrainian territory... Similarly, Ukrainian citizens who deposited money with a branch of the USSR Savings Bank ... between 1992 and 1994 which remained in the accounts of the Ukraine Savings Bank for at least one full year between 1992 and 1995 shall be entitled to compensation...” Section 2 “The State undertakes to maintain and update the real value of individual savers’ deposits and to pay them compensation in accordance with the relevant provisions.” Section 3 “The deposits by the private individuals referred to in the first paragraph of section 1 of this Act shall be revalued using the ratio of 1.05 hryvnas for 1 karbovanets coupon lodged, corresponding to the position at 1 October 1996.” Section 6 (as amended by Law no. 8/97 of 17 January 1997) “The payment of compensation to Ukrainian citizens for damage resulting from the depreciation of their deposits shall be made ... by the Treasury ... from 1997 onwards. The funds set aside to finance this compensation scheme ... shall constitute a special item in the budget of the Ukrainian State...” Section 7 “Deposits shall be reimbursed progressively taking into account the account holder’s age, the amount of the deposit and other criteria and the amount of funds allocated for that purpose in the Ukrainian State budget for the forthcoming year. [Paragraph amended by Law no. 201/98 of 24 March 1998] The list of the categories of account holders, the order of reimbursement of the indexed pecuniary deposits and the amount of the payments referred to in section 8 of this Act shall be determined by the Ukrainian Cabinet to the extent the funds allocated for that purpose in the budget of the Ukrainian State allow.” Section 8 “[Paragraph amended by Law no. 201/98 of 24 March 1998] On an account holder’s death, the heirs ... may withdraw parts of the indexed deposit ... for the purposes of arranging the funeral, the amount being calculated by reference to the amount of the funeral grant...” The categories of persons eligible for repayment of their deposits are defined in regulations (постанова) approved each year by the Cabinet for the forthcoming year (see regulations nos. 1210 of 31 October 1997, 825 of 8 June 1998, 457 of 25 March 1999, 817 of 17 May 2000, and 275 of 26 March 2001). Under these regulations, the right to partial reimbursement of the deposits is reserved to account holders who attained the age of 80 by 1 January 1997 and heirs of deceased account holders, for the purposes of making burial arrangements. Account holders from the first category are entitled to reimbursement of UAH 48 (approximately EUR 10), whereas the heirs of deceased account holders are entitled to an amount equivalent to the funeral grant, that is to say UAH 150 (approximately EUR 30). Since 1999 disabled ex-servicemen have also been able to claim reimbursement of part of their deposits. Regulation no. 275, which covers the year 2001, added to these categories account holders who had reached the ages of 100 or 80 respectively by 1 January 2001. Account holders in the latter category are entitled to the sum of UAH 50. All the aforementioned payments may only be made “to the extent the sum allocated in the State budget for the year concerned allows”. According to a practice direction (no. 1-5/117) issued by the Ukraine Supreme Court on 15 March 1999 on the implementation of Law no. 537/96, complaints concerning the repayment of indexed deposits to private individuals under the statutory guarantee provisions in force are to be dealt with under the contentious-business procedure. The practice direction is binding on all Ukrainian courts. When deciding such cases, the courts must remember that they are not dealing with liability for breach of contract between the account holder and the Savings Bank, but with the repayment of revalued deposits under the relevant provisions. The Supreme Court also directed that payments of compensation for indexed deposits must be made solely through branches of the Savings Bank. Consequently, in the event of litigation, the regional branch of the Savings Bank and the Ukraine Treasury must be joined to the proceedings as defendants. The Savings Banking reimburses the indexed deposits to the extent the sums allocated for that purpose in the budget of the Ukrainian State have been paid over to it in accordance with the ranking provisions established by the Cabinet. Thus, if a court finds that the sums concerned have not been paid to the Savings Bank or that the claimant is not a person entitled to reimbursement of the deposits for the year concerned, that person’s claim must be dismissed. If the claim exceeds the prescribed sum, the court shall grant it to the extent laid down in the State Guarantees of the Reimbursement of Ukrainian Citizens’ Deposits Act. On 5 April 2002 the Cabinet passed a resolution concerning the reimbursement in 2002 of the value of deposits made by Ukrainian citizens before 2 January 1992 in branches of the former USSR Savings Bank situated on Ukrainian territory (Про виплату в 2002 роцi грошових заощаджень громадян Украïни, вкладених до 2 сiчня 1992 р. в установи колишнього Ощадного банку СРСР, що дiяли на територiï Украïни). By that resolution, the Government allocated UAH 500,000,000 from the national budget to enable individual deposits to be indexed. Of that amount, UAH 65,000,000 was allocated to the heirs of account holders who had died between 1997 and 2002, on condition that they had not yet received the grant available under section 8 of Law no. 537/96. The remaining UAH 435,000,000 was to be divided between the other account holders. The amount payable to each beneficiary was, in principle, limited to UAH 150 for people from the first category and UAH 50 for people from the second. | 0 |
dev | 001-69294 | ENG | HRV | ADMISSIBILITY | 2,005 | BIJELIC v. CROATIA | 4 | Inadmissible | Christos Rozakis | The applicants, Mr Dragoljub Bijelić and Ms Barbara Bijelić, are Croatian citizens, who were born in 1933 and 1942 espectively and live in Karlovac. They are represented before the Court by Mr N. Mamula, a lawyer practising in Karlovac. The respondent Government are represented by their Agents, Ms L. Lukina-Karajković and subsequently by Ms Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 25 February 1993 the applicants' house in Turanj, Croatia was blown up by unknown perpetrators. On 17 January 1996 Parliament introduced an amendment to the Civil Obligations Act (“the 1996 Amendment”) which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending the enactment of new legislation. The new legislation was to be enacted within six months. On 15 December 2000 the applicants instituted civil proceedings in the Karlovac Municipal Court (Općinski sud u Karlovcu) seeking damages for their destroyed property from the State. At a hearing held on 19 March 2002 the Municipal Court decided to stay the proceedings pursuant to the above legislation. It appears that the court nevertheless continued the proceedings. On 11 October 2002 the Municipal Court gave judgment dismissing the applicants' claim as time barred. Following an appeal, on 14 May 2004 the Karlovac County Court (Županijski sud u Karlovcu) upheld the first instance judgment. The applicants filed a request for revision on points of law and the proceedings still appear to be pending before the Supreme Court (Vrhovni sud Republike Hrvatske). Meanwhile, on 14 July 2003 Parliament introduced the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (“the 2003 Liability Act”). The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima – Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99) provided as follows: “Liability for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from acts of violence or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.” The relevant part of the Act Amending the Civil Obligations Act (Zakon o izmjeni Zakona o obveznim odnosima – Official Gazette no. 7/96; “the 1996 Amendment”) reads as follows: “Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.” “Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed. The proceedings referred to in sub-section 1 of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts.” The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/02; “the Constitutional Court Act”) reads as follows: “(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant's rights and obligations or a criminal charge against him ... (2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits... (3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.” Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/01) reads as follows: “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija – Official Gazette no. 117/03; “the 2003 Liability Act”) provides that all compensation for damage to property resulting from terrorist acts is to be sought under the Reconstruction Act. Section 10 provides that all proceedings stayed pursuant to the 1996 Amendment are to be resumed. The Reconstruction Act (Zakon o obnovi – Official Gazette nos. 24/96, 54/96, 87/96 and 57/00) provides that the State shall grant reconstruction assistance to the owners of property damaged during the war. Any requests in this respect are to be filed with the competent administrative authority. In its decision no. Rev 86/02-2 the Supreme Court ruled that proceedings concerning damages for terrorist acts, instituted after the 1996 Amendment entered into force, are not to be stayed. | 0 |
dev | 001-23373 | ENG | DEU | ADMISSIBILITY | 2,001 | LENZ v. GERMANY | 1 | Inadmissible | null | The applicant, Mr Helmut Lenz, is a German national, born in 1928 and living in Berlin. He was represented before the Court by Mr K.H. Christoph, of the Berlin Bar. The facts of the case, as presented by the parties, can be summarised as follows. Between 1 September 1967 and 31 August 1990 the applicant worked as a radio journalist in the German Democratic Republic (GDR). He ran the international press-review office until shortly before the entry into force of the German Unification Treaty on 3 October 1990 . On 31 July 1990 the applicant entered into an agreement proposed by his employer under which his contract of employment was to terminate and he would receive an early-retirement pension (Vereinbarung zur Beendigung des Arbeitsrechtsverhältnisses und zur Gewährung von Vorruhestandsgeld) of 1,074 East-German marks a month, in accordance with Article 3a of the Early-Retirement Pensions Order of 8 February 1990 (Verordnung zur Gewährung von Vorruhestandsgeld). The Order required employers to pay qualifying employees an early-retirement pension equal to 70% of their average net wage over the preceding twelve months. Article 9 § 2 of the second implementing provision (Zweite Durchführungsbestimmung) of the Order provided for the pensions to be indexed to changes in pay levels within the firm that would have affected the employee had he or she continued to work. In a judgment of 3 March 1994 the Berlin Regional Court (Landes-arbeitsgericht) dismissed an appeal by the applicant for the same reasons. In a judgment of 27 June 1995, the Federal Labour Court (Bundes-arbeitsgericht) dismissed a further appeal by the applicant, holding that his rights had been extinguished by the entry into force of the Unification Treaty on 3 October 1990. The Federal Court pointed out, firstly, that the obligations of the GDR radio and television company, which was dissolved on reunification, had been assumed by the five Länder situated within the territory of the GDR at the time and the Land of Berlin. It added that by virtue of Article 9 § 2 of the second implementing provision of the Early-Retirement Pensions Order, taken together with Appendix IIa of the German Unification Treaty, the Federal Labour Ministry was in law the successor (Rechtsnachfolger) to the applicant’s former employer. The Federal Court found, further, that the applicant no longer had any right to payment of the difference, as the legal basis for the progressive indexation of the early-retirement pension had disappeared on 3 October 1990, the German Unification Treaty having changed the method by which the level of the early-retirement pension was adjusted. That change had been made with the consent of the parliament of the GDR. Former Article 9 § 2 of the second implementing provision had been repealed and replaced by the “adjustment factor” provisions set out in Article 112a. The Federal Court found, lastly, that the agreement made on 31 July 1990 did not contain any provision giving the applicant any additional rights to those set out in the Early-Retirement Pensions Order of 8 February 1990. In particular, it did not provide for a progressive, long-term revaluation of the applicant’s early-retirement pension in line with changes in wage levels paid by the employer, but expressly stipulated that the pension was granted on the basis of the Order of 8 February 1990. On 14 July 1997 the Federal Constitutional Court (Bundesverfassungs-gericht), sitting as a bench of three judges, declined to accept a further appeal by the applicant for adjudication. Appendix II, Chapter VIII, section E, paragraph III no. 5 of the German Unification Treaty of 31 August 1990 provides that the Early-Retirement Pensions Order remains valid, but lays down, inter alia, that after that date payments will, at the employee’s request, be made by the Federal Labour Ministry and that the early-retirement pension shall be equal to 65% of the average net wage over the three preceding months. | 0 |
dev | 001-4919 | ENG | GBR | ADMISSIBILITY | 1,999 | FOX v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is an Irish citizen. At the time of lodging his application he was detained in H.M. Prison The Maze, Northern Ireland. He is represented before the Court by Mr P.J. McGrory, a lawyer practising in Belfast. A. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 May 1994, between 13:35 and 13:40, N.S., a security guard, was shot dead by two men in Fountain Street in the centre of Belfast. The gunmen’s escape was caught on video cameras positioned in the vicinity. The gunmen were wearing workmens’ white safety helmets, dust masks and gloves. One of the gunmen was wearing a jacket which had a blue/grey check or plaid, the other a tan coloured jacket. They were shown on the video film retrieved from the cameras running towards the Hercules Bar at the junction of Castle Street and Chapel Lane, not far from the scene of the killing. The gunmen’s flight was subsequently taken to have occurred at 13.38. At the applicant’s trial the judge was satisfied that the time shown on a video camera filming the gunmen’s escape was one minute eight seconds slow in comparison with the speaking clock. The sequence of events was not disputed at the applicant’s trial. On 7 June 1994 the police conducted a search of the house of the applicant’s girlfriend where the applicant was staying. Among the items seized was a child’s red coat with a black trim round the collar, which belonged to the applicant’s daughter. After the search the police arrested the applicant and cautioned him, pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988, in the following terms: “You do not have to say anything unless you wish to do so, but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.” The applicant did not reply to the caution. He was taken to Castlereagh Police Office where the police handed him a written copy of the caution together with an explanatory sheet. On the same day the police conducted a search of the applicant’s brother’s house and seized a white or cream shirt which was at that time being worn by the brother. The applicant was interviewed on numerous occasions between 7 June 1994 and 12 June 1994. A caution was administered at the start of the first interview and again before the beginning of some of the other interviews. The applicant refused to answer any questions, including questions concerning his movements on the afternoon of 23 May 1994. He also refused to watch a video recording or still photographs taken from the recording showing him entering the Castle Court Centre immediately after the shooting with a child in his arms. The police also arrested a certain S. who similarly refused to answer questions or react to his appearance in the video recording carrying a child in his arms. The applicant and S. were charged with the murder of N.S. and with possession of a revolver and a quantity of ammunition with intent to endanger life. They were tried at Belfast Crown Court before a single judge sitting without a jury. At the trial, Witness A. testified that he was having a drink in the Hercules Bar and saw two men enter through the Castle Street entrance wearing white safety helmets and face masks. They passed through the bar to the porch leading onto Chapel Lane. He saw one of the men take off his safety helmet, gloves and jacket. He was met by a woman and a young child. He handed a package to the woman and picked up the child, whom he recalled as being blond and wearing something red. Witness A. gave a description of the men and their clothing. His evidence in respect of the clothing was found to be flawed. Witnesses B. and C. testified that they saw two women at the Chapel Lane entrance to the Hercules Bar sometime after 13.30. Two men were standing inside the entrance and were removing anti-dusk masks and blue workmens’ overalls. The two women then each handed a small child to each of the men. The couples walked quickly down Chapel Lane, each man carrying a child. Witness B. last saw the couples at the end of Chapel Lane by the junction of Berry Street. He also stated that he saw an army landrover turning at the junction. Witness C. confirmed Witness B.’s account. Witness B. said he saw the discarded clothing in Chapel Lane. One of the discarded jackets had a blue/grey check or plaid on the outside. On the basis of this testimony the trial judge was satisfied that the two men carrying children last seen by Witnesses B. and C. at the end of Chapel Lane and going in the direction of the Castle Court Centre were the gunmen who killed N.S. The prosecution adduced video recordings in support of its case that the applicant and his co-accused, S., were the gunmen. The court heard that Camera 38 was filming persons crossing Berry Street from the end of Chapel Lane and heading towards the entrance to the Castle Court Centre. Camera 47 was filming persons entering the Centre. Camera 38 recorded two men carrying children walking within a few feet of each other towards the Berry Street entrance of the Castle Court Centre. The time was 13.38. Camera 47 recorded one man carrying a small child enter at 13.41. A second man, walking a few paces behind the first man, then entered with a small girl in his arms. The child was wearing a red coat with a black trim around the collar. The applicant’s features are distinguishable from the recording of the second man. On the video film retrieved from Cameras 38 and 47 an army landrover, also referred to in the testimony of Witnesses B and C, is clearly visible. It was not disputed that there was only one army landrover in the centre of Belfast on the afternoon in question. The video cameras also picked out a “third man” carrying a small child and crossing Berry Street from the direction of Chapel Lane and entering the Berry Street entrance of the Castle Court Centre. The man was wearing a blue garment with a very conspicuous logo on the back and front. In the film he is first seen carrying a child wearing a red or pink coat or jacket and when in the Castle Court Centre he is seen holding the child’s hand. In addition to the witness evidence and the video evidence, the prosecution relied on the following: – the red coat seized at the house of the applicant’s girlfriend was an exact match of the coat worn by the child seen being carried by the second man in the video film, identified as the applicant. – forensic evidence that a blue/grey check jacket discarded by one of the two men who had entered the Hercules bar after the killing had come into contact with the child’s red coat found at the applicant’s girlfriend’s house. Red fibres from the coat had been found on the jacket. – forensic evidence that one of the white safety helmets discarded by the two men in the Hercules Bar had blood on it of the same rare type as that of the victim’s. – forensic evidence that there were firearms residue on each of the two jackets discarded outside the bar. At the close of the prosecution case, the applicant’s counsel, who had accepted that the applicant was the second man filmed on Cameras 38 and 47, asked the judge to rule that there was insufficient evidence against his client to constitute a prima facie case that he was one of the gunmen. Without any reference to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”), the trial judge concluded that a “strong prima facie case” had been made out that the applicant was one of the killers. The judge had regard to the following considerations: the strong visual likeness between the man filmed on Camera 47 and the applicant; the timing of the events as filmed; the link between the applicant and the gunmen seen by Witnesses B. and C. was strengthened by the fact that both witnesses had seen the landrover turning at the end of Berry Street at almost the same time as the arrival of the gunmen at that spot and strong forensic evidence of contact between the discarded blue/grey jacket and the child’s red coat found at the home of the applicant’s girlfriend. In reaching this conclusion the judge had due regard to the weakness of Witness A.’s recollection of the colour of the jacket worn by the first man who entered the Hercules Bar, alleged to be the applicant. He also noted that Witness A. had incorrectly described the colour of the child’s hair as blond. It was in fact dark. Furthermore, the judge acknowledged that Witness B. was incorrect in his recollection that he had seen two men removing blue overalls at the Hercules Bar. In the judge’s opinion, these discrepancies did not detract from the weight of the prosecution case against the applicant. He observed that Witness A.’s description of the nose and hair of the first man to enter the bar reasonably tallied with the applicant’s. The judge did not accept the applicant’s submission that the third man filmed carrying a child entering the Castle Court Centre could have been one of the gunmen. He considered that the video evidence and the timing of all three men’s appearances in the recordings suggested that there was a sixteen to nineteen seconds gap between the camera sighting of the third man in Berry Street and the appearance of the two gunmen. For the judge, it would have been most unlikely that there would have been such a distance between the two gunmen who had last been seen together by Witnesses B. and C. at the end of Chapel Lane. At the end of the prosecution case, the applicant gave evidence. Answering the only question put to him by his counsel, the applicant denied any involvement in N.S.’s murder. In cross-examination he stated that on 23 May 1994 he had taken his small daughter to Belfast and had gone to the Castle Court Centre to allow her to throw coins into the fountain before going on an errand. The applicant accepted that he was one of the men recorded on Camera 47 entering the Castle Court Centre carrying the girl in the red coat, at about 13.41. The applicant further stated that he had refused to give this explanation when interviewed by the police because he had an unfriendly relationship with the police, and that he was angry because they had arrested his girlfriend and had caused distress to his children. The applicant denied being in the company of S. on that day. Having ruled that the two accused had a case to answer, the judge drew a very strong inference against the applicant under Article 3 of the 1988 Order from the applicant’s failure to answer the questions put to him by the police. The judge considered the following: “Notwithstanding that [the applicant] has no previous convictions and the relevance of this consideration to the issue of his credibility I am satisfied that [the applicant] told a tissue of lies in the witness box as to the reasons why he did not tell the police when interviewed in the Castlereagh Police Office that he had entered the Castle Court Centre on the afternoon of 23 May 1994 carrying a child, that he had nothing to do with the murder of N.S. and that he had entered the Castle Court Centre for the innocent purpose of allowing his child to throw coins into the fountain, and as to his reasons for failing to watch the video film and to acknowledge that he was one of the men shown on it and to say that his reason for entering the centre was innocent. I am also satisfied that [the applicant] lied in the witness box when he said he had nothing to do with the murder of [N.S.] and that he was in the area of Castle Street for an innocent purpose. If the account which [the applicant] gave in the witness box for his movements on the afternoon of 23 May were true, and if he were innocent of the murder of [N.S.], then notwithstanding whatever hostility he may have felt towards the police, and notwithstanding any feelings of anger and upset he may have had against the police for arresting his girlfriend Patricia, and leaving his children crying for their mother, it is quite unbelievable and completely contrary to common sense that [the applicant] would not have given his innocent explanation to the police in the hope that this would secure the release of his girlfriend and also his own release.” Having regard to the very strong case against the applicant and the very strong inference drawn against him under Article 3 of the 1988 Order, the judge was satisfied that the applicant was one of the gunmen who murdered N.S. and found him guilty on both counts of the indictment. The applicant appealed against conviction to the Northern Ireland Court of Appeal. He argued that, on the evidence, the trial judge had erred in finding that he had a case to answer. He also challenged the judge’s decision to draw an adverse inference from his silence at Castlereagh Police Office in application of Article 3 of the 1988 Order. In its judgment of 14 March 1997, the Court of Appeal found that the judge was justified in ruling on the evidence before him that there was a prima facie case against the applicant. The court rejected the applicant’s suggestion that the forensic evidence linking the red coat to one of the gunmen’s jackets was less than compelling. In the opinion of the court, that evidence was a very significant element in the prima facie case. The court, like the trial judge, also dismissed the applicant’ submission that the fact that a “third man” carrying a child raised a reasonable possibility that the applicant was not one of the gunmen. It concluded that that, according to the timings on the videos, the “third man” had been well clear of the junction between Berry Street and Chapel Lane by the time the landrover appeared. Witnesses B. and C. put the two gunmen at that junction at the same time as the landrover. Even if Witness A. had been mistaken about the colour of the top worn by one of the gunmen, the judge had been entitled to hold that the uncontradicted evidence of Witnesses B. and C. on timing and the presence of the landrover was accurate. The court further observed that although the “third man” was wearing a top with a very conspicuous logo, neither of these witnesses had recalled this logo which “would have stood out”. The Court of Appeal also considered that the judge was justified in regarding the difficulties in accepting the correctness of Witness A.’s evidence as insufficient to prevent the Crown’s evidence from being accepted as creating a prima facie case. As to the drawing of an adverse inference, the Court of Appeal agreed with the trial judge’s conclusion that it was “quite unbelievable and contrary to commonsense” for the applicant not to have advanced an innocent explanation for his movements on the afternoon of the murder, if there was one. The Court of Appeal rejected the applicant’s submission that the trial judge had been wrong to draw an inference because there was a reasonable possibility that the applicant’s “policy” of not talking to the police was the true explanation for his not having done so. In his judgment, the Lord Chief Justice stated that the assertion of such a “policy” could not preclude a court from drawing adverse inferences. Otherwise, in his view, Article 3 of the 1988 Order would be undermined and effects could be negated in every case simply by an accused claiming a “policy” of not talking to the police. The Lord Chief Justice concluded: “We are quite satisfied that the judge was entitled, and indeed entirely correct, to draw an adverse inference ... . We are also satisfied that he was correct in holding that on the whole of the evidence the Crown had established that the [applicant] was one of the gunmen who murdered [N.S.].” B. Relevant domestic law Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 provides as relevant: “Circumstances in which inferences may be drawn from accused’s failure to mention particular facts when questioned, charged, etc. 3. (1) Where, in any proceedings against a person for an offence, evidence is given that the accused (a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence has been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies. (2) Where this paragraph applies: (a) the court, in determining whether to commit the accused for trial or whether there is a case to answer, (b) a judge, in deciding whether to grant an application made by the accused under Article 5 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (application for dismissal of charge where a case of fraud has been transferred from a magistrates’ court to the Crown Court under Article 3 of that Order), and (c) the court or jury, in determining whether the accused is guilty of the offence charged, may (i) draw such inferences from the failure as appear proper; (ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material. (3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.” | 0 |
dev | 001-87794 | ENG | POL | ADMISSIBILITY | 2,008 | BORENSTEIN AND OTHERS v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicants are: Ms Sara Borenstein, born in 1914, living in Israel, and Mr George Shrier, born in 1953, Ms Sabina Weinreb, born in 1928 and Ms Anne Leichtman, born in 1954, all three living in the United States of America. They were represented before the Court by Ms B. Krzesak, a lawyer practising in Bielsko-Biała, Poland. 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 applicants’ grandfather M.W. owned a house in Oświęcim that had been divided into flats. He survived the Holocaust and in 1948 left Poland, having appointed W.B. as a representative for the purposes of managing the property. They remained in constant contact and W.B. – and subsequently his wife – kept the applicants’ grandfather informed about the situation and financial affairs of the property until his death in 1968. In 1963 the local municipality in Oświęcim took over the management of the house, having stated in the relevant decision that the property had not been managed and supervised by its owner at all since 1948 and that, as a result, it was in a bad state of repair. This decision was served on Ms K.B., the widow of the late manager of the property, W.B., who subsequently stayed in touch with the applicants. In 1978 the State Treasury requested the Oświęcim District Court to declare that it had acquired ownership of the property by way of adverse possession. The court accepted the claimant’s submission that the owner was at that time of unknown abode and appointed a guardian ad litem for the applicants’ grandfather. On 30 August 1978 the court allowed the State Treasury’s request. No written grounds were prepared for that decision, as the court was obliged to prepare such grounds only if a judicial decision was being appealed against. Accordingly, the State Treasury became owner of the property. On an unspecified later date, but in any case before 1989, an entry in the land register was made to confirm the State’s ownership of the property concerned. In 1990 the State Treasury’s ownership of land was transferred to local municipalities as part of a countrywide legal reform of local government. Accordingly, the Oświęcim municipality took over the rights to land within its borders that had previously been owned by the State Treasury. In 1992 the applicants obtained decisions from various Polish courts to the effect that they were the legal successors of their grandfather M.W. In 1995 the applicants requested that the proceedings concerning the acquisition of ownership by adverse possession that had ended with the 1978 decision be reopened. They argued that these proceedings were invalid in law since they had been flawed as a result of serious procedural shortcomings. The court had appointed a guardian ad litem for their father, which was obviously incorrect as he had died in 1968 and no guardian ad litem could be appointed in respect of a deceased person. Further, the court had failed to publish an announcement about the guardian having been appointed for the applicants’ grandfather, which resulted in the proceedings being invalid in law as it thereby became impossible for the parties to have their rights properly represented in the proceedings. Their request was eventually dismissed on 30 December 1996, the appellate court having upheld the lower court’s conclusion that the applicants had failed to submit their request within the one-month time-limit from 10 August 1990, the date on which they had learned about the 1978 decision. On 23 June 1997 the Minister of Justice brought an appeal on points of law against the 1978 decision on the applicants’ behalf. The Minister argued that the decision should be quashed for the following reasons: i) in the proceedings the court had failed to take into consideration that the property had not in fact been abandoned by the owner but had been managed, at least until 1962, by his representative, who had been validly appointed in 1948; ii) the claimant had failed to disclose to the court the fact that in 1962 the defendant had been alive, and that it was not true that at that time it had been impossible to get in touch with him; iii) this failure had a direct incidence on the finding that the State Treasury had been in de facto possession of the property for the period required by law for adverse possession; iv) the court had erred in that it had appointed a guardian ad litem for a person who was dead at that time; v) in the 1978 decision the court had failed to indicate a) the date from which the State had acquired ownership by adverse possession, b) whether it had regarded the State as being in possession in bad or in good faith and c) how it had calculated the period of adverse possession necessary for the acquisition of ownership by adverse possession. Following the appeal, on 22 October 1997 the Supreme Court quashed the 1978 decision, invalidated the proceedings which had led to it and ordered that the State’s request for a declaration that it had acquired the ownership by adverse possession be re-examined. The Supreme Court shared the view of the Minister of Justice concerning the error that the court had committed in appointing a guardian ad litem for a person who was dead. It observed that, contrary to the relevant legal obligation, no press announcement had been made about the proceedings having been instituted. Importantly, the court had also failed to make any effort to establish the whereabouts of the former owner or his legal successors. The Supreme Court further noted that when giving the 1978 decision the court had failed to make findings crucial for the legal assessment of the case, such as the determination of the beginning of the period of possession, the manner of its calculation and the legal basis for considering that the State had been in possession of the property in question cum animo rem sibi habendi. The Supreme Court did not pronounce on the Minister’s submission that the State’s representatives had failed to disclose to the court in 1978 certain relevant information regarding the status of the property. Subsequently, the proceedings concerning the State’s original request for a declaration that it had acquired the property through adverse possession were resumed. In these proceedings the applicants submitted that because of all the procedural shortcomings identified by the Supreme Court, the State should be considered to have acquired ownership in bad faith. Under the relevant law, the period necessary at that time for acquisition of ownership through adverse possession where there was bad faith was twenty years. This period could only be calculated as running, at the earliest, from 30 August 1978. Hence, it had not ended by the date on which the present set of proceedings was already pending, the running of the period of adverse possession having been interrupted by the appeal lodged on the applicants’ behalf by the Minister. On 19 June 2002 the Oświęcim District Court held that the State Treasury had acquired ownership of the property through adverse possession on 8 October 1988. The court noted that two conditions had to be fulfilled for such acquisition to be effective: 1) the property had to be in the possession of the claimant acting cum animo rem sibi habendi and 2) the statutory period of possession had to have expired. The court found that the period between 1963 and 1978 could not be taken into account as regards adverse possession of the property since during this period the State had been acting only as its manager. However, as from 8 October 1978, the date on which the decision of 30 August 1978 had become final, the State had to be regarded as being in possession of the property “like a property owner” (cum animo rem sibi habendi). The 1978 decision authorised the State to dispose of the property, even if the decision itself had been procedurally flawed. The District Court further found that the 1978 decision had justified the State’s assertion that it had become the owner of the property concerned. Accordingly, on 8 October 1978 the State had obtained possession in good faith since that possession had arisen from a valid judicial decision. The period of adverse possession required by law in case of good faith was ten years. The District Court further noted that the point in dispute was whether the State Treasury could count towards the period of adverse possession required for acquisition of the property the period of its occupation arising from a judicial decision which had been quashed after the period of adverse possession had expired. That question was answered in the affirmative by the Supreme Court in the Resolution of 25 October 1996, no. III CZP 83/96, and the District Court applied that conclusion to the present case. Accordingly, the period of adverse possession in good faith having come to end on 8 October 1988, it was on that date that the State had acquired title to the property concerned. The applicants appealed. They submitted that the lower court had erred in holding that the claimant had acquired title through adverse possession in the absence of good faith and of the requisite character of possession (cum animo rem sibi habendi). It was wrong, in their view, to disregard the period preceding the 1978 decision since the State had come into possession of the property when it had taken over its management in 1963. That coming into possession had been unjustified, and thus in bad faith, since the owner’s representatives had at the relevant time duly managed the property. The State Treasury had continued to manifest its bad faith by withholding relevant information from the court when making its application in 1978. The applicants contested the argument that the State could be regarded as being in possession in good faith as a result of the 1978 decision having become final. Having regard to the circumstances in which the State had taken over the management of the property in 1963, they argued that after 1978 the State had simply continued to manage the property. Thus, its possession could not be regarded as possession cum animo rem sibi habendi. Furthermore, the State could not benefit from the 1978 decision because that decision had been rendered in proceedings in which the applicants – as a result of the State’s actions – had been deprived of any possibility to defend their interests. If the court were to hold otherwise, the very concept of good faith would be undermined. The applicants also argued, referring to the Supreme Court’s Resolution of 25 October 1996, that it was necessary to consider whether the State authorities’ actions had led to the deprivation of their property. They disagreed with the automatic conclusion that since the possession had arisen from a judicial decision it would always have to be considered possession in good faith. On 6 December 2002 the Kraków Regional Court dismissed their appeal as unfounded. It analysed in detail all the arguments raised in the appeal. The Regional Court firstly noted that, contrary to the applicants’ assertion, it was not necessary to determine the circumstances relating to the State’s taking over the management of the property in 1963 since the State’s rights stemming from an administrative decision on management could not be considered as possession cum animo rem sibi habendi. This view had been expressed by the Supreme Court in its decision of 22 October 1997. The Regional Court stressed that the date of the decision on acquisition of title by adverse possession, and in particular the date on which this decision had become final, was of crucial relevance for the calculation of the period of adverse possession. It was from that date that the claimant (the State) had obtained a judicial decision declaring that it had become the owner of the property concerned. It noted that the Supreme Court’s Resolution of 25 October 1996, no. III CZP 83/96 allowed the State Treasury to count towards the period of adverse possession the period throughout which the State had exercised the right to dispose of the property “like a property owner” on the basis of a judicial decision which was quashed after the period of adverse possession had expired. In the present case the court was dealing with precisely such a situation. The Regional Court observed that that situation was different from the one which was analysed in the Supreme Court’s decision of 29 October 1996, no. III CKU 8/96 (published in OSNC 1997/4/38) in which the Supreme Court had held that: “if the State Treasury’s right to dispose of a property “like a property owner” is based on an administrative decision which is subsequently set aside with retrospective effect (ex tunc) on account of a manifest mistake of law, then the State Treasury may not take into account the fact and period of such occupation when calculating the period of adverse possession referred to in Article 172 of the Civil Code”. The Regional Court noted, however, that as the Supreme Court had underlined in its Resolution no. III CZP 83/96, and by contrast to the above situation, adjudication by civil courts did not amount to State sovereign interference in private-law relations since the courts were established to apply the law in civil cases. In the same Resolution the Supreme Court had emphasised that even manifest breaches of procedural rules in deciding a case may not – as such – be qualified as manifestation of State exercise of its sovereign powers. The Regional Court noted that the District Court when deciding the case in 1978 had committed flagrant errors which resulted in the decision being quashed, but nevertheless that did not deprive the claimant of a possibility to have its application granted. In these particular circumstances the Regional Court concurred with the District Court that certainly from the date on which the decision of 30 August 1978 had become final the claimant should be regarded as being in possession of the property cum animo rem sibi habendi. That date marked also the beginning of the period of adverse possession. In this respect, the Regional Court noted that the applicants had not rebutted the legal presumption established in Article 339 of the Civil Code that the actual possessor of a property should be considered to be in possession of it “like a property owner”. Instead, they had focused their submissions on showing that the taking over of the property’s management in 1963 had been unlawful and had not analysed the relevance of the 1978 decision which declared that the State had become the owner of the property. Lastly, the Regional Court considered the issue of good or bad faith on the part of the State which was relevant for the calculation of the period of adverse possession. In this respect, it referred to the legal presumption in favour of good faith laid down in Article 7 of the Civil Code and found that the applicants had not discharged the burden upon them of proving bad faith on the part of the claimant. In this respect the Regional Court held as follows: “If bad faith on the part of the claimant were to be assumed at the time when that (1978) decision was given and when it became final, it would have to mean that, regardless of such content of the decision supported by the authority of the court vested with determination of civil-law cases, the claimant would have still to believe that the title did not belong to him or suspect that another person was the owner. Such a view, in the appellate court’s opinion, cannot be sustained”. At the same time, the Regional Court noted that the above conclusion could not be seen as its approval of the manner in which the 1978 proceedings had been conducted. Consequently, the Regional Court held that the ten-year period of adverse possession in good faith having come to an end on 8 October 1988, the State had acquired ownership of the property concerned with effect from that date. On 19 August 2003 the Supreme Court refused to entertain a cassation appeal lodged by the applicants, finding that no serious legal issue arose in the case such as to justify examination of the appeal. Article 7 of the Civil Code provides: “If a law makes legal consequences dependent upon good or bad faith, good faith shall be presumed” Article 339 of the Civil Code reads: “It shall be presumed that a person in actual possession of property is in possession “like a property owner” (cum animo rem sibi habendi)” Adverse possession is regulated in Article 172 of the Civil Code. Up until 1 October 1990 that provision provided that a person could acquire ownership of land after ten years’ continuous and independent possession in good faith. Otherwise, a longer period of twenty years applied. In 1990 the Civil Code was amended and the statutory periods of adverse possession in good and bad faith were extended by ten years. Article 172, in force since 1 October 1990, reads: “§ 1. Persons in possession of property, although they are not the owner, shall acquire title thereto if they have been in continuous and independent possession thereof for twenty years, save where they came into such possession in bad faith. § 2. After thirty years, persons in possession of property shall acquire title thereto even if they came into possession thereof in bad faith.” Persons in possession of the property can apply to the district court for a declaration that, as of a specific date, they acquired ownership of property on the strength of adverse possession for a statutory period. In its Resolution No. III CZP 83/96 of 25 October 1996 (published in OSNC 1997/5/47), the Supreme Court held that: “the State Treasury may count towards the period of adverse possession, within the meaning of Article 172, the period of occupation “like a property owner” on the basis of a court judgment which was [subsequently] quashed as a result of an extraordinary appeal (rewizja nadzwyczajna) after the period of adverse possession had elapsed.” In the written grounds the Supreme Court observed that the manner in which the possessor came into possession of the property, including whether he was aware of any unlawfulness in this respect, was immaterial for the validity of adverse possession. The latter circumstance was relevant for the calculation of the period of adverse possession. Furthermore, the Supreme Court noted that the validity of adverse possession would not be affected in a case where the final court judgment declaring acquisition of title was subsequently quashed on appeal. The Supreme Court further observed that in exceptional circumstances it might be possible to disregard the legal consequences of the application of civil law. In particular, such a possibility might arise when an unlawful interference by the State exercising its sovereign prerogatives (imperium) in private-law relations was a determining factor which led to the deprivation of a civil right. By contrast, adjudication by civil courts did not constitute State sovereign interference in private-law relations, since the courts had been established to apply the law in civil cases. Accordingly, even grave procedural errors committed by a court when determining a case could not of themselves be qualified as a manifestation of State exercise of its sovereign powers. There would have to be some additional, exceptional circumstances indicating that the State had abused its sovereign prerogatives or acted unlawfully with a view to depriving a person of his or her civil right. | 0 |
