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dev | 001-81928 | ENG | AUT | CHAMBER | 2,007 | CASE OF VITZTHUM v. AUSTRIA | 3 | Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 4. The applicant was born in 1968 and lives in Geretsberg. 5. On 24 June 1999 the Braunau District Administrative Authority (Bezirkshauptmannschaft) charged the applicant with drunken driving. The applicant, represented by counsel, submitted observations on 13 July and 8 September 1999. 6. On 21 September 1999 the District Administrative Authority issued a penal order (Straferkenntnis) finding the applicant guilty of drunken driving contrary to Sections 5 § 1 and 99 § 1 (a) of the Road Traffic Act (Strassenverkehrsordnung). As to the alcohol level the authority had regard to the results of a breathalyser test and to the corroborating results of a blood alcohol analysis carried out the following day. It imposed a fine of 16,000 Austrian schillings (approximately 1,160 euros) on him with 14 days' imprisonment in default. 7. The applicant appealed on 12 October 1999. 8. On 9 December 1999 the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat) held a hearing at which it questioned the applicant and the two police officers who had carried out the breathalyser tests and a further witness. 9. By decision of 21 December 1999 the Independent Administrative Panel, having held a hearing, dismissed the applicant's appeal. It found that the applicant had driven his car on 15 June 1999 at 8 p.m. having a proportion of alcohol in his breath exceeding the statutory level. He admitted to having consumed alcohol in the afternoon. Having run out of petrol, the applicant had left the car and had gone to the next petrol station. Upon his return, he had been requested by two police officers to undergo breathalyser tests. The tests, carried out at 8.52 and 8.54 p.m. respectively, had yielded results of 0.84 and 0.86 mg alcohol/litres. The Independent Administrative Panel dismissed the applicant's request to take an expert opinion in order to show that the difference in these results was due to his having consumed one and a half litres of beer when he went to fetch petrol and that he had, before that, not been driving his car in a state of drunkenness. Having regard to the instructions for use of the breathalyser at issue, the Independent Administrative Panel noted that the difference in the two test results was not significant. 10. In any case, it found that the applicant's defence was not credible as he had stated at his first interrogation to have parked his car at 8 p.m. and had explicitly answered the police officers' question whether he had consumed alcohol after that in the negative. It was only in his written submissions of 13 July that he had claimed to have consumed more beer after 8 p.m. The bill submitted by the applicant did not support his defence as the innkeeper had stated that he had given the applicant this bill two weeks after the incident on his explicit request. He had not remembered the applicant and could not confirm whether he had actually consumed beer at his inn at the relevant time. 11. The applicant lodged a complaint with the Administrative Court (Verwaltungsgerichtshof) on 3 February 2000. He complained in particular about the refusal of his request to take an expert opinion. On 3 April 2000 the Independent Administrative Panel submitted observations in reply. The applicant made further submissions on 3 May and 21 June 2000. 12. On 7 August 2003 the Administrative Court, having deliberated on 4 July 2003, dismissed the applicant's complaint as being unfounded. It found in particular that the Independent Administrative Panel's assessment of evidence did not suffer from any defects and that it had given detailed and convincing reasons for its refusal to take the expert opinion requested by the applicant. 13. The decision was served on the applicant's counsel on 1 September 2003. | 1 |
dev | 001-70162 | ENG | TUR | CHAMBER | 2,005 | CASE OF DIZMAN v. TURKEY | 3 | No Violation of Art. 2;Violation of Art. 3;Not necessary to examine Art. 5;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | null | 9. The applicant was born in 1969 and lives in the town of Seyhan, within the administrative jurisdiction of the province of Adana. 10. The facts surrounding the events of 5 October 1994 are disputed by the parties. 11. The facts as presented by the applicant are set out in Part B below (see paragraphs 12-21). The Government’s submissions concerning the facts are summarised in Part C below (see paragraphs 22-23). Documentary evidence submitted by the applicant and the Government is summarised in Part D (see paragraphs 24-27 below) and Part E (see paragraphs 28-52 below) respectively. 