dev | 001-91418 | ENG | AUT | CHAMBER | 2,009 | CASE OF VEREIN DER FREUNDE DER CHRISTENGEMEINSCHAFT AND OTHERS v. AUSTRIA | 4 | No violation of Article 6 - Right to a fair trial;No violation of Article 13 - Right to an effective remedy | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The first applicant is a religious community established in Austria on 11 July 1998, and the four other applicants are members of it. The second applicant is the chair of the Vienna branch of the first applicant, and the fifth applicant is its deputy chair and is a minister in Vienna. The third and fourth applicants are also members of the first applicant’s Vienna branch. The second to fourth applicants are Austrian nationals, and the fifth applicant is a German national. The second to fifth applicants live in Vienna. 7. On 14 March 1995 the applicants requested the Federal Minister for Education, Arts and Sports (Bundesminister für Unterricht, Kunst und Sport) to recognise the first applicant as a religious society (Religionsgesellschaft) under the 1874 Recognition Act (Anerkennungsgesetz). 8. On 4 October 1995 the Constitutional Court found that under the 1874 Recognition Act, a religious body had a subjective right to recognition as a religious society provided that the conditions laid down in that Act were met and that a decision on this matter should be subject to review by the Austrian courts (see Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 21, 31 July 2008). 9. On 11 March 1996 the applicants filed an application with the Administrative Court (Verwaltungsgerichtshof) against the Minister’s failure to give a decision (Säumnisbeschwerde). 10. On 26 January 1998 the Administrative Court rejected the application. It noted that, upon the entry into force of the Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften, hereafter referred to as “the 1998 Religious Communities Act”) on 10 January 1998, the applicants’ request for recognition under the 1874 Recognition Act had to be dealt with as a request under section 11(2) of the 1998 Religious Communities Act. Thus, the six-month time-limit for the Minister to give a decision had started again on 10 January 1998 and consequently there had been no failure to give a decision on the part of the Minister. The Administrative Court’s decision was served on the applicants’ lawyer on 11 March 1998. 11. On 20 July 1998 the Minister decided that the first applicant had acquired legal personality as a registered religious community within the meaning of the 1998 Religious Communities Act as from 11 July 1998. The first applicant, however, was not thereby granted legal personality as a religious society within the meaning of the 1874 Recognition Act. 12. On 9 September 1998 the applicants lodged a complaint against that decision with the Constitutional Court (Verfassungsgerichtshof), arguing that the refusal to confer legal personality to the first applicant under the 1874 Recognition Act was in breach of Article 9 of the Convention and Article 14 of the Basic Law. 13. On 17 December 1998 the Federal Minister submitted observations in reply, which arrived at the Constitutional Court on 23 December 1998. 14. Meanwhile, on 16 July 1998, the applicants had filed another request with the Federal Minister for the first applicant to be recognised as a religious society under the 1874 Recognition Act. 15. On 1 December 1998 the Federal Minister dismissed the applicants’ request of 16 July 1998. It found that, pursuant to section 11(1) of the 1998 Religious Communities Act, a religious community could only be recognised as a religious society under the 1874 Recognition Act if it had already existed as a registered religious community for a minimum of ten years. 16. On 12 January 1999 the applicants lodged a complaint against that decision with the Constitutional Court. They submitted that the transitory provisions in the 1998 Religious Communities Act, which introduced new conditions for recognition as a religious society under the 1874 Recognition Act were unconstitutional as being in breach of Article 9 of the Convention and Article 14 of the Basic Law. 17. On 16 April 1999 the Federal Minister submitted observations in reply to the Constitutional Court. 18. On 3 March 2001 the Constitutional Court dismissed the applicants’ complaints of 9 September 1998 and 12 January 1999. It found that the ten-year waiting period for registered religious communities as a precondition for a successful application for recognition as a religious society under the 1874 Recognition Act was in conformity with the Federal Constitution. In particular, it served the legitimate aim of ensuring that the competent authority could verify during this period of time whether the religious community was ready to integrate into the existing legal order, for example, whether it performed unlawful activities as a consequence of which legal personality had to be withdrawn (section 9(2) and section 5(1) of the 1998 Religious Communities Act). Examples of such unlawful activities were incitement to commit criminal offences, endangering the psychological development of minors, violating the psychological integrity of persons or using psychotherapeutic methods to disseminate its religious beliefs. That decision was served on the applicants’ lawyer on 4 April 2001. 19. Under Article 14 of the Basic Law, everybody is granted freedom of conscience and belief. The enjoyment of civil and political rights is independent from religious belief; however, the manifestation of religious belief may not derogate from civic obligations. 20. Article 15 provides that recognised churches and religious communities have the right to manifest their faith collectively in public, to organise and administer their internal affairs independently, and to remain in possession of acquired institutions, foundations and funds dedicated to cultural, educational and charitable purposes; however, they are, like all other societies, subordinate to the law. 21. Article 16 entitles the supporters of non-recognised religious communities to domestic manifestation of their faith unless it is unlawful or contra bonos mores. 22. Article 63 § 1 states that Austria undertakes to ensure full and complete protection of life and liberty to all inhabitants of Austria without distinction on the basis of birth, nationality, race or religion. 23. Article 63 § 2 guarantees to all inhabitants of Austria the right to manifest publicly and privately their thought, religion and beliefs, unless these are incompatible with the protection of public order or morals. 24. Section 1 of the Act provides that all religious faiths which have not yet been recognised in the legal order may be recognised as a religious society if they fulfil the conditions set out in the Act, namely that their teaching, services and internal organisation, as well as the name they choose, do not contain anything unlawful or morally offensive and that the setting up and existence of at least one community of worship (Cultusgemeinde) satisfying the statutory criteria is ensured. 25. Section 2 provides that if the above conditions are met, recognition is granted by the Minister for Religious Affairs (Cultusminister). Recognition has the effect that a religious society obtains legal personality under public law (juristische Person öffentlichen Rechts) and enjoys all rights which are granted under the legal order to such societies. Sections 4 et seq. regulate the setting up of communities of worship, membership of them, delimitation of their territory, and their bodies and statutes. Sections 10 to 12 deal with the nomination of religious ministers (Seelsorger) of religious societies, the qualifications such persons must have and how their nomination must be communicated to the authorities. Section 15 provides that the public authorities responsible for religious matters have a duty to monitor whether religious societies comply with the provisions of the Act. 26. The legal personality of the Roman Catholic Church is, on the one hand, regarded as historically recognised, and, on the other hand, explicitly recognised in an international treaty, the Concordat between the Holy See and the Republic of Austria (Federal Law Gazette II, No. 2/1934 – Konkordat zwischen dem Heiligen Stuhle und der Republik Österreich, BGBl. II Nr. 2/1934). 27. The following are examples of special laws recognising religions societies: (a) Act on the External Legal Status of the Israelite Religious Society, Official Gazette of the Austrian Empire, No. 57/1890 (Gesetz über die äußeren Rechtsverhältnisse der Israelitischen Religionsgesellschaft, RGBl. 57/1890); (b) Act of 15 July 1912 on the recognition of followers of Islam [according to the Hanafi rite] as a religious society, Official Gazette of the Austrian Empire No. 159/1912 (Gesetz vom 15. Juli 1912, betreffend die Anerkennung der Anhänger des Islam [nach hanefitischen Ritus] als Religionsgesellschaft, RGBl. Nr. 159/1912); (c) Federal Act on the External Legal Status of the Evangelical Church, Federal Law Gazette No. 182/1961 (Bundesgesetz vom 6. Juli 1961 über die äußeren Rechtsverhältnisse der Evangelischen Kirche, BGBl. Nr. 182/1961); (d) Federal Act on the External Legal Status of the Greek Orthodox Church in Austria, Federal Law Gazette No. 229/1967 (Bundesgesetz über die äußeren Rechtsverhältnisse der Griechisch-Orientalischen Kirche in Österreich, BGBl. Nr. 182/1961); (e) Federal Act on the External Legal Status of the Oriental Orthodox Churches in Austria, Federal Law Gazette No. 20/2003 (Bundesgesetz über äußere Rechtsverhältnisse der Orientalisch-Orthodoxen Kirchen in Österreich, BGBl. Nr. 20/2003). 28. Between 1877 and 1982 the competent ministers recognised a further six religious societies. 29. The Religious Communities Act entered into force on 10 January 1998. Pursuant to section 2(3) of the Act, the Federal Minister for Education and Culture has to rule in a formal written decision (Bescheid) on the acquisition of legal personality by the religious community. In the same decision the Minister has to dissolve any association whose purpose was to disseminate the religious teachings of the religious community concerned (section 2(4)). The religious community has the right to call itself a “publicly registered religious community”. 30. Section 4 specifies the necessary contents of the statutes of the religious community. Among other things, they must specify the community’s name, which must be clearly distinguishable from the name of any existing religious community or society. They must further set out the main principles of the religious community’s faith, the aims and duties deriving from it, the rights and duties of the community’s adherents, including the conditions for terminating membership (it is further specified that no fee for leaving the religious community may be charged), how its bodies are appointed, who represents the religious community externally and how the community’s financial resources are raised. Lastly, the statutes must contain provisions on the liquidation of the religious community, ensuring that the assets acquired are not used for ends contrary to religious purposes. 31. Under section 5, the Federal Minister must refuse to grant legal personality to a religious community if, in view of its teachings or practice, this is 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 and freedom of others; this is in particular the case if its activities involve incitement to commit criminal offences, obstruction of the psychological development of adolescents or undermining of people’s mental integrity, or if the statutes do not comply with section 4. 32. Under section 7, the religious community must inform the Federal Minister for Education and Cultural Affairs of the name and address of the persons belonging to its official bodies and of any change of its statutes without delay. The Minister must refuse to accept the notification if the appointment of the official bodies contravened the statutes or if the change of the statutes would constitute a reason for refusal of registration under section 5. 33. Section 9 specifies the reasons for termination of a community’s legal personality. Legal personality ceases to exist if the religious community dissolves itself or if the acknowledgment of its legal personality is revoked. Reasons for revoking legal personality are set out in subsection (2): for example, if the reasons for granting legal personality no longer subsist or if for more than one year no bodies representing the religious community externally have been appointed. 34. The Act only regulates the granting of legal personality. Once legal personality has been granted to a religious community, it may pursue the activities referred to in its statutes. There are no specific laws in Austria regulating the acquisition of assets by religious societies or communities, the establishment of places of worship or assembly, or the publication of religious material. However, provisions which contain explicit references to religious societies are spread over various statutory instruments (see below). 35. Since the entry into force of the 1998 Religious Communities Act on 10 January 1998, non-recognised religious associations may be granted legal personality upon application. A previous application for recognition under the 1874 Recognition Act is to be dealt with as an application under the 1998 Religious Communities Act pursuant to section 11(2). 36. Section 11(1) of the 1998 Religious Communities Act establishes additional criteria for a successful application under the 1874 Recognition Act, such as the existence of the religious association for at least twenty years in Austria and for at least ten years as a registered religious community; a minimum number of two adherents per thousand members of the Austrian population (at the moment, this means about 16,000 persons); the use of income and other assets for religious purposes, including charity activities; a positive attitude towards society and the State; and no illegal interference as regards the community’s relationship with recognised or other religious societies. 37. In various Austrian laws specific reference is made to recognised religious societies. The following list, which is not exhaustive, sets out the main instances. Under section 8 of the Federal School Supervision Act (Bundes-Schulaufsichtsgesetz), representatives of recognised religious societies may sit (without the right to vote) on regional education boards. Under the Private Schools Act (Privatschulgesetz), recognised religious societies, like public territorial entities, are presumed to possess the necessary qualifications to operate private schools, whereas other persons have to prove that they are qualified. Under section 24(3) of the Military Service Act, ordained priests, persons involved in spiritual welfare or in religious teaching after graduation from theological studies, members of a religious order who have made a solemn vow and students of theology who are preparing to assume a pastoral function and who belong to a recognised religious society are exempt from military service and, under section 13 of the Civilian Service Act, are also exempt from alternative civilian service. Under sections 192 and 195 of the Civil Code (ABGB), ministers of recognised religious societies are exempt from the obligation to submit an application to be appointed as guardians, and under section 3(4) of the 1990 Act on Juries of Assizes and Lay Judges (Geschworenen- und Schöffengesetz) they are exempt from acting as members of a jury of an assize court or as lay judges of a criminal court. Section 18(1)(5) of the Income Tax Act provides that contributions to recognised religious societies are deductible from income tax up to an amount of 100 euros per year. Section 2 of the Land Tax Act (Grundsteuergesetz) provides that real property owned by recognised religious societies and used for religious purposes is exempt from real-estate tax. Under section 8(3)(a) of the 1955 Inheritance and Gift Act (Erbschafts- und Schenkungsteuergesetz), which was still in force at the relevant time, donations to domestic institutions of recognised churches or religious societies were subject to a reduced tax rate of 2.5%. | 0 |
dev | 001-105622 | ENG | TUR | COMMITTEE | 2,011 | CASE OF KORKMAZ v. TURKEY | 4 | Violation of Art. 6-1;Violation of P1-1 | David Thór Björgvinsson;Giorgio Malinverni;Guido Raimondi | 3. The applicant was born in 1946 and lives in Istanbul. 4. On an unspecified date in the late 1980s the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü) (“the General Directorate”) decided to partially expropriate the applicant’s land located in the Küçükçekmece district of Istanbul. The applicant only found out about this expropriation in May 2004. 5. On 21 May 2004 the applicant brought a civil action before the Küçükçekmece Civil Court for additional expropriation compensation. 6. On 21 June 2004 the title to the property was transferred to the General Directorate. 7. On 19 July 2005 the Küçükçekmece Civil Court awarded the applicant 783,749,741,900 Turkish liras (TRL) as additional compensation, plus interest at the statutory rate. 8. On 6 March 2006 the Court of Cassation upheld the first-instance court’s judgment. 9. The applicant subsequently initiated execution proceedings before the Şişli Execution Office to obtain her additional compensation. 10. On 31 July 2008 the applicant received a partial payment of 1,159,699.20 Turkish liras (TRY). 11. On 5 August 2008 the applicant brought a case before the Şişli Execution Court in respect of the General Directorate’s outstanding debt and the interest rate that should be applied to that amount. 12. On 24 October 2008 the Şişli Execution Court held that the General Directorate had an outstanding debt of TRY 479,605.44, payable with an interest rate of 30% running from 31 July 2008. 13. On 14 November 2008 the General Directorate appealed the judgment of the Şişli Execution Court. On 2 June 2009 the Court of Cassation upheld that judgment. 14. On 12 April 2010 the General Directorate paid the applicant TRY 745,797.18 to discharge its outstanding debt, together with interest. 15. The relevant domestic law and practice are set out in the cases of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV); Aka v. Turkey (judgment of 23 September 1998, Reports 1998-VI); Gaganuş and Others v. Turkey (no. 39335/98, §§ 15-19, 5 June 2001); Ak v. Turkey (no. 27150/02, §§ 11-13, 31 July 2007); Sarıca and Dilaver v. Turkey, no. 11765/05, § 26, ECHR 2010... | 1 |
dev | 001-58105 | ENG | FRA | CHAMBER | 1,997 | CASE OF PIERRE-BLOCH v. FRANCE | 2 | Not necessary to examine Art. 14 | C. Russo;John Freeland | 8. In the general election of 21 and 28 March 1993 Mr Jean-Pierre Pierre-Bloch stood as a candidate for the Union for French Democracy (Union pour la démocratie française – UDF) in the 19th administrative district of Paris and was elected as a member of the National Assembly. 9. On 27 May 1993 the applicant submitted his campaign accounts to the National Commission on Election Campaign Accounts and Political Funding. 10. The National Commission gave its decision on 30 July 1993. To the expenditure of 440,603.15 French francs (FRF) declared by the applicant it added a sum of FRF 328,641.65 representing the cost of five issues of a magazine called Demain notre Paris (“Our Paris Tomorrow”) that was published by Mr Pierre-Bloch between November 1992 and March 1993, taking the view that “there [could] be no doubt, regard being had to their dates, frequency and, more especially, content, that the publications [had] had an undeniable electoral purpose”. The Commission also added the cost of an opinion poll (FRF 83,020) conducted on 26 October 1992 among voters in the 19th administrative district that had been commissioned by the Union for the Republic (Rassemblement pour la République – RPR), on the grounds that “the main purpose of the poll [had been] to determine who was the best candidate to put up against the outgoing Socialist member of Parliament and the poll [had shown] Mr Jean-Pierre Pierre-Bloch to be at a clear advantage, with the result that he [had been] backed by both the UDF and the RPR”. The poll “also investigated voters’ expectations and was therefore designed to find out how the election campaign should be slanted, since the concerns expressed by the majority were addressed at length in the published election material [referred to above]”. As it also noted that the magazine 18ème Indépendant had campaigned in favour of three candidates, including the applicant, the National Commission added one-third of the cost of the February 1993 issue to his accounts (FRF 8,211.66). After deducting other sums, it thus assessed the expenditure in issue at FRF 816,663.84 and rejected the applicant’s campaign accounts as they exceeded the statutory ceiling by FRF 500,000. It also referred the matter to the Constitutional Council pursuant to Article 136-1 of the Elections Code. 11. On 8 September 1993 Mr Pierre-Bloch applied to the Conseil d’Etat to have the National Commission’s decision quashed and reversed. His main contention was that, in breach of Article L. 52-15 of the Elections Code and the adversarial principle, the National Commission had added the cost of the opinion poll and the publications in issue to his campaign accounts without first giving him a hearing. 12. In a judgment of 9 May 1994 the Conseil d'Etat dismissed the application on the following grounds: “... The contested decision, whereby the National Commission on Election Campaign Accounts and Political Funding ... revised Mr Pierre-Bloch’s campaign accounts and, having found that the maximum permitted amount of election expenditure had been exceeded, referred the matter to the Constitutional Council, cannot be separated from the proceedings thus instituted before that body. That being so, no appeal lies against the decision to the administrative courts. Mr Pierre-Bloch’s application is therefore inadmissible. ...” 13. Applications were made to the Constitutional Council on 8 April 1993 by a voter in the 19th administrative district, Mr M., who maintained that the applicant had exceeded the statutory maximum amount of campaign expenditure, and on 3 August 1993 by the National Commission. 14. On 8 September 1993 Mr Pierre-Bloch lodged a pleading. He asked the Constitutional Council to stay the proceedings until the Conseil d’Etat had ruled on the lawfulness of the National Commission’s decision and, in the alternative, to hold that his campaign expenditure had not exceeded the statutory ceiling and that he should not be disqualified from standing for election. 15. In a decision of 24 November 1993 the Constitutional Council rejected Mr Pierre-Bloch’s request to stay the proceedings, disqualified him from standing for election for a year from 28 March 1993 and declared that he had forfeited his seat as a member of Parliament. The decision reads as follows: “... Mr Pierre-Bloch’s request to stay the proceedings ... Section 44 of the Ordinance of 7 November 1958 provides: ‘When ruling on cases submitted to it, the Constitutional Council has jurisdiction to consider all the issues and objections raised in the application ...’ It is thus for the Constitutional Council to rule on all the issues concerning Mr Pierre-Bloch’s campaign accounts. That being so, his application to stay the proceedings cannot be granted. Mr Pierre-Bloch’s election expenditure ... The National Commission on Election Campaign Accounts and Political Funding is an administrative authority and not a court. The view it takes when scrutinising a candidate’s campaign accounts consequently cannot prejudice the decision of the Constitutional Council, the body that adjudicates upon the lawfulness of an election under Article 59 of the Constitution. The inclusion of expenditure relating to the magazine Demain notre Paris ... regard being had to the dates on which it was published, to the extent of its circulation and to its content, this magazine can be seen to be a vehicle for election propaganda. Issues 71 to 75, however, contain numerous pages of general and local news which cannot be directly linked with promoting the candidate or furthering his election programme. Accordingly, those pages must not be viewed as expenditure committed or incurred for election purposes within the meaning of Article 52-12 of the Elections Code. That being so, they should not be included in the expenditure recorded in Mr Pierre-Bloch’s campaign accounts. On the other hand, other pages in those five issues contain numerous photographs of the candidate or are made up of articles relating to topics addressed during his election campaign. Those pages consequently amount to election propaganda. This is true [of pages ...] ..., which helped to promote the elected candidate. To that extent, the corresponding expenditure must be seen as coming within the expenditure referred to in the first paragraph of Article L. 52-12 of the Elections Code and must be included in the candidate’s campaign accounts. Regard being had to the total cost of the publications concerned and the number of pages to be taken into account, the expenditure incurred under this head amounts to FRF 217,327.47. ... The inclusion of the cost of an opinion poll It is clear from the inquiry into the facts that an opinion poll commissioned by the RPR was conducted in the 19th constituency in Paris among a representative sample of voters. The questions asked related firstly to the voters’ main concerns, secondly to their voting intentions and thirdly to their appraisal of various political figures and groups. The inquiry into the facts revealed that Mr Pierre-Bloch then made use of the poll findings that related to voters’ expectations by choosing his campaign topics on the basis of voter concerns as shown by the findings. Both in issues 71 to 75 of the magazine Demain notre Paris and in various leaflets, he gave priority to the topics so identified. The findings were accordingly used to determine the thrust of the candidate’s election campaign in the constituency. The inclusion of the cost of part of issue 122 of the magazine 18ème Indépendant In issue 122 of February 1993 the magazine 18ème Indépendant, which has a circulation of forty thousand, published an article by Mr Chinaud, the mayor of the district, expressing his support for the three opposition candidates standing, including Mr Pierre-Bloch. That article, which was intended to underline the unity in the local majority party one month before the first round of the election, was an integral part of the whole publication, which thus in its entirety amounts to election propaganda. Responsibility for it must also be attributed to the three candidates who benefited from it. Consequently, one-third of the cost of the publication (FRF 8,211.66) must be included as expenditure in Mr Pierre-Bloch’s campaign accounts, as the National Commission on Election Campaign Accounts and Political Funding ruled. The inclusion of the cost of various propaganda expenses Mr M. criticised Mr Pierre-Bloch for omitting various propaganda expenses. It is clear from the very details provided by the candidate that some expenditure was omitted ... On the basis of the figures submitted by Mr Pierre-Bloch himself, the total amount to be taken into account for the purposes of Article L. 52-12 is thus FRF 33,360.68. It follows from all the foregoing that the sum of FRF 191,164.99 must be added to Mr Pierre-Bloch’s expenditure. The total amount of his expenditure is thus FRF 588,987.14 and the applicant has consequently exceeded the maximum permitted amount of campaign expenditure by FRF 88,987.14. ...” 16. On 30 November 1993 Mr Pierre-Bloch lodged an application with the Constitutional Council seeking rectification of clerical errors which, in his submission, vitiated the decision of 24 November 1993. He maintained that the Constitutional Council had counted some of his campaign expenditure twice and that it had not ruled on his request that the opinion poll should be left out of account. (Mr Pierre-Bloch argued that Mr M. had failed to prove that he was lawfully in possession of the opinion poll report, marked “confidential exclusive property of client”). 17. The applicant lodged a pleading containing further arguments on 7 December 1993. He argued that the Constitutional Council’s decision did not contain its President’s signature or that of the secretary-general or the rapporteur; furthermore, the rapporteur’s name had not been given. He added that he had also been denied any opportunity to lodge final submissions as he had not been informed when his case would be heard. 18. Neither the applicant nor his counsel was informed of the date of the hearing, even though in a letter of 2 December 1993 the lawyer had asked the secretary-general for the date. 19. In its decision of 17 December 1993 the Constitutional Council rejected the applicant’s submissions based on procedural and formal defects on the ground that “in an application seeking rectification of a clerical error it is not permissible to challenge the assessment of the facts of the case or their legal classification or the formal or procedural manner in which the decision [to which the application relates] was rendered”. It also reduced the amount of propaganda expenditure to FRF 7,950 and set the amount of expenditure incurred by the applicant at FRF 563,572.46, consequently materially amending its decision of 24 November 1993, while stating that “this rectification [was] not such as to call in question Mr Pierre-Bloch’s disqualification from standing for election or the forfeiture of his seat”. 20. In a decision of 8 April 1994 the National Commission, having deducted the accountant’s fees from the amount assessed by the Constitutional Council, set the amount which Mr Pierre-Bloch was to pay the Treasury pursuant to the last paragraph of Article L. 52-15 of the Elections Code at FRF 59,572. 21. On 8 June 1994 the applicant applied to the Paris Administrative Court to quash this decision. He alleged, in particular, that the National Commission had breached Article 6 § 1 of the Convention. In a judgment of 14 November 1994 the Paris Administrative Court dismissed his application as follows: “... It appears from the inquiry into the facts that the impugned decision was taken by the National Commission on Election Campaign Accounts and Political Funding, which is not a court. It is thus not required to afford the procedural safeguards provided for in [Article 6 § 1 of the Convention]. The applicant is not, however, thereby deprived of the right – which he exercised – to have his case heard by a tribunal. Accordingly, the argument based on a violation of Article 6 § 1 of the Convention ... must fail. ... ... in its decision of 24 November 1993, as amended on 17 December 1993, the Constitutional Council found that Mr Jean-Pierre Pierre-Bloch had exceeded the maximum permitted amount of expenditure in his campaign in the 19th constituency in Paris for the general election on 21 and 28 March 1993 by FRF 63,572.46. Pursuant to the statutory provisions cited above, the National Commission on Election Campaign Accounts and Political Funding was under a duty to require the applicant to pay the amount of the excess. The other grounds relied on by the applicant in order to challenge the decision are consequently invalid and must be rejected. ...” 22. The election expenditure of (in particular) parliamentary candidates must not exceed a statutory ceiling (Article L. 52-11 of the Elections Code). 23. Within two months of the ballot in which the election was won, each candidate who took part in the first round must file his campaign accounts, certified by an accountant, at the prefecture. The accounts are then sent to the National Commission on Election Campaign Accounts and Political Funding (Article L. 52-12). 24. The National Commission on Election Campaign Accounts and Political Funding has nine members appointed for five years by decree: three members or former members of the Conseil d’Etat nominated by the Vice-President of the Conseil d’Etat after consultation of its Judges’ Council; three members or former members of the Court of Cassation nominated by the President of the Court of Cassation after consultation of its Judges’ Council; three members or former members of the Audit Court nominated by the President of the Audit Court after consultation of its divisional presidents (Article L. 52-14). 25. The Commission publishes the campaign accounts (Article L. 5212). It approves them and, “after adversarial proceedings”, rejects or amends them (Article L. 52-15). Where the amount of a declared item of expenditure is less than the usual price, the Commission calculates the difference and adds it to the campaign expenditure after asking the candidate to provide any evidence relevant to an assessment of the facts. The same procedure is applied in respect of all direct or indirect benefits, services and gifts in kind received by the candidate (Article L. 52-17). 26. If the accounts have not been filed within the prescribed period, if they have been rejected or if – where appropriate after amendment – they show that the maximum permitted amount of election expenditure has been exceeded, the Commission refers the case to the body that adjudicates election disputes (Articles L. 52-15 and L.O. 136-1), which is the Constitutional Council in respect of the election of members of Parliament (Article 59 of the Constitution). 27. The Constitutional Council has nine members, appointed for a non-renewable nine-year term. Three of them are appointed by the President of the Republic, three by the Speaker of the National Assembly and three by the Speaker of the Senate. In addition to those nine members, former presidents of the Republic are life members of the Constitutional Council as of right. The President of the Constitutional Council is appointed by the President of the Republic. In the event of a tie, he has the casting vote (Article 56 of the Constitution). 28. Within the Constitutional Council there are three sections, each comprising three members drawn by lot. Lots are drawn separately among the members appointed by the President of the Republic, those appointed by the Speaker of the Senate and those appointed by the Speaker of the National Assembly. Each year the Constitutional Council draws up a list of ten deputy rapporteurs from among the middle-ranking members of the Conseil d’Etat and the Audit Court; they are not entitled to vote (section 36 of Ordinance no. 58-1067 of 7 November 1958 on the Constitutional Council – “the Ordinance”). 29. In addition to the application of Article L.O. 136-1 of the Elections Code (see paragraph 26 above), the election of a member of Parliament may be challenged before the Constitutional Council within ten days of the election results being announced, by means of a written application by anyone on the electoral roll of the constituency in which the election was held or by anyone who stood for election (sections 33–34 of the Ordinance and Rule 1 of the Rules of Procedure of 31 May 1959 as amended by the Constitutional Council’s decisions of 5 March 1986, 24 November 1987 and 9 July 1991 – “the Rules of Procedure”). 30. As soon as he receives an application, the President allocates it to one of the sections to examine in order to prepare the case for hearing and appoints a rapporteur, who may be selected from among the deputy rapporteurs (sections 37–38 of the Ordinance). Where the application is not declared inadmissible or manifestly ill-founded (section 38 of the Ordinance), the member of Parliament whose election is being challenged and, where applicable, his substitute are given notice of it. They may designate a person of their choice to represent them and to assist them with the various steps in the proceedings. The section of the Constitutional Council allots them a period of time for inspecting the application and the documents at the Council’s secretariat and producing their written observations (section 39 of the Ordinance and Rule 9). When a case is ready for hearing, the section hears the report of the rapporteur. In this he sets out the issues of fact and law and submits a draft decision (Rule 13). The section discusses his proposals and refers the case to the Constitutional Council for its ruling on the merits (Rule 14). The President of the Constitutional Council determines when a case is to be entered in its list. Proceedings in the Constitutional Council are not public, and only since the Constitutional Council's decision of 28 June 1995 amending the Rules have applicants and members of Parliament whose election is in issue been able to seek leave to address the Council. The secretary-general and the rapporteur for the case attend the Council’s deliberations. The rapporteur drafts the decision taken as a result of those deliberations (Rule 17). 31. The Constitutional Council gives its ruling in a reasoned decision, which indicates the members who took part in the sitting at which it was taken. The decision is signed by the President, the secretary-general and the rapporteur (section 40 of the Ordinance and Rule 18) and is published in France's Official Gazette (Rule 18). 32. No appeal lies against the Constitutional Council’s decisions (Article 62 of the Constitution and Rule 20). They are binding on the public authorities (pouvoirs publics) and on all administrative and judicial authorities (Article 62 of the Constitution). The Constitutional Council may, however, of its own motion or at the request of an interested party, rectify clerical errors affecting its decisions (Rules 21–22). 33. Reimbursement in whole or in part of expenditure recorded in campaign accounts, where provided for by law, is not possible until the campaign accounts have been approved by the National Commission (Article L. 52-15 of the Elections Code). 34. Where it has been found in a final decision that the maximum permitted amount of election expenditure has been exceeded, the National Commission orders the candidate to pay the Treasury a sum equivalent to the amount of the excess. The sum is recovered in the same way as debts owed to the State other than taxes and debts relating to State property (Article L. 52-15). 35. The National Commission has no discretion; it is required to apply the Constitutional Council’s final decision and to base its calculation of the sum payable to the Treasury by the candidate solely upon the amount by which the statutory ceiling on election expenditure has been exceeded (judgment of the Paris Administrative Court, 12 February 1993). 36. As to the nature of the payment, the Paris Administrative Court has held (in the judgment cited above): “... even if it is accepted that the requirement to pay the State a sum equivalent to the amount by which the maximum permitted amount of election expenditure has been exceeded represents a penalty, that penalty is only an administrative penalty. It cannot be regarded as criminal in nature or intended to punish an offence. It does not therefore come within the scope of Article 7 of the Convention ... Moreover, where the ceiling on election expenditure has been exceeded, Article L. 113-1 of the Elections Code makes provision for the penalties of fines and imprisonment; these are criminal in nature and are not in issue in the instant case. The argument based on an infringement of the provisions of Article 7 of the European Convention in the contested decision must consequently fail.” 37. A person who has not filed his campaign accounts in accordance with the requirements and within the time-limit laid down in Article L. 5212 or whose campaign accounts have been rightly rejected is disqualified from standing for election for a period of one year from the date of the election. Anyone who has exceeded the maximum permitted amount of campaign expenditure as laid down in Article L. 52-11 may likewise be disqualified from standing for election for the same length of time (Article L.O. 128, second paragraph, of the Elections Code). Where appropriate, the Constitutional Council disqualifies the person from standing for election and, if that person was the candidate elected, it declares in the same decision that he has forfeited his seat (Article L.O. 1361). 38. Article L. 113-1 of the Elections Code provides: “A fine of FRF 25,000 and a sentence of one year’s imprisonment, or only one of those penalties, shall be imposed on any candidate (in the case of a poll to elect a single candidate) or any candidate heading a list (in the case of a poll to elect candidates from party lists) who ... (3) has expended more than the maximum permitted amount laid down pursuant to Article L. 52-11; (4) has not complied with the formal requirements for drawing up campaign accounts laid down in Articles L. 52-12 and L. 52-13; (5) has declared in his campaign accounts or the appendices to them amounts that have knowingly been reduced; ...” It is the duty of the National Commission to send a case to the public prosecutor’s office where it finds irregularities which appear to contravene, in particular, Article L. 52-11 of the Elections Code (Article L. 52-15). 39. Where so provided by law, a serious crime (crime) or other major offence (délit) is punishable with one or more “additional” penalties (Article 131-10 of the New Criminal Code), including deprivation of civic, civil and family rights, which may include the right to stand for election (Article 131-26). Notwithstanding any provision to the contrary, such a deprivation cannot follow automatically from a criminal conviction (Article 132-31). | 0 |
dev | 001-22687 | ENG | GBR | ADMISSIBILITY | 2,002 | TAMOSIUS v. THE UNITED KINGDOM | 1 | Inadmissible | Nicolas Bratza | The applicant, Mr Alwin Tamosius, is a United States national, born in 1951 and living in the United Kingdom. He is represented before the Court by Mr Lockley, a lawyer practising in the Sheffield. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a lawyer and partner of the firm Tamosius & Partners, based in offices in London. Since about 1996, one of his clients, Mr Frestadius, had been under investigation by the Inland Revenue. On 20 July 1998, the Inland Revenue sought to execute a search warrant on the applicant’s offices. The applicant claimed legal professional privilege in relation to the files which they wished to examine and seize. The Inland Revenue agreed not to examine or seize any of them. On 10 August 1999, Mr Frestadius was committed for trial on two counts of cheating the revenue of tax payable. It was alleged that he had taken part in a scheme to evade tax by diverting commission offshore. On 21 September 1999 the Inland Revenue obtained from the Crown Court an ex parte search warrant in order to search the applicant’s premises for documents evidencing offences of serious tax fraud, suspected to have been perpetrated by one or more of the applicant’s clients. The Inland Revenue also suspected that the applicant might himself have committed such offences, in particular that he had been involved in the arrangements for the diversion of commission offshore and assisted in concealing those arrangements from the Inland Revenue. The wording of the warrant was as follows; ‘any officer who enters under the authority of this warrant may; (a) take with him such other persons as appear to him to be necessary; (b) seize and remove any things whatsoever relating to or appearing to relate to serious tax fraud in relation to Corporation Tax, Income Tax and other obligations touching upon them and which he has reasonable cause to believe may be required as evidence for the purposes of proceedings in respect of such an offence as is mentioned above and; (c) search or cause to be searched any person found on the premises whom he has reasonable cause to believe to be in possession of any such things; but no person shall be searched except by a person of the same sex. No item may be taken from the premises which is subject to legal privilege (as defined in section 10 of the Police and Criminal Evidence Act 1984) (‘PACE 1984’)’. The warrant was executed on 29 September 1999, but no property was initially examined or seized. Discussions took place between the parties to agree the resolution of issues of legal professional privilege, but no resolution was reached. The same day solicitors on behalf of the applicant applied for leave to judicially review the grant of the warrant. On 30 September 1999, leave was granted subject to the Inland Revenue giving an undertaking that any material removed from the premises would be sealed in opaque bags and not inspected until the full hearing. The first warrant was due to expire on 30 September and the Inland Revenue obtained a second ex parte warrant with identical wording apart from the following addition; ‘...obligations touching upon them, in relation to the persons named in the attached schedule, which he has reasonable cause...’ The attached schedule contained the names of 35 companies and persons involved in the arrangements which the Inland Revenue alleged were designed to cheat. On 1 October 1999, the second search warrant was then executed. Some 69 documents, files and books were examined and seized. The procedure was as follows. Officers searched for relevant material. Once relevance had been decided, material was then reviewed by the counsel nominated by the Attorney-General and instructed by the Inland Revenue for the purposes of advising whether any document or other thing shown to him (a) was subject to legal professional privilege, (b) was not subject to legal professional privilege, (c) would have been subject to legal professional privilege but for the fraud/crime exception set out in section 10(2) of PACE 1984. Any document found to be subject to legal professional privilege was handed back to solicitors for the applicant. All the documents seen by counsel were listed, with counsel’s opinion as to each. On 5 November1999, the Divisional Court took the view that neither warrant was unlawful. It rejected the applicant’s arguments that the warrant failed to give adequate particulars of the materials which could be seized, holding that the there was nothing in the statute which required the particularity for which he contended. The validity of the warrant depended not upon its particularity but upon there being reasonable suspicion that an offence of serious fraud had been committed and there being reasonable ground for suspecting that evidence was to be found on the premises. “The fallacy in the applicant’s argument lies in the content that greater particularity will provide greater protection against the seizure and removal of things which are irrelevant to the investigation or which are subject to legal professional privilege. ... The protection against the seizure and removal of irrelevant or privileged material lies in sub-section 4. Even if the warrant had been more specific it would provided no greater protection. Greater particularity of the kind for which the applicant contended would and could not have prevented officers of the revenue seizing and removing that which they were permitted to take by virtue of sub-section 3.” As regarded the applicant’s complaints against the scrutiny of counsel instructed by the Inland Revenue, the court stated: “The prohibition under subsection (4) is absolute. If a document is the subject of professional privilege it cannot be seized or removed. If therefore, an officer does seize and remove documents which are properly the subject matter of professional privilege, he acts unlawfully and can be prevented from so doing by the court. The court would also order him to return such documents. Moreover if the officer has acted unlawfully, the revenue may be liable in damages. Thus if it subsequently turns out that counsel was wrong, his presence will not assist the revenue to resist any action taken by the court in an attempt to remedy the unlawful seizure and removal of documents subject to professional privilege. It is for the court to determine whether the documents in fact seized and removed were subject to such privilege. The fragility of professional privilege is to be protected, under the statutory regime, by the processes of and the sanctions imposed by the courts. It is only when they are found wanting that one can see that the rights to privacy and access to lawyers have been infringed. Therein lies a difficulty for this applicant. The complaint as to infringement of its rights would be easier to assess in the context of a complaint that professionally privileged documents were, in fact, seized and removed; That issue, possibly, remains to be litigated, but, as yet, there is no evidence that any of the documents seized and removed was privileged. In the meantime it was open to the revenue in seeking to protect itself against unlawful seizure and removal to obtain the assistance of counsel nominated by the Attorney General. Such presence also protected the applicant... the lawfulness of the seizure and removal was not tainted by the presence of counsel. Indeed, I would have thought that his presence, in cases such as these, was to be encouraged, so long as it is understood that his presence should not inhibit a solicitor who wishes to assert a genuine claim to legal professional privilege from making his assertion as speedily as he can before the courts.” The applicant petitioned the House of Lords for leave to appeal and was refused on 17 April 2000. On a date unspecified, some two years later, a decision was taken not to prosecute the applicant. Section 20C of the Taxes Management Act 1970 (as amended) provides: “(1) If the appropriate judicial officer is satisfied on information given on oath given by an officer of the board that – (a) there is reasonable ground for suspecting that an offence involving serious fraud in connection with, or in relation to, tax is being, has been or is about to be committed and that evidence of it is to be found on premises specified in the information; and (b) in applying under this section, the officer acts with the approval of the board given in relation to the particular case, the authority may issue a warrant in writing authorising an officer of the board to enter the premises, if necessary by force, at any time within 14 days from the time of issue of the warrant and search them. ... (3) An officer who enters ... may (a) take with him such other persons as appear to him to be necessary; (b) seize and remove any things whatsoever found there which he has reasonable cause to believe may be required as evidence. (4) Nothing in sub-section (3) above authorises the seizure and removal of documents in the possession of a barrister, advocate or solicitor with respect to which a claim to professional privilege could be maintained.” Role of the counsel instructed to review the materials removed during the search According to the instructions issued to counsel nominated by the Attorney-General to act on such searches, counsel’s role was to advise in relation to any document or thing over which a claim of legal professional privilege (LPP) is or could be made to decide whether it was: (a) subject to LPP and the fraud/crime exception does not apply; (b) relevant and not subject to LPP; or (c) relevant, LPP would ordinarily apply but the fraud/crime exception defeats the claim of LPP. Counsel was told: “1.4 You are not part of the search team but there to give independent advice. You must not allow yourself to become part of the evidential trail as to the discovery of items during the search. Once they have been discovered by an officer who could give evidence about it if the matter proceeded to trial, it is your task to examine them for the specific purpose set out in these instructions. ... 2.1 In the event of a claim of LPP being made in relation to any item or in the event that any officer uncovers an item which may attract LPP, it will be your responsibility to assess the validity of that claim. Although you received your instructions to attend from the Revenue, you are there to act independently in assessing whether the item attracts LPP.” Section 10 of the Police and Criminal Evidence Act 1984 provides: (1) Subject to subsection (2) below, in this Act, “items subject to legal privilege” means- (a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client; (b) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings; and (c) items enclosed with or referred to in such communication and made- (i) in connection with the giving of legal advice; or (ii) in connection with or in the contemplation of legal proceedings and for the purposes of such proceedings... (2) Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.” | 0 |
dev | 001-100036 | ENG | LTU | CHAMBER | 2,010 | CASE OF BALČIŪNAS v. LITHUANIA | 4 | Violation of Art. 5-3;No violation of Art. 6-1;No violation of Art. 6-3-d | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;John Hedigan;Josep Casadevall | 7. The applicant was born in 1977 and lives in Šiauliai. The facts of the case, as submitted by the parties, may be summarised as follows. 8. On 9 November 1998 the applicant was arrested on suspicion of armed robbery. While remanded in custody the applicant was held in Šiauliai Remand Prison, Šiauliai Police Detention Facility and other remand establishments. 9. On 11 November 1998 the Šiauliai City District Court authorised the applicant's remand in custody until 19 November 1998. In ordering the detention, the court referred to the nature and gravity of the charges against the applicant, and stated that “it was likely that the applicant could attempt to abscond from investigators and the trial as well as obstruct the establishment of the truth in the case”. The applicant and his defence counsel were present at the hearing. 10. On 18 November 1998 the Šiauliai City District Court extended the term of the applicant's detention until 18 January 1999 due to the fear “that he would abscond”. The applicant's lawyer was present at the hearing. 11. On 24 December 1998 the applicant appealed against that ruling. 12. Having received the appeal on 4 January 1999, on 7 January 1999 the Šiauliai Regional Court dismissed it, arguing that the applicant “had been charged with a serious crime and if released would obstruct the investigation and the establishment of the truth”. The applicant's counsel was present at the hearing. 13. On 15 January 1999 the Šiauliai City District Court extended the term of the applicant's detention until 18 March 1999. Having briefly summed up the charges against the applicant the court stated that “the applicant had been charged with a serious crime, therefore there was a reason to believe that if at liberty he could attempt to hide from investigators and the court, obstruct the establishment of the truth and commit fresh crimes”. The applicant and his lawyer were present at the hearing. 14. On 18 February 1999 the applicant appealed against the order to extend his detention. On 26 February the appeal was received by the Šiauliai Regional Court, which on 2 March 1999 dismissed the applicant's appeal, his defence counsel being present. The court again stated that “the applicant had been charged with a serious crime, therefore there was a reason to believe that if at liberty he could attempt to hide from investigators and the court and would obstruct the investigation”. 15. On 17 March 1999 the Šiauliai City District Court extended the term of the applicant's detention until 9 May 1999. Listing the charges against the applicant the court stated that “the applicant had been charged with a serious crime, therefore there was a reason to believe that if at liberty he would try to abscond from the investigators, commit fresh crimes and influence witnesses”. The applicant and his lawyer were present. 16. On 7 May 1999 the Šiauliai Regional Court extended the term of the applicant's detention until 9 July 1999 on the ground that “he had been charged with a serious crime, therefore there was a reason to believe that if at liberty he would commit fresh crimes and obstruct the establishment of the truth”. The applicant and his defence counsel were present at the hearing. The applicant appealed, stating, inter alia, that he had to undergo surgery. 17. The applicant's appeal was dismissed by the Court of Appeal on 25 May 1999, with his defence counsel present. The court stated that “the applicant had been charged with serious crimes, he had not confessed and his guilt was based on statements by numerous witnesses, therefore there was a reason to believe that if at liberty he would try to influence witnesses and would obstruct the establishment of the truth in this case”. 18. On 8 July 1999 the Šiauliai Regional Court extended the term of the applicant's remand in custody until 30 September 1999. The court again listed the charges against the applicant and stated that “the applicant had been charged with a serious crime. There is a reason to believe that if at liberty he would obstruct the establishment of the truth in the case and would commit fresh crimes”. The applicant and his lawyer were present at the hearing. 19. The applicant appealed, arguing that the investigation had been delayed and that the authorities had not exercised due diligence in investigating the case. The applicant also submitted that he had no criminal record and had a permanent place of residence. There was no evidence that he would try to abscond from the investigation or commit fresh crimes. 20. On 29 July 1999 the applicant's appeal against the order of 8 July 1999 was dismissed by the Court of Appeal, with the applicant's defence counsel being present. For the court, the reasons for extending the applicant's detention were that “the evidence in the case allowed the conclusion that the applicant had committed the crimes he had been charged with. Given that the applicant denied his guilt, the lower court had correctly concluded that if released the applicant would obstruct the establishment of the truth in the case that is to say he could influence witnesses, either himself or through others. He might also abscond from the investigation or commit fresh crimes”. 21. On 29 September 1999 the Šiauliai Regional Court extended the term of the applicant's detention until 1 December 1999. Stating the charges against the applicant in three sentences, the court noted that “the applicant was accused of two crimes, one of which was serious. The data in the case file allowed the presumption that the applicant had committed those crimes. Given that the applicant denied his guilt, it was reasonable to believe that, if at liberty, he could obstruct the establishment of the truth in the case and influence witnesses and co-accused, either himself or though third parties. He might also hide from investigators or commit other crimes”. The applicant and his defence counsel were present at the hearing. 22. The applicant appealed, reiterating that he had a permanent place of residence and that there were no grounds to believe that he might abscond or obstruct the course of justice. The charges had already been presented to him. Moreover, notwithstanding the requirements of Article 104 of the Code of Criminal Procedure to demonstrate the need to keep a person in detention, the prosecutor had presented no such evidence to the court. As regards the applicant, the fact that he had not confessed to the crimes he had been charged with was not a reason to assume that he would commit fresh crimes or attempt to obstruct the establishment of the truth in his case. Lastly, he mentioned that he had no prior convictions and had a permanent place of residence, his parents' flat. 23. On 18 October 1999 the Court of Appeal dismissed the applicant's appeal, endorsing the reasons given by the lower court. The applicant's lawyer was present at the hearing. 24. The Šiauliai Regional Court further extended the term of the applicant's detention by the following orders: - order of 29 November 1999: until 30 January 2000; - order of 28 January 2000: until 30 March 2000; - order of 30 March 2000: until 9 May 2000. For that court, the reasons to keep the applicant in detention were that the applicant, if released, would “attempt to obstruct the establishment of the truth in his case”, “influence witnesses”, “hide from investigators” and “commit fresh crimes”. 25. The applicant and his defence counsel were present at all the hearings at which his detention was extended. 26. On 28 August 2002 the prosecution approved the bill of indictment concerning the charges of armed robbery against the applicant and four other co-accused. The case was sent to court. 27. On an unknown date the Panevėžys District Court requested the Šiauliai Regional Prosecutor's Office to ensure that D.R. and M.S., two of the applicant's accomplices who had testified against him and had been released from criminal liability by the prosecutors, were brought before the court for questioning. On 11 April and 16 June 2003 the State Border Guard Service and the Šiauliai Police Commissariat informed the prosecutors that, according to the information they had gathered, D.R. and M.S. had left Lithuania and their place of residence was unknown. 28. On 3 November 2003 the Panevėžys District Court convicted the applicant of complicity in armed robbery (Articles 24 § 6 and 180 § 3 of the Criminal Code). The court based its conclusion, inter alia, on the evidence given by D.R. and M.S., whose statements as recorded during the pre-trial investigation were read out. The applicant was sentenced to two years' imprisonment, towards which the court counted the period from 9 November 1998 to 9 May 2000, when the applicant had been in pre-trial detention. 29. The applicant appealed, complaining that the proceedings were unreasonably long. He also alleged that the trial court should not have admitted the submissions of D.R. and M.S. in evidence, as he had not been afforded an opportunity to challenge these witnesses in open court. The applicant alleged a violation of Article 6 of the Convention. 30. Invoking Article 5 § 3 of the Convention the applicant also submitted that he had already been in pre-trial detention four years and ten months (from 9 November 1998) and argued that the detention had been extended on numerous occasions without lawful grounds. The prosecutors had joined his case to other cases and disjoined it later. During all that time he was detained, the courts would dismiss his appeals to impose another, milder remand measure. Given that on 4 September 2003 the Court of Appeal had acquitted him [in the second set of criminal proceedings] and he had been released from pre-trial detention only on that day, in its judgment of 3 November 2003 the Panevėžys District Court had wrongly assessed the time which needed to be counted towards the punishment. 31. By a ruling of 26 February 2004 the Court of Appeal ordered the Šiauliai Police Commissariat to bring D.R. and M.S. to court for questioning. However, the police informed the court that it was not possible to summon D.R. and M.S. as they had left Lithuania. Moreover, the relatives of D.R. and M.S. had moved house, therefore it was not possible to question them in order to establish where the former were living. 32. On 9 March 2004 the Court of Appeal inquired of the State Border Guard Service as to whether M.S. and D.R. had crossed the State border and whether they had returned to Lithuania. On 16 March 2004 the State Border Guard Service informed the Court of Appeal that M.S. and D.R. had left the country. 33. On 31 March 2004 the Court of Appeal upheld the conviction. It noted that the trial court had based its conclusion on various pieces of evidence, namely the submissions of the applicant's co-defendant and a witness, both of whom had been questioned at the trial. In the opinion of the appellate court, D.R. and M.S. had only provided information which was also known from other sources. Having analysed those other sources at length and in depth, alone and against each other, the Court of Appeal concluded that even without the testimony of D.R. and M.S. there was sufficient proof of the applicant's guilt. Lastly, the Court of Appeal concluded that the trial court was impartial towards the applicant, given that it had substituted the charges against the applicant with a lesser charge, by convicting him as a person who had merely assisted in the commission of a crime and not as the organiser. 34. In contrast, the Court of Appeal agreed with the applicant's argument that all the time he had spent in pre-trial detention should be counted towards his sentence: “The chamber notes the not entirely correct nature of the information given in the bill of indictment, to the effect that L. Balčiūnas was arrested on 9 November 1998, remanded in custody on 11 November 1998 and the detention continued only until 9 May 2000; and that afterwards detention was imposed in another criminal case, adjudicated by the Šiauliai Regional Court. From supplementary information the Court of Appeal has received (the 1 May 2000 ruling of the Šiauliai Regional Court) it transpires that in another criminal case, in which L. Balčiūnas was convicted and acquitted (...) [paragraphs 48-50 hereinafter], new pre-trial detention has not been imposed on the applicant; it was the detention of 11 November 1998 which was being continued.” The Court of Appeal upheld the applicant's sentence of two years' imprisonment. However, the applicant was deemed to have completed the sentence in view of the time spent remanded in custody – from 9 November 1998 to 4 September 2003. 35. The applicant lodged a cassation appeal, complaining that his conviction had been based on the submissions of witnesses who had not been questioned by him or the courts. He also alleged that the Court of Appeal had not examined the issue concerning the allegedly excessive length of the proceedings and the lawfulness of his remand in custody. 36. On 12 October 2004 the Supreme Court dismissed the applicant's cassation appeal. The cassation court noted that the evidence leading to the applicant's conviction had been properly handled and assessed by the lower courts. His guilt had been based to a substantial degree on the evidence given by a witness and two of his co-defendants, who had all been examined in open court. The trial court was entitled to refer to the submissions by D.R. and M.S., which had been recorded during the pre-trial investigation. The authorities had taken all the necessary measures to summon D.R. and M.S. to the hearing, but had failed to obtain their attendance in view of the fact that their place of residence was unknown. The Supreme Court acknowledged that the appellate court had not answered the applicant's allegation that the investigation and his pre-trial detention had lasted an unreasonably long time. It noted however that these circumstances did not constitute sufficient grounds to find that the Court of Appeal had failed to respect the relevant procedural requirements. Lastly, the Supreme Court noted that the Court of Appeal had rectified the trial court's mistake and correctly counted the period of pre-trial detention towards the time of the punishment. 37. On an unspecified date, another set of criminal proceedings was instituted against the applicant. In particular, it was suspected that he had been a member of a criminal organisation, and that in January 1998 he had been involved in organising two explosions in public places, causing a number of injuries to others. Five other persons were charged alongside the applicant; the charges related to events which took place in 1996-98. 38. On 19 April 2000, upon approval of the bill of indictment, the case was transmitted to the Šiauliai Regional Court. 39. On 1 May 2000 the Šiauliai Regional Court ordered the applicant's detention to be “continued” until 10 July 2000, referring to the risk that he would abscond, commit new offences and obstruct the investigation. The applicant and his defence counsel were present at the hearing. 40. The applicant appealed. However, on 18 May 2000 the Court of Appeal dismissed his appeal, referring to the gravity of the charges against the applicant. The applicant's counsel was present at the hearing. 41. Subsequently the applicant's detention was extended by court orders of 12 June, 6 September, 9 November and 7 December 2000 and of 2 May, 4 July and 4 October 2001. The applicant's lawyer was present at the hearings. The courts referred to the risk of the applicant reoffending, influencing witnesses and obstructing the investigation. All his appeals were unsuccessful. 42. On 6 February 2002 the Šiauliai Regional Court ordered the Šiauliai Regional Prosecutor's office to summon D.R. and M.S. to the hearing for questioning. 43. By the same ruling the Šiauliai Regional Court extended the term of the applicant's detention until 9 May 2002 on the ground that he might influence witnesses and commit fresh crimes. The applicant's lawyer was present at the hearing. The applicant appealed, requesting a variation of the remand. He submitted, inter alia, that the lengthy stay in custody had negatively affected his health. He also alleged that the pre-trial investigation had been concluded, and that there were no grounds to believe that he might abscond from the trial or influence witnesses. 44. On 27 February 2002 the Court of Appeal dismissed his appeal, endorsing the grounds indicated in the order of 6 February 2002. The court acknowledged that the applicant had been in detention “for a long time already” and observed that after the case was transferred to court, some delays had been caused by “organisational matters of the court”. Nonetheless, in the view of the Court of Appeal, the length of the applicant's detention was justified by the complexity of the case (multiple charges against several co-defendants, numerous victims and witnesses) and a voluminous case file. The case had been adjourned several times at the request of the defence to examine certain additional evidence, or due to the failure by certain witnesses or defence lawyers to appear at the hearing. The circumstances justifying the applicant's detention persisted. The applicant and his defence counsel were present at the hearing. 45. On 9 May 2002 the Šiauliai Regional Court further extended the applicant's detention until 9 August 2002 on the same grounds. The applicant's lawyer was present at the hearing. 46. The applicant appealed, requesting a variation of the remand. He argued, inter alia, that the pre-trial investigation had been terminated, most of the victims and witnesses had been questioned in court, and it remained only for the court to evaluate the evidence and pass a judgment. Thus it was not likely that the applicant would influence witnesses or obstruct the establishment of the truth in the case, given that he had not done so for three and a half years. 47. On 24 May 2002 the Court of Appeal dismissed the applicant's appeal against the order of 9 May 2002. The court acknowledged that the applicant had been detained for a prolonged period. However, in view of the circumstances, such as the complexity and volume of the case and the number of charges against various co-defendants, the court concluded that the applicant's continuing detention was justified. The grounds for the applicant's detention thus continued to persist - it was necessary in order to guarantee that he would appear before the court, as well as to prevent the commission of new offences. 48. On 19 July 2002 the Šiauliai Regional Court convicted the applicant of being a member of a criminal organisation which possessed explosives (Article 227 § 2 of the Criminal Code), illegal possession of explosives (Article 234 § 1), attempts at aggravated murder (Articles 16 § 2, 105 §§ 2, 4, 8, 13), and destruction of property (Article 278 § 2). He was sentenced to fifteen years' imprisonment and fined, and his property was confiscated. 49. On 4 September 2003 the Court of Appeal acquitted the applicant. The court noted that the conviction was based to a decisive extent on the submissions of two witnesses, D.R. and M.S., who had not been examined in open court. The applicant was released in the courtroom. 50. On 2 March 2004 the Supreme Court dismissed an appeal by the prosecution. 51. On an unknown date the applicant lodged a complaint with the Ombudsman, arguing that the conditions of his detention at the Šiauliai Remand Prison were inadequate. In particular, the applicant contended that the facility was overcrowded and that the cell he had been placed in was constantly damp, the mats were wet and a sanitary unit did not work properly. 52. In the report of 1 July 2003 the Ombudsman partly agreed with the applicant's complaints, noting that the Šiauliai Remand Prison suffered from overcrowding (760 persons were held there, the limit being 454) and from a shortage of properly set up sanitary units. In the report the Ombudsman also observed that: “the fact that the applicant was detained for more than four and a half years could demonstrate a significant risk that a violation of his right to a trial within a reasonable time or to release pending trial, that is to say a violation of Article 5 § 3 of the Convention, would be found. It could be said that a lengthy period of detention during judicial proceedings could have a disproportionate impact on his other rights: for example, the restriction on longer visits for those in pre-trial detention, no opportunity to take exercise, and other restrictions”. 53. In the operative part of the report the Ombudsman urged the responsible authorities to resolve the problem of overcrowding and to evaluate the hygiene conditions at the Šiauliai Remand Prison. “Detention on remand shall be used only ... in cases where a statutory penalty of at least one year's imprisonment is envisaged. ... The grounds for the detention shall be specified. The grounds ... shall be the reasonable suspicion that the accused will: (1) abscond from the investigation and trial; (2) obstruct the determination of the truth in the case [influence other parties or destroy evidence]; (3) commit new offences ... whilst suspected of crimes provided in Articles ... 105 [aggravated murder], ... 227 [founding a criminal organisation], ... 278 § 2 [aggravated destruction of property] ... of the Criminal Code ... . Where there is a reasonable risk that the accused will abscond from the investigation and trial, detention on remand may be ordered, taking into account the accused's family status, permanent place of residence, employment relations, health, criminal record, relations abroad and other circumstances. ...”. “... After the case has been transmitted to the court ... [a judge] can order, vary or revoke the detention. ...” “Detention on remand cannot last longer than six months. A specific term of detention shall be fixed by the judge issuing the remand order; this term can be extended by the same judge or another judge of the same district court, but only for a period not exceeding six months. In view of the particular complexity or size of a case, a judge of a regional court may extend the maximum term specified in the first paragraph of this Article for a period not exceeding three months. The extension may be repeated, but the total length of the term at the stage of the pre-trial investigation may not exceed eighteen months ... For the purpose of extending the term of detention at the pre-trial stage ... a judge must convene a hearing to which defence counsel and the prosecutor and to which, if necessary, the detained person shall be summoned ... .” “A person remanded in custody or his defence counsel shall have the right during the pre-trial investigation or trial to lodge [with an appellate court] an appeal against detention or the extension of its term ... . A judge or appellate court must examine the appeal within seven days of its receipt. With a view to examining the appeal, a hearing may be convened, to which the arrested person and his counsel or counsel alone shall be summoned. The presence of a prosecutor is obligatory at such a hearing. The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal ... . A further appeal shall be determined when examining the extension of the term of the detention.” “A judge, individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ... (11) whether the selection of a remand measure is appropriate.” “After deciding that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ... (2) of the remand measure in respect of the accused ...” “In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.” 60. According to Article 16 of the Law on Pre-Trial Detention (Kardomojo kalinimo įstatymas), the administration of the relevant remand institution can allow detainees visits of up to two hours with family members. | 1 |
dev | 001-89813 | ENG | LTU | CHAMBER | 2,008 | CASE OF JUCIUS AND JUCIUVIENĖ v. LITHUANIA | 3 | Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award | Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 5. The first applicant is a Lithuanian national who was born in 1966. The second applicant, his wife, is a Lithuanian national who was born in 1967. They live together in Mažeikiai and have two children. 6. In April 1999 the first applicant’s sister, SJ, and her partner, DŠ (senior), died, and the applicants were appointed as temporary custodians of the deceased couple’s daughters - RŠ, aged four, and DŠ, aged six months. 7. On an unspecified date in 1999 the paternal grandparents, SŠ and VŠ, applied to a court to adopt RŠ and DŠ. The applicants submitted a counter-claim for the adoption. On 22 December 1999 the Mažeikiai District Court accepted the grandparents’ claim, recognising RŠ and DŠ as their adopted children. On 27 March 2000 the Šiauliai Regional Court upheld that decision. On 14 June 2000 the Supreme Court quashed the lower decisions, remitting the case for a fresh examination at first instance. 8. On 17 July 2001 the Mažeikiai District Court partly granted the claim of SŠ and VŠ, by recognising DŠ (then two years) as their adopted daughter. However, it recognised RŠ (then six years old) as the adopted daughter of the applicants. The applicants and the grandparents were ordered by the court to ensure that there were no obstacles that would prevent RŠ and DŠ from communicating with the applicants as well as with their grandparents. 9. On 8 March 2002 the Šiauliai Regional Court quashed the decision, dismissing both adoption applications. The court considered that the dispute between the two couples could be resolved without an adoption, but by a grant of permanent custody. 10. On 28 August 2002 the Mažeikiai District Court appointed SŠ and VŠ as the permanent custodians of the two girls. The court reached this decision on account of the better financial and living conditions of the grandparents compared to the applicants, as well as the fact that SŠ and VŠ were closer blood relatives to the girls. Noting RŠ’s young age (then seven years old) and her “emotional instability” when expressing herself in front of officials, the court rejected her express wish to live with her “mother” and “father” (the applicants). The Mažeikiai District Court observed that a child’s wish does not necessarily coincide with its future interests; therefore the court was not bound by RŠ’s opinion. The court took note of the request of the Child Rights Protection Institution to give custody of the girls to the applicants, whom the girls recognised as their “natural family” and who had cared for them since their parents’ death. However, it concluded that the girls were of a young, adaptable age. As RŠ had lived with the applicants for a few years, without any memory of her grandparents’ family, she was unable to understand where she would be better off. 11. The applicants and the Child Rights Protection Institution appealed. On 4 November 2002 the Šiauliai Regional Court confirmed the first-instance reasoning and decision after a written procedure, without an oral hearing of the parties. 12. The applicants and the Child Rights Protection Institution lodged cassation appeals. On 8 November 2002 the President of the Supreme Court suspended the execution of the Mažeikiai District Court’s decision until the cassation appeal could be examined. On 12 February 2003 the Supreme Court held that it had no jurisdiction in child custody cases and dismissed the cassation application. 13. On 21 March 2003, when the bailiff attempted to execute the courts’ decision, RŠ refused to leave the applicants’ home to live with her grandparents. DŠ was taken to the grandparents. 14. On an unspecified date the Prosecutor General, defending the public interest, filed a request to reopen the proceedings. The Telšiai District Court reopened the civil proceedings and, on 8 October 2004, overruled the Mažeikiai District Court’s decision of 28 August 2002. The court granted permanent custody of RŠ to the applicants, who lived in Mažeikiai, and permanent custody of DŠ to the grandparents, who lived in Klaipėda. When deciding to separate the sisters, the court noted the wish of RŠ to stay with the applicants and the wish of DŠ to stay with her grandparents. The court also observed that, since March 2003, the girls had lived separately and were used to their current environments. 15. The grandparents appealed to the Šiauliai Regional Court, which on 22 November 2004 upheld the lower court’s decision. The appellate court was of the opinion that it had been reasonable for the first-instance court to take into consideration the interests of each child and not to consider them as an inseparable unit. The court noted that the children should be provided with the most suitable and best conditions to meet their personal interests in the most advantageous way. Therefore the court found that the principle of not separating siblings had been justifiably overruled. It also held that the principle of placing children within the family had not been violated. The court pointed out that it was not only blood ties which mattered when choosing placements, but also the individuals to whom the child felt closest. 16. On 6 June 2005 the Supreme Court gave a final ruling and upheld the decision of the Šiauliai Regional Court. Agreeing with the reasoning of the lower courts, it observed that during the initial proceedings the Mažeikiai District Court had made a mistake by not giving primary consideration to the wishes of RŠ. The Supreme Court also noted that the evidence in the case showed the existence of a conflict between the two guardianship families. It noted that proper conditions should be created so that the girls could communicate with each other, giving the primary importance of the children’s interests over those of their guardians. This was an obligation for the State authorities to fulfil. 17. The questions related to child custody are regulated by the Civil Code (Civilinis kodeksas), the relevant articles of which read as follows: “1. In considering any question related to a child, the child, if capable of formulating its views, must be heard directly or, where that is impossible, through a representative. Any decisions on such a question must be taken with regard to the child’s wishes unless they are contrary to the child’s interests. In making a decision on the appointment of a child’s guardian/curator or on a child’s adoption, the child’s wishes shall be given paramount consideration ...” “1. The purpose of child custody/curatorship is to ensure the child’s upbringing and care in an environment which would facilitate the child’s growing up, development and progress. 2. Objectives of child custody/curatorship: 1) to appoint for the child a guardian whose duty it will be to take care of the child, bring it up, to represent the child and protect its rights and legitimate interests; 2) to provide the child with living conditions which would be adequate for its age, state of health and development level; 3) to prepare the child for independent life in a family and in society.” “1. The establishment of child custody/curatorship shall be governed by the following principles: 1) first consideration must be given to the interests of the child; 2) priority in becoming the child’s guardians (curators) must be accorded to its close relatives, provided this is in the child’s best interests; 3) the child’s custody/curatorship in a family; 4) non-separation of siblings, except when this is contrary to the child’s interests. ... 3. When child custody/curatorship is established or ended, or a guardian is appointed to a child capable of expressing its views, the child shall be provided an opportunity to be heard and to influence the decision making.” “A child shall be put under permanent custody (curatorship) when: 1) both parents or the single parent of the child are dead...” “1. A child’s guardian/curator shall be selected by taking into consideration his or her personal qualities, state of health, abilities to function as a guardian/curator, relations with the child deprived of parental care, and the interests of the child...” 18. The Law on the Fundamental Protection of the Rights of the Child (Vaiko teisių apsaugos pagrindų įstatymas), insofar as relevant to this case, provides as follows: “Parents, other legal representatives of the child, the State, municipal government, public institutions and other natural and legal persons must abide by the following provisions and principles: 1) the legal interests of the child must always and everywhere be given priority ... 5) no child must be left without a home, minimum funds for subsistence and care or custody...” “1. A child shall have the right to live with its parents or other legal representatives. 2. To separate a child from its parents or its other legal representatives against the will of the child, as well as that of its parents (legal representatives), shall be permitted only in exceptional circumstances, provided for by laws and according to the established procedure, based upon a court decision and when such a separation becomes necessary for the child (striving to avoid danger to the life and health of the child, or it becomes necessary to take measures in relation to its care and upbringing or to protect other important interests of the child).” 19. Under Articles 31222 and 31223 of the Code of Civil Procedure, as in force at the material time, in child custody cases a court was to hold a hearing during which a child could express his or her opinion. Under Article 347 of the Code the parties could bring a separate appeal (atskirąjį skundą) against a decision of a first instance court. Article 349 stipulated that the appellate court would determine such appeals by way of a written procedure. According to Articles 334 and 3501 of the Code, the appellate court, when examining a separate appeal, had a right to examine de novo evidence, as well as evidence which had already been examined by the first instance court. Therefore the appellate court could decide both questions of law and fact. | 1 |
dev | 001-103881 | ENG | RUS | COMMITTEE | 2,011 | CASE OF TITARENKO v. RUSSIA | 4 | No violation of Art. 6-1 | Anatoly Kovler;Christos Rozakis;George Nicolaou | 4. The applicants were born in 1954 and live in Moscow. 5. On 5 October 2001 the applicants sued the Nefron association seeking conclusion of employment contracts. 6. The Nagatinskiy District Court of Moscow (“the District Court”) scheduled the first hearing for 21 February 2002. Between 21 February 2002 and 17 June 2003 one hearing was held as planned. Six scheduled hearings did not take place due to the respondent’s default in appearance or requests for adjournment, three hearings had to be postponed following the applicants’ failure to appear or requests for adjournment, and three hearings could not proceed as both parties either failed to submit evidence or to show in court altogether. 7. On 17 June 2003 the District Court considered that the applicants no longer intended to pursue their civil action and decided to strike the case out of its list. 8. On 7 August 2003 the applicants asked the court to reinstate the case to its list claiming that they had not been able to appear at the hearings because the first applicant had been undergoing hospital treatment. 9. On 9 September 2003 the District Court quashed its earlier decision and reinstated the case to its list. The next hearing was scheduled for 3 November 2003. Between 3 November 2003 and 12 July 2004 five hearings were held as planned, whereas five other hearings were postponed due to the fault of the respondent, two for the applicants’ failure to appear, and two others for both parties’ default. 10. On 12 July 2004 the District Court again considered that the applicants no longer intended to pursue their civil action and decided to strike the case out of its list. 11. On 22 December 2004 the applicants asked the court to reinstate the case to its list. On 19 January 2005 the District Court quashed its decision of 12 July 2004 after finding that the applicants had not been duly notified of certain unspecified hearings and resumed the proceedings. The next hearing was scheduled for 31 January 2005. 12. The hearing of 31 January 2005 was adjourned as the respondent did not appear. 13. On 16 February and 10 March 2005 the hearings were held as planned. 14. On 11 March 2005 the District Court dismissed the applicants’ claims in full. 15. On 8 June 2005 the Moscow City Court upheld the judgment on appeal. 16. On an unspecified date the first applicant sued the Military Commission of Moscow for recalculation of his pension. 17. On 14 July 2006 the Justice of the Peace of the 384th Court Circuit of the Meshchanskiy District of Moscow dismissed his claims. 18. On 25 October 2006 the Meshchankiy District Court of Moscow upheld the judgment on appeal. | 0 |