12. On 3 October 1994 Rehib Çabuk and Sefer Cerf were killed in Adana. They were, respectively, district leader and administrative board member of HADEP (Halkın Demokrasi Partisi, People’s Democracy Party), a pro-Kurdish political party. The applicant witnessed the killing and attended the funeral on 4 October 1994. 13. On 5 October 1994, at about 11 a.m., while the applicant was sitting in the Erzurumlular Café in the Mutlu neighbourhood in Adana, two persons, who later identified themselves as policemen, entered the café. Both were from the anti-terrorism branch of the police and both were armed with pistols. They told the applicant to come out of the café. On leaving the café the applicant was put in a white Renault car, with the registration number 01 HC 644. 14. There were two other police officers inside the car, both armed with MP-5 automatic weapons. The applicant’s elder brother Suphi Dizman, who was also in the café, asked the police officers why they were taking his brother away. The police told him that they wanted to ask his brother a number of questions and they would then return him to the café. 15. The car drove in the direction of Kabaktepe and stopped in a deserted field. The applicant was taken out of the car. As soon as he got out, the police officers started to punch and kick him and to beat him with the butts of their guns. The police officers told the applicant that they had seen him at the funeral of Sefer Cerf and Rehib Çabuk the day before. They threatened him and told him that if he continued to be involved in such activities, his end would be like those of the dead HADEP members. 16. The police officers questioned the applicant about a number of local people. The applicant was also forced to report the activities of local shopkeepers, who were allegedly selling the newspaper Özgür Ülke, a pro-Kurdish newspaper, and who were collecting money, presumably for the Kurdistan Workers’ Party (hereinafter “the PKK”). The applicant was threatened that if he did not report the political activities of these shopkeepers regularly, he would be killed. 17. The applicant denied that he was involved in such activities and protested that they had no reason to treat him like a criminal. He was then put into the car and driven towards the town. Before releasing him, the officers gave the applicant an address and ordered him to be there on the following Friday evening. 18. When the applicant got home, his relatives took him to the hospital where it was established that his jaw bone had been broken and required surgery. 19. The applicant, with the assistance of a lawyer, submitted a petition to the Adana Prosecutor’s office on 7 October 1994 and requested the Prosecutor to initiate criminal proceedings against the police officers who had ill-treated him. He gave a detailed account of the incident and described the physical features of the police officers in question. The applicant asked the Prosecutor to send him to the Forensic Medicine Directorate to obtain a medical report which could be used as evidence in the criminal proceedings. 20. The report was obtained from the Adana Forensic Medicine Directorate on 7 October 1994 (for content see paragraph 27 below). 21. The applicant received no replies from the Prosecutor. 22. A medical report was issued by the Forensic Medicine Directorate on 7 October 1994 according to which the applicant was unable to work for a period of 25 days. 23. The applicant made an application to the Adana Public Prosecutor on 7 October 1994. On 10 October 1994 the Adana Public Prosecutor commenced an investigation into the applicant’s allegations of ill-treatment under file no. 1994/29324. 24. The following information appears from the documents submitted by the applicant. 25. On 6 October 1994 the applicant submitted a petition to the Prosecutor’s office in Adana. The contents of this petition formed the basis of his submissions under Part B above (see paragraphs 12-20). He also informed the Prosecutor that he had been taken to hospital after having been released by the police. It had been established at the hospital that his jaw had been broken and required surgery. The applicant submitted the x-rays to the Prosecutor and told him that he wanted to press charges against the police officers. He finally asked the Prosecutor to be sent to the Forensic Medicine Directorate. 26. On 7 October 1994 the applicant submitted another petition to the Prosecutor’s office in Adana and repeated the contents of his previous petition. He also described the physical features of the police officers in this petition. 27. According to a medical report prepared by the Forensic Medicine Directorate in Adana, the applicant’s left jawbone had been broken. The report was based on an examination of the applicant as well as of x-rays. The report concluded that the fracture did not constitute a danger to life but would prevent the applicant from working for 25 days. 28. The following information appears from the documents submitted by the Government. 29. It appears from this decision that the Adana Prosecutor, after having received the applicant’s petitions, had decided on an unspecified date that he lacked jurisdiction to prosecute the police officers and had forwarded the investigation file to the Adana Administrative Council in order to obtain an authorisation to prosecute the police officers. 30. On 24 November 1994 the Adana Administrative Council, which was presided over by the deputy Governor of Adana and consisted of six civil servants, found that there was insufficient evidence to open an investigation and decided to decline authorisation for the prosecution of Yaşar Soyyiğit, Hacı Kara, Mustafa Duman and Kadri Dursun, police officers who worked for the anti-terrorism branch of the Adana Police who had allegedly intimidated and ill-treated the applicant on 5 October 1994. 31. The Administrative Council based its decision on the fact that the applicant, who claimed to have been ill-treated on 5 October 1994, had not asked for his transfer to the Forensic Medicine Directorate until 7 October 1994. It appears from this decision that the investigation file had been forwarded to the Administrative Council by the Legal Affairs Department of the Adana Police Headquarters, together with a letter drawn up by that department on 18 November 1994. 32. On 7 December 1994 the Disciplinary Board of the Adana Police decided not to impose any disciplinary measures on the police officers due to a lack of evidence establishing that they had committed the acts complained of. In this decision the applicant was reported as having stated that he had been beaten up by the police officers and that he had been given a medical report showing that he was unable to work for 25 days. The applicant had no complaints against anyone. The applicant’s brother apparently told the Disciplinary Board that his brother had been taken away from the café by the four officers but that he also did not have any complaints against anyone. 33. In the decision of the disciplinary board, Yaşar Soyyiğit, one of the four police officers, was reported as having stated that he and his colleagues had carried out an identity check in the café during which they were suspicious about the applicant. They had asked him a number of questions in the café and left. They had not beaten him up. The remaining three police officers apparently confirmed the statement given by Yaşar Soyyiğit. 34. On 31 May 1996 the Council of State quashed the Adana Administrative Council’s decision declining authorisation for the prosecution of the four police officers in so far as it concerned the offence of ill-treatment and upheld the decision not to grant authorisation to prosecute them for the allegation of intimidation. The Council of State further held that the four police officers should be tried before the Adana Criminal Court of First Instance. According to the Council of State, the medical report proved that the applicant had been ill-treated by the four police officers as alleged. 35. The decision of the Council of State was forwarded to the Adana Prosecutor’s office on 7 August 1996. On 8 August 1996 the Adana Prosecutor forwarded the decision to the Adana Criminal Court of First Instance and asked that court to take the necessary action. 36. On 11 August 1996 a preliminary hearing was held before the Ninth Chamber of the Adana Criminal Court of First Instance (hereinafter “the trial court”). The court decided to summons the defendants for the next hearing on 14 November 1996 and further decided to obtain the defendants’ identity cards and documents showing their criminal records. 37. On 12 August 1996 the Adana Prosecutor sent a letter to the Ministry of Justice’s International Law and Foreign Relations Directorate (hereinafter “the Directorate”) and informed the Directorate of the decisions referred to above. The Prosecutor added that the criminal proceedings were pending before the trial court under case-file no. 1996/818 and that a hearing was scheduled for 14 November 1996. In this letter the Prosecutor referred to a letter sent by the Directorate to his office on 7 June 1996 and a reply sent by his office on 13 June 1996. 38. On 21 August 1996 the trial court asked the Adana Prosecutor to obtain the defendants’ identity cards before the hearing on 14 November 1996. 