dev | 001-69354 | ENG | RUS | CHAMBER | 2,005 | CASE OF OOO RUSATOMMET v. RUSSIA | 4 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award | null | 7. The applicant company is a debt collector. In July 1999, it bought a defaulted State bond and sued the Government for the debt. After several years of litigation, on 10 April 2002 the Moscow City Commercial Court ordered the Government to pay the applicant company 100,000 American dollars (“USD”). 8. On 5 August 2002, the Appeals Division of the Moscow City Commercial Court upheld the judgment, but specified that the debt was to be paid by the Ministry of Finance. 9. On 6 November 2002, the ministry asked the court to stay the enforcement of the judgment until January 2003, because there were no funds in the State budget of 2002. 10. On 19 November 2002, bailiffs opened enforcement proceedings. 11. On 16 December 2002, the court refused to stay the enforcement because the ministry had failed to prove either that it did not have the funds, or that the funds would become available after January 2003. 12. On 7 February 2003, the ministry asked the court to stay the enforcement of the judgment until January 2004, because there were no funds in the State budget of 2003. 13. On 20 March 2003, the court refused to stay the enforcement because the ministry had failed to prove either that it did not have the funds, or that the funds would become available after January 2004. 14. In August 2003, the ministry asked the appeal court to clarify how the judgment was to be enforced. 15. On 3 September 2003, the appeal court clarified that the judgment was to be enforced only once the applicant company had handed in the bond. The applicant company appealed against this decision because the general conditions of the bond’s issue did not require that it be handed in. In addition, the applicant company argued that the judgment could be enforced on the basis of a writ of enforcement alone, and that the bond was to be returned to the ministry only after the enforcement. On 25 November 2003, the Federal Commercial Court of the Moscow Circuit dismissed this appeal. 16. On 18 February 2004, the applicant company handed in the bond to the ministry. 17. Subsequently, the applicant company unsuccessfully sought an injunction to oblige the ministry to enforce the judgment. | 1 |
dev | 001-72345 | ENG | POL | ADMISSIBILITY | 2,006 | WIACEK v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Jan Wiącek, is a Polish national who was born in 1950 and lives in Nowa Słupia, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a party to civil proceedings concerning a claim for division of marital co-ownership. On 6 September 2000 a hearing took place before the Ostrowiec Świętokrzyski District Court (Sąd Rejonowy). The judge heard the applicant and dictated his replies to the court clerk, who was taking minutes of the hearing. As the judge’s instructions to the clerk differed considerably from what the applicant was saying and as the judge repeatedly interrupted the applicant in his statements, the applicant expressed his objections. However, this was to no avail. Eventually the applicant said: “I should reply, not the court”. The judge became angry and warned the applicant that a fine could be imposed on him. The records of the hearing first relate the applicant’s statements concerning the subject matter of the case. Then it reads as follows: “The presiding judge warned the [applicant] not to make any comments to the court and warned him that a fine would be imposed on him if he continued to do so. Thereupon the [applicant] says: “If it is necessary, I will pay”. The court holds that a fine of PLN 500 be imposed on the [applicant]. “ On 12 September 2000 the applicant appealed to the Ostrowiec Świętokrzyski Regional Court (Sąd Okręgowy) against the imposition of the fine. On 12 October 2000 the Ostrowiec Świętokrzyski District Court (Sąd Rejonowy), invoking the Act of 20 June 1985, rejected the applicant’s appeal, considering that the domestic law did not provide for a possibility to appeal against such a decision. On 9 November 2000 the applicant lodged an interim appeal against this decision. On 10 November 2000 the District Court rejected the applicant’s appeal as lodged outside the prescribed time limit. On 29 November 2000 the applicant applied for leave to file an appeal out of time. His motion was dismissed on 24 April 2001. On 14 September 2000 the applicant lodged a request with the Ostrowiec Świętokrzyski District Court to rectify the minutes of the hearing of 6 September 2000. He submitted that during that hearing he had said, reacting to the court’s interruptions and interference with the contents of his statements: “I should reply, not the court.” This statement had not been recorded in the minutes of the hearing. Consequently, the actual circumstances in which the presiding judge decided to impose a fine on the applicant were not reflected in the minutes, as required by Article 158 § 1 of the Code of Civil Procedure. On 13 October 2000 the court refused to rectify the minutes. The court considered it to be sufficient that the court’s reaction to the applicant’s conduct was reflected in the minutes of the hearing, and that therefore the minutes were exact. On 9 November 2000 the applicant appealed against this decision. He reiterated that the minutes of the hearing did not reflect the actual conduct of the hearing in that his statement was not noted. As a result, they contained the presiding judge’s warning about the imposition of a fine, but no information as to the reason which had prompted this reaction on the part of the judge. The applicant stated that this was illogical. He further stressed that he had not said anything that could have been construed as either insulting to the court, or not linked to the subject-matter of the civil case. The court’s failure to dictate the parties’ statements so that the minutes reflected exactly what was said amounted to a procedural breach, which could negatively affect the substantive outcome of the case. On 22 December 2000 the Ostrowiec Świętokrzyski District Court dismissed his appeal. The court reiterated the reasons invoked in the first-instance decision of 13 October 2000. It was further stated that according to the case-law of the Supreme Court, the court was not obliged to include in the minutes of a hearing all the statements of the parties, in particular those which were not related to the subject-matter of the proceedings. On 7 February 2003 the Ostrowiec Świętokrzyski District Court of its own motion gave a decision and quashed its decision of 12 October 2000. The court held that on 1 October 2001 the new act on the legal structure of the courts entered into force. According to Section 50 of the new act it was possible to file an appeal against a decision imposing a fine for contempt of court. The court considered that the change of law was of such importance that it justified quashing the decision of 12 October 2000 even though it had been delivered under the 1985 Act. On 22 July 2003 the Ostrowiec Świetokrzyski District Court ordered the return to the applicant of the fine paid by him. On 23 July 2003, 500 PLN was transferred to the applicant’s bank account. Section 43 § 1 of the Act of 20 June 1985 (“the 1985 Act”) on the legal structure of the courts (Prawo o ustroju sądów powszechnych), provides inter alia that the court may impose a disciplinary penalty, a fine or a prison sentence, on a person who, at a court session, behaves in an abusive manner or disturbs the public order. Under Section 44 § 1 of the Act, no appeal is available against a decision to impose such a penalty. On 1 October 2001 the new act on the legal structure of the courts entered into force. According to Section 50 of the new act it is possible to file an appeal against a decision to impose a penalty for contempt of court. On 3 July 2002 the Constitutional Court gave judgment (No. SK 31/01) and declared unconstitutional Section 44 § 1 of the 1985 Act. It found that this provision was not in compliance with article 78 (right to appeal) and article 176 § 1 (right to two court instances) of the Constitution. Article 380 of the Code of Civil Procedure provides: “The second-instance court shall, upon a motion by a party, examine all those rulings of the court of first-instance which were not subject to interlocutory appeal but which had an effect on the determination of the case.” Article 79 § 1 of the Constitution provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court, ... shall be published without delay. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ... 4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.” | 0 |
dev | 001-139293 | ENG | GBR | ADMISSIBILITY | 2,013 | A.L.F. v. THE UNITED KINGDOM | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano | 1. The applicant, A.L.F., is a British national, who was born in 1963 and lives in Birmingham. 2. 3. On 18 October 2004 the applicant was convicted by a jury of four offences of indecent assault and two offences of rape involving oral and anal sex with his nephew. He was sentenced to seven years’ imprisonment. Permission to appeal was refused in January 2006. 4. On 9 January 2007 the applicant submitted an application to the Criminal Cases Review Commission (“CCRC”). On 12 June 2007 the CCRC referred his case back to the Court of Appeal on the ground that fresh evidence of a singular genital abnormality from which the applicant suffered had not been properly the subject matter of challenge by way of crossexamination of the complainant at trial. 5. On 15 December 2009 the Court of Appeal (Criminal Division) (“CACD”) upheld the applicant’s appeal against conviction. It noted that photographs and a medical report confirmed that the applicant suffered from a condition which caused a substantial degree of curvature of his penis; and that this condition had existed since birth. The applicant’s counsel at trial had been aware of his condition, although the medical report had not been available at that time. He had asked the complainant during crossexamination at trial whether he had noticed anything unusual in the applicant’s genitalia, to which the complainant had replied, “No”. In response to the follow-up question, “Nothing at all?”, the complainant had again replied, “No”. Counsel had subsequently failed to put to the complainant that if he was telling the truth he could not have failed to observe the unusual curvature of the applicant’s penis. The CACD was unable to see any rational tactical basis for counsel’s failure to adduce this evidence at trial. It therefore quashed the applicant’s convictions on the basis that they were unsafe, explaining: “18. ... [H]ad the evidence been adduced, it would have significantly undermined what the complainant said, since without some further explanation from him it is difficult if not impossible to see how he did not notice the condition of the appellant’s penis ...” 6. However, it added: “19. We underline that we have not heard from the complainant and our conclusion, since we have not done so, has no element of criticism of him. We are not finding that he did not tell the truth, we are merely concluding that in the light of the evidence now before us, this would have had a significant effect on the course of the trial, on the judgment of the jury and thus upon the safety of the verdicts.” 7. By the time of the CACD’s judgment, the applicant had already been released, having served his sentence. 8. In March 2010 the applicant applied to the Secretary of State for compensation for a miscarriage of justice pursuant to section 133 of the Criminal Justice Act 1988 (“the 1988 Act”). His claim was suspended pending the judgment of the Supreme Court in R (Adams) v. Secretary of State for Justice ([2011] UKSC 18). The judgment in R (Adams) was delivered on 11 May 2011. 9. By letter dated 25 July 2011 the applicant’s solicitors were informed of the Secretary of State’s decision that the applicant was not entitled to compensation. The letter explained: “The case of R (Adams) ... has been considered in this context. In that judgment the majority of the Supreme Court set out its interpretation of the term ‘miscarriage of justice’ as follows...: ‘A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it.’ In the light of that judgment, if the new or newly discovered fact which formed the basis of the reversal of the applicant’s conviction does not show beyond reasonable doubt that he was innocent of the offence of which he was convicted (which would amount to a miscarriage of justice for the purposes of the Act), compensation is payable only if that fact so undermines the evidence against him that it is beyond reasonable doubt that no conviction could possibly be based upon it. This is a demanding test.” 10. The letter indicated that the Secretary of State had considered the CACD judgment in the applicant’s case and had concluded that this test had not been met. There was no suggestion in the judgment of the CACD that a new or newly discovered fact demonstrated beyond reasonable doubt that there was insufficient evidence upon which the court could convict. The Secretary of State explained: “... It cannot be said how the complainant would have dealt with the evidence of [A.F.’s] anatomy if it had been put to him. Nor is it possible to determine the effect of the complainant’s reaction to the evidence, or how the jury would have considered it. It is quite possible that the jury may have made the same decision despite the putative new fact that undermined certain elements of the evidence.” 11. On 19 October 2011 the applicant requested reconsideration of the decision. On 20 January 2012, his request was refused. 12. On 26 July 2013 the applicant’s Member of Parliament wrote to the Secretary of State for Justice on behalf of the applicant regarding his application for compensation. He submitted that the applicant’s claim should have been accepted on the basis, inter alia, that his prosecution should not have been brought. 13. By letter dated 20 August 2013 the Minister of State replied in the following terms: “... I cannot comment on why the decision was taken to prosecute your constituent. However, there is no suggestion in the Court of Appeal’s decision to overturn your constituent’s conviction dated 15 December 2009 that the prosecution had been improper. Indeed, although finding that the conviction was unsafe, the Court at paragraph 10 of its judgment plainly considered that the complainant’s evidence was capable of going to a jury ...” 14. In these circumstances there was no basis for reconsidering the decision to refuse compensation. 15. Details of the relevant domestic law and practice are set out in the judgment of the Grand Chamber in Allen v. the United Kingdom [GC], no. 25424/09 [GC], 12 July 2013 and the Chamber decision in Adams v. the United Kingdom (dec.), no. 70601/11, 12 November 2013. | 0 |
dev | 001-105139 | ENG | RUS | CHAMBER | 2,011 | CASE OF PETR SEVASTYANOV v. RUSSIA | 4 | Violation of Art. 6-1 | Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | 6. The applicant was born in 1973 and lives in Moscow. 7. Between July and September 2000 the Nikulinskiy District Court of Moscow (“the Nikulinskiy District Court”), composed of one professional judge, Mr Bobkov, and two lay judges, Ms Matuzova and Mr Rubtsov, examined the charges brought against the applicant in connection with a drug-related offence. 8. On 4 September 2000 the Nikulinskiy District Court found the applicant guilty of illegal acquisition and storage of narcotics on a particularly large scale for the purpose of sale and of illegal sale of drugs and sentenced him to eight years’ imprisonment. 9. The applicant and his counsel appealed against the judgment of 4 September 2000 to the Moscow City Court (“the City Court”). They complained, in particular, that lay judge Rubtsov had not been appointed in accordance with the law and had not been independent because he worked as a clerk (секретарь суда) at the Nikulinskiy District Court. 10. On 5 October 2000 the City Court returned the case to the first-instance court and ordered it to look into the applicant’s complaints about the competency of lay judge Rubtsov. 11. The results of the inquiry carried out by the Supreme Court Justice Department in respect of the competency of lay judge Rubtsov to sit in the case were summarised in a report of 17 January 2001, which stated as follows: “...The inquiry established that the Nikulinskiy District Court had at its disposal a copy of the decision of 24 October 1991 of the Gagarinskiy District Council of People’s Deputies of Moscow confirming the results of the additional selection of lay judges of the Gagarinskiy District Court of Moscow as well as a copy of the list of lay judges elected by the staff of the Gagarinskiy District Court, which comprised two persons (Mrs Asharova and Mr Rubtsov) and which had not been properly certified. According to information obtained from the Administration of Moscow and from the Moscow Archives, the originals of the documents on the election of lay judges of the Gagarinskiy District Court had not been kept. Nevertheless, lay judge Rubtsov had been in possession of the card [identifying him as a] lay judge of the Gagarinskiy District Court of Moscow, which had been valid until May 1995. The presidential decrees of 22.03.95 No. 299 and 23.01.97 No. 41, 12.12.98 No. 64, 02.01.00 No.37, and 25.01.00 No.103 extended the terms of office of previously selected lay judges until the adoption of the Federal Law on the selection of lay judges and the compilation of general lists of lay judges.” 12. On 3 April 2001 the City Court examined the case on appeal. It held that the applicant’s guilt of acquisition of drugs for the purpose of sale and the sale of drugs had been proved by the evidence examined during the trial. Regarding the allegedly unlawful composition of the trial court, the appeal court held that the term of office of lay judge Rubtsov had been extended in accordance with the Presidential decrees. The court also noted that the fact that lay judge Rubtsov worked for the court as a clerk did not preclude him from being elected as a lay judge. The City Court reduced the applicant’s sentence to five years’ imprisonment and upheld the remainder of the judgment. 13. On 13 February 2002 the Supreme Court of the Russian Federation (“the Supreme Court”) reviewed the case under the supervisory review procedure. The Supreme Court held that the applicant’s guilt of acquisition and storage of drugs on a large scale had been established. However, the materials of the criminal case file had not contained any evidence which would allow it to establish with sufficient credibility that the applicant had acquired the drugs for the purpose of sale and that he had sold them. In those circumstances, the applicant’s actions should have been classified as illicit procurement and storage of drugs without intent to sell. 14. The Supreme Court amended the judgment of 4 September 2000 and the decision of 3 April 2001, convicted the applicant of illicit procurement and storage of drugs without intent to sell and sentenced him to three years’ imprisonment. With reference to the Amnesty Act of 26 May 2000, the court ordered that the applicant be released from serving his sentence and, consequently, from custody. 15. Article 15 of the Code provided that hearings in first-instance courts dealing with criminal cases should, subject to certain exceptions, be conducted by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as professional judges. 16. Part III of the Law set out the procedure for the election of lay judges. Elections of lay judges of district (town) courts were called by the Presidium of the RSFSR Supreme Council and were carried out by the executive committees of the district or town Councils of Peoples’ Deputies (Articles 56 and 57). Lay judges were elected during general staff meetings, general meetings and gatherings of citizens at their places of residence. A separate, open vote was held in respect of each candidate. Persons who received more than fifty percent of the votes were elected (Article 58). The results of the elections had to be recorded in the minutes of the meetings (Article 59). The relevant executive committee determined the results of the elections, compiled the list of elected lay judges, approved that list, published the information on the results of the elections and sent the list of lay judges to the district court (Articles 57 and 60). 17. Article 90 of the Constitution provides that the President of the Russian Federation shall issue decrees and orders which shall have binding force on the entire territory of the Russian Federation and which should not run contrary to the Constitution of the Russian Federation and federal laws. 18. The Decree of 22 March 1995 provided that lay judges of district (town) courts had to continue their service until the adoption of the respective federal law. Executive authorities of the constituent elements of the Russian Federation had, if necessary, to organise by-elections of lay judges of district (town) courts at general staff meetings, general meetings and gatherings of citizens at their places of residence. 19. The Decree of 23 January 1997 provided, among other things, that lay judges of district courts had to continue their service until the adoption of the federal law on the procedure for appointment (election) of lay judges. 20. The Decree of 25 January 2000 provided that lay judges serving in the courts of general jurisdiction were authorised to remain in office until the courts received new lists of lay judges confirmed by a regional legislative body. 21. The Act provided in section 1 that citizens of the Russian Federation had a right to take part in the administration of justice in the quality of lay judges. Lay judges were persons empowered by law to hear civil and criminal cases as part of the court panel and carry out their judicial duties on a non-professional basis. 22. Section 2 provided that lists of lay judges for every district court had to be compiled by respective local self-government bodies on the basis of lists of voters in the district. Such lists had to be validated by regional legislative assembly and submitted to the district court. The term of office of lay judges on the list was five years. 23. Section 3 provided that the following persons could not be selected as lay judges: persons who had convictions which had not been quashed, persons fully or partially deprived of their legal capacity by a competent court, civil servants of category “A” and persons occupying elective posts in local government bodies, prosecutors, investigators and persons registered with either drugs counsellors or psychiatrists. 24. Sections 5 and 6 provided that the president of the respective court had to draw a certain number of lay judges by lot from the list. Lay judges to sit in a particular case were to be drawn by lot by the professional judge who would hear the case from those drawn by lot by the president of the court. 25. Section 9 provided that lay judges could be called to sit in cases heard by a district court for a period of fourteen days, or as long as the proceedings in a particular case lasted. Lay judges could not be called on more than once a year. 26. The ruling provided that the president of a given court had to draw by lot from the list of lay judges, 156 names for each judge of the court. The lay judges for a particular case had to be drawn by lot by the professional judge to whom the case had been assigned. The sitting lay judges had to remain in office until new lists of lay judges arrived at the court. The regulation also provided that each court had to keep a record of the results of the selection at random of lay judges. | 1 |
dev | 001-110436 | ENG | POL | COMMITTEE | 2,012 | CASE OF SIMONOV v. POLAND | 4 | No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention) | George Nicolaou;Ledi Bianku;Vincent A. De Gaetano | 5. The applicant was born in 1958 and currently lives in Łódź. 6. On 14 February 2007 the applicant was arrested on suspicion of several counts of fraud and incitement to murder committed in an organised criminal group. 7. On 16 February 2007 the Katowice District Court remanded him in custody, relying on the reasonable suspicion that he had committed the offences in question. It attached importance to the serious nature of those offences and the likelihood of a severe prison sentence being imposed on the applicant. In this connection the court noted that the applicant had admitted to having committed some of the offences of which he had been suspected, including incitement to murder. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might go into hiding. As regards the latter, the court relied on the fact that he did not have a permanent place of residence in Poland and that he had already been hiding from the police. Finally, the court underlined that the applicant was a member of an organised criminal group and that some other members of that group were still at large which increased the risk that a detainee, if released, might obstruct the proceedings. 8. The applicant’s appeal against the detention order, likewise his further appeals against decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him, were unsuccessful. 9. In April 2007 the applicant had a heart attack and had to be hospitalised three times during that year. 10. In the course of the investigation, the applicant’s detention was extended on several occasions, namely on 7 May 2007 (to 7 October 2007), 10 September 2007 (to 7 January 2008) and on an unspecified subsequent date. In their detention decisions the courts repeatedly relied on the original grounds given for the applicant’s detention underlining the complexity of the case and the substantial volume of evidence to be examined. They also found no grounds warranting the applicant’s release from detention as provided for by Article 259 of the Criminal Code. In particular, the courts observed that it resulted from medical reports that the applicant could be treated within a penitentiary facility. 11. On 10 June 2008 the Katowice Regional Prosecutor lodged a bill of indictment with the Katowice Regional Court. The applicant was charged with an incitement to murder as well as several counts of thefts and extortions committed while acting as a leader of an organised criminal group. The bill of indictment comprised numerous charges brought against several defendants. 12. On 23 June 2008 the case was transferred to the Gliwice Regional Court. 13. In an opinion of 26 February 2009 experts from the cardiology institute of the Medical University in Katowice declared the applicant fit to participate in the proceedings, though limiting the duration of the hearings. 14. During the court proceedings the courts further extended the applicant’s detention, namely on 24 September 2008 (to 14 February 2009), on unspecified subsequent dates and 23 June 2010 (to 30 September 2010). The courts repeated the grounds previously given for the applicant’s continued detention. 15. On 30 June 2010 the Gliwice Regional Court gave judgment. The applicant was convicted as charged and sentenced to six years’ imprisonment. 16. The applicant and the Prosecutor appealed. 17. On 24 March 2011 the Katowice Court of Appeal decided that the applicant be released from custody and placed under police supervision. The court also barred the applicant from leaving the country. 18. It appears that the appellate proceedings against the applicant are still pending. 19. The relevant domestic law and practice concerning the imposition of pre-trial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 May 2006. | 0 |
dev | 001-71120 | ENG | RUS | CHAMBER | 2,005 | CASE OF IVANNIKOVA v. RUSSIA | 4 | Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and convention proceedings | Christos Rozakis | 4. The applicant was born in 1965 and lives in the Voronezh Region. 5. The applicant receives welfare payments for her child. In 1999 she brought civil proceedings against a local welfare authority, claiming arrears in those payments for 1998 – 1999. 6. On 17 December 1999 the Novousmanskiy District Court of the Voronezh Region awarded the applicant 1,593.54 Russian roubles (RUR). 7. On 17 March 2000 a writ of execution was issued and sent to the bailiffs. 8. On 24 October 2001 the bailiffs discontinued the enforcement proceedings in respect of the judgment of 17 December 1999 and returned the writ of execution to the applicant, as the debtor had insufficient funds. 9. In January – February 2004 the applicant was paid the amount due pursuant to the writ of execution. 10. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit. 11. Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff. | 1 |
dev | 001-57603 | ENG | NLD | CHAMBER | 1,985 | CASE OF X AND Y v. THE NETHERLANDS | 2 | Violation of Art. 8;Non-pecuniary damage - financial award | C. Russo | 7. Mr. X and his daughter Y were born in 1929 and on 13 December 1961 respectively. The daughter, who is mentally handicapped, had been living since 1970 in a privately-run home for mentally handicapped children. 8. During the night of 14 to 15 December 1977, Miss Y was woken up by a certain Mr. B, the son-in-law of the directress; he lived with his wife on the premises of the institution although he was not employed there. Mr. B forced the girl to follow him to his room, to undress and to have sexual intercourse with him. This incident, which occurred on the day after Miss Y’s sixteenth birthday, had traumatic consequences for her, causing her major mental disturbance. 9. On 16 December 1977, Mr. X went to the local police station to file a complaint and to ask for criminal proceedings to be instituted. The police officer said that since Mr. X considered his daughter unable to sign the complaint because of her mental condition, he could do so himself. The statement lodged by Mr. X read as follows: "In my capacity as father I denounce the offences committed by Mr. B on the person of my daughter. I am doing this because she cannot do so herself, since, although sixteen years of age, she is mentally and intellectually still a child." 10. The police officer drew up a report and it was signed by Mr. X (Articles 163 and 164 of the Code of Criminal Procedure). The officer subsequently informed the public prosecutor’s office that in the light of the father’s statement and of his own observations concerning the girl’s mental condition, she did not seem to him capable of filing a complaint herself. According to the headmaster of the school she was attending and another teacher there, she was unable to express her wishes concerning the institution of proceedings. 11. On 29 May 1978, the public prosecutor’s office provisionally decided not to open proceedings against Mr. B, provided that he did not commit a similar offence within the next two years. The official in charge of the case so informed Mr. X at a meeting on 27 September 1978. 12. On 4 December 1978, Mr. X appealed against the decision of the public prosecutor’s office to the Arnhem Court of Appeal, under Article 12 of the Code of Criminal Procedure; he requested the court to direct that criminal proceedings be instituted. In a supplementary memorial of 10 January 1979, he pointed out that subject to an exhaustive list of exceptions none of which applied in the instant case, a legal representative was entitled to act on behalf of the complainant. The Court of Appeal dismissed the appeal on 12 July 1979. In fact, it considered it doubtful whether a charge of rape (Article 242 of the Criminal Code; see paragraph 14 below) could be proved. As for Article 248 ter (see paragraph 16 below), it would have been applicable in the instant case, but only if the victim herself had taken action. In the Court of Appeal’s view, the father’s complaint (Article 64 para. 1 of the Criminal Code; see paragraph 16 below) could not be regarded as a substitute for the complaint which the girl, being over the age of sixteen, should have lodged herself, although the police had regarded her as incapable of doing so; since in the instant case no one was legally empowered to file a complaint, there was on this point a gap in the law, but it could not be filled by means of a broad interpretation to the detriment of Mr. B. 13. By virtue of Article 445 of the Code of Criminal Procedure, there was no possibility of appealing on a point of law to the Supreme Court (Hoge Raad) against this decision. 14. As regards sexual offences, the Netherlands Criminal Code makes a distinction between rape (Article 242) and indecent assault (Article 246), recourse to physical violence also being a constituent element of the latter offence. 15. Other more specific provisions afford in this area protection to certain categories of persons whose age, position of dependence or physical incapacity renders it difficult or impossible for them to determine or impose their wishes. Articles 244 and 245, respectively, make it a criminal offence to have sexual intercourse with a girl under the age of twelve or with a girl between the ages of twelve and sixteen, and under Article 247 it is a criminal offence to commit an indecent assault on boys or girls under the age of sixteen. Articles 243 and 247 concern, respectively, sexual intercourse with, and indecent assault on, a woman known to the offender to be unconscious or helpless. According to the Supreme Court, however, the word "helpless" refers only to physical incapacity. Article 249 relates to indecent acts committed with a minor who is in a position of dependence vis-à-vis the perpetrator. Finally, Article 239 concerns indecency, either in public or while another person is present against his will. Save for Article 245, none of these provisions makes the institution of criminal proceedings conditional on the filing of a complaint by the victim. 16. The same does not apply to Article 248 ter, whereby a sentence of not more than four years’ imprisonment may be imposed on any person who, "through gifts or promises ..., through abuse of a dominant position resulting from factual circumstances, or through deceit, deliberately causes a minor of blameless conduct to commit indecent acts with him or to suffer such acts from him": in a case of this kind, the offender can be prosecuted only on complaint by the actual victim. Under Article 64 para. 1, however, the legal representative may lodge the complaint on behalf of the victim if the latter is under the age of sixteen or is placed under guardianship (curateele); this latter institution exists only for persons who have reached the age of majority, namely twenty-one (Article 378, Book I, of the Civil Code). 17. At the hearings, counsel for the Government informed the Court that the Ministry of Justice had prepared a Bill modifying the provisions of the Criminal Code that related to sexual offences. Under the Bill, it would be an offence to make sexual advances to a mentally handicapped person. | 1 |
dev | 001-68754 | ENG | MLT | CHAMBER | 2,005 | CASE OF CALLEJA v. MALTA | 3 | Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 7. The applicant was born in 1961 and is currently detained in Corradino Prison (Malta). 8. In November 1995 the applicant was arrested and charged with trafficking in dangerous drugs. On 15 May 1996, while he was in pre-trial detention, a fresh charge of complicity in attempted wilful homicide was brought against him. The applicant was accused of having tried, by means of an instruction issued to third parties, to kill Mr Richard Cachia Caruana, the personal assistant to the Prime Minister, on account of Mr Caruana's role in the separate proceedings on the charge of trafficking in dangerous drugs. The events in issue allegedly occurred before and on 18 December 1994. Expert forensic reports were submitted in January and February 1995. 9. The applicant was subsequently placed in detention on remand in connection with this new criminal charge also. 10. From the date of the applicant's arraignment (15 May 1996) until 13 August 1996, twenty-three hearings took place before the Court of Magistrates, acting as a court of criminal inquiry. A number of police officers, experts and witnesses, including Mr Joseph Fenech, an accomplice who had made a confession and had been granted a pardon, were cross examined by the parties. A number of objections were raised by the prosecution and the defence about the questions put by the other party. The court issued a ban on the publication of reports and articles about the proceedings before it. 11. On 13 August 1996 the Court of Magistrates appointed a graphologist and concluded that there were sufficient grounds for the filing of a bill of indictment against the applicant. 12. However, on 16 September 1996 the Attorney General asked the Court of Magistrates to re-open the proceedings in order to hear four witnesses, namely two other accomplices of the applicant, a doctor who had been on duty on the day the victim was admitted to hospital, and the graphologist appointed on 13 August 1996. On 30 September 1996 the court heard the first three witnesses. The two accomplices refused to give evidence in order not to incriminate themselves. The court revoked the appointment of the expert and asked the registrar to provide it with a new list of experts. 13. On 1 November 1996 the Attorney General again asked the court to reopen the proceedings and to explain the reasons for revoking the appointment of the expert; to identify handwriting experts, including foreign ones; and to hear all the evidence the police could adduce. 14. On 13 November 1996 the Court of Magistrates appointed a new graphologist, Mr Manfred Hecker. 15. On 12 December 1996 the Attorney General requested once again that the inquiry be re-opened. He asked that Mr Hecker and Mr Fenech be heard, the latter being requested to give explanations about the record of his interrogation by the police. Moreover, he asked that some documents previously exhibited be listed in detail, while other documents not already exhibited should be produced by the registrar. A hearing, during which Mr Fenech was examined, took place on 8 January 1997. 16. On 28 February 1997 the Attorney General requested that the inquiry be re-opened for the following matters: to correct a mistake in the records; to hear Mr Hecker; to produce various newspapers; to complete the appointment of another expert and have him produce some photographs; and to hear two new witnesses. 17. On 11 March 1997, after the examination of five witnesses, the hearing was adjourned as Mr Hecker was not in Malta. He gave evidence on 24 March 1997. 18. On 25 March 1997 the registrar informed the court that the evidence produced on 11 March 1997 had not been properly recorded and that the witnesses heard during that sitting should be summoned again. 19. On 30 April 1997 the Attorney General requested the re-opening of the inquiry in order to hear Mr Hecker and other witnesses, as well as the witnesses examined on 11 March 1997. With the exception of Mrs Lilian Zahra, who was abroad, the witnesses concerned were examined by the prosecution on 21 May 1997. Counsel for the defence, who was attending another trial, was not present and reserved his right to crossexamine the witnesses. At the Attorney General's request, on 30 July 1997 Mrs Zahra was examined. At the end of the sitting, the court returned the documents relating to the proceedings to the Attorney General. 20. The bill of indictment against the applicant for the charge of complicity in attempted wilful homicide was filed on 6 August 1997. 21. On 7 August 1997 the applicant was provisionally released on bail in relation to the charge of trafficking in dangerous drugs. However, the applicant could not leave the prison as he was still required to remain in pretrial detention on the charge of complicity in attempted murder. 22. In two separate notes of 1 September 1997 the applicant filed several preliminary pleas, challenging the validity of the bill of indictment and the admissibility of a number of documents and prosecution witnesses. The applicant also requested that 146 witnesses be heard on his behalf. 23. On 5 September 1997 the Attorney General contested the admissibility of certain documents and witnesses referred to by the defence. 24. A number of hearings on the preliminary pleas took place before the Criminal Court. In particular, the applicant's case was discussed on 22 and 27 October 1997. On 30 October 1997, the case was adjourned until the following day because counsel for the applicant failed to appear. The case was further discussed on 31 October and 1 December 1997, then postponed until 15 December 1997, on which date the applicant informed the court that his counsel had fallen ill. The case was adjourned first until 7 January, then until 6 February 1998. On that date and on 13 February 1998 the Criminal Court heard oral submissions from the parties. 25. The following hearing, initially scheduled for 2 March 1998, was postponed until 30 April 1998 on the ground that the court needed more time to deliberate. On 30 April 1998 the Criminal Court delivered its judgment on all the preliminary pleas. Both the defence and the prosecution declared that they intended to appeal. The case was adjourned pending the decision on the parties' appeals. 26. On 6 May 1998 the applicant appealed against the Criminal Court's judgment of 30 April 1998. The prosecution did not appeal. 27. On 9 August 1999 the Court of Criminal Appeal set the appeal down for hearing on 7 October 1999. The hearing was then adjourned until 25 October 1999 on the ground that one of the sitting judges was ill. On 25 October 1999 the parties made their oral submissions. The next hearing, initially scheduled for 4 November 1999, was postponed first until 9 November 1999, then until 25 November, and finally until 11 January 2000 at the request of the defence, on the ground that the accused had appeared in court unassisted. The Court of Criminal Appeal heard further oral submissions by the parties on 11 January and 7, 9 and 20 March 2000. 28. On 3 May 2000 the Court of Criminal Appeal partly quashed the Criminal Court's judgment of 30 April 1998. 29. The case concerning the charge of complicity in attempted wilful homicide was resumed before the Criminal Court. A hearing was scheduled for 26 May 2000 in order to agree on a date for the trial. However, the proceedings were adjourned at the defence's request. 30. On 2 June 2000 one of the applicant's counsel withdrew from the defence team. The Criminal Court observed that all that needed to be done was to appoint a date for the trial by jury. However, the applicant's remaining lawyer requested an adjournment in order to check his other professional commitments and to consult with his client. On 4 and 28 July 2000 the proceedings were postponed on the ground that the applicant's counsel was ill. 31. On 31 July 2000 the defence challenged the President of the Criminal Court – Mr Justice Vincent Degaetano – on the ground that he had participated in the trial of Mr Ian Farrugia, one of the applicant's coaccused. The parties made oral submissions on this plea, and the court ordered the applicant to submit, before 31 August 2000, a note indicating the legal provisions on which he was relying and the decisions taken by the judge in question during the trial of Mr Farrugia. The court proposed to adjourn the case until 11 September 2000, on which date a decision on the challenge should have been taken. However, the applicant's counsel objected that he would be away from Malta during the whole month of September. The proceedings were therefore postponed until 2 October 2000, on which date the Criminal Court rejected the challenge. 32. The applicant declared his intention to appeal. Observing that there was no right to appeal against its ruling, the Criminal Court provisionally fixed the date of the trial by jury for 2 May 2001. The applicant's counsel observed that in view of the declaration made by the defence, the date of the trial should not have been fixed and the proceedings should rather have been adjourned sine die. 33. On 5 October 2000 the applicant appealed against the decision of 2 October 2000. 34. The hearing, initially scheduled for 11 January 2001, was held on 27 December 2000, on which date the Court of Criminal Appeal adjourned the proceedings until 23 January 2001 in view of the absence of the applicant's counsel. The latter subsequently informed the court that he had not been notified of the new date of the hearing. The Court of Criminal Appeal also observed that the Attorney General had not submitted a reply in writing to the applicant's appeal. The Government, with whom the applicant disagreed, emphasised that submissions were normally made orally and that the Attorney General was in no way obliged to file a written reply. 35. On 23 January 2001 the accused, who had fallen ill, did not appear. In the presence of his legal counsel, the court heard evidence from a doctor as to the applicant's state of health. A medical certificate was exhibited. 36. By decision of 25 January 2001 the Court of Criminal Appeal dismissed the applicant's appeal. It observed that the accused's allegations were based only on suppositions and unproven gratuitous assertions which were devoid of legal value. 