39. On 27 August 1996 the Directorate sent a letter to the Ministry of Foreign Affairs and referred to the application lodged by the applicant with the Commission. The Directorate informed the Ministry of the decisions referred to above and added that the criminal proceedings were pending before the trial court under case-file no. 1996/818. The Directorate also referred to a letter sent by the Ministry on 31 May 1996 and their reply of 26 June 1996. 40. On 5 September 1996 the anti-terrorist branch forwarded to the trial court the identity document of one of the defendants, Yaşar Soyyiğit. 41. On 14 November 1996 the hearing resumed before the trial court. Only two of the defendants, namely Yaşar Soyyiğit and Hacı Kara, were present in the court room. According to postal receipts, the remaining two defendants had also been summonsed. 42. Both Mr Soyyiğit and Mr Kara told the trial court that they had gone to the café on the day in question and checked the identity card of the applicant. When they had established that he was not wanted by the authorities for any offence, they had returned the identity card to the applicant. They had not beaten him up. The defendants confirmed the accuracy of the statements they had made during the preliminary investigation. 43. The trial court, noting that all defendants except Yaşar Soyyiğit had since been posted elsewhere, decided to send letters rogatory to the courts in whose jurisdiction the two absent defendants were living and asked those courts to take statements from them. The trial court also decided to send letters to the Registry Office for Births, Marriages and Deaths to ask for the birth registry records of the defendants. The trial court, noting that the applicant had “inadvertently not been summonsed”, decided to summons him for the next hearing on 29 January 1997. 44. On 9 December 1996 the Karakoçan Criminal Court of First Instance, acting on the letter rogatory from the trial court, took a statement from Mustafa Duman, one of the two defendants who had failed to attend the hearing before the trial court on 14 November 1996. Mr Duman told the court that neither he nor any of his colleagues had ill-treated the applicant. According to Mr Duman, the applicant had been a PKK member and it was for this reason that he had made the allegations of ill-treatment against the police. 45. On 25 December 1996 the Akçakale Criminal Court of First Instance, also acting on the letter rogatory from the trial court, took a statement from Kadri Dursun, the fourth defendant. Mr Dursun told the court that he did not remember the incident which, in any event, was just an allegation. He did not even know the applicant. 46. During the hearing that was held before the trial court on 29 January 1997, the applicant confirmed the accuracy of the contents of his statement taken at the Police Headquarters previously. He further informed the trial court that he wanted to press charges against the defendants. The applicant’s brother Suphi Dizman also confirmed the accuracy of the contents of his statement taken at the Police Headquarters previously and added that the four police officers had beaten up his brother and broken his jaw as a result. 47. The trial court adjourned the hearing until 27 March 1997 on account of the failure of the Akcakale court to forward Kadri Dursun’s statement in time. 48. The hearings on 27 March, 4 June and 15 September 1997 had to be postponed on account of the failure of the authorities to submit to the trial court the identity card of Kadri Dursun and the criminal records of Mustafa Duman. 49. At the hearing on 17 November 1997 the prosecutor was given additional time until 29 December 1997 to submit his observations. 50. A final hearing took place on 29 December 1997. The defendants did not attend this hearing. The Prosecutor argued that, other than the applicant’s statement, there was no evidence to prove the allegation of ill-treatment. Furthermore, the applicant had obtained the medical report two days after the alleged event. The Prosecutor recommended to the trial court that the defendants be acquitted. 51. The trial court, noting that the defendants had “vehemently denied the allegations” against them and taking into account the “fact that the medical report was issued two days after the alleged events”, concluded on 29 December 1997 that there was insufficient evidence to prove that the applicant’s injury had been caused by the defendants, and acquitted them. 52. According to postal receipts submitted by the Government, the decision of the trial court was communicated to the defendants in March 1998. 53. The relevant domestic law and practice are set out in the judgment of İlhan v. Turkey ([GC], no. 22277/93, §§ 35-46, ECHR 2000-VII). | 1 |
dev | 001-86762 | ENG | BGR | ADMISSIBILITY | 2,008 | TODOROV v. BULGARIA | 3 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Rumen Ivanov Todorov, is a Bulgarian national who was born in 1960 and lives in Ahtopol. He was represented by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 May 1990 the applicant obtained construction rights over a plot of municipal land in Rezovo, the municipality of Tsarevo (formerly Michurin). In accordance with the relevant law as in force at the time, the municipal authorities issued an order granting construction rights and also entered into a contract with the applicant. The surface of the plot was 700 square metres. The price was set at 700 “old” Bulgarian levs (BGL), which the applicant paid on 14 May 1990. At that time BGL 700 was the equivalent of approximately three average monthly salaries in the country. The contract stipulated, inter alia, that the applicant’s right to construct a building would expire in the event of his failing to complete the building within five years. The applicant hired an architect and on 19 July 1991 he obtained a building permit for a two-storey house of 111 square metres to be constructed on the plot. The applicant also purchased construction material, transported it to Rezovo and stored it there. On an unspecified date in the summer of 1991 the municipal building authorities refused to authorise the commencement of the construction works as the technician who had visited the site had noted that a high-voltage electricity conduit passed over the plot. It appears that during the same period persons claiming rights over neighbouring plots obstructed the applicant’s preparations for the construction of his house. In 1992 the applicant brought an action against them, seeking damages. The municipality of Tsarevo was summoned as a third party. By judgment of 2 March 1993 the Bourgas District Court dismissed the applicant’s claim against the neighbours, noting that the impossibility for the applicant to realise his project was only imputable to the municipality which had sold him construction rights over the plot in disregard of the fact that constructing a building there was not allowed owing to the passage of a high-voltage electricity conduit. On an unspecified date in 1993 the applicant wrote to the municipality asking them to provide him with another plot. He allegedly received assurances that that would be done later. By decision of 1 September 1995 the local land commission ordered the restitution of the land on which the applicant had obtained construction rights to the heirs of the person who had owned it prior to the collectivisation of agricultural land in Bulgaria in the 1950s. In October 1995 the applicant travelled to Germany and started working there. On 29 January 1996 the mayor of Tsarevo issued an order cancelling the applicant’s construction rights. On an unspecified date in 1997 the applicant brought an action against the municipality of Tsarevo seeking restitution of the price paid by him under the 1990 contract and damages for breach of contract. Initially he claimed BGL 100,000. On 31 March 1998 he increased the claim to BGL 1,000,000. By a judgment of 27 July 1998 the Tsarevo District Court partially granted the claim. On an appeal by the applicant, on 24 March 1999 the Bourgas Regional Court increased the award. The final judgment was that of the Supreme Court of Cassation of 15 May 2000, which upheld the Regional Court’s judgment. The courts found, inter alia, that the Tsarevo municipality had breached the 1990 contract with the applicant in that it had granted him construction rights over a plot which could not be built over and had failed to remedy that situation despite his complaints. It followed that the municipality was liable to pay all ensuing damages. The applicant had proven the alleged losses in respect of the price paid by him in May 1990 to the municipality (BGL 700), the architect’s fees paid by him in 1991 (BGL 1,200) and the expenses incurred by him in 1991 for the transport of construction material (BGL 8,000). The remainder of his claims, which concerned alleged loss of profits, were dismissed as unproven. The applicant had stated that in normal circumstances he would have completed the house within a year and would have rented it each year during the summer holidays. The courts found that the applicant had not substantiated the alleged loss of profits. He had relied solely on information about average property and rental prices at the relevant time. The amount awarded to the applicant was thus BGL 9,900 plus