37. On 4 April 2001 the applicant was convicted and sentenced to fifteen years' imprisonment and to a fine of 30,000 Maltese liras (approximately 72 273 Euros) in respect of the charge of trafficking in dangerous drugs. He then started to serve his sentence for that offence. The earliest date of the applicant's release was fixed at 19 November 2006. This calculation was made by deducting from the final sentence the period that the accused had spent in pre-trail detention. 38. After having heard in camera the views of the defence and the prosecution, on 16 April 2001 the Criminal Court decided to adjourn the trial by jury on the charge of complicity in attempted murder until 5 November 2001. It considered, in particular, that it was not wise to commence the new trial at a date too close to the termination of the other proceedings against the same accused. The witnesses to be heard on behalf of the prosecution were summoned to appear on 5 November 2001. 39. However, on 22 October 2001 the applicant instituted proceedings before the First Hall of the Civil Court exercising its constitutional jurisdiction, relying on a violation of Article 6 of the Convention and Article 39 of the Constitution of Malta. He submitted, in particular, that he could not be judged by the same magistrate – Mr Justice Degaetano – who had participated in his previous trial for trafficking in dangerous drugs and in the trial of two persons accused of complicity in the offence with which he was charged. He also complained about the extensive media coverage of his trial and about the negative opinions expressed about him and his innocence by the Prime Minister, by the Attorney General and by certain police officers. 40. On 25 October 2001 the applicant requested the Criminal Court to stay the proceedings pending the decision on his constitutional application. The Attorney General replied that that request should be rejected as constituting an abuse of process. 41. In an order of 1 November 2001 the Criminal Court noted that the date of the jury trial had been known to the applicant by 16 April 2001. However, it was only two weeks before the trial was scheduled to commence that the accused had filed his constitutional application. The Criminal Court noted, moreover, that the fact that the constitutional application was pending did not stricto jure oblige it to adjourn the trial. However, if the trial were to be continued, the Civil Court and, in the event of an appeal, the Constitutional Court might have felt in some way pressed to give a ruling on the applicant's complaint in an unreasonably short time (that is, before the end of the trial). Such a situation should, if possible, be avoided and it would have been unnecessarily costly to have the trial by jury held more than once. The Criminal Court therefore decided to adjourn the hearing until 11 February 2002. Further sittings were held before the Criminal Court on 10 June and 4 November 2002 and on 7 January and 1 April 2003; they were all adjourned pending the outcome of the applicant's constitutional application. The next hearing was fixed for 7 July 2003. 42. The date of the first hearing before the First Hall of the Civil Court was fixed for 30 October 2001, on which date the applicant produced several documents. The proceedings were adjourned in order to examine those documents. In a note of 21 November 2001 the applicant stated that one of his counsels had been required to go abroad on a university assignment and would not be present at the hearing on 23 November 2001. The Civil Court reserved its decision on this matter. 43. On 23 November 2001 the applicant appeared, assisted by his other counsel. He declared that he needed to produce in evidence copies of articles which had appeared in local newspapers. The case was adjourned until 9 January 2002, on which date the court requested further information from the applicant. The hearing of 1 February 2002 was postponed at the Attorney General's request. On 15 February 2002 the court adjourned the case in order that the applicant could conduct inquiries to verify the facts concerning a video recording exhibited by him. 44. In a note of 1 March 2002 the applicant pointed out that the recording in issue did not concern a political debate, as he had initially stated, but a press conference. On 15 March 2002 he exhibited an audio recording of the political debate in question and declared that he had no further evidence to produce. The Attorney General requested the authentication of the document exhibited. 45. On 26 April 2002 a witness on behalf of the applicant appeared in order to authenticate the relevant documents. The case was adjourned first until 31 May 2002, then until 5 July 2002 for final oral submissions by the parties. The hearings of 11 October, 15 November, 6 and 16 December 2002 and 10 January 2003 were adjourned as the court required more time for deliberation. 46. On 20 January 2003 the First Hall of the Civil Court dismissed the applicant's application. 47. On 29 January 2003 the applicant appealed against that judgment to the Constitutional Court. 48. On 12 February 2003, the date of the first hearing, Mr Justice Degaetano, who presided over the Constitutional Court, withdrew from the case. A substitute judge was appointed and the case was adjourned until 12 March 2003 for oral submissions by the parties. 49. On 18 June 2003 the Constitutional Court dismissed the applicant's appeal. 50. On 7 July 2003 the Criminal Court set 5 January 2004 as the date for the trial on the merits of the charge of complicity in attempted murder. The applicant declared that he intended to bring before the European Court of Human Rights the issues raised in his constitutional complaint. 51. On 1 February 2004, the jury delivered a verdict of not guilty with respect to the charge of complicity in attempted murder. 52. In the course of the proceedings against him, the applicant applied for provisional release on bail on several occasions (3 October 1997, 3 February, 18 June and 27 October 1998, 27 August 1999, 14 and 15 December 2000). His requests were rejected by the Criminal Court and by the Court of Criminal Appeal on 24 October 1997, 16 February, 14 July and 11 November 1998, 27 September 1999 and 21 December 2000, after having held hearings at which the parties were able to make their oral submissions. 53. The Criminal Court was not persuaded that there was no danger that, once released, the applicant would not try to interfere with evidence or in any other way try to obstruct the course of justice with regard to his case. It referred, in particular, to the extraordinary gravity of the charges, which showed the manifest social danger posed by the applicant, who might commit further offences against the person, including offences of bodily harm. In this connection, it was observed that the identity of the witnesses had become known to the applicant. There was, moreover, a danger that the latter might try to abscond, making use of the contacts he had abroad, in order to avoid the heavy punishment which was likely to be inflicted on him in the event of his conviction. 54. The Court of Criminal Appeal considered that the applicant's situation had not significantly changed and that no new element justifying a departure from the previous findings had been submitted. In particular, it considered that the time that had elapsed since the beginning of the applicant's detention was not substantial enough to conclude that the length of the deprivation of liberty in issue was unreasonable. 55. In the meantime, on 30 March 1999, the applicant, alleging that his lengthy detention and the continued refusal of bail had infringed his rights under Articles 5 and 6 of the Convention, introduced a constitutional complaint before the First Hall of the Civil Court. He observed, in particular, that his deprivation of liberty was based, inter alia, on the risk of his tampering with evidence, a risk which, in the Attorney General's submission, had become even more serious because his accomplices were free and the identity and nature of the prosecution evidence and witnesses had become known to the accused. In the applicant's opinion, however, those fears were unfounded and the danger referred to by the authorities could in any case have been avoided by adopting the necessary precautionary measures, such as adequate surveillance by the police, with the possibility of house arrest. Moreover, the evidence of the prosecution had become known to the applicant by right in order to enable him to prepare his defence; that fact could therefore not be used against him to justify a violation of his other fundamental rights. 56. The Attorney General and the Commissioner of Police filed a memorandum in which they applied for the applicant's complaints to be dismissed. They pointed out that the offence attributed to the applicant was punishable by up to twenty years' imprisonment, and that this element created an incentive for the accused to try to tamper with evidence and also to abscond, possibly making use of the foreign contacts which he manifestly had. Moreover, the nature of the offence showed that the applicant was a danger to society and that there was a risk that he might commit other offences. Finally, the danger of his interfering with evidence was real, as was shown by the fact that after he had given evidence, a witness in his case had been attacked by two unknown persons. 57. Four hearings took place before the First Hall of the Civil Court on 9 and 14 April and 3 and 12 May 1999. On the last-mentioned date, the Civil Court authorised the applicant to file submissions concerning a non exhaustion plea raised by the respondents. This note was filed on 27 May 1999. 58. On 22 June 1999 the First Hall of the Civil Court dismissed the applicant's application. With reference to the case-law of the European Court of Human Rights, the Civil Court noted that the prolonged detention of a person who was presumed innocent but was suspected of having committed an offence should be justified in the public interest and that an accused deprived of his liberty had the right to have the investigations and trial conducted within a reasonable time. In the applicant's case, the Court of Criminal Appeal had taken into account the period of time spent by the applicant in detention in view of all the relevant circumstances, notably the nature and gravity of the charges, the danger of his tampering with evidence and the risk of his absconding. Moreover, the applicant's case was particularly complex, regard being had to the number of witnesses and experts involved in the investigations and to the pleas submitted by the parties, and it could not be said that the prosecution had failed to show diligence in the conduct of the investigations. The time that had elapsed from the beginning of the investigations could not, therefore, be considered unreasonable. Finally, the fact that the applicant had been denied bail was not prejudicial to the presumption of innocence, as the decisions in this regard did not reflect an opinion as to his guilt. 59. On 2 July 1999 the applicant appealed against the judgment of 22 June 1999 before the Constitutional Court. 60. The first hearing took place on 16 July 1999. On 29 July 1999 the applicant challenged two of the three sitting judges. A judgment on this issue was given on 4 August 1999. The two judges in question withdrew from hearing the case, which was adjourned until 2 September 1999, on which date the parties made oral submissions. On 15 October 1999 the applicant requested leave to produce a decision given by the Court of Criminal Appeal on his application for bail. This request was subsequently served on the respondents, who on 19 October 1999 declared that they did not oppose bail. The hearings of 20 October and 22 November 1999 and of 12 January and 14 February 2000 were adjourned because the Constitutional Court needed more time for deliberation. On 22 February 2000 the court observed that the members of the family of one of the sitting judges had fallen seriously ill and that this fact prevented it from taking a decision immediately; however, the case had been given the priority that it deserved. 61. On 8 March 2000, at the Constitutional Court's request, the parties made submissions on the point as to whether a decision on the issue under Article 5 of the Convention was required. 62. On 29 March 2000 the Constitutional Court upheld the decision of the First Hall of the Civil Court in so far as it concerned the length of the criminal proceedings against the applicant (Article 6 § 1 of the Convention). However, the Constitutional Court pointed out that the applicant had also complained under Article 5 of the Convention, alleging that the grounds for his detention had weakened with the passing of time. Even if the accused had not explicitly quoted this latter Article in his final submissions, thus misleading the first-instance court, his complaint constituted a separate grievance on which the Civil Court should have made a specific ruling. Therefore, the Constitutional Court remitted the facts of the case to the Civil Court, instructing the latter to examine this complaint. 63. Proceedings were resumed before the First Hall of the Civil Court, and a hearing was scheduled for 17 April 2000. On 3 May 2000 five witnesses appeared on behalf of the respondents. They testified about incidents experienced by a witness who had testified against the applicant in the pretrial investigation proceedings and by the daughter of that witness. 64. On 5 May 2000 the President of the Civil Court withdrew from the case. A substitute judge was appointed on 16 May 2000, but he also had to withdraw as he was one of the judges who had denied one of the applicant's applications for bail. Another substitute judge was appointed on 25 May 2000, and a new hearing was set down for 14 June 2000. Other witnesses were heard on 3 and 24 July 2000. On 24 August 2000 the applicant waived the right to cross-examine those witnesses, but requested leave to file written observations. The latter were filed on 3 October 2000, seven days after the expiry of the time allowed by the Civil Court. The respondents filed their written reply at the hearing of 31 October 2000. On 8 November 2000 the case was adjourned for judgment. 65. On 14 December 2000 the First Hall of the Civil Court declared that the overall duration of the applicant's pre-trial detention had infringed Article 5 § 3 of the Convention and that the applicant was entitled provisionally to be released under conditions guaranteeing his appearance at the trial. The determination of these conditions was left to the discretion of the Criminal Court. 66. The Civil Court first underlined that a period of time held to be reasonable under Article 6 § 1 of the Convention could be considered excessive under Article 5 § 3, as the criteria laid down in the latter provision, which concerned personal liberty, were more rigorous. Moreover, it was clear that the passing of time could not but aggravate the prejudicial effects that the pre-trial detention had had on the applicant's situation. 67. The Civil Court further noted that the proceedings had not been conducted in a vacuum. In fact, the inquiry had been closed, the bill of indictment had been issued and the preliminary pleas had been decided. On the other hand, it should be kept in mind that the applicant had a right to institute all the proceedings and to lodge all the complaints he deemed necessary for the defence of his interests, even if this might prolong the criminal proceedings. 68. As to the grounds justifying the applicant's continuing detention, the Civil Court observed that the risk of his tampering with evidence appeared to subsist regardless of whether or not he remained under arrest. In fact, the Attorney General himself had mentioned that certain witnesses had already started to alter the evidence which they had given during the inquiry. Moreover, all the evidence against the applicant had already been gathered and heard on various occasions by the national courts, and the danger of interference with the course of justice was likely to be reduced as the investigations progressed. 69. As to the risk of committing new offences, the Civil Court noted that the prosecution had not proved that the applicant was responsible for certain incidents in which a witness and his relatives had been involved. Furthermore, as the crimes of which the applicant was accused had been allegedly committed on the basis of instructions, it could be argued that the applicant constituted a threat to society even if he remained in prison. In any case, it appeared that the prosecution was inferring the applicant's dangerousness more from the gravity of the case than from any other evidence. 70. Finally, it was true that the applicant risked a heavy sentence and that he had been abroad several times in 1994 and 1995. However, it had not been proved that the applicant had tangible connections outside Malta which might facilitate his escape. He had, on the contrary, strong family ties in Malta. Keeping in mind that the applicant had already spent four and a half years in detention, and that this period would in any case have been deducted from his final sentence, the Civil Court concluded that the risk of his absconding could be counterbalanced by adequate guarantees ensuring the appearance of the accused at the trial. 71. On 18 December 2000 the Attorney General of Malta and the Commissioner of Police appealed to the Constitutional Court against the judgment of 14 December 2000. 72. The first hearing took place on 27 December 2000. On that date all three judges composing the court withdrew from the case on account of their involvement in prior proceedings concerning the question of the applicant's release on bail. On the following day three new judges were appointed. The applicant then requested that the next hearing, scheduled for 12 January 2001, be fixed for an earlier date. A hearing was scheduled for 9 January 2001, on which date the parties made their oral submissions on the appeal. 73. On 23 January 2001 the Constitutional Court quashed the impugned judgment. It observed that the applicant's prolonged detention had been based on four grounds, notably the risk of contamination of evidence, the danger of his committing a new offence, the fact that he was a threat to society, and the danger that he might abscond or hide. In the Constitutional Court's view, each of these reasons was serious enough potentially to create an obstacle to the applicant's release. 74. The Constitutional Court noted that the prosecution had produced evidence demonstrating that the applicant had put pressure on individuals for the purpose of committing homicide on the basis of instructions. The risk of tampering with evidence was therefore a concrete one, especially at a stage where the applicant was aware of the content of the evidence and of the names of the witnesses. As to the risk of committing a new offence, the prosecution relied mainly on two incidents concerning a witness and his daughter. However, there was nothing to show that the applicant was responsible for those acts. On the other hand, evidence had been produced against the applicant in a separate set of criminal proceedings concerning a serious accusation of drug trafficking. 75. As to the possibility that the applicant might abscond, it was true that the longer his detention lasted, the more remote this possibility was. The fact that the applicant's family lived in Malta equally militated against the danger of flight. However, the seriousness of the charges brought against the applicant and the fact that he was about to face a trial by jury on charges of drug trafficking militated in the opposite direction. 76. It remained to be considered whether the time that had elapsed since the date of the arrest could neutralise all the other relevant factors justifying the applicant's deprivation of liberty. In this connection, it was noted that far from trying to speed up the proceedings, the applicant had caused a number of delays. For instance, when the Criminal Court had been ready to fix the date of the trial by jury, the applicant had challenged the judge, and from 13 September 1999 until 23 January 2001 his lawyers had demanded at least ten adjournments of the hearings, thus unnecessarily lengthening the proceedings. In particular, on 2 October 2000 the Criminal Court had provisionally scheduled the date of the trial by jury for 2 May 2001. Instead of objecting to this lengthy delay, counsel for the defence had asked why the Criminal Court was setting a provisional date for the trial instead of adjourning it sine die. In the Constitutional Court's opinion, this behaviour was difficult to reconcile with the applicant's declared wish to have his case heard within a reasonable time. 77. Even if it was preoccupied about the length of time that the applicant'Constitutional Court underlined that an accused person had every right to choose the best line of defence, but he did not have the right to lengthen the proceedings, under one pretext or another, or to employ such grounds in favour of his provisional release pending trial. 78. In the light of the above, the Constitutional Court found that the period of time spent by the applicant in pre-trial detention had not yet violated Article 5 § 3 of the Convention. It considered, however, that the applicant's application for bail should be allowed if a definitive date for the hearing of the trial was not fixed in due time after the Court of Criminal Appeal had ruled on the challenge to the judge presiding over the Criminal Court. | 1 |
dev | 001-111215 | ENG | LTU | CHAMBER | 2,012 | CASE OF ESERTAS v. LITHUANIA | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary and non-pecuniary damage - award | András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque | 5. The applicant was born in 1978 and lives in Kaunas. 6. The applicant owned a flat together with another person, I.B. On 15 May 2001 the applicant and I.B. disconnected the flat from the central heating system provided by the company “Litesko Ltd.” (hereinafter – Litesko), and signed a contract with an alternative heating provider. On 15 June 2001 the new provider’s heating system was installed in the flat. On 6 August and repeatedly on 17 October 2001 the applicant informed Litesko about the termination of their old agreement. According to the applicant, in the following months they received no bills from the old heating provider. In February 2002, however, Litesko sent a bill for heating to the applicant and I.B. 7. Following the refusal by the applicant to pay the bill, Litesko filed a civil claim for payment for the period from 1 January 2002 to 1 September 2003. 8. On 7 June 2004 the Palanga City District Court (hereinafter - the Palanga Court) dismissed the claim by Litesko. The court observed that the owners of the flat were free to choose their heating provider and they had informed the plaintiff about the termination of the agreement and properly disconnected from the heating system. The court concluded that the plaintiff itself had acknowledged that it no longer supplied heating to the flat. It was also established that the applicant together with I.B. and Litesko were no longer in a contractual relationship for heat consumption. The Palanga Court noted that the claim filed by the plaintiff was an unsubstantiated attempt to enrich itself at the expense of the other party. 9. Litesko missed the time-limit for lodging an appeal and its request to renew it was dismissed. Neither of the parties requested re-opening of the proceedings. 10. In 2006 Litesko brought a new claim against the applicant and I.B., requesting payment for heating for the period 1 April 2004 to 1 September 2005. 11. On 20 March 2006 the Kaunas City District Court upheld the claim and awarded Litesko 490 Lithuanian litai (LTL; approximately 142 euros (EUR)) against each of the owners. Having re-interpreted the domestic law, the court ruled that the applicant and I.B. were still in a contractual relationship with Litesko because they had arbitrarily disconnected the heating system and thus they had to pay for the heating. The court found that the 7 June 2004 court decision did not have res judicata effect as the new claim concerned a different period of time, and that this situation was therefore not identical to the one ruled upon earlier by another District Court. 12. On 20 June 2006 the Kaunas Regional Courta contractual relationship between the parties and the supply of heating to the flat. 13. The applicant did not have the right to lodge a cassation appeal as the amount of the claim was smaller than the minimum required by domestic law for the lodging of such an appeal. 14. Article 279 § 4 of the Code of Civil Procedure provides that once a judgment, decision or ruling becomes effective, the parties or other persons to the proceedings as well as the successors to their rights may not raise once again the same claims on the same grounds, and may not contest the facts and legal relations that had been established by a court in another case. | 1 |
dev | 001-86180 | ENG | GBR | ADMISSIBILITY | 2,008 | DURHAM v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr William Durham, is a British national who was born in 1934 and lives in London. 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. On 13 August 2003, the applicant, owner of a van, received a notice from the police stating that his vehicle had been photographed speeding at 50 miles per hour in a restricted zone on 10 August 2003. He was asked to name the driver. A final reminder was sent to him on 19 September 2003 allowing him a further fourteen days to provide the required information, failing which he would be prosecuted for the additional offence of failing to give the name and address of the driver, contrary to section 172 of the Road Traffic Act 1988. He replied stating that he did not know who the driver was and that he did not believe it was his van in the photograph. On 17 January 2004, the applicant received two summonses to appear before the Magistrates’ Court, one stating that he was the driver of the van and the second that he had failed to give information as to the driver of the vehicle. On 24 March 2004, the Magistrates’ Court acquitted the applicant of being the driver of the vehicle alleged to have been exceeding the speed limit. It convicted him of failure to give information about the driver. He was fined GBP 220, with his licence to be endorsed with three penalty points. 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 | 001-84572 | ENG | POL | CHAMBER | 2,008 | CASE OF RYGALSKI v. POLAND | 4 | Violation of Art. 6-1 | Giovanni Bonello;Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi | 4. The applicant was born in 1931 and lives in Częstochowa. 5. On 29 July 1999 the applicant lodged a complaint with the City Council. He claimed that his neighbour, who lived upstairs, had carried out illegal construction work as a result of which the walls of the applicant's flat had begun to crack. 6. On 16 November 1999 an on-site inspection was conducted by the authorities. 7. On 27 November 1999 the applicant lodged a complaint about the inactivity of the authorities with the Principal Construction Inspector (Główny Inspektor Nadzoru Budowlanego). 8. On 1 December 1999 the District Construction Inspector discontinued the proceedings. It was found that the work had been carried out in conformity with the law. The applicant appealed to the Regional Construction Inspector. 9. On 16 December 1999 the applicant's complaint about inactivity was transferred to the Regional Construction Inspector. It appears that the proceedings concerning this complaint remained dormant until 19 February 2002. 10. On 25 February 2000 the Regional Construction Inspector quashed the decision of 1 December 1999 and remitted the case. 11. On 1 August 2000 the applicant lodged a complaint about inactivity with the Minister of the Interior. 12. On 7 August 2000 his complaint of 1 August 2000 was transferred to the Principal Construction Inspector. 13. On 1 September 2000 his complaint was transferred to the Regional Construction Inspector. 14. On 19 February 2002 the Regional Construction Inspector found the complaint about inactivity, not specifying which one, well-founded and fixed a new time-limit for the authorities to take all necessary action. 15. On 15 May 2002 the District Construction Inspector issued a decision. It found that the work had been brought into conformity with the law. The applicant appealed. 16. On 17 June 2002 the applicant again lodged a complaint about inactivity. 17. On 24 June 2003 the Regional Construction Inspector quashed the decision of 15 May 2002 and remitted the case. The applicant appealed to the Supreme Administrative Court. 18. On 8 July 2003 the Principal Construction Inspector found the applicant's complaint about inactivity of 17 June 2002 well-founded and fixed a new 30 days' time-limit for the authorities. However the administrative authorities do not appear to have complied with the timelimit. 19. Eventually, as it transpires from the submissions of the applicant as well as from the observations submitted by the Government, on 21 September 2005 the Regional Administrative Court gave a judgment on the merits of the applicant's case. It further transpires that the applicant failed to lodge a cassation appeal with the Supreme Administrative Court. Hence, the judgment of 21 September 2005 became final. 20. For a presentation of domestic law, see: Kaniewski v. Poland, no. 38049/02, 8 February 2006; Koss v. Poland, no. 52495/99, 28 March 2006. 21. 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.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. | 1 |
dev | 001-78606 | ENG | TUR | CHAMBER | 2,006 | CASE OF YAVUZ AND OSMAN v. TURKEY | 4 | Preliminary objection partially allowed;Violation of Art. 6-1 | null | 4. The applicants were born in 1955 and 1965 respectively. The first applicant lives in Batman and the second applicant is currently detained in the Gaziantep Prison. 5. On 13 March 1993 the applicants were taken into custody by policemen from the Anti-Terrorism Branch of the Batman Security Directorate on suspicion of their membership of an illegal organisation, namely the Workers' Party of Kurdistan (“the PKK”). 6. On 13 April 1993 the applicants were brought before the public prosecutor and subsequently the investigating judge, who ordered the applicants' detention on remand. 7. On 26 April 1993 the Diyarbakır State Security Court Public Prosecutor filed an indictment against 38 accused persons, including the applicants. He accused the first applicant of membership of the PKK and requested the court to sentence him under Article 168 § 2 of the Criminal Code. The public prosecutor further accused the second applicant of carrying out activities aimed at breaking up the unity of the State and removing part of the national territory from the State's control. The prosecutor requested the court to sentence him in accordance with Article 125 of the Criminal Code. 8. On 18 June 1999 the constitution was amended and the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civilian judge. 9. Between 16 June 1993 and 12 March 2002, the court held 69 hearings. On 12 March 2002 the Diyarbakır State Security Court, which was composed of three civilian judges, acquitted the first applicant of the charges against him. The court further found the second applicant guilty as charged and sentenced him to the death penalty under Article 125 of the Criminal Code. The death penalty was commuted to a life sentence. 10. On 1 October 2002 the Court of Cassation upheld the decision of the Diyarbakır State Security Court. | 1 |
dev | 001-61636 | ENG | TUR | CHAMBER | 2,004 | CASE OF İPEK v. TURKEY | 1 | Violation of Art. 2 on account of presumed deaths;Violation of Art. 2 on account of lack of effective investigation;Violation of Art. 3;Violation of Art. 5;Violation of P1-1;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Failure to fulfil obligations under Art. 38-1-a;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | null | 10. The applicant was born in 1942 and is at present living in Diyarbakır, Turkey. At the time of the events giving rise to his application, the applicant was living in the Çaylarbaşı (Dahlezeri in Kurdish) hamlet attached to Türeli village in the Lice district of the province of Diyarbakır. The application concerns the alleged unacknowledged detention and subsequent disappearance of the applicant's two sons, Servet and İkram İpek, in the course of an operation conducted by security forces in his village on 18 May 1994. It further pertains to the alleged destruction of his family home and property by the security forces during the same operation. 11. The facts surrounding the disappearance of the applicant's two sons and the alleged destruction of his family home and property are disputed between the parties. 12. The facts as presented by the applicant are set out in Section 1 below. The facts presented by the Government are contained in Section 2. 13. A summary of the documents submitted by the parties is to be found in Part B. The witness evidence taken by the Court's Delegates at hearings conducted in Ankara is summarised in Part C. 14. On 17 May 1994 the applicant and his son İkram İpek were tending their sheep away from the village of Türeli when soldiers approached them and asked them for identification. After being shown identification, the soldiers went on their way. The applicant's other son, Servet İpek, had good relations with soldiers from Lice and had even made tea for them on occasions. 15. On 18 May 1994 at about 10 a.m. the applicant, together with his son İkram İpek, was bringing his sheep back to their hamlet near Türeli village, when a group of about 100 soldiers in uniform raided the village. The soldiers left their vehicles outside the hamlet and entered it on foot. They were armed with G-3 rifles and other weapons. A military helicopter circled above the hamlet. The applicant has since learned that the soldiers were not from Lice, but from around Bolu. The Lice soldiers had told the applicant previously to be wary of the soldiers from Bolu. 16. The soldiers told the applicant and İkram İpek to gather with the other villagers, that is, men, women and boys –the young girls were told to remain in the hamlet – by the local school, which is located outside the hamlet. The houses in the hamlet cannot be seen from the school. One group of soldiers remained by the school; the other group went into the hamlet. 17. The applicant saw flames rising from the village and his hamlet, and the women and children began to weep. The soldiers who were with them threatened them, saying: “If you start crying, we will burn you just like your houses”. All the villagers then fell quiet. 18. Both the applicant's and his brother's houses were completely destroyed by fire. After most of the houses had been destroyed, the soldiers released the villagers. But they did not release the applicant's sons İkram İpek and Servet İpek, or Seyithan, Abdülkerim, Nuri and Sait Yolur. These men went with the soldiers in order to carry the latter's equipment to their vehicles. 19. When the applicant returned to the hamlet, he saw that the houses were in flames. The young girls told him and the other villagers that the soldiers had thrown some white powder into the houses and had set them alight. The fires were so far advanced that there was nothing the applicant could do. 20. Since a few of the houses had not caught fire, the applicant and the other villagers thought they could shelter in them. 21. At about 3.30 p.m., the same soldiers raided the hamlet again. They asked why some of the houses had not been burned. When the applicant and the other villagers replied: “we did not put them out, you could not have lit them properly”, the soldiers said: “we shall burn them now”, and they burned the remaining houses. The applicant has since learned that the villages of Türeli and Makmu Kirami were also burned down that day. 22. The applicant's wife Fatma then asked the soldiers, in Kurdish, about what had happened to her sons İkram İpek and Servet İpek. The soldiers could not understand Kurdish, and asked what she had said. When the applicant explained that she was asking about her sons, the soldiers replied that they were in Lice and that they would be released soon. 23. After this second burning, the soldiers waited in the village, and only left in the direction of Lice in the evening. 24. Since his own house had been burned, the applicant with his wife Fatma, his son Hakim, and Sevgol, the wife of his son İkram İpek, moved to a house which had been evacuated two years previously in the hamlet of Kalenderesi, also attached to Türeli village. All they had left were the clothes they were wearing. Neighbours gave them a few more clothes. They remained there, in abject poverty, for some four months. The applicant has since moved to Diyarbakır. The Government have provided no aid or assistance to the applicant or his family ever since the time when his house was burned. 25. Abdülkerim, Nuri and Sait Yolur, who had been taken into custody together with İkram and Servet İpek, were released the next day. They themselves did not speak to the applicant afterwards but informed him through a third person that they had been held together until 10 p.m. the first night with their eyes bound. At 10 p.m. they were separated from İkram and Servet İpek and they never saw the two brothers again. Seyithan Yolur remained with İkram and Servet İpek. All three have been missing ever since. 26. About 15 days after İkram and Servet İpek were taken into custody, and having heard nothing about their whereabouts, the applicant travelled to Diyarbakır. With the help of a relative, he applied to the office of the Diyarbakır State Security Court (Diyarbakır Devlet Güvenlik Mahkemesi, hereafter DGM) chief public prosecutor. He also applied to the Lice public prosecutor's office and the Lice gendarmerie command. The applicant was unable to obtain any information about his sons from any of these State authorities. 27. In the meantime, in a letter dated 15 September 1994, Mr İbrahim Erge, a senior colonel at the Chief of Staff in Ankara, informed Mr Şakir Yolur that the security forces had not conducted any operation on 18 May 1994 in the Çağlarbaşı hamlet of Türeli village attached to the Lice district and that his son Seyithan Yolur had not been apprehended. 28. On 27 October 1994 the applicant filed another petition with the DGM chief prosecutor in Diyarbakır, asking him to investigate what had happened to his sons. The applicant was not permitted to meet the prosecutor, but a plain-clothes policeman who was there looked at the records and told the applicant verbally that the individuals in question were not there. 29. The applicant's other son, Hakim İpek, sent two or three petitions to the Governor of the State of Emergency. He received two replies consisting of denials that his brothers had ever been detained. He was so angry that he tore the letters up and disposed of the pieces. 30. On 23 December 1999 the applicant went to the Kulp Gendarmerie Commander's Office at the request of the latter. He was asked where his sons were. The applicant stated that they had been taken away by the State. The gendarmes accused him of lying, insisted that his sons had in fact been taken by the PKK, yelled at him, and asked him why he was complaining about the Turkish State. Under duress the applicant was obliged to apply his thumbprint to documents prepared by the gendarmes, the contents of which were not made known to him. 31. No security operation was conducted in Türeli village or in Dahlezeri hamlet on 18 May 1994. Neither the applicant's sons nor any other persons had been taken into custody. 32. The applicant did file a petition with the DGM chief public prosecutor in Diyarbakır on 27 October 1994, stating that his sons Servet and İkram İpek had been taken into custody and requesting the prosecutor to investigate his sons' fate. The chief public prosecutor asked the security forces whether the applicant's sons had been taken into custody for an offence falling within the jurisdiction of DGMs. The security forces informed the prosecutor that this was not the case and the applicant was informed of this outcome. 33. The applicant made no applications about the alleged disappearance of his sons to the offices of the Lice public prosecutor or to the Lice District Gendarmerie Commander. However, following the communication of the application to the Government, an ex officio investigation into the allegations was conducted by the Lice public prosecutor. However, it was not possible to locate the applicant at the address given by the applicant in his application form as submitted to the Commission. Moreover, the applicant was not known by the people living in the neighbourhood. His name was not registered in the registry of the head (muhtar) of the neighbourhood. 34. The Government further stated that no evidence has been found during the investigation to prove that the alleged offences had been committed by the security forces and that the Lice District Administrative Council (Lice İlçe İdare Kurulu) had rendered a decision not to prosecute members of the security forces. It had not been possible to communicate this decision to the applicant as his address was not known to the authorities and the Lice Governor had therefore ordered the publication of the outcome of the investigation in a newspaper. 35. The Government finally stated that the applicant had been invited to the Kulp Gendarmerie Commander's Office in order to make a statement as part of the administrative investigation in which the Kulp Gendarmerie Commander had been appointed as investigator. 36. On 26 December 1999 the Gendarmerie Commander questioned the applicant in relation to his allegations and the applications he had filed with various authorities, including a certain “European Human Rights Diyarbakır branch”. The applicant repeated his allegations that his two sons, İkram and Servet, along with the Yolur brothers had been taken away and that all the houses in his hamlet had been burned down by soldiers. The applicant further deposed that he had not applied to the “European Human Rights Diyarbakır branch”. Nor had he given any statement to the latter body or signed any document in respect of his allegations. 37. The following information appears from documents pertaining to the investigation carried out following the communication of the application to the respondent Government on 7 March 1995. 38. On 3 March 1995 Mr Sefa Özmen, a deputy to the Diyarbakır Governor, informed Mr Hakim İpek, in response to the allegations contained in his petition of 23 January 1995, that the security forces had not conducted any operation in the region on the dates mentioned in his petition, that his brothers were not on the list of persons wanted by the security forces and that the whereabouts of his brothers were not known to the authorities. 39. On 25 April 1995 the Diyarbakır chief public prosecutor instructed the Diyarbakır police headquarters to summon the applicant to his office so that a statement could be taken from him. The address of the applicant recorded in this letter is the same as the one given in the application form with the exception of the name of the block of flats. According to the application form, the name of the block of flats was 'Varol', but in the prosecutor's letter the name was recorded as 'Baro'. 40. On 2 May 1995 the Diyarbakır police informed the public prosecutor that there were no blocks of flats called Baro in the street indicated by him. This letter went on to say that the applicant was not known by the people living in the neighbourhood and that his name was not registered in the registry of the head (muhtar) of the neighbourhood. 41. On 18 May 1995 the commander of the Tepe gendarmerie station, in whose jurisdiction Türeli village was located, recorded in a report that Abdülrezzak İpek and his family had left the village and had gone to the town of Dörtyol near Hatay to work. 42. On 24 May 1995 the Diyarbakır chief public prosecutor sent a copy of the letter he had received from the International Law and Foreign Relations Directorate of the Ministry of Justice on 20 April 1995 to the Lice chief public prosecutor and asked him to investigate the applicant's allegations that his house had been burned down and that his sons had been taken away by the security forces. 43. On 7 June 1995 the Lice chief public prosecutor sent a letter to the gendarmerie commander of Lice and instructed the latter to confirm whether or not an operation had been conducted in Turalı village on 18 May 1995 and whether Servet and İkram İpek had been detained. He also asked the commander to find out the applicant's address and to summon the applicant to his, i.e. the prosecutor's, office. 44. On 13 June 1995 the Lice prosecutor sent another letter to the Lice gendarmerie commander's office and informed the latter that the name of the village was incorrectly recorded as 'Turalı' which was within the jurisdiction of the town of Hani. The prosecutor repeated his requests in his letter of 7 June 1995 and asked the gendarmerie commander to look for the applicant in the village of 'Türeli'. 45. On 20 June 1995 the Lice gendarmerie commander replied to the prosecutor's requests. The commander stated that the said persons had never been detained by his soldiers and that no operation had been conducted in the vicinity of Türeli village at that time. The commander finally stated that the applicant had moved to the town of Dörtyol in the province of Hatay to work. 46. On 21 June 1995 the Lice prosecutor took a decision of non-jurisdiction and sent the file to the office of the Lice district governor. This action was taken pursuant to the Law on the Prosecution of Civil Servants Memurin Muhakematı Kanunu) according to which authorisation must be sought in order to investigate the actions of members of the security forces. 