interest. Owing to the depreciation of the Bulgarian currency, by March 1999, when the award became enforceable, it represented, together with all interest accrued, the equivalent of not more than 15 euros (EUR). In his appeals before the Regional Court and the Supreme Court of Cassation the applicant protested that the courts had awarded him sums which had become worthless. He insisted that the award should be commensurate to the value of the actual damage he had sustained. In reply to those arguments the courts stated that in accordance with the relevant law and established practice the applicant was entitled to compensation for the actual damage suffered at the time when it was occasioned. In 2003 the applicant submitted a claim in which, in confused terms, he sought a declaration that the mayor’s order of 29 January 1996 was null and void and also requested compensation. The courts interpreted the claim as an action for a declaration of nullity and rejected it as unfounded by final decision of 18 June 2004. | 0 |
dev | 001-90645 | ENG | RUS | CHAMBER | 2,009 | CASE OF MEDOVA v. RUSSIA | 3 | Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Sverre Erik Jebens | 6. The applicant was born in 1980 and lives in Karabulak. 7. The applicant lived with her husband, Mr Adam Medov (born in 1980), in Karabulak, Ingushetia. The applicant is a linguist by training, and currently looks after her two children, born in 2003 and 2004. In June 2004 her husband temporarily resided in Nazran in Ingushetia. 8. The applicant submitted that on 15 June 2004 at about 8 p.m. her husband had left his temporary home in Nazran in his car (Zhiguli VAZ 21099). According to his brother, Mr Magomed Medov, he should have had 3,800 United States dollars with him, which he had borrowed from his relatives. He did not come back home that night. 9. In the night of 16 to 17 June 2004 the applicant’s husband called his brother, Mr Magomed Medov, on his mobile phone and said that his car had broken down. He tried to say where he was, but the phone was cut off. 10. In the evening of 17 June 2004 the Medovs were informed that their son, Mr Adam Medov, was being detained at the Sunzhenskiy District Department of the Interior (the Sunzhenskiy ROVD). At about 8 p.m. several of Mr Adam Medov’s relatives, including his father and two brothers, arrived at the village of Ordzhonikidzevskaya (also called Sleptsovskaya) – the administrative centre of the Sunzhenskiy district – and went to the ROVD building. 11. There the policemen told them that on 17 June 2004 the traffic police stopped two vehicles, a green Volga 31-10 and a Zhiguli VAZ 21099, for an inspection near the Kavkaz-1 crossing between Ingushetia and Chechnya. The policemen heard noise coming from the boot of the Zhiguli car. They opened it and found a man tied up (according to the policemen this was Mr Adam Medov) who cried “I am an Ingush! They are trying to take me out of here!”. The Volga car then started to move towards Chechnya, but was stopped by the policemen. In its boot they found another man tied up. 12. The policemen arrested the persons who were in both cars and took them and the two bound men to the Sunzhenskiy ROVD at about 7 p.m. 13. According to the policemen, Mr Adam Medov was questioned and explained that on 15 June 2004 he had been apprehended near the Sunzha restaurant in Sleptsovskaya along with a man to whom he had been giving a lift in his car, and whose name he did not know. He said he had been apprehended by eight men, four of them of Russian origin and four of them of Chechen origin, and subsequently taken to the Federal Security Service (FSB) headquarters in Magas, the capital of Ingushetia. There he had been beaten and tortured. At some point on 16 June 2004 he had been forced to call his family to convince them not to start searching for him. 14. By the evening of 17 June 2004 numerous relatives of Mr Adam Medov had gathered in front of the Sunzhenskiy ROVD. The policemen asked his relatives to bring food and agreed to take it to him. Later they offered to allow two of Mr Adam Medov’s brothers, Mr Magomed Medov and Mr Usman Medov, to visit him inside the building. While the two men were standing on the ground floor of the police station, they heard someone shouting “No visits! They should leave!” Magomed Medov and Usman Medov were then escorted to the exit of the ROVD building. 15. At about 11.30 p.m. on 17 June 2004 the policemen came outside to where the relatives of Mr Adam Medov were waiting and told them that he and another detainee had been driven to Chechnya. Mr K-v, an officer of the Sunzhenskiy ROVD, had accompanied the cars to the Kavkaz-1 roadblock. This was the last news the relatives had of Mr Adam Medov. 16. On 22 July 2004, in reply to the Court’s request of 16 July 2004 for factual information relating to the detention and whereabouts of Mr Adam Medov, the Government first submitted that the Ministry of the Interior was not aware of his alleged abduction or his whereabouts. He had not been detained in the Sunzhenskiy ROVD between 15 and 21 June 2004. His relatives had not applied to the department of the interior with a complaint about Mr Adam Medov’s abduction. Furthermore, according to the information submitted by the Prosecutor General’s Office, on 22 July 2004 the Prosecutor’s Office of Ingushetia had opened a criminal case under Article 126 (2) of the Criminal Code – abduction committed by a group. 17. On 20 August 2004 the Government submitted the following information received from the Prosecutor General’s Office: “In the evening of 17 June 2004 police officers stopped two cars at the “Volga-20” stationary road checkpoint, located on federal route “Kavkaz”, near the administrative border of the Chechen Republic. The six men sitting in the two cars refused to produce their documents. In this connection they were brought to the Sunzhenskiy [ROVD], where four of the above-mentioned six men introduced themselves as officers of the Department of the [FSB] in the Chechen Republic and produced their documents. The highest ranking officer of the group, Mr Beletskiy V.V., gave the following explanation of what had happened. He said that on 15 June 2004 in Ingushetia they had apprehended two men, Medov A.A. and [K.], who were wanted on suspicion of having committed grave crimes, and that they were taking them to the Chechen Republic. Mr Beletskiy produced documents that showed the lawfulness and validity of Mr Medov’s and [K.’s] arrest and detention. After that the above-mentioned officers ... and the two detained persons left for the Chechen Republic. According to information provided by the Prosecutor’s Office of the Chechen Republic, officers of the law-enforcement bodies of the Chechen Republic had not apprehended Mr Medov and there was no information that the latter had been brought to the territory of the Chechen Republic. According to the Department of the FSB in the Chechen Republic, Mr Beletskiy V.V. was not on the staff of that Department. Moreover, the Department did not have any information regarding Mr Medov’s apprehension and whereabouts. On 22 July 2004 the Public Prosecutor’s Office of the Republic of Ingushetia initiated a criminal case in respect of an offence defined by Article 126 § 2 (a) (abduction by a group of persons after preliminary collusion) in connection with Mr Medov’s and [K.’s] disappearance. At present Mr Medov’s and [K.’s] location is not established. Mrs Medova’s allegations that her husband is being detained at the Khankala military base have not proved to be true”. 18. Immediately after 17 June 2004 the members of Mr Adam Medov’s family started to search for him. On numerous occasions, both in person and in writing, they applied to prosecutors at various levels, the Ministry of the Interior, the FSB, administrative authorities and public figures. The applicant and other family members received conflicting information about the circumstances of Mr Adam Medov’s apprehension and detention, and hardly any about his whereabouts after 17 June 2004. 19. On 18 June 2004, upon a request by Mr Adam Medov’s relatives, the chairman of the Ingush Bar Association “XXI Vek” asked the Ingush Department of the FSB and the Sunzhenskiy ROVD if Mr Adam Medov had been detained on 17 June 2004, and if so, where he was. On the same day the Sunzhenskiy ROVD replied that Mr Adam Medov had not been detained by them. 20. However, on 21 June 2004 the deputy prosecutor of the Sunzhenskiy District informed the Medovs that “on 15.05.2004 Medov A.K. was detained by officers of the FSB Department for Chechnya under the command of Lieutenant-Colonel Beletskiy V.V.” On 22 June 2004 the same prosecutor informed the applicant’s family that on 16 June 2004 he had “requested the military prosecutor of the United Group Alignment (UGA) to submit relevant information”. 21. On 24 June 2004 the acting prosecutor of Ingushetia replied to a member of Ingushetia’s Popular Assembly, Mr Ozdoyev, that an investigation was ongoing into the Medovs’ complaint about the detention and ill-treatment of Mr Adam Medov by FSB officers on 15 June 2004. 22. On 26 June 2004 the deputy prosecutor of the Sunzhenskiy District again confirmed to the applicant’s family that “on 15.06.2004 Medov was detained by officers of the FSB Department for Chechnya under the command of Lieutenant-Colonel Beletskiy V.V. On 18 June 2004 [M.], the military prosecutor of the UGA, was requested to submit information relating to the grounds of the arrest.” 