47. On 2 February 1996 the gendarmerie commander of Diyarbakır, in an apparent response to a request from the Lice governor's office, appointed Turgut Alpı, a gendarmerie lieutenant-colonel, to investigate the applicant's allegations. 48. On 28 February 1996 the newly appointed Lieutenant- Colonel Alpı instructed the Lice gendarmerie commander to forward copies of the names and addresses of the military personnel who had been working in the area at the time of the incident. He further requested copies of all operation reports, operation logbooks, custody ledgers and any other relevant documents. 49. Also on 28 February 1996 Lieutenant-Colonel Alpı instructed the Diyarbakır police headquarters to take a statement from one Abdurrezzak İpek in respect of allegations of village destruction and disappearances. According to this letter, Abdurrezzak İpek was born in 1959 and living in Diyarbakır. 50. The Diyarbakır police headquarters forwarded a copy of the statement taken from Abdulrezak İpek on 8 March 1996 and a copy of his identity card to Lieutenant-Colonel Alpı. 51. Abdulrezak İpek stated in his statement that he did not even know where Türeli village was and that his children had not been taken away by soldiers. In fact, he did not have any children with those names. According to the copy of his identity card, this Abdulrezak İpek was born on 1 January 1959. 52. On 12 March 1996 the Lice gendarmerie commander replied to Lieutenant-Colonel Alpı's requests and enclosed copies of two pages of custody ledgers and copies of two pages of operation logbooks in which the day-to-day activities of the Lice gendarmerie were recorded. The Lice commander further stated in his letter that his soldiers had not conducted an operation in Türeli village on 18 May 1994 and that Servet and İkram İpek had not been detained. The letter further states that Major Şahap Yaralı had been Lice gendarmerie commander on 18 May 1994 but he had since been posted to another town in central Anatolia. Sergeant-Major Şükrü Günlükçü had been commander of the Tepe gendarmerie station in whose jurisdiction Türeli village was located. He had since been posted to a town in the west of the country. 53. Copies of the custody ledgers, which were enclosed with this letter, have been submitted to the Court. They do not contain the names of İkram or Servet İpek. A copy of the daily activities logbook kept at the Lice gendarmerie station does not mention any operation planned, or conducted, at the relevant time. 54. On 25 March 1996 Lieutenant-Colonel Alpı concluded his investigation report. He came to the conclusion that no operation had been conducted by security forces in Türeli village on 18 May 1994 and that the security forces had not even gone to that village on that day. LieutenantColonel Alpı further considered that the statement taken from Abdurrezzak İpek in which the latter stated that he was not from Türeli village and that his house had never been burned down or that his children had not been taken away, also proved that no operation had taken place. He recommended that authorisation to prosecute members of the security forces should not be granted as there was no evidence to prove that the alleged events had taken place. This report was forwarded to the Lice governor's office on 1 April 1996. 55. On 16 May 1996 the Lice District Administrative Council, under the presidency of the Lice Governor, decided on the basis of the information submitted by Lieutenant-Colonel Alpı not to grant authorisation for the prosecution of members of the security forces. This decision was appealed against ex officio pursuant to domestic law. 56. On 18 October 1996 the Diyarbakır Regional Administrative Court (Diyarbakır Bölge İdare Mahkemesi), sitting as an appeal court, rejected the appeal and upheld the decision not to grant authorisation for the prosecution of members of the security forces. It had not been possible to communicate this decision to Abdurrezzak İpek since his address was unknown to the authorities. Thus, the Lice Governor ordered the publication of this decision in a newspaper. 57. Finally, the applicant has submitted a letter dated 21 January 2000 and signed by Şakir Yolur, the father of Seyithan Yolur and the uncle of Sait and Nuri Yolur who were allegedly taken from the village by soldiers and detained together with the applicant's sons. 58. Mr Yolur, who also lived in the same village as the applicant, confirmed the applicant's version of events and added that Sait and Nuri had been released but that his son Seyithan had not been released. He has not heard from his son Seyithan since the incident. 59. Mr Yolur made inquiries at various military establishments in the region and sent a telegram to the Chief of Staff of the Turkish Armed Forces in Ankara (Genel Kurmay Başkanlığı) complaining about the disappearances in the course of the impugned events. 60. The Chief of Staff stated in his reply that no operation had taken place and that the persons referred to had not been detained. 61. The facts of the case being in dispute between the parties, the Court conducted an investigation with the assistance of the parties. In this respect, three delegates of the Court took oral evidence between 18 and 20 November 2002 from eight witnesses. A further three witnesses had been summoned but did not appear for various reasons. The evidence given by the witnesses may be summarised as follows. 62. The witness told the delegates that he had lived in the hamlet of Dahlezeri outside Türeli village between 1969 and May 1994 when the “Government destroyed the hamlet.” About twenty families lived in the hamlet. The inhabitants were all in some way related. The applicant kept livestock and grew crops for his living. 63. The applicant stated that two military raids had taken place on the hamlet on 18 May 1994. The first raid began around noon, at the time of the midday prayer. The soldiers gathered all the inhabitants (about a hundred) in front of the school, including the children. The village muhtar, with whom he enjoyed a good relationship, was not present. The men were separated from the women and children. When questioned by the Delegates, the applicant stated that the soldiers had collected the inhabitants' identity documents. No names were called out. Six persons, including his sons, İkram and Servet, were led away by the soldiers. These persons were chosen at random (“You, you and you.”) and were made to carry the soldiers' rucksacks. The soldiers returned the identity documents to the other inhabitants and then released them. During this time, the applicant could see that the hamlet had been set on fire. When he returned to the hamlet, he found that the houses, including his own house, belongings and livestock, had been burned. 64. The inhabitants started to salvage their property and belongings. However, at 6 p.m., the soldiers returned and ordered everyone to evacuate the village. According to the applicant, an order was given to shoot the inhabitants if they tried to put out the flames. They were made to walk for a long time. During this time he could hear messages coming through on the soldiers' walkie-talkies to halt the operation. They were threatened that they would be killed if they tried again to put the fires out. On being questioned at the hearing, the applicant affirmed that he could understand Turkish. The applicant later mentioned in his evidence that other villages had been burned that day, including Türeli. 65. The applicant confirmed his belief during questioning that the raids were conducted by soldiers. He related that they were dressed as such, carried G-3 or G-1 rifles and used military vehicles and helicopters during the raids. The applicant stated that he had never seen any members of the PKK in the hamlet. While there may have been clashes between the PKK and the security forces away from the area, there had never been any clashes in his neighbourhood. He maintained that there had been no PKK members in the hamlet. When questioned, the applicant stated that PKK members may have come to the hamlet and may have been given food since the inhabitants were afraid of them. According to the applicant, there were no village guards in the hamlet, although the authorities had proposed that inhabitants set up a village-guard system. 66. The applicant further testified that the soldiers who carried out the raids were from Bolu. They were accompanied by soldiers from Lice. Soldiers from Lice had come to the area in the past to carry out checks. The applicant also affirmed that his sons İkram and Servet had never been arrested by the security forces before the operation on 18 May 1994, and he could offer no explanation as to why they had been taken away. His son, İkram, had returned home from Ankara two days before the military operation to enjoy a rest. His other son, Servet, worked as a shepherd. 67. As to his own enquiries concerning the whereabouts of his sons, the applicant stated that he had applied to the authorities in Kulp, Lice, Istanbul and Ankara, as well as to the Human Rights Association in Diyarbakır. He deposed that, following the events of 18 May 1994, he had obtained from a soldier the name of the commander in charge of the operation, a Major Osman Duman. He had never disclosed that information to anyone before. 68. The witness had been married to İkram İpek for six months at the relevant time. She stated that her husband had just returned to the hamlet from Ankara where he had spent three months. On the morning of 18 May 1994 her brother-in-law, Servet İpek, informed the family that the hamlet was full of soldiers. Everyone was forcibly made to assemble at the school outside the hamlet. In the meantime, the houses were set alight. The witness stated that the raid occurred at 11 a.m. and that the burning took place at noon. 69. When the inhabitants were outside the school, the soldiers took their identity cards. Six people, including her husband İkram and her brother-in-law Servet, were picked out, apparently on account of their youth, and told to carry the soldiers' gear to the military vehicles. 70. The remaining inhabitants were allowed to return to their houses at 1 p.m. However, with the exception of a few houses, everything had been burned down, including their family home and belongings. The soldiers returned to the hamlet again at around 6 p.m. with orders to kill the inhabitants. Houses which had only partly been burned or where the flames had been extinguished were again set on fire. The inhabitants were all led away from the hamlet. The witness stated that she could make out from the radio communications between the soldiers that the order to kill them had been revoked. They were released at 7 p.m. but ordered not to stay in the hamlet. The witness went to live with her parents in Diyarbakır. 71. The witness had no doubts that the operation was carried out by Turkish soldiers. She was unable to assess how many soldiers were involved. She testified that there were no members of the PKK living in the hamlet and that she had no recollection of PKK members ever having come to the hamlet for assistance. When questioned by the Delegates, the witness affirmed that neither her husband nor her brother-in-law had ever been in trouble with the authorities. The witness stated that she was never requested by the authorities to give a statement about the above events. 72. The witness is the applicant's son and the brother of İkram and Servet İpek. He stated that the events under investigation had taken place on 18 May 1994 when soldiers arrived in the village. He estimated that five thousand soldiers were involved in what he referred to as the “general operation.” The soldiers approached the hamlet on foot from Pilgrimage Hill where they had left their military vehicles. They rounded up the inhabitants at the local school where they separated the men from the women. Everyone's identity cards were taken. The soldiers picked out six of the villagers including his brothers İkram and Servet İpek and the three Yolur brothers to carry their rucksacks back to the vehicles. The witness affirmed that he saw these individuals being led away on foot towards the military vehicles and getting into the vehicles. The soldiers handed back the identity cards to the remaining villagers who went back to the hamlet only to find that the houses had been set alight. The witness stated that his family's livestock and belongings had been destroyed. According to the witness, these events took place at noon. 73. Some villagers attempted to extinguish the flames. However, the soldiers returned around 4 or 5 p.m. with orders to kill them. The villagers were rounded up and taken away. However, an order came over the military radio not to fire on the villagers. They were allowed to return but were threatened with death if they tried to put out the fires. 74. When questioned by the Delegates the witness stated that there were no PKK members living in the hamlet or in the neighbouring village, and if any members visited they would be denied assistance since the inhabitants were afraid of reprisals from the authorities. Moreover, there were no guards in the hamlet - although the authorities had proposed the setting up of a village-guard system. The witness had no explanation as to why the hamlet had been destroyed and his brothers taken away. He did however refer to an incident in Türeli village about a half an hour away in which a number of soldiers were killed. The witness informed the Delegates that all the villages in the neighbouring region had been burned. 75. The witness stated that he and his father (the applicant) had made many attempts in writing to find out from the authorities about the fate of his missing brothers. They were consistently informed that İkram and Servet were not in detention. The witness stated that, out of anger, he tore up and threw away the replies which he had received from the regional governor. The witness told the Delegates that his father had been told the name of the commander of the operation by a soldier whom he had met in the Kiran neighbourhood. His father had written down the name. 76. The witness stated that he had been born in Dahlezeri hamlet. However, at the beginning of 1994 he was living in Diyarbakır. There were twenty households in the hamlet and all the families were in some way related. He knew both İkram and Servet İpek. The witness had returned to the hamlet two days before the start of the military operation. He related to the Delegates that troops from Bolu and other areas had arrived in the vicinity on 17 May 1994 and that there may have been thousands of them involved in the operation. On the following day, all the villagers were made to assemble in a group in front of the local school while the soldiers, who had arrived in the hamlet on foot, burned down the houses. When questioned by the Delegates, the witness stated that five or six soldiers stood guard around the inhabitants outside the school, and he estimated that there may have been sixty to seventy, maybe even a hundred, soldiers involved in the operation in the hamlet. 77. According to the witness, the school where everyone was grouped was ten metres away from the hamlet. He could see the fires burning in the hamlet. The villagers' identity documents were taken by the soldiers and six of them (himself, Abdülkerim Yolur, Sait Yolur, Seyithan Yolur, İkram İpek and Servet İpek) were requested to carry the soldiers' rucksacks up to their vehicles which had been parked on the hilly area around the village. When questioned, the witnessed stated that the military vehicles were not visible from the school. The witness told the Delegates that the soldiers commented that Seyithan Yolur would be taken to Lice and conscripted into the army since he had evaded his military service. The witness estimated that the six of them left with the soldiers around 9 to 10 a.m. On their way to the military vehicles, he could see from a hill that smoke was rising again from the village. By the time they reached their destination, it was late afternoon. However, rather than being released, they were then taken in an open-top military vehicle to Lice along with fifty or sixty soldiers. He could see smoke rising from the villages along the route to Lice. It was dark when they arrived there. They were made to get out of the vehicle and to lie face down. The witness remarked that many other persons arrived around this time. He estimated that about one hundred and fifty persons were lying down in front of the establishment. Their identity cards were collected. The witness stated that he and two others (his brothers Sait and Abdülkerim Yolur) were taken to a custody room where they spent the night. They were never ill-treated during this time. In the morning their identity documents were returned and they were told to leave. The last time that he saw İkram and Servet İpek was when they were lying down after being taken from the military vehicle. The witness stated that when he arrived back in the hamlet, the houses had been burned. 78. The witness had no explanation as to why he and his two brothers were released whereas the İpek brothers and Seyithan Yolur were kept in custody. When questioned, the witness deposed that the place to which they had all been taken was “a large military place in Lice”. 79. The witness had no doubt that the people who raided the hamlet were soldiers carrying G-3s. He had never heard of any PKK activity in or around the hamlet, and had no explanation as to why the hamlet had been burned; nor had he ever heard of a Major Osman Duman. 80. The witness stated that he was from the same hamlet as the İpek family. All the families living there were related. He had returned to the hamlet on 17 May 1994 from Aydın for a visit. Soldiers on foot raided the village between 11 a.m. and noon on 18 May 1994. He was certain that they were soldiers since they were carrying G-3s. A helicopter flew above the area. The soldiers arrived in the hamlet on foot. The inhabitants were all made to assemble at the school on the edge of the hamlet, men on one side, women on the other. The soldiers took everyone's identity documents. He could see the hamlet being burned. Six of them (himself, Mehmet Nuri Yolur, Sait Yolur, Seyithan Yolur, İkram İpek and Servet İpek) were requested to carry the soldiers' bags up to Türeli village. The soldiers kept their identity documents, but returned the identity documents of the persons who remained behind. They set off around noon with the soldiers for Türeli village, which was burning. They reached the outskirts around 2 p.m. Rather than being released as promised, they were made to await the arrival of military vehicles from Lice to take the soldiers back. The witness stated that Türeli village was burning at the time, although they did no go into the village and they did not see any villagers. The six of them got into one of the vehicles and set off towards sunset for Lice. According to the witness there were about one hundred soldiers in the truck. When they arrived in Lice, at the “Regiment”, they were made to lie on the ground and were divided into two groups of three. The witness was unable to confirm whether, apart from the six, there were other persons lying on the ground. One group comprised İkram and Servet İpek and Seyithan Yolur. The witness stated that this was the last occasion on which he saw them. Their names were read out. He and his brothers, Mehmet Nuri and Sait, were taken inside the “Regiment” and spent the night in a cell-like room as the soldiers' guests since by that stage it was dark. They were well-treated. There were two other persons in the room whom they did not know. When questioned, the witness was unable to provide any precise description of the building where he spent the night. He confirmed that the cell door was locked and guarded. The following morning they were handed their identity documents and released. He returned to the hamlet where he remained for one or two nights, sleeping in the open. When questioned, the witness stated that he had no explanation as to why İkram and Servet İpek and Seyithan Yolur had been detained. He had no knowledge of any PKK activity in the area and had never heard of a Major Durmuş. 81. The witness stated that seventeen or eighteen villages might have been burned on 18 May 1994. 82. The witness stated that he had been serving in Diyarbakır when he was appointed on 2 February 1996 to investigate the applicant's complaints. He found no records at the Lice District Gendarmes Headquarters to indicate that İkram and Servet İpek had been taken into custody or that an operation had been conducted on 18 May 1994 by the gendarmes or military units. The commander at Lice was interviewed and he confirmed that neither of these persons had been taken into custody. The investigation was closed on the basis of the absence of documentary evidence that the İpek brothers had been detained. According to the witness there was no need to obtain the operational records of the military, given that the Lice District Gendarmes Commander at the time had responsibility for the whole area. When asked about the possibility that the Bolu brigade may have been in the area at the time of the incident, the witness observed that the Lice District Gendarmes Commander would have been aware of this. The witness reaffirmed that he had established through the Lice District Gendarmes Headquarters that no operation had been conducted in or around 18 May 1994. When questioned, the witness stated that he did not find it necessary to ascertain from the Bolu brigade whether it had records of operations which it had conducted in 1994. He repeated that the district gendarmerie commander would have had any such information since he had overall responsibility for the area. It had been established that he did not have any information. 83. The witness told the Delegates that he did not personally visit Dahlezeri hamlet or Türeli village since he knew that the inhabitants had all left. He knew the area, having served there and knew that the villages had been abandoned at some stage. The witness could not confirm whether Dahlezeri hamlet or Türeli village had actually been destroyed by burning. When questioned on this point, the witness observed that the terms of reference of his investigation also extended to the allegation that the hamlet had been burnt down. The Lice District Gendarmerie Headquarters informed him that this matter had been investigated and it was found that the hamlet had not been destroyed as alleged. The witness conceded that the report which was sent to him by the commander of the Lice District Gendarmes Headquarters only mentioned that no military operation had been carried out. The witness further stated that no villages in the area had been destroyed by military units. On the other hand, he had personally witnessed the burning of villages by the PKK. 84. The witness declared that, with the exception of the first name and family name, he had no personal identification details of the applicant Abdürrezzak İpek at the time of his investigation. Thus, when someone of the same name was located and questioned by the Diyarbakır police, there was no reason to believe that the wrong man had been interviewed. No attempts were made to question other members of the applicant's family or inhabitants of the hamlet since they had no addresses for them. Moreover, there had been intense terrorist activity in the area at that time. The witness deposed that Captain Şahap Yaralı had not been questioned since it could not be established that the İpek brothers had been taken into custody and, in addition, Captain Şahap Yaralı had been posted out of the area by the time he undertook his investigation. 85. The witness confirmed that he had been the Lice District Gendarmerie Commander in 1994 and that his responsibilities included overall command of the Tepe gendarme station. His responsibilities had included Türeli village. He deposed that no military operations had been carried out in the area under his jurisdiction on 18 May 1994. Had any such operation been conducted on that day, either by the gendarmes or by the military or jointly, it would have been recorded in the log book of the district gendarmerie headquarters. The witness affirmed that the armed forces, including the Bolu commando brigade, would have notified his command of any operation which was to be undertaken, including on 18 May 1994. Notification of planned military operations was established practice. 86. The witness stated that no purpose would have been served by visiting the Dahlezeri hamlet or Türeli village in the course of his investigation. The area had been the scene of intense terrorist activity and the villagers had been forced to leave by the PKK. The witness observed that there must exist a minute recording that an officer had questioned former inhabitants of the Dahlezeri hamlet. He stressed that the security forces had never engaged in village burning or forcible evacuation of villagers. 87. When questioned, the witness reiterated that the names of all persons who were taken into custody were entered in the custody register. There was no reference in the register to the detention of the İpek brothers. The witness noted that no entries were made in respect of persons who were in the gendarme station under observation, for example for the purposes of simple investigations. 88. The witness, when asked if he had heard of a Major Osman Durmuş, stated that there had been a Major Osman in the region at the time of his service there. He recollected that Major Osman was in the area in an advisory capacity to one of the battalions which was responsible for overseeing the local elections. 89. The witness was the commander of the Tepe gendarme station between October 1993 and July 1994. He was responsible, inter alia, for ensuring the security of Türeli village and its inhabitants. He stated, however, that he had never been to Türeli or Dahlezeri during his term of service at the Tepe gendarme station. He explained that at the relevant time they were unable to get to the remote villages since they did not have a vehicle at their disposal. The witness did observe that the soldiers under his command would have visited Türeli village for the purposes of carrying out investigations. The witness deposed that no military operation had been conducted on 18 May 1994 in the region, either by the soldiers under his command or by the armed forces, including the Bolu commando brigade. If any such operation were to be conducted by forces not under his command, he would have been informed twenty-four hours in advance. 90. According to the witness, there had been intense terrorist activity in the area, which forced many people to leave their villages and to move to safer places, such as Diyarbakır. He tried in vain to convince the villagers not to leave their villages. The villagers told him that they were sick of terrorists coming to their villages and forcibly taking their food provisions or abducting their sons. The witness rejected any suggestion that the authorities could have ordered the villagers to leave their villages or that they could have been responsible for the immigration from the region. 91. When questioned about the allegations that Dahlezeri hamlet had been destroyed and that the applicant's two sons had been taken away by soldiers, the witness averred that he had never received any such information during his term of service. Had he ever been informed of such an incident he would have carried out an investigation into the allegations and would have reported the situation to the district gendarmerie command to which his station was attached. No application was ever filed about missing persons either by Abdurrezak İpek or any other person. The witness further deposed that he had never been questioned by the Turkish authorities in relation to the applicant's allegations before the Court. The witness never heard of a Major Osman Duman serving in the area in question. However, he might have served in another division or at the Lice infantry battalion, which was stationed in an unused school. 92. Article 125 of the Constitution provides: “All acts or decisions of the administration are subject to judicial review ... The administration shall be liable to indemnify any damage caused by its own acts and measures.” 93. The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus, the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 94. The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides: “... actions for compensation in relation to the exercise of the powers conferred by this Law shall be brought against the administration before the administrative courts.” 95. The Criminal Code makes it a criminal offence (a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants); (b) to subject an individual to torture or ill-treatment (Articles 243 and 245); (c) to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) or murder (Article 450); (d) to oblige an individual through force or threats to commit or not to commit an act (Article 188); (e) to issue threats (Article 191); (d) to carry out an unlawful search of an individual's home (Articles 193 and 194); (f) to commit arson (Articles 369, 370, 371, 372), or in case human life is endangered aggravated arson (Article 382), (g) to commit arson unintentionally by carelessness, negligence or inexperience (Article 383); or (h) to damage another's property intentionally (Articles 526 et seq.). 96. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 97. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons' hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts). 98. If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). An appeal against the local council's decisions lies to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind. 99. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Civil Code, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. The civil courts pursuant to Article 46 of the Civil Code may compensate pecuniary loss and non-pecuniary or moral damages awarded under Article 47. 100. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing. 101. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund. 102. Since approximately 1985, serious disturbances have raged in south-east Turkey between the security forces and the members of the PKK (Workers' Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces. 103. Two principal decrees relating to the south-eastern provinces of Turkey have been made under the Law on the State of Emergency (Law no. 2935 of 25 October 1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-east Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmes' Public Peace Command are at the disposal of the regional governor. 104. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State security prosecutors and courts established throughout Turkey. 105. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 41 above) shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must decline jurisdiction and transfer the file to the Administrative Council. These councils are composed of civil servants, chaired by the governor. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. 106. The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8: “No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.” | 1 |
dev | 001-68423 | ENG | GBR | CHAMBER | 2,005 | CASE OF LLOYD AND OTHERS v. THE UNITED KINGDOM | 3 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award | Josep Casadevall;Nicolas Bratza;Simon Brown | 9. Each applicant failed to pay sums due in respect of either local taxes (community charge, council tax or non-domestic rates) or court-imposed fines. In respect of the failure to pay local taxes, the magistrates’ court had in each case determined that the applicant was liable to pay (issuing a “liability order”); in fines cases, the magistrates’ court had imposed the fine as the sentence following a criminal conviction. 10. Each applicant fell into arrears with the payments due from them. These cases involve the enforcement proceedings in respect of their arrears in the magistrates’ court. Each applicant appeared before the court, following the issuing of an application for their committal to prison as a result of their failure to pay the sums due. At that hearing the magistrates found that the non-payment was due to the applicant’s wilful refusal or culpable neglect. As a result each applicant was sentenced to a period of imprisonment. The sentence was either imposed immediately (G.M., 34341/96) or was suspended on terms that the applicant make periodic payments towards the outstanding sum. In the latter circumstances, when the applicant failed to comply with the terms imposed, a further hearing was held in the magistrates’ court at which the suspended term of imprisonment was activated. Each applicant spent a period of time in prison. Legal aid (free legal representation where the applicant did not have sufficient means to pay for it) was not available for these enforcement proceedings prior to 1 June 1997 and none of the applicants was legally represented at the hearings in front of the magistrates. 11. Following their imprisonment, an application was made on behalf of each applicant, by way of either judicial review or case stated, which resulted in the High Court quashing the orders made by the magistrates. The majority of the applicants were released from prison on bail at the time of making their applications to the High Court. In three cases the orders of the magistrates were quashed in a judgment of the High Court. In the remaining cases the orders were quashed following the High Court’s approval of a consent order agreed between the applicants and the magistrates who had sentenced them. 12. With one exception (Christison, 56429/00), the Court has set out the relevant facts pertaining to each applicant in the table which appears at the end of the decision on admissibility (Lloyd and Others v. the United Kingdom, no. 29798/96 and others, decision of 21 October 2003). That table sets out the following information in respect of each applicant: their name and application number; whether their case involved non-payment of community charge (“CC”), council tax (“CT”), non-domestic rates (“NDR”) or fines (“F”) and the number of days which they spent in prison; whether their proceedings in the magistrates’ court took place before or after legal aid became available on 1 June 1997; and the grounds upon which the High Court quashed the orders of the magistrates. Additional relevant factual information appears in this column of the table where appropriate. 13. Where the orders of the magistrates were quashed following a judgment, the Court has indicated that fact in the table and quoted from the relevant part of the judgment. Where the orders of the magistrates were quashed by means of a consent order, the Court has set out the terms of the consent order in full. In such cases, where the terms agreed contain obvious mistakes or misquotations from domestic case-law, the Court has inserted corrections in square brackets. However, where it is not obvious what the relevant correction should be, the Court has simply left the order in its original form. 14. Throughout the text of this judgment, where there is a reference to a specific applicant, the Court has set out the surname of the applicant followed by their application number in brackets. The words “justices” and “magistrates” are synonymous in domestic law. 15. For reasons of space, the Court sets out the facts of the Christison (56429/00) application below. 16. This applicant’s application for judicial review was determined by the judgment of Mr Justice Collins in R. v. Doncaster Justices ex parte Christison and Jack (13 May 1999). It is clear from that judgment that the applicant was summoned to court as a result of her failure to pay council tax. On 21 January 1998, the justices, having neither received any evidence about, nor asked any questions about, the financial outgoings of the applicant, found her to have culpably neglected to pay the council tax and made an order imposing 28 days’ imprisonment suspended on payment of 8 pounds sterling (GBP) per month. 17. The applicant did not make the payments in compliance with the magistrates’ order of 21 January 1998. She was therefore summoned to appear on 1 June 1998 for the magistrates’ court to determine whether the warrant of committal should be issued. The justices were told by the prosecutor that the applicant had been served with the notice of the hearing three weeks prior to the hearing. They proceeded in her absence and issued the committal warrant. She spent a total of two days in prison. 18. The order of 21 January 1998 was quashed by Mr Justice Collins on the following ground: “[N]o proper means enquiry was carried out ... The Justices accept that there was no proper means enquiry and, therefore, the order is going to be quashed. ... ... Justices probably carry out means enquiries every day. They must know, and if they do not, their clerks should advise them, what ought to be asked and what information ought to be obtained. They failed to do that in [this] case.” 19. The order of 1 June 1998 was quashed by Mr Justice Collins for the following reasons: “... Anyway, the applicant did not pay as she should have done and she also was summoned to appear on 1st June. ... [the bailiffs] had served three weeks or so before. Although the evidence of that has now been produced ... it is somewhat unsatisfactory because the bailiff’s handwritten note does not make it clear whom they actually served. I am prepared (because it does not make any difference to the outcome) to assume that she was served, and the Justices again were told, although no evidence was produced, that bailiffs has served her some three weeks before ... The time has come to try to make it abundantly clear to Justices that, in the view of this court, it is difficult to conceive that there will be circumstances which justify the making of a committal order when the defendant fails to appear before the court. It means that the Justices are unable to ascertain whether there are, in truth, reasons why payment has not been made which might excuse such payment, and furthermore, reasons why in an individual case it would be wrong to send the person immediately to prison. Alternatively, it might be proper to reduce the period of imprisonment that is considered appropriate, if any is considered appropriate. It may transpire that by the time that the question of implementing the suspended committal order is considered, the circumstances of the defendant have changed. Whereas before she might have been able to pay perhaps, through illness or whatever reason, by now she cannot. Thus, it would be wrong to commit her. Committal, I must re-emphasise, can only occur if the Justices are satisfied that there is a continuing wilful refusal or culpable neglect. The Justices have a perfectly sensible and powerful weapon available to them to deal with cases where a defendant does not attend, and that is a Warrant Not Backed for Bail. That is the means by which a person can be brought before the court and made to explain why he or she has not paid. Then the Justices will have the proper information before them to enable them to decide whether the committal is indeed correct. I cannot emphasise strongly enough my view that Justices should not, unless there are very exceptional circumstances (such as positive evidence that a defendant is refusing to attend and has expressed an unwillingness to comply with the court order) commit to prison in the absence of a defendant. ... It is true that in these cases, the Justices were told that service had been effected, but service some three weeks before is nothing to the point. Much can happen in that time ... Furthermore, there was no evidence put before the Justices to support the contention that service had been effected, and for my part I do not think it right, when someone’s liberty is at stake, for Justices to rely upon the word of the prosecutor unsupported by any evidence. A civil court which commits for contempt, which may be contempt occasioned by failure to comply with a court order, requires proof of service and that is usually done by a bailiff or whoever, indicating that service has been effected. It seems to me that it is quite wrong that Justices should put up with a lesser standard than that.” 20. Mr Justice Collins also awarded costs against the justices on the following basis: “It is unusual for costs to be awarded against Justices who do not attend applications against them for judicial review. The principle which is applied has recently been referred to by Latham J in R. v. Newcastle-upon-Tyne Justices ex parte Devine (1998) RA 97. At page 104 of the report, the learned judge refers to a decision of the Divisional Court, R. v. York City Justices ex parte Farmery 153 JP 257, the head note of which reads: ‘... the court would be guided by the principles set out in R. v. Willesden Justices, ex parte Roberts (1960) 124 JP 336 wherein it was decided respectively: (i) that costs would only be awarded against Justices in the rarest of circumstances when they have done something which calls for strong disapproval; and (ii) that it was the practice not to grant costs against Justices merely because they have made a mistake in law, but only if they have acted perversely or with some disregard for the elementary principles which every court ought to obey, and even then only if it was a flagrant instance.’ ... ... In [this] case the committal took place in the absence of the defendant. This court has made it clear that Justices must be satisfied, at the very least, that there has been proper service, and, as I have said, I find it very difficult to conceive of circumstances which would justify a committal in the absence of a defendant. Thus it seems to me that the conduct of these Justices can properly be said to fall within the description that I have set out and which is referred to in the Newcastle case by Latham J.” 21. By virtue of section 111 of the Magistrates’ Courts Act 1980 a party to proceedings before a magistrates’ court may “question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved ...”. This is known as the “case stated” procedure. 22. Under section 113 of the 1980 Act, magistrates may grant bail to a party who applies to them to state a case; but if they refuse to do so, in cases categorised as “civil” under the domestic law, the High Court has no jurisdiction to grant bail until it is seized of some substantive proceedings to which the grant of bail can be ancillary. 23. According to Halsbury’s Laws of England, Fourth Edition, Volume 1(1) at paragraph 59: “Judicial review is the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties ... Judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision making process itself ... The duty of the court is to confine itself to the question of legality. Its concern is with whether a decision making authority exceeded its powers, committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal could have reached or abused its powers.” 24. The principles underlying the domestic law as set out under this heading are largely as previously stated in the case-law of the Convention organs, in particular in the judgments of the Court in the cases of Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 738 (“Benham”), and Perks and Others v. the United Kingdom, no. 25277/94 and Others, 12 October 1999 (“Perks”), as confirmed in Lloyd and Others v. the United Kingdom, no. 29798/96 and others, decision on admissibility of 21 October 2003. 25. In English law, orders of a magistrates’ court which are in excess of jurisdiction are void from the outset, whereas orders made within jurisdiction remain valid until set aside by a superior court. It is only in respect of the former type of error that a court can be held civilly liable in damages (under section 108 of the Courts and Legal Services Act 1990, which replaced section 45 of the Justices of the Peace Act 1979 – see below). 26. The appropriate test for whether an order of a magistrates’ court is void for lack of jurisdiction is that set out by the House of Lords in McC. v. Mullan [1984] 3 All England Reports 908. In that case magistrates had made an order sending a 14-year-old boy to a training school after a hearing at which he was not legally represented, had not applied for legal aid and had not been informed of his right so to do. The order was quashed on judicial review on the ground that, by virtue of Article 15(1) of the Treatment of Offenders (Northern Ireland) Order 1976, magistrates were not permitted to pass a custodial sentence for the first time on a juvenile who was not legally represented, unless he had applied for legal aid and had been refused on grounds of means or had been informed of his right to apply for it but had refused or neglected to do so. 27. The boy then applied for damages for false imprisonment against the magistrates. Since the case was decided prior to the enactment of the Courts and Legal Services Act 1990 and at a time when magistrates were liable in damages for false imprisonment if they acted in excess of jurisdiction, the House of Lords was required to decide the jurisdictional question. Indeed, Lord Templeman in his judgment stated as follows: “The question to be determined on this appeal is whether the magistrates acted within their jurisdiction or without jurisdiction.” 28. In addressing that question, Lord Bridge specifically referred to the case of Anisminic Ltd. v. the Foreign Compensation Commisison [1969] 2 Appeal Cases 147 (HL) and stated as follows: “I do not believe that the novel test of excess of jurisdiction which emerges from the Anisminic case, ... however valuable it may be in ensuring that the supervisory jurisdiction of the superior courts over inferior tribunals is effective to secure compliance with the law and is not lightly to be ousted by statute, has any application whatever to the construction of s[ection] 15 of the 1964 Northern Ireland Act or s[ection] 45 of the 1979 [Justices of the Peace] Act.” 29. In the judgment of the House of Lords, it was held that a magistrates’ court acted in excess of jurisdiction in three circumstances only: (1) if it acted without having jurisdiction over the cause, (2) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity, or (3) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent. The instant case fell within the third limb of the rule: the magistrates were liable in damages because they had not observed the requirements of Article 15(1) of the 1976 Order. As such, they had failed to fulfil the statutory condition precedent to the imposition of the sentence of detention. 30. During the course of his judgment, Lord Bridge commented on the jurisdiction of magistrates in conducting a criminal trial: “... once justices have duly entered upon a summary trial of a matter within their jurisdiction, only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction ... [A]n error (whether of law or fact) in deciding a collateral issue on which jurisdiction depends will not do so. Nor will the absence of any evidence to support a conviction ...” 31. Lord Bridge also said the following in relation to the second situation set out above in which a magistrates’ court acted in excess of jurisdiction: “Justices would, of course, be acting ‘without jurisdiction or in excess of jurisdiction’ within the meaning of s[ection] 15 if, in the course of hearing a case within their jurisdiction, they were guilty of some gross and obvious irregularity of procedure, as for example if one justice absented himself for part of the hearing and relied on another to tell him what had happened during his absence, or of the rules of natural justice, as for example if the justices refused to allow the defendant to give evidence. But I would leave for determination if and when they arise other more subtle cases one might imagine in which it could successfully be contended in judicial review proceedings that a conviction was vitiated on some narrow technical ground involving a procedural irregularity or even a breach of the rules of natural justice. Such convictions, if followed by a potential trespass to person or goods, would not, in my opinion, necessarily expose the justices to liability in damages.” 32. The final limb of the rule formulated by the House of Lords in McC. v. Mullan (that is, that magistrates exceed their jurisdiction when they make an order which has no foundation in law because of a failure to observe a statutory condition precedent) was applied by the Queen’s Bench Division and the Court of Appeal in R. v. Manchester City Magistrates’ Court, ex parte Davies [1988] 1 W.L.R. 667 and [1989] 1 All England Reports 90, a case concerning rates (a local tax which was the predecessor to the community charge). Mr Justice Simon Brown considered that the justice’s plain failure to address themselves to the question whether or not the applicant’s failure was due to culpable neglect was not a gross and obvious irregularity but a failure to satisfy the statutory condition. 33. In that case, the plaintiff had been unable to pay all of the rates for which he became liable in December 1984, and in January 1986 he failed to follow his accountant’s advice to close his business and elect bankruptcy. Applying legislation similar to regulation 41 of the Community Charge Regulations (for which, see below), the magistrates found that his failure to follow the accountant’s advice constituted culpable neglect and they committed him to prison. On appeal from the judgment of Mr Justice Simon Brown, the Court of Appeal held that no causal connection had been established between the failure to follow the advice in 1986 and the failure to pay the rates in 1984; and that the magistrates had not properly entered into the inquiry as to whether the failure to pay was due to culpable neglect, which was required by the legislation as a statutory condition precedent to the exercise by the justices of their power to issue a warrant of commitment. They were therefore acting in excess of jurisdiction and were liable in damages. 34. The three Appeal Court judges expressed their findings in slightly different terms. Lord Justice O’Connor observed that “they never carried out the inquiry required [by the law]”. Lord Justice Neill found that “some inquiry about the applicant’s finances was made”, but that “a clear and crucial distinction can be drawn between the inquiry required by the statute and the inquiry which was in fact carried out. The justices never examined the question whether failure to pay was due to culpable neglect ... In my judgment, the statutory inquiry was not held in the present case”. He explained that the making of an enquiry was a statutory condition precedent to the issue of a warrant of commitment: “In other words, if the justices failed to hold any inquiry at all as required by the section they would have no jurisdiction to issue a warrant.” Sir Roger Ormrod (who dissented from the majority decision) said: “... it is quite clear that the justices carried out an inquiry into means carefully and in detail ... It is equally plain that they misdirected themselves completely ... They ... failed to realise that the question they had to decide was whether the applicant’s failure to pay his rates was ‘due either to his wilful refusal or to his culpable neglect’ ”. 35. The relevant subordinate legislation is the Community Charge (Administration and Enforcement) Regulations 1989 (Statutory Instrument 1989/438) (“the 1989 Regulations”). 36. The relevant provisions of regulation 29 (“application for a liability order”) are as follows: “(1) If an amount which has fallen due ... is wholly or partly unpaid the charging authority may ... apply to a magistrates’ court for an order against the person by whom it is payable. ... (5) The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.” 37. Regulation 39(1) provides for the seizure and sale of a debtor’s property (“levying of distress”): “Where a liability order has been made the authority which applied for the order may levy the appropriate amount by distress and sale of goods of the debtor against whom the order was made.” 38. Regulation 41 is concerned with the committal to prison of a debtor, and provides, so far as is relevant: “(1) Where a charging authority has sought to levy an amount by distress under regulation 39, the debtor is an individual, and it appears to the authority that no (or insufficient) goods of the debtor can be found on which to levy the amount, the authority may apply to a magistrates’ court for the issue of a warrant committing the debtor to prison. (2) On such application being made the court shall (in the debtor’s presence) inquire as to his means and inquire whether the failure to pay which led to the liability order concerned being made against him was due to his wilful refusal or culpable neglect. (3) If (and only if) the court is of the opinion that his failure was due to his wilful refusal or culpable neglect it may if it thinks fit - (a) issue a warrant of commitment against the debtor, or (b) fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions (if any) as the court thinks just. ... (7) The order in the warrant shall be that the debtor be imprisoned for a time specified in the warrant which shall not exceed 3 months, unless the amount stated in the warrant is sooner paid ... .” 39. Regulation 42 makes further provision in respect of committal to prison. It provides, in relevant part, as follows: “(2) Where an application under regulation 41 has been made, and after the making of the inquiries mentioned in paragraph (2) of that regulation no warrant is issued or term of imprisonment fixed, the court may remit all or part of the appropriate amount mentioned in regulation 39(2) with respect to which the application related. (3) Where an application under regulation 41 has been made but no warrant is issued or term of imprisonment fixed, the application may be renewed (except so far as regards any sum remitted under paragraph (2)) on the ground that the circumstances of the debtor have changed.” 40. Regulations 47 and 48 of the Council Tax (Administration and Enforcement) Regulations 1992 (Statutory Instrument 1992/613) and regulations 16 and 17 of the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 (Statutory Instrument 1989/1058), which concern the commitment to prison of a person for failure to pay council tax and non-domestic rates respectively, are in similar terms to regulations 41 and 42 of the 1989 Regulations. 41. Sections 77(2) and 82 of the Magistrates’ Courts Act 1980 read, in relevant part, as follows: “77. Postponement of issue of warrant. (2) Where a magistrates’ court has power to issue a warrant of commitment under this Part of this Act, it may, if it thinks it expedient to do so, fix a term of imprisonment ... and postpone the issue of the warrant until such time and on such conditions, if any, as the court thinks just.” “82. Restriction on power to impose imprisonment for default (3) Where on the occasion of the offender’s conviction a magistrates’ court does not issue a warrant of commitment for a default in paying any ... sum [adjudged to be paid following conviction] ... or fix a term of imprisonment under ... section 77(2) which is to be served by him in the event of any such default, it shall not thereafter issue a warrant of commitment for any such default or for want of sufficient distress to satisfy such a sum unless - (...) (b) The court has since the conviction inquired into his means in his presence on at least one occasion. (4) Where a magistrates’ court is required by subsection (3) above to inquire into a person’s means, the court may not on the occasion of the inquiry or at any time thereafter issue a warrant of commitment for a default in paying any such sum unless - (...) (b) The court (i) is satisfied that the default is due to the offender’s wilful refusal or culpable neglect; and (ii) has considered or tried all other methods of enforcing payment of the sum and it appears to the court that they are inappropriate or unsuccessful.” 42. Section 82(4A) lists the methods of enforcing payment that are mentioned in the above-cited subsection 82(4)(b)(ii). One such method that is listed in section 82(4A) is the imposition of a ‘fines supervision order’ under section 88 of the Magistrates’ Courts Act. Section 82 continues: “(5) After the occasion of an offender’s conviction by a magistrates’ court, the court shall not, unless - the court has previously fixed a term of imprisonment under section 77(2) above which is to be served by the offender in the event of a default in paying a sum adjudged to be paid by the conviction; ... issue a warrant of commitment for a default in paying the sum or fix such a term except at a hearing at which the offender is present. (5A) A magistrates’ court may not issue a warrant of commitment under subsection (5) above at a hearing at which the offender is not present unless the clerk of the court has first served on the offender a notice in writing stating that the court intends to hold a hearing to consider whether to issue such a warrant and giving the reason why the court so intends. ... ... (5F) A notice under subsection (5A) above to be served on any person shall be deemed to be served on that person if it is sent by registered post or the recorded delivery service addressed to him at his last known address, notwithstanding that the notice is returned as undelivered or is for any other reason not received by that person. (6) Where a magistrates’ court issues a warrant of commitment on the ground that one of the conditions mentioned in subsection (1) or (4) above is satisfied, it shall state that fact, specifying the ground, in the warrant.” 43. Part I of the Criminal Justice Act 1982 sets out provisions in relation to the custody and detention of persons under 21 years of age. Section 1 reads, in relevant part, as follows: “1. General restriction on custodial sentences ... (5) No court shall commit a person under 21 years of age to be detained under section 9 below [Detention of persons aged 18-20 for default or contempt] unless it is of the opinion that no other method of dealing with him is appropriate; (...) (5A) Where a magistrates’ court commits a person under 21 years of age to be detained under section 9 below, it shall - (a) state in open court the reason for its opinion that no other method of dealing with him is appropriate; and (b) cause that reason to be specified in the warrant of commitment and to be entered in the register.” 44. Section 3 of the Criminal Justice Act 1982 reads, in relevant part, as follows: “3. Restriction on imposing custodial sentences on persons under 21 not legally represented. (1) A magistrates’ court on summary conviction or the Crown Court on committal for sentence or on conviction on indictment shall not – (a) pass a sentence of detention in a young offender institution ... ... in respect of or on a person who is not legally represented in that court, unless either – (i) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or (ii) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply.” 45. Regulation 42(7) of the 1989 Regulations states that the above sections of the Criminal Justice Act 1982 apply to proceedings under regulation 41 of the 1989 Regulations. 46. Among the further case-law referred to in the judgments and consent orders of the High Court, and/or referred to by the parties in their submissions, was the following: 47. In R. v. Hyndburn Justices ex parte Derrick Long (18 October 1993), Mr Justice Schiemann stated as follows in a case concerning the non-payment of the community charge: “ ... It is important when dealing with the liberty of citizens only to set in train the process of imprisonment when all the requirements imposed by law have been carefully considered. It is important to note that, in this field as in the case of suspended sentences of imprisonment imposed pursuant to the criminal law, the same degree of care must be exercised in the case of a suspended penalty as in the case of an immediate penalty.” 48. In R. v. Woking Justices ex parte Johnstone [1942] 2 King’s Bench 248, the Divisional Court, in examining legislation in similar terms to the 1989 Regulations, emphasised that, in order to commit to prison, the justices, following their inquiry, had to be of the opinion that the failure to pay was due either to wilful refusal or culpable neglect. 49. In R. v. Stafford Justices ex parte Shaun Thomas Johnson (16 March 1995) Mr Justice Laws stated as follows: “ ... The means inquiry required by regulation 41(2) is of great importance because without it the Justices plainly cannot properly arrive at a conclusion as to whether the failure to pay had been due to the debtor’s wilful refusal or culpable neglect. A means inquiry, thus, is at the centre of the enforcement procedure which is laid down by these Regulations. These Justices did not, in truth, embark upon a proper means inquiry at all. It follows that their order committing the applicant to prison is entirely vitiated.” 50. In Meara v. DPP (25 November 1998), a case involving the non-payment of fines, Lord Justice Rose stated that: “... an essential prerequisite to a finding of culpable neglect must be the holding of a full means inquiry”. 51. In R. (on the application of Davies) v. Hereford Justices (4 March 2004), the judge noted that although the means enquiry was inadequate it was miles away from being arguable that the magistrates’ consideration was “so outrageous as to amount to a conduct outwith their jurisdiction”. 52. In R. v. Leeds Justices ex parte Kennett [1996] Rating and Valuation Reporter (“RVR”) 53, an order committing the applicant to prison for non-payment of community charge following the issue of three liability orders in respect of non-payment for the years 1990-91, 1991-92 and 1992-93 was quashed as a full means inquiry in respect of each liability order had not been made under regulation 41(2) of the 1989 Regulations. Mr Justice Owen stated as follows during the course of his judgment: “It is apparent from the wording of the Regulations that each liability order is to be considered separately and in respect of each liability order there has to be, as I see it, a decision as to whether there was wilful refusal or culpable neglect shown.” 53. The above conclusion was followed by Mr Justice Dyson in R. v. Durham City Justices ex parte Fleming [1997] RVR 244 at 246; by Mr Justice Keene in R. v. Gloucestershire Justices ex parte Daldry [2001] RVR 242 at 243; and by Mr Justice Gage in R. v. Sheffield Justices ex parte Broadhurst [2001] RVR 245 at 246. 54. In R. v. South Tyneside Justices ex parte Stuart Daniel Martin (31 July 1995), Mr Justice Sedley stated the following in respect of the burden of proof: “... It is necessary in my judgment for Justices to be satisfied not merely on the balance of probability but so that they are sure, following a proper means inquiry, that the debtor’s failure to pay has been due to his or her wilful refusal or culpable neglect to pay, before they can issue a warrant of commitment or fix a term of imprisonment and postpone the issue of the warrant. ... If I am wrong in this, and if the proper standard is a civil standard, what is at stake for the individual makes it inescapable that only the highest standard of probability is commensurate with the exercise of the power of committal or of fixing a term of imprisonment. The Justices, on advice, applied neither such standard. In my judgment a bare balance of probability is not a sufficient standard and their decisions of 6th April 1993 and 27th July 1993 to fix terms of imprisonment and postpone the issue of warrants of committal on grounds of culpable neglect cannot therefore stand.” 55. Mr Justice Sedley concluded as follows: “... To be open to criticism for the disposal of slender resources is one thing; to be guilty of culpable neglect in the disposal of them is another. In my judgment the first fixing of the term of imprisonment and the postponement of the warrant were done after a means inquiry too perfunctory to constitute compliance with Regulation 41(2). The fixing of a separate term of imprisonment and the postponement of the warrant in July 1993, although it followed a much fuller inquiry, was again carried out on the basis of data which were not capable by themselves of founding a finding of culpable neglect to pay, whether on the lower standard of proof that was applied or on the higher standard which, as I have held, ought to have been applied. Accordingly the applicant succeeds in his application to quash both decisions of the Justices”. 56. In the case of R. v. Mid Herts Justices ex parte Cox (19 October 1995) Mr Justice Laws expressly agreed with what Mr Justice Sedley had said in relation to the burden of proof in the above Martin case. 57. In R. v. the Alfreton Magistrates ex parte Darren Gratton (25 November 1993) the magistrates had come to the conclusion that they could not consider attaching the applicant’s liability to pay his community charge to his income support as a viable alternative to prison. Mr Justice MacPherson held that, in so concluding, the magistrates were “plainly wrong” and that, as such, there was a “fundamental flaw” in the case. In considering whether to order costs against the magistrates, he concluded: “I am wholly unable to find that there has been any perverse or outrageous conduct of any kind in this case. These are tricky cases. The law has been evolving in the last year or so.” 58. He continued: “... Community charge liability should only be visited with prison (if I may use that shorthand expression) if there is no other way in which the money can be extracted. Prison is not to be used as a big stick or primarily as punishment but as a means of extracting the liability.” 59. Mr Justice MacPherson stated that there may also have been a flaw in the case because the applicant was under 21 years of age at the time at which he was sentenced and the magistrates did not fulfil their requirement publicly to state that there was no alternative but prison in this case. However, he regarded it as unnecessary to conclude the case on that ground in the light of his earlier finding. 60. Lord Justice Kennedy stated in R. v. Wolverhampton Magistrates’ Court, ex parte Mould [1992] RA 309: “... the power to commit to prison which is to be found in reg. 41 is plainly intended to be used as a weapon to extract payment rather than to punish ... ... in the circumstances it might have been appropriate for the magistrate before making his order to ask the charging authority’s representatives if any thought had been given to the possibility of an application to the Secretary of State [for deductions from income support]. I appreciate that ... a charging authority is not bound to take that course before seeking an order under reg. 41, but it would be relevant to the exercise of the magistrates’ discretion to know if the possibility of [deductions] had at least been considered.” 61. In R. v. Newcastle-under-Lyme Justices, ex parte Massey [1995] 1 All ER 120, Lord Justice Rose stated: “A failure by justices to consider all possible alternative methods of enforcing payment before issuing a warrant for commitment might render their decision unreasonable in the Wednesbury sense ...” 62. In the unreported case of R. v. Middleton Magistrates ex parte Phillips (29 October 1993) Mr Justice Potts stated: “[A] court which finds a debtor guilty of wilful refusal to pay the relevant sum has a discretion. The court is not required to commit such a debtor to a term of imprisonment ... Before committing a debtor to prison, it is incumbent upon justices to consider all available alternatives to effect recovery of the sum due ... It does not follow that, because the applicant had wilfully refused to pay the relevant sum, there was no alternative other than an immediate sentence of imprisonment. Regulation 41(3)(b) makes that plain ... The applicant had stated that she could pay off the arrears at £3 per week. This was a relevant factor for the justices’ consideration in the exercise of the discretion conferred, in particular by Regulation 41(3)(b) ... In my view the approach of the justices and the decision to commit this applicant to prison was in the circumstances fundamentally flawed.” 63. R. v. Norwich Magistrates’ Court ex parte Lilly [1987] 151 JP 689 concerned an applicant who was committed to prison after having failed to pay two court-imposed fines. The Divisional Court held that a magistrates’ court having inquired into an offender’s means under section 82(3)(b) of the Magistrates’ Courts Act 1980 and satisfied itself that the default in payment was due to his wilful refusal or culpable neglect, was under a duty imposed by section 82(4)(b)(ii) to consider or try all other methods of enforcing payment before issuing a warrant of commitment. In the current case, it held that, on the evidence available, that duty had not been fulfilled and accordingly the application was granted and the two committal warrants were quashed. 64. During the course of his judgment, Mr Justice Farquharson stated as follows in relation to section 82(4)(b)(ii): “... The words of the subsection are peremptory. There is no discretion in the court, they have either to consider or try all the other methods of enforcing payment.” 65. He continued: “... It needs to be emphasised that the proceedings which were taking place on September 9 before the Norwich Justices were not proceedings intended to punish the applicant. He had already been before the court for the offences that he had committed and the Justices on those occasions had decided that a fine was an appropriate sentence to pass. When the time came for enforcement, therefore, it was necessary for the Justices to go through the judicial exercise of seeing if there was any other method of enforcing payment of the fine, short of committing the applicant to prison, and that necessarily included a procedure whereby he was examined as to what property or other earnings or income he might have. It is not to be assumed merely on their experience of other cases by the Justices that the proceeding is a formality or unnecessary.” 66. In R. v. Newcastle Justices ex parte John Ashley (12 October 1993), the fact that the applicant was under 21 at the time of his committal in respect of failure to pay community charge was accepted by the court to be the “major point” in the case. Mr Justice Laws, in quashing the committal order, concluded that the justices’ decision to commit had been unlawful in that they had failed to have regard to their statutory responsibilities in the case under regulation 42(7) of the 1989 Regulations and Part I of the Criminal Justice Act 1982. He noted that the power to imprison a person under the age of 21 was only to be exercised if the court was of the opinion that no other method of dealing with him was appropriate and that it was the duty of the court, if of that opinion, to state in open court why the court believed that to be the case. He further noted that the magistrates had failed to state in open court why they believed that no alternative to imprisonment was available, that there was no evidence to show that the magistrates in fact felt that no other method was appropriate, or the reasons why they might so have felt; and that it was quite clear that alternatives to imprisonment had been available to them. During the course of his judgment, Mr Justice Laws stated that the complaint made in respect of the decision to commit “went to an important aspect of the magistrates’ court’s jurisdiction under regulation 41 [of the 1989 Regulations]”. 67. In R. v. Oldham Justices and Another ex parte Cawley [1997] Queen’s Bench 1, each of three applicants, who were under 21 years of age, had defaulted in paying fines arising from summary criminal convictions and had been committed to prison. In each case the warrant of commitment was defective in failing to comply with the duty imposed by section 88(5) of the Magistrates’ Courts Act 1980 to describe the justices’ grounds for not placing an applicant of less than 21 years of age under supervision; and in failing to state the reason why no other method of dealing with such an applicant other than imprisonment was appropriate, contrary to section 1(5A) of the Criminal Justice Act 1982. In the first two cases, the warrants also failed to specify upon what ground they were issued, contrary to section 82(6) of the Magistrates’ Courts Act 1980 (which applied to both young and adult offenders). The Divisional Court held that a warrant of commitment which was defective for failure to comply with the requirements of sections 82(6) or 88(5) of the Magistrates’ Courts Act 1980, or section 1(5A) of the Criminal Justice Act 1982, was not void, and detention under it was not unlawful, unless and until the warrant was quashed. 68. The cases below concern the situation where the applicant was present at the hearing inquiring into his means and circumstances and fixing a postponed sentence of imprisonment, but was absent from the subsequent hearing at which the warrant of commitment was issued (i.e. ordered to take effect, resulting in the immediate imposition of the previously postponed order of imprisonment). 69. In R. v. Northampton Magistrates’ Court ex parte Newell [1992] RA 283 the Court of Appeal had to determine whether the magistrates were entitled under regulation 41 of the 1989 Regulations to issue a warrant of commitment against a charge payer who was absent from the final hearing at which the warrant was issued. 70. At first instance [1992] RA 190, 207, Mr Justice Henry held as follows: “The power to issue a warrant arises after the court has inquired in the debtor’s presence into whether his failure to pay which led to the liability order being made was due to his wilful refusal or culpable neglect and has found that it was. But they need not exercise that power immediately. They can, as here, fix the term of imprisonment and postpone the issue of the warrant on conditions. Section 12 [of the Interpretation Act 1978] then would entitle them to exercise that power (already vested in them) ‘from time to time as the occasion requires’ unless the contrary intention appears. The occasion certainly does not require a repeat of the [regulation] 41(2) inquiry. That is water under the bridge. The occasion does require application by the local authority, proper notice of that application to the defaulter to give him a fair opportunity to put his case as to why the warrant should not issue, followed by proof of a breach and notice and proper consideration of any relevant material put forward by the defaulter. That is all the occasion requires, and no contrary intention appears in the regulations. Therefore it seems to me ... that natural justice requires notification to the applicant of that hearing.” 71. The above conclusion was approved by the Master of the Rolls, Lord Donaldson, in the Court of Appeal. 72. Lord Justice Scott concluded as follows: “In this context, it goes without saying that it would be essential in, I would think, every case that the debtor be given proper notice of the time and place of the proposed application. If that were not done, the hearing would, I think, be fatally flawed. It is to be expected that, if the debtor were not present, the magistrates would not proceed with the hearing unless satisfied that proper notice of it had been given to the debtor. But if a debtor, having received proper notice, chooses not to attend the hearing, that is his affair, and for the magistrates to proceed in his absence cannot, in my opinion, possibly be represented as being in breach of the requirements of fairness or of natural justice.” 73. In R. v. Faversham and Sittingbourne Magistrates’ Court ex parte Ursell [1992] RA 99, Mr Justice Schiemann stated as follows in considering both the nature of the hearing at which the warrant of commitment was issued and the significance of the applicant not having notice of it: “The magistrates in the present case appear to have accepted that a second hearing was necessary before the warrant of commitment was issued. They were right to do so. They did not apparently, however, consider that it was necessary for the debtor to have notice of the date and time of such a hearing. They clearly thought that she would have nothing new to say. They might well be right, but she is entitled, in my judgment, to be told of the date and time of the hearing as a matter of natural justice. The hearing affects her. It is held in public. She should have the right to be there. I do not, however, accept Mr Emmerson’s submission that the hearing cannot proceed if she chooses not to attend. The question arises: on what matter is a debtor entitled to address a court at such a hearing? Clearly she is entitled to put the authority to proof of non-payment. Further, in my judgment a debtor is entitled to draw the court’s attention to any change of circumstances since the decision to fix a term of imprisonment which renders it inexpedient for the warrant of commitment to issue. There must, in my judgment, be an inherent power in the court to vary its own order in a case where, since the decision was made, the debtor has become incapable of earning, for instance by reason of an accident.” 74. In R. v. Hyndburn Justices ex parte Woolaghan (2 December 1994), Mr Justice Jowitt held that, in the absence of sufficient proof of service of notice of the hearing at which the warrant of commitment was issued, the applicant was entitled to succeed on his application for judicial review. Mr Justice Jowitt stated as follows: “The difficulty, though, for the magistrates is, that when there is no appearance before them, they really have no way of telling whether this may be one of those, no doubt, not over frequent cases in which a letter has miscarried for one reason or another, perhaps because it has not been delivered or because the charge payer is absent for a continuing period from home, or because, in premises with a number of separate occupiers, a letter has got into the wrong hands. It seems, therefore, to follow that where there has been service by ordinary post, careful consideration would have to be given to the particular circumstances of the charge payer, before, if ever, concluding that the notice must have come into his hands.” 75. In R. v. Newcastle-upon-Tyne Justices ex parte Devine [1998] RA 97, in which notice of the final hearing had been sent by the magistrates’ court to the applicant’s last known address, but was never received by the applicant as he had moved address and therefore did not appear at the hearing, Mr Justice Latham quoted the above-cited passage of Mr Justice Jowitt in Woolaghan and stated that the magistrates in the present case did not appear to have heeded it. This was notwithstanding that they had previously consented to an order being quashed because they had failed to carry out the appropriate inquiry to make sure that the notice of the final hearing must have come into the charge payer’s hands. Mr Justice Latham referred to the fact that the magistrates knew that the applicant was intermittently unwell and therefore should also have enquired to ensure that the applicant was not suffering from one of his periodic illnesses at the time of the hearing. In all the circumstances he concluded that “the magistrates were quite wrong to issue a warrant of committal in his absence” and that their decision to do so was “vitiated”. 76. In deciding to award costs against the justices, Mr Justice Latham cited and applied what he had said in a previous case in which magistrates had on two separate occasions fallen into the identical error of failing to make appropriate inquiry as to whether or not notice of the final hearing had been received by the applicant: “That seems to me to be behaviour which calls for strong disapproval, and because the principle which has apparently been ignored is one which involves the elementary step of ensuring that the person who is liable to lose his liberty has had an opportunity of knowing that the court was considering that particular course on that particular day, it is also a disregard for an elementary principle which every court ought to obey.” 77. In R. v. Doncaster Justices ex parte Hannan (16 July 1998) (a case concerning the non-payment of a court-imposed fine, unlike the previous cases in this section which all concerned the non-payment of community charge), Lord Justice Rose in the Divisional Court held as follows: “[Counsel for the applicant] submits that to issue the Warrant for Commitment, with the knowledge which the Justices had [that she had not received notice of the hearing because that notice had been returned to the Justices marked “address inaccessible” was an act of judicial impropriety and one which can properly be characterised a]s being perverse in that no reasonable bench of Justices would so have acted. ... ... ... I am entirely satisfied that the submissions of [counsel for the applicant] advanced to this court are well-founded. This case illustrates how unwise it may be for Justices to make an order committing someone to prison when they do not know, because that person is not before them and because that person does not know of the date of the hearing, what the up-to-date circumstances are. It seems to me that, knowing that the applicant had not been served with notice of the proceedings, the Justices ought, much more prudently, to have adjourned the question of whether or not a Warrant of Commitment should be issued until such time as she had been served with notice of the proceedings. ... I am satisfied that, in issuing the warrant in the circumstances in which they did, the Justices did act perversely ...” 78. The case of R. v. Doncaster Justices ex parte Christison and Jack (13 May 1999 79. The applicable principles are set out in the above-cited ex parte Christison and Jack 80. In R. v. the Governor of Brockhill Prison, ex parte Evans (No. 2) [2000] 4 All England Reports 15, the House of Lords held that where the executive had detained a person unlawfully, that person was entitled to recover compensation for the tort of false imprisonment. In that case, the responsibility for calculating the date on which the respondent was to be released from prison lay with the Governor of the prison. He had calculated her date of release to be 18 November 1996. However, accepting her arguments on judicial review, the Divisional Court held that the release date should actually have been 17 September 1996. On appeal to the House of Lords, the Governor accepted that the respondent’s continued detention after 17 September 1996 had therefore been unlawful. Nevertheless, he contended that he could not be liable for false imprisonment since he had complied with the law as it was understood at the time of his decision. The House of Lords held that the tort of false imprisonment was one of strict liability and that its consequences could not be escaped even by showing that the Governor had acted in accordance with the view of the law which at the time was accepted by the court to be correct. There was no lawful justification for the action of the Governor, as the responsibility for calculating the release date lay with him, and not with the order of the court that sentenced the respondent to prison. The respondent was therefore entitled to compensation as it was agreed that her detention after 17 September 1996 was unlawful. 81. During the course of his judgment, Lord Hope stated that, as he had decided in her favour on other grounds, it was not necessary for the respondent to rely on her additional argument that the position of the Governor had been contrary to Article 5 of the Convention. However, he stated that as the issues that had arisen in the case had raised a novel point of law of some difficulty, it was of interest to see whether the provisions of Article 5 of the Convention supported the conclusion which he had determined to represent the present state of the domestic law. In the course of this consideration, Lord Hope stated the following: “The jurisprudence of the European Court of Human Rights indicates that there are various aspects to Art. 5(1) which must be satisfied in order to show that the detention is lawful for the purposes of that Article. The first question is whether the detention is lawful under domestic law. Any detention which is unlawful in domestic law will automatically be unlawful under Art. 5(1). It will thus give rise to an enforceable right to compensation under Art. 5(5), the provisions of which are not discretionary but mandatory.” 82. A little later in his judgment, Lord Hope continued: “The question whether detention is or is not lawful under domestic law for the purposes of the Convention is a matter which the jurisprudence of the Strasbourg Court has left for decision by the domestic courts. The Divisional Court held that the respondent was entitled to release on 17 September 1996. It must follow that under domestic law her continued detention after that date was unlawful. This would indicate that there was a contravention of Art. 5(1).” 83. During the course of his judgment, Lord Hobhouse considered the arguments that the Solicitor General had presented on behalf of the Governor of the prison, and concluded as follows: “The argument of the Solicitor General persistently confused a valid order for detention which is subsequently set aside with a valid order which is misinterpreted; it also confused a valid order which has not yet been set aside with an order which was never valid. These distinctions are basic to any legal system. An appeal against a conviction or sentence may lead to the conviction being quashed or the sentence being set aside or varied. But up to that time there were lawful orders of the sentencing court which were orders which had to be obeyed. ... ... The basic distinction between an ex facie invalid order and an order prima facie valid but which is liable to be set aside is also to be found in the Convention case-law as illustrated by Benham v. the United Kingdom (1996) 22 EHRR 293. The Commission had categorised the relevant order as coming into the former category and therefore held that there had been a breach of Art. 5; the Court disagreed, categorising the order for detention as prima facie valid, and held that there had been no breach of that Article. The Commission and the Court applied the same criteria in considering whether the detention had been lawful under the domestic law. Paragraph 42 of the judgment (at 320) relied on by the Solicitor General does not support his argument: ‘A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of facts or law.’ In the present case there was an order; it was never set aside nor did it have to be. The illegality arose because it did not authorise the detention which took place. The order was not obeyed.” 84. Magistrates enjoy a statutory immunity from civil liability in certain circumstances. Before the coming into force of section 108 of the Courts and Legal Services Act 1990 on 1 January 1991, this immunity was provided for by sections 44 and 45 of the Justices of the Peace Act 1979. In brief, a magistrate was liable in damages for acts done by him in his official capacity if it could be proved either (1) that the act was done maliciously and without reasonable and probable cause, or (2) that it was performed outside or in excess of jurisdiction. 85. The position under section 108 of the Courts and Legal Services Act 1990 is now that an action lies against a magistrate only if it can be proved that he acted both in bad faith and in excess of jurisdiction. 86. Prior to 1 June 1997 neither the civil nor the criminal legal aid scheme provided for full representation before the magistrates in committal proceedings relating to the non-payment of a fine, community charge, council tax or non-domestic rates. The “Green Form” legal aid scheme provided two hours of help from a solicitor, and could include preparation for a court case, but did not provide for representation. The assistance by way of a representation scheme (“ABWOR”) enabled the court, in limited circumstances, to appoint a solicitor who happened to be within the court precincts to represent a party who would not otherwise be represented. The appointment might be made either of the court’s own motion or on application by a solicitor. The court was under no obligation to advise a party of the possibility of such an appointment. The Duty Solicitor scheme, which provided representation for the accused in criminal cases before magistrates, did not extend to the proceedings with which this decision is concerned. 87. Following the Court’s judgment in Benham, which found a breach of Article 6 §§ 1 and 3(c) of the Convention in respect of the applicant’s complaint of a lack of legal representation, the United Kingdom enacted regulation 3(2) of the Legal Advice and Assistance (Scope) (Amendment) Regulations 1997 (S.I. 1997, No. 997). Under that provision, with effect from 1 June 1997, any person whose financial resources are such as to make him eligible is entitled to assistance by way of representation in proceedings before a magistrates’ court in which he is likely to be “at risk of a term of imprisonment being fixed in his case (whether at the hearing for which ABWOR is granted or subsequently)” as a result of his failure to pay any sum which he has been ordered to pay. | 1 |
dev | 001-77181 | ENG | UKR | ADMISSIBILITY | 2,006 | SHERSTYUK v. UKRAINE | 4 | Inadmissible | Peer Lorenzen | The applicant, Ms Olga Ivanovna Sherstyuk, is a Ukrainian national who was born in 1965 and lives in the town of Popasnaya of the Lugansk region. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice of Ukraine. The facts of the case, as submitted by the parties, may be summarised as follows. In October 1988 the applicant opened a fixed-term deposit account in the USSR Savings Bank. Under the contract, the annual interest rate on the deposit was 3 %. By a decision of 20 March 1991, the Verkhovna Rada (Parliament) of Ukraine declared the Ukrainian branches of the USSR Savings Bank being a property of the Ukrainian State. The operation of banks and banking activities was regulated by law (see Relevant domestic law, below). Since 1992, Ukrainian economy experienced hyperinflation, with its peak in 1993. On 30 June 1993 the regional branch of the Ukraine Savings Bank (hereinafter – “the Bank”) placed an announcement in the Lugansk Regional Council’s newspaper called “Nasha gazeta”. The announcement read as follows: “The Savings Bank informs As of 1 July this year the annual interest rate on fixed-term deposits and on special deposits for children is set at 220 per cent. No new formalities are required for previously opened fixed-term deposits and special deposits for children.” According to the applicant, having read this announcement and having received confirmation in the local office of the Bank, the applicant decided, contrary to her initial intentions, not to withdraw her money deposited with the Bank. In 1996 the Ukrainian authorities implemented a monetary reform intended to replace the former monetary unit, the karbovanets coupon, with a new currency, the Ukrainian hryvnia (українськa гривнa, UAH), at an exchange rate of 100,000 karbovanets coupons for 1 hryvnia. According to the applicant, in June 2001, having difficulties in understanding the information written in her account statement records, she consulted an expert who, after having examined the above records, found out that since 1994 the annual interest rate on her deposit had been lower than 220%. According to the applicant the annual interest rate on her deposit was 194.7% in 1994, 86.8% in 1995, 29.9% in 1996, 13.7% in 1997, 6.9% in 1998, 7.3% in 1999, and 6.3% in 2000. In July 2001 the applicant instituted proceedings in the Popasna District Court of the Lugansk Region against the Bank seeking compensation for damages caused by decreasing the annual interest rates on her deposit without informing her and without seeking her prior consent. She complained that the Bank fell short of its obligations to pay on her deposit the interests of 220% per year fixed in 1993 after publication of the announcement in the official newspaper of the regional council. According to the applicant, during the hearing, the representative of the Bank, explained, among other things, that in accordance with the Bank’s Statute and instructions of 3 October 1980 and 8 July 1998, the Bank was not obliged to disseminate information about the applicable interest rates, but such information had always been available in branches of the Bank and the applicant could have consulted it there. By its judgment of 25 December 2001, the court rejected the applicant’s claim as unsubstantiated, for the following reasons: “...the defendant, having changed unilaterally the interest rates on the fixed-term deposit had acted in accordance with Article 41 of the Law of Ukraine “on Banks and Banking Activities” in the wording of 1991, under which the Savings Bank of Ukraine sets the interest rates on deposits within the maximum interest rates set by the National Bank of Ukraine. At the same time, this Law does not foresee any other conditions for setting interest rates on deposits, including agreement of depositors. Taking into account, that Laws ... have the highest legal force and are obligatory for implementation by all legal persons and citizens of Ukraine, the court considers that the defendant’s actions on unilateral changes of the interest rates on the fixed-term deposit of the applicant had been lawful, therefore the claims ... are unsubstantiated...” The applicant appealed against this judgment to the Lugansk Regional Court of Appeal. On 4 April 2002 the Lugansk Regional Court of Appeal upheld the judgment of the first instance court. In its decision the appellate court, having repeated the reasoning of the first-instance court, also noted that the applicant had deposited her money in 1988 with the interest rate of 3 per cent. Since 1 July 1993 the Bank had been changing the interest rate but the latter never went lower than the original rate of 3 per cent. The applicant appealed in cassation. On 23 June 2003 the panel of three judges of the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation. Article 41 “Everyone has the right to own, use and dispose of his or her property, and the results of his or her intellectual and creative activity... No one shall be unlawfully deprived of the right of property. The right of private property is inviolable...” Article 41. Interest rates of the Ukraine Savings Bank “The Ukraine Savings Bank fixes the interest rates on the deposits of the population within the limits of the maximum interest rates, established by the National Bank.” | 0 |
dev | 001-90161 | ENG | MKD | ADMISSIBILITY | 2,008 | BAJRAKTAROV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Inadmissible | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych | The applicant, Mr Risto Bajraktarov, is a Macedonian national who was born in 1937 and lives in Štip. He was represented before the Court by Mr T. Torov, a lawyer practising in Štip. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 April 1984 the Štip Municipal Court convicted the applicant of several offences and sentenced him to seven years and one month’s imprisonment. The court also ordered confiscation of the proceeds gained by the applicant from the offences (“the confiscation order”). On 20 December 1988 the then Federal Court of Yugoslavia partly quashed the lower court’s decision since the statutory rules on time-barred prosecutions had been wrongly applied. On 5 October 1989 the Štip Municipal Court stayed the criminal proceedings against the applicant. It did so because the public prosecutor had withdrawn the charges as the prosecution had become time-barred. It also ordered restoration of the confiscated funds to the applicant (“the restoration order”). This decision became final on 24 October 1989. On 17 December 1990 the Štip Municipal Court partly upheld a request by the applicant for enforcement of the restoration order. It ordered restoration of the confiscated funds, but refused to award interest because no provision for interest had been stipulated in the restoration order. The court also found that the confiscated funds had been transferred to the Municipality of Štip (“the Municipality”) and ultimately to the then Štip Secretariat of the Interior. An appeal by the Municipality was finally dismissed by a court decision of 20 February 1991. The confiscated funds were actually restored to the applicant on 12 April 1993. On 21 October 1991 the applicant brought a civil action against the Municipality and the State claiming interest on the funds. He claimed interest for the period between the actual confiscation of the funds and their restoration. On 8 April 1993 the Štip Municipal Court rejected the applicant’s claim as premature. It established that on 17 May 1990 the applicant had sought compensation for wrongful conviction before the then Skopje Secretariat for Justice and Administration (“the Secretariat”) only in respect of his earnings and other rights deriving from his employment, but that he had not claimed interest on the confiscated funds. On 19 August 1993 the Štip District Court upheld that decision. On 8 February 1994 the Supreme Court allowed an appeal by the applicant on points of law and quashed the lower courts’ decisions. It found that his claim should not be regarded as a request for compensation for wrongful conviction and that, accordingly, he had not been required to apply to the relevant Ministry. On 12 May 1994 the Štip Municipal Court ruled partly in favour of the applicant, allowing his claim only in respect of unpaid interest on the national-currency funds. It dismissed his claim for statutory interest on the foreign-currency funds. It further established that the foreign currency funds had actually been restored to the applicant on 12 April 1993. On 30 November 1994 the Štip District Court partly upheld the lower court’s decision and remitted the dismissed part for reconsideration. On 26 September 1995 the Supreme Court granted a request by the public prosecutor for the protection of legality (барање за заштита на законитоста) and quashed the lower courts’ decisions. It found that they had wrongly applied the national law by awarding double interest on the foreign currency funds. On 15 December 1995 the Štip Municipal Court, after having obtained an expert report, upheld the applicant’s claim and ordered the Municipality and the State to pay him interest on the confiscated funds. On 7 March 1996 the applicant requested the Štip Court of First Instance to enforce that decision. On 8 July 1996 the latter ordered the Public Payment Office (Завод за Платен Промет) to transfer the award to the applicant’s account. On 14 May 1997 the Supreme Court quashed the lower courts’ decisions and ordered a retrial. It found that they had incorrectly applied the civil-law rules on compensation instead of the provisions of the Criminal Proceedings Act concerning wrongful convictions. On 23 June 1998 the Štip Court of First Instance dismissed the applicant’s claim in respect of the Municipality and declared it inadmissible in respect of the State. The court found that the applicant had failed to submit his claim to the Secretariat and that, accordingly, he had not been entitled to claim compensation on that ground in the civil proceedings. On 24 November 1998 the Štip Court of Appeal allowed an appeal by the applicant and remitted the case for re-examination. On 30 June 1999 the Štip Court of First Instance dismissed the applicant’s claim. It found that the Federal Court of Yugoslavia had not pardoned the applicant or overturned his conviction on the merits, but had quashed it solely because of the time bar. The court therefore concluded that the applicant had not been wrongly convicted and that, consequently, the State had not been liable to pay any damages. On 14 February 2000 the Štip Appeal Court allowed an appeal by the applicant and ordered a retrial. It held that his claim should not be considered under the rules for wrongful conviction, but as a civil compensation claim. On 18 April 2000 the President of the Štip Court of First Instance refused a request by the applicant for exclusion of the judge sitting in his case. On 23 May 2000 the Štip Court of First Instance dismissed the applicant’s claim. It established that the applicant’s compensation claim for interest in respect of his wrongful conviction had been submitted to the Secretariat out of time. It held, inter alia, as follows: “... the court finds that the applicant’s compensation claim concerns unpaid interest on confiscated funds ... since the legal ground of that claim is the confiscation of the funds, as a security measure issued within the criminal proceedings, the case is to be analysed under the rules on compensation for wrongful conviction and detention ... Under section 542(1) of the Criminal Proceedings Act, a plaintiff [the applicant] can claim compensation before the authorised State body and is entitled to receive compensation within three years of the date on which a decision staying the proceedings becomes final. In the instant case the decision of 5 October 1989, by which the criminal proceedings ... were stayed, was served on the applicant on 20 October 1989 and became final on 24 October 1989. On 7 September 1993 the plaintiff submitted his claim for unpaid interest on the confiscated funds to the Secretariat for Justice and Administration. On 30 September 1993 the latter instructed the plaintiff to submit his claim to the court of competent jurisdiction. It transpires that the deadline for the plaintiff’s claim was 24 October 1992. The application lodged on 7 September 1993 was therefore time-barred ...” The court further found that the funds had been confiscated in lawful judicial proceedings. The Federal Court of Yugoslavia had neither pardoned the applicant nor found substantial procedural deficiencies. It had quashed the applicant’s conviction merely because of the time bar. The court therefore went on to conclude that the State could not be held liable for damage sustained by the applicant. On 13 November 2000 the Štip Court of Appeal dismissed an appeal by the applicant in which he had, inter alia, expressed doubts about the impartiality of the first-instance court judge. In December 2000 the applicant lodged an appeal with the Supreme Court in which he restated his arguments that his claim should be considered under the civil-law rules on compensation. On 6 March 2001 the public prosecutor submitted observations to the Supreme Court supporting in part the applicant’s appeal related to his claim against the State. It stated that interest should be calculated as of the day when the restoration order had become final until restoration actually occurred. On 29 November 2001 the Supreme Court dismissed the appeal by the applicant on points of law and upheld the lower courts’ findings that the damage had derived from the criminal proceedings and that, accordingly, compensation should have been sought under the rules related to wrongful conviction. This decision was served on the applicant on 27 February 2002. | 0 |
dev | 001-96953 | ENG | TUR | CHAMBER | 2,010 | CASE OF ALICAN v. TURKEY | 4 | Violation of Art. 6-1 | Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 4. The applicants were born in 1983, 1946 and 1936 respectively. The first and the third applicant live in Diyarbakır and the second applicant resides in Manisa. The application concerns the wounding of the first applicant, who was eleven years old at the time, and the death of the second and third applicants' sons, Çetin Alican and İlhami Alican, who were fourteen and thirteen years old respectively, as a result of the explosion of an RPG-7 (anti-tank grenade launcher) grenade outside the applicants' village, Kıyıdüzü, in Van. 5. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 6. On 22 April 1994 Kamuran Alican, Çetin Alican and Ilhami Alican took their animals out to graze. When the animals returned to the village without the children, the villagers launched a search party and informed the military nearby; the Van 6th Armoured Brigade Barracks. A search was also unsuccessfully conducted within the military confines. The next day, the dead bodies of Çetin Alican and Ilhami Alican were found in a wheat field between the army barracks and Nemrut Mountain. The first applicant, who had injuries to his eyes and legs, was found a few hundred metres away. He was immediately taken to Tatvan State Hospital for treatment. As a result of the explosion, the first applicant suffered partial loss of the sight of one eye and the total loss of sight in the other. 7. According to the first applicant's testimony, given to a prosecutor on 10 June 1994, the children were grazing their sheep in the field when they found an object with an iron head which looked like a bullet. The first applicant left the other two children to find water while they were trying to hit the iron head with pieces of metal. At that moment the bullet exploded. 8. On 23 April 1994 the Tatvan public prosecutor instigated an investigation into the incident. The prosecutor noted that there were numerous trenches around the area for tank and gun practice. The remains of the ammunition at the scene were secured. Reports and sketches were drafted and a postmortem examination was conducted on the deceased. The cause of death was attributed to hemorrhagic shock and the doctor deemed it unnecessary to conduct a classic autopsy of the deceased. 9. On 4 May 1994 the Tatvan public prosecutor decided that he lacked jurisdiction to investigate the incident and forwarded his decision to the military prosecutor's office at the Van 21st gendarmerie border brigade commandership (“the military prosecutor”). 10. The military prosecutor instigated an investigation into the incident. In particular, he requested the official records regarding the use of grenade launchers by the military during training, and medical reports regarding the health of the first applicant. 11. In the course of the investigation evidence was gathered from the first applicant, the third applicant, the head of the village, Mr M. M. Alican, a fellow villager, the soldiers on patrol duty on the day of the incident and a higher-ranking military official. 12. On 6 May 1997 the military prosecutor gave a decision that there was no need to initiate criminal proceedings on the ground that there was no fault or negligence attributable to anyone except Kamuran Alican, Çetin Alican and İlhami Alican. In his decision, the prosecutor noted that the children, while they were grazing their animals, had collected, near the trenches, a grenade from an RPG-7 grenade launcher and parts of a rocket, and that the incident had occurred while they were trying to explode them. He further noted that the incident had occurred 2,200 metres away from the Armoured Brigade Barracks where three fields met and that it was not a military area. In this connection, the prosecutor held that, according to the official military records, no unexploded grenades or rockets had been found after military training exercises, that the origin of these artefacts could not be established and that, even assuming that they were launched from the military training field, their range made it impossible for them to have landed 2,200 metres away from it. 13. The decision of the military prosecutor was served on 29 May 1997 on Ahmet Alican, on 7 July 1997 on Kamuran Alican and on 19 July 1997 on Ramazan Alican. The applicants did not object to the military prosecutor's decision. 14. On 20 February and 20 May 1995 the applicants made applications to the Ministry of the Interior for compensation on account of the injury sustained by the first applicant and the death of the other applicants' sons. They received no positive reply. 15. On 4 May 1995 the first and the second applicants, and on 17 April 1995 the third applicant, brought actions for compensation against the Ministry before the Van Administrative Court. They were represented by the same lawyers. In their petitions, the applicants claimed that Kamuran Alican had been injured and Çetin Alican and Ilhami Alican had died as a result of a mine which had been placed there by the gendarmerie police station. The first applicant requested the court to award 1,000,000,000 Turkish liras (TRL) for pecuniary damage and TRL 100,000,000 for nonpecuniary damage. The second and the third applicant each requested TRL 500,000,000 for loss of income on account of the death of their sons. 16. On 26 January 1998 the Van Administrative Court, basing its decision on the doctrine of “social risk”, awarded the applicant's claim in full. Although the amount determined by experts for pecuniary damage was significantly higher, the court was bound by the amount requested by the applicant. 17. The Ministry appealed. 18. On 8 February 2001 the Supreme Administrative Court quashed the judgment of the first-instance court on the ground that the latter had failed to determine which administrative entity, that is either the Ministry of the Interior or the Ministry of Defence, had responsibility for compensating the applicant. 19. On 28 September 2001 the Van Administrative Court, deciding that the Ministry of the Interior had responsibility, gave its judgment. The court held as follows: “ ... According to the report of the public prosecutor, the incident took place 1,500 metres from the Van 6th Armoured Brigade Barracks. (According to the sketch plan the distance is 2,200 metres.) It was a grenade for a rocket launcher called RPG-7, which exploded. The explosion occurred in an area where rockets are launched. Yet the origin of the grenade which caused the explosion is unknown. According to the inventory of the Turkish Military Forces, this type of weapon (RPG-7) is used by the military. However, it was included in the inventory of the 6th Armoured Brigade after the date of the incident in question. The maximum shooting range of the RPG-7 is 700 metres. The results of an investigation into the military units deployed in the region prior to the incident revealed that only one of these units had engaged in shooting practice. According to the records of that unit they had left no unexploded grenades. The rocket launcher in question is frequently used by members of the PKK terrorist organisation. Furthermore, the incident took place 1,500 metres from the barracks, in an area, which according to the attached map, has been declared to be a 2nd degree military security zone. Although it is established that the explosion occurred in the vicinity of the rocket launching zone, since the distance from the barracks was 1,500-2,200 metres it cannot be accepted that the unexploded grenade which caused the explosion was one used during a military unit's training. The investigation conducted by the military prosecutor at the 21st Gendarmerie Division Commander's office resulted in the same conclusion. Moreover, the conditions in the region are particular: the weapon in question is frequently used and hidden by the terrorist organisation. The grenade might have been left by terrorists who attacked the barracks. It should therefore be concluded that the damage in the present case was not caused by the activities of military forces but rather by terrorist activities. Nevertheless, taking into account the fact that a state of emergency was in force in the region at the time and the extraordinary nature of the damage, compensation should be awarded by the administration in accordance with the theory of “social risk”. ... The plaintiff should therefore be paid his claim in full, TRL 1,000,000,000 for pecuniary damage... although according to the expert reports, pecuniary damage in the present case could amount to TRL 19,237,229,000. ... As regards non-pecuniary damage, the plaintiff should be awarded TRL 100,000,000. 20. The Ministry appealed. 21. On 23 May 2002 the Supreme Administrative Court upheld the judgment of the first-instance court. 22. On 19 March 1998 the Van Administrative Court, basing its decision on the doctrine of “social risk”, awarded the applicant a certain amount of compensation. 23. The Ministry appealed. 24. On 22 December 1998 the Supreme Administrative Court quashed the judgment of the first-instance court on the ground that the latter had failed to determine which administrative entity, that is either the Ministry of the Interior or the Ministry of Defence, had responsibility for compensating the applicant. 25. On 16 November 1999 the Van Administrative Court, basing its decision on the doctrine of “social risk”, on the same ground as above, awarded the second applicant TRL 366,954,367 in respect of pecuniary damage together with legal interest running from the date of the incident, 23 April 1994. 26. The Ministry appealed. 27. On 9 April 2001 the Supreme Administrative Court upheld the judgment as regards the amount of compensation awarded but quashed the judgment of the first-instance court in respect of the date from which the interest should run. 28. On 28 November 2001 the Van Administrative Court held that the date of interest would start to run from the date when the applicant lodged an application with the Ministry, i.e. 20 February 1995. 29. On 19 March 1998 the Van Administrative Court, basing its decision on the doctrine of “social risk”, awarded the applicant a certain amount of compensation. 30. The Ministry appealed. 31. On 15 March 2001 the Supreme Administrative Court quashed the judgment of the first-instance court on the ground that the latter had failed to determine which administrative entity, either the Ministry of the Interior or the Ministry of Defence, had responsibility for compensating the applicant. 32. On 9 October 2001 the Van Administrative Court, basing its decision on the doctrine of “social risk” on the same ground as above, awarded the third applicant TRL 305,135,146 in respect of pecuniary damage together with legal interest running from 20 May 1995. 33. The Ministry appealed. 34. On 31 December 2004 the Supreme Administrative Court upheld the judgment of the first-instance court. 35. The relevant domestic law and practice in force at the material time can be found in the following judgments: Doğan and Others v. Turkey (nos. 8803-8811/02, 8813/02 and 8815-8819/02, §§ 68-69 and 75-78, ECHR 2004VI (extracts)), and Tepe v. Turkey (no. 27244/95, §§ 115-119, 9 May 2003). | 1 |
dev | 001-23341 | ENG | CZE | ADMISSIBILITY | 2,002 | ZEHNALOVÁ AND ZEHNAL v. THE CZECH REPUBLIC | 1 | Inadmissible | null | The applicants, Mrs Jitka Zehnalová and her husband, Mr Otto Zehnal, are Czech nationals who were born in 1962 and 1958 respectively and live in Přerov. They were represented before the Court by Mr P. Šturma, of the Prague Bar. At the hearing on 19 February 2002 the applicants’ representative was assisted by Mr J. Ondroušek and Ms A. Klírová, advisers. The respondent Government were represented by Mr A. Dvořák, the Czech Republic’s representative before the European Court of Human Rights, assisted by Ms E. Vachovcová, Ms E. Petrová, Ms K. Sirotková, Mr J. Just and Ms E. Hašková, advisers. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant is physically disabled. A large number of public buildings and buildings open to the public in the applicants’ home town are not equipped with access facilities for people with disabilities (people with impaired mobility). On 7 December 1994 the first applicant applied to the Přerov Municipal Office (městský úřad) under Article 65 of the Code of Administrative Procedure, complaining that a number of public buildings and buildings open to the public in Přerov did not comply with the technical requirements laid down in Decree no. 53/1985 (amended by Decree no. 174/1994) and in the Building Act (Law no. 50/1976, amended by Law no. 43/1994). On the same day she sent a letter to the same effect to the Přerov District Office (okresní úřad). On 19 December 1994 the head of the District Office informed her in reply that 219 certificates of approval issued in respect of the buildings concerned would be reviewed. On 29 December 1994 the Mayor of Přerov informed her that the Town Council had instructed a committee to contact disabled people’s organisations in order to take the necessary measures to improve the situation regarding disabled access. Following delays by the District Office in initiating the review procedure provided for in Article 49 § 2 of the Code of Administrative Procedure, the first applicant asked the Ministry of Economic Affairs (ministerstvo hospodářství) to conduct a review of its own motion. On 5 June 1995 she was informed that her case would be “dealt with by the District Office in accordance with the law”. Nevertheless, the Ministry did not set any deadline and the District Office dismissed or took no action on most of the complaints. Although some of the obstacles complained of have since been removed, the applicants maintain that that has not been the result of pressure from the authorities. The Government contend that the District Office, which had ordered an inspection, was gradually examining the 219 cases before it and that the Ministry had examined a large number of the first applicant’s suggestions. In their submission, the situation could not be remedied immediately, regard being had to the technical features of the existing buildings and the considerable cost of renovations. However, the Government point out that some improvements have been made where possible, for example as a result of negotiations with the owners of the buildings. On 21 November 1995 the applicants applied to the Ostrava Regional Court (krajský soud) under Article 138 of the Code of Civil Procedure for exemption from the payment of court fees. They also asked to have a lawyer assigned pursuant to Article 30 of the Code in order to prepare their applications for the review of the certificates of approval for 174 buildings, which they had learned had been issued by the Přerov Municipal Office’s Building Department (odbor výstavby městského úřadu) before 7 December 1994. According to the Government, the complaints the applicants were intending to lodge concerned general matters of public interest and were accordingly not admissible in the administrative courts. The applicants dispute that assertion, maintaining that their complaints related solely to obstacles in their home town with which they were confronted on a daily basis. On 7 February 1996 the Regional Court refused the applicants’ application on the ground that it had no prospect of success within the meaning of Article 138 of the Code of Civil Procedure as it did not satisfy the requirements laid down in Article 249 of the Code and the applicants had not been parties to the proceedings before the administrative authorities which had resulted in the issuing of the certificates of approval. On 19 February 1996 the applicants appealed to the High Court (Vrchní soud). They again asked to be exempted from the court fees and to have a lawyer assigned, relying, in particular, on Article 36 of the Charter of Fundamental Rights and Freedoms (Listina základnich práv a svobod) and on Article 13 of the European Convention on Human Rights. They also called on the High Court to stop discrimination against people with disabilities. In a decision of 29 April 1996 the High Court declined jurisdiction on the ground that, pursuant to Article 250j § 4 of the Code of Civil Procedure, no appeal lay against the Regional Court’s decision. On 23 July 1996 the applicants appealed to the Constitutional Court. They complained, in particular, that although Decree no. 53/1985 laid down the general technical specifications for public buildings or buildings open to the public with a view to ensuring that people with impaired mobility could have access to and make use of them, many buildings in Přerov did not comply with those requirements and were therefore not accessible to people with disabilities. They mentioned, in particular, the post office, the police stations, the customs office, the District Office, the district social-security office, cinemas, the District Court, various lawyers’ offices, most specialist doctors’ surgeries and the town swimming pool. They also submitted that their applications for a review of the certificates of approval had not been dealt with in a competent or satisfactory manner by the administrative authorities. They asked the court to review the constitutionality of section 59(1) of the Building Act, by which they were prevented from taking part in proceedings before the administrative authorities at the construction stage, and also to review the decisions by which the Regional Court and the High Court had refused to exempt them from the court fees and to assign a lawyer to present their case – decisions which, in their submission, amounted to a violation of Article 6 of the Convention. According to the Government, the purpose of their appeal was simply to ascertain whether the High Court’s decision against them had precluded the possibility of judicial review of their case. On 7 January 1997 the applicants applied for legal aid and asked to have a lawyer assigned to represent them in the Constitutional Court. On 31 January 1997 the Constitutional Court informed them that they satisfied the requirements for obtaining legal aid but would receive it only if their constitutional appeal was not dismissed on procedural grounds or as being unfounded, as provided in section 43 of the Constitutional Court Act. In a decision of 10 March 1997 the Constitutional Court dismissed the applicants’ appeal. It noted, firstly, that they were not entitled to challenge the constitutionality of section 59 of the Building Act since that provision had not been applied by the High Court, and, secondly, that the decisions complained of did not disclose any breach of constitutional law or of any other legal provisions or international treaties. By section 72, a constitutional appeal may be lodged by any natural or juristic person who claims that a final decision given in proceedings to which he or she was a party, or a measure or any other action taken by a public authority, has infringed his or her fundamental rights or freedoms as guaranteed by a constitutional law or an international treaty within the meaning of Article 10 of the Constitution. The appeal must be lodged within sixty days of the date on which the final decision was served in respect of the final remedy provided for by law or, if no such remedy exists, of the date of the event forming the subject matter of the constitutional appeal. By section 59(1) of the Building Act (Law no. 50/1976), the parties to proceedings relating to building work are the builder and the natural and juristic persons with a right of property or other rights over the land or any adjacent buildings which might be affected by the issuing of a building permit. Section 78(1) provides that the parties to proceedings relating to the issuing of a certificate of approval are the builder and the user of the building, if his or her identity is already known. Section 82(3) provides that the building authority should not issue a certificate of approval in respect of a public building if people with disabilities have no access to the areas open to the public and are therefore unable to use them. Decree no. 53/1985 on the general technical specifications for the use of buildings by people with impaired mobility, subsequently replaced by Decree no. 174/1994 of the Ministry of Economic Affairs, which came into force on 1 October 1994, contains provisions designed to ensure proper disabled access to public buildings and buildings open to the public (such as: offices used for administrative or management purposes or for the provision of services; shops; catering facilities; sports facilities; cultural, health and welfare institutions; public communications facilities; and hotels and motels) and the elimination of all architectural barriers. By Article 30 § 1, a party to proceedings who satisfies the requirements for exemption from court fees may have a lawyer assigned where this is necessary for the protection of his or her rights. By Article 138 § 1, the presiding judge may fully or partly exempt a party to the proceedings from the payment of court fees where this is justified by the party’s circumstances, provided that the action brought is not arbitrary or manifestly devoid of any prospect of success. Article 250b § 1 provides that an administrative appeal (správní žaloba) against a decision by an administrative authority must be lodged within two months of the decision in issue, except where the law provides otherwise. By Article 250 § 2, an administrative appeal may be lodged by a natural or juristic person who, as a party to proceedings before an administrative authority, claims to have been adversely affected by a decision taken by that authority. An appeal may also be lodged by a natural or juristic person who was not treated as a party to the proceedings before the administrative authority but should have been. Article 65 §§ 1 and 2 of the Code of Administrative Procedure provides that a final decision by an administrative authority may be reviewed by a higher administrative authority acting of its own motion or otherwise. The administrative decision in issue must be quashed or varied where it is found to have breached the law. Article 13 guarantees the right to social and medical assistance. It provides that, with a view to ensuring the effective exercise of the right to social and medical assistance, the Contracting Parties are to undertake to: (1) ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social-security scheme, is granted adequate assistance, and, in case of sickness, the care necessitated by his condition; (2) ensure that persons receiving such assistance do not, for that reason, suffer from a diminution of their political or social rights; and (3) to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want. Recommendation No. R (92) 6 of the Committee of Ministers on a coherent policy for people with disabilities, adopted on 9 April 1992, defines a handicap as “... a disadvantage, for a given individual, resulting from an impairment or a disability, that limits or prevents the fulfilment of a role that is normal (depending on age, sex, and social and cultural factors) for that individual”. The Recommendation urges member States of the Council of Europe to “guarantee the right of people with disabilities to an independent life and full integration into society, and recognise society’s duty to make this possible” so as to ensure “equality of opportunity” for people with disabilities. The public authorities should aim, inter alia, to enable people with disabilities “to have as much mobility as possible, and access to buildings and means of transport” and “to play a full role in society and take part in economic, social, leisure, recreational and cultural activities”. As regards leisure time and cultural activities in particular, the Recommendation states: “All leisure, cultural and holiday activities should be made accessible to people with disabilities. ... Structural, technical, physical and attitudinal obstacles which limit the enjoyment of the above activities should be removed. In particular, access to cinemas, theatres, museums, art galleries, tourist venues and holiday centres should be improved... Cultural and leisure venues should be planned and equipped so that they are accessible and can be enjoyed by people with disabilities.” The Recommendation also states: “The exercise of basic legal rights of people with disabilities should be protected, including being free from discrimination.” In addition, Recommendation 1185 (1992) on rehabilitation policies for the disabled, adopted by the Parliamentary Assembly of the Council of Europe on 7 May 1992, emphasises: “Society has a duty to adapt its standards to the specific needs of disabled people in order to ensure that they can lead independent lives.” In furtherance of that aim, it calls on the governments and agencies concerned “to strive for and encourage genuine active participation by disabled people ... in the community and society” and, to that end, to guarantee, amongst other things, “ease of access to buildings”. The revised European Social Charter, adopted by the Committee of Ministers on 1-4 April 1996 and opened for signature on 3 May 1996, provides in Article 15, entitled “The right of persons with disabilities to independence, social integration and participation in the life of the community”: “With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular: ... 3. to promote their full social integration and participation in the life of the community, in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.” | 0 |
dev | 001-79602 | ENG | TUR | CHAMBER | 2,007 | CASE OF AKPINAR AND ALTUN v. TURKEY | 2 | No violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);No violation of Art. 3;Violation of Art. 3;Not necessary to examine Art. 3 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | null | 4. The applicants were born in 1957 and 1949 and live in Aydın (Turkey) and Australia respectively. The application concerns the killing of the first applicant's brother, Seyit Külekçi, and the second applicant's son, Doğan Altun, the alleged mutilation of their corpses by security forces and the alleged failure to conduct an effective investigation into the applicants' allegations. 5. On 14 April 1999 Seyit Külekçi, and Doğan Altun were killed by security forces in the course of an armed clash which occurred in the village of Yeşilalan, Turhal district (province of Tokat). 6. According to the scene-of-incident report (olay yeri tespit tutanağı) drawn up and signed by four gendarmerie officers from the Turhal district gendarmerie command, security forces had set up an ambush in Yeşilalan in order to capture members of the TKP-ML/TIKKO (Communist Party of Turkey / MarxistLeninist / Turkish Workers and Peasants' Liberation Army). Six members of the organisation arrived in the village and were ordered to surrender. A clash broke out after they opened fire. When the firing ceased the security forces found two corpses. They also found two automatic rifles, four chargers and fifty cartridges next to the bodies. The other four persons fled. It is stated in the report that the security forces used 10 hand grenades, 2,780 Bixi-type bullets, 1,420 G3-type bullets, 2,620 Kalashnikov-type bullets, and other ammunition used for illumination. The gendarmerie officers further drew a sketch-map of the scene of the incident. 7. On 15 April 1999 the rifles and the cartridges found after the clash were sent to the Tokat provincial gendarmerie command for a ballistic examination. 8. On 14 May 1999, upon the request of the Tokat gendarmerie command, three ballistic experts at the gendarmerie general command conducted a ballistic examination of two rifles and 44 of the cartridges found at the scene. 9. Following the incident, officers from the Turhal gendarmerie command took the corpses to their command's yard. The bodies had been identified as those of Seyit Külekçi and Doğan Altun. 10. On 15 April 1999 post-mortem examinations were carried out on the deceased in the Turhal gendarmerie command's yard by a medical expert, in the presence of the Turhal public prosecutor. According to the expert's report, Doğan Altun had received nine bullets to his head, shoulders, chest and legs. It was also noted that half of his left ear had been cut off. The medical expert observed that Seyit Külekçi had received eight bullets to his head, shoulders, arms, chest, abdomen and lumbar region. He further observed that both of Seyit Külekçi's ears had been cut off. The expert noted numerous other wounds on the bodies. He concluded that the cause of their deaths was haemorrhaging and damage to the cerebral tissue as a result of wounds caused by firearms. He considered that there was no need to carry out a full autopsy as the cause of death was clear from the findings of the examination. During the post-mortem examination, photographs of the deceased were taken. After the examination the corpses were placed in the Turhal State Hospital morgue. 11. On the same day, the gendarmerie officers took the statement of Z.U., an inhabitant of Yeşilalan who was wounded during the armed clash on 14 April 1999. Z.U. maintained, inter alia, that at 9 p.m. terrorists had arrived at the village and asked him to take them to the house of the village headman (muhtar). On their way, shots were fired. He hid in a ditch and, subsequently, in the garden of a house. Z.U. contended that he had remained hidden until the following morning, whereupon, having dressed his wound, soldiers had taken him to Turhal hospital. 12. On 16 April 1999 the corpses of Doğan Altun and Seyit Külekçi were returned, respectively, to the second applicant, Fevzi Altun, and to Seyit Külekçi's brother, Ali Külekçi. 13. On an unspecified date, the Turhal public prosecutor initiated an investigation (no. 1999/624) against the deceased and four others, who were all suspected of belonging to the terrorist organisation TKP-ML/TIKKO. 14. On 15 June 1999 the applicants filed a complaint with the Turhal public prosecutor's office. In their complaint they maintained that Doğan Altun's left arm had been cut. They further contended that the ears of Seyit Külekçi and Doğan Altun had been cut off and that there were various injuries on their bodies which could not have been caused by firearms. The applicants alleged that their relatives had been tortured before they died or, alternatively, that the security forces had ill-treated the corpses. The applicants requested the public prosecutor to initiate an investigation against those members of the security forces who were responsible for the mutilation of their relatives' bodies. 15. On an unspecified date the Turhal public prosecutor opened an investigation into the applicants' allegations (no. 1999/1117). 16. On 11 October 1999 the Turhal public prosecutor decided to join investigations nos. 1999/624 and 1999/1117, since they concerned the same incident. 17. On 15 February 2000 S.Ş., a gendarmerie private who had participated in the military operation in Turhal on 14 April 1999, gave statements to the Turhal public prosecutor. He contended that there had been an armed clash between terrorists and the security forces on the day in question and that, at the end of the clash, two terrorists had been found dead. S.Ş. further maintained that these two persons had been killed by special teams. He stated that the ears of the deceased had already been cut off when he saw them, and that he had signed the scene-of-incident report without having read it. 18. On 17 February 2000 the Turhal public prosecutor took statements from K.K., the deputy gendarmerie station commander in the Turhal gendarmerie command. He maintained that in April 1999 there had been a military operation conducted by gendarmerie commando teams together with a special team, and that he had participated in this operation as a guide. He stated that, following the armed clash between the terrorists and the security forces, he and his team had taken the corpses to the town centre. He did not realise that the terrorists' ears had been cut off since the corpses were covered with mud. He opined that the inhabitants of Yeşilalan village could have cut off the terrorists' ears out of fear because the armed clash had occurred in their village. 19. On 30 March 2000 M.Ç., another gendarmerie private who was performing his military service in Turhal in 1999, gave statements to the Kurşunlu public prosecutor in Çankırı. He maintained that Seyit Külekçi and Doğan Altun had been killed by special teams. He contended that he had not approached the corpses. He saw that hand grenades had exploded on the bodies. He denied the allegation that he had ill-treated them. 20. On 18 April 2000 S.Y., a sergeant who had served in Turhal between 1996 and 1999, gave statements to the Elazığ public prosecutor. The sergeant contended that he had neither seen nor ill-treated the corpses. He maintained that the damage to the corpses could have been caused by firearms. 21. On 3 September 2000 the Turhal public prosecutor decided to separate the investigation against the officers who had participated in the operation conducted on 14 April 1999 from the investigation against the deceased and the four other suspects who had fled on the same day. In his decision, he noted that these matters fell within the jurisdiction of different courts. The public prosecutor identified the charge against the security forces as that of “insulting corpses”. 22. On 10 October 2000 the Turhal public prosecutor filed a bill of indictment charging the gendarmerie officers M.Ç., K.K., S.Ş. and S.Y. with “insulting” the corpses of Seyit Külekçi and Doğan Altun, contrary to Article 178 § 1 of the Criminal Code. 23. On the same day the Turhal Criminal Court of First Instance placed those officers on trial. 24. On 31 October 2000 M.Ç. made statements before the Kurşunlu Criminal Court of First Instance, denying the allegation that he had cut the ears off the corpses. He maintained that he had neither seen nor ill-treated them. 25. On 20 December 2000 the Turhal Criminal Court of First Instance held a hearing. 26. On 5 January 2001 the first-instance court decided to defer the imposition of a final sentence upon the accused, pursuant to section 1 of Law no. 4616. The court held that the criminal proceedings against the accused would be suspended and a final sentence imposed should they be convicted of a further intentional offence within five years of this decision. 27. The judgment of 5 January 2001 became final, as neither the public prosecutor nor the accused officers appealed against it. 28. A description of the domestic law at the material time can be found in Ergi v. Turkey (judgment of 28 July 1998, Reports of Judgments and Decisions 1998IV, §§ 48 and 51), İlhan v. Turkey ([GC], no. 22277/93, §§ 36, 41 and 42, ECHR 2000VII) and Şahmo v. Turkey ((dec.), no. 37415/97, 1 April 2003). | 1 |
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