23. On 1 July 2004 the acting prosecutor of Ingushetia replied to Mr Ozdoyev that, since Mr Medov had been detained by FSB officers from Chechnya, all complaints submitted by his family had been forwarded for investigation to the military prosecutor of the UGA. 24. On 7 July 2004 the Chief of the FSB Department for Chechnya wrote to the applicant and stated that Mr Medov had not been arrested or detained by its officers and that they had no information about his whereabouts. 25. On 9 July 2004 Mr Adam Medov’s relatives sent fifteen letters to the Prosecutor of Ingushetia, the Minister of the Interior of Ingushetia and the NGO Memorial, in which they described the known circumstances of Mr Medov’s apprehension and requested that an investigation into the abduction be carried out and his whereabouts be established. 26. On 9 July 2004 the Chairman of Memorial, Mr Orlov, and a member of the Human Rights Commission with the President of Russia, Mrs Gannushkina, met in Ingushetia with Mr M-v, the prosecutor of the Sunzhenskiy District. The applicant submitted a transcript of the discussion signed by Mr Orlov. According to that document, on 17 June 2004 Mr M-v had been informed that at about 7 p.m. a group of armed persons had been stopped at the Kavkaz-1 roadblock while trying to take two persons to Chechnya. The armed persons had produced documents to show they were FSB officers from Chechnya and insisted that they were acting lawfully. The prosecutor had demanded that they be taken to the Sunzhenskiy ROVD and personally went to the roadblock, but by that time they had agreed to go and had driven to the Sunzhenskiy ROVD. At the ROVD the detained persons had produced identity documents issued by the FSB Department for Chechnya bearing the names Lieutenant-Colonel Beletskiy V.V., Detective Shurov A.G., Corporal Parfenov D.A. and Sergeant Minbulatov I.Yu. They had also produced documents authorising them to arrest Mr Adam Medov and K., who had been found by the policemen in the boots of the cars. Mr M-v had called the local FSB office, which confirmed that the arrest had been legal. The prosecutor had had to order the release of the detained persons, who had departed for Chechnya through a back door, taking the two men with them. 27. In July-August 2004 the applicant and Mr Adam Medov’s mother wrote several letters to the Prosecutor General, the Prosecutor of the Chechen Republic, the FSB Department for Chechnya, and the Prosecutor of the Sunzhenskiy District, referring to the information obtained in July and asking for information about Mr Adam Medov’s whereabouts and news of the investigation. 28. On 19 July 2004 the Russian Human Rights Commissioner wrote to the General Prosecutor and the Director of the FSB in respect of Mr Adam Medov’s arrest and detention. 29. On 25 July 2004 the deputy chief of the FSB Department for Chechnya replied to the applicant. He denied that Mr Adam Medov had been arrested or detained by the Department’s officers and stated that they had no information on his whereabouts. The letter further stated that Lieutenant-Colonel Beletskiy V.V., Detective Shurov A.G., Corporal Parfenov D.A. and Sergeant Minbulatov I.Yu. were not members of the Department’s staff. 30. On 17 August 2004 the General Prosecutor’s Office replied to the Russian Human Rights Commissioner, stating that a criminal investigation into the abduction was pending, and that at the moment no law-enforcement authority possessed information about Mr Adam Medov’s arrest and detention or whereabouts. The letter also stated that on 17 June 2004 the six armed men and their two prisoners had been released from the Sunzhenskiy ROVD upon orders of the then acting Minister of the Interior of Ingushetia, Mr Kostoyev, who had been killed on 21 June 2004. 31. On 9 September 2004 the FSB replied to the Human Rights Commissioner and stated that the service had no information about Mr Medov’s arrest and detention or whereabouts, and that the four named servicemen were not members of the FSB Department for Chechnya. 32. On 15 September 2004 the applicant complained to the Prosecutor General about the inactivity of the investigator in charge of the case concerning her husband’s abduction. 33. On 25 November 2004 the applicant applied in person to the investigator in charge of the case with a request to conduct certain investigative measures, including questioning of the officers who had been on duty at the roadblock on 17 June 2004 and the officer who had escorted her husband and the persons who had detained him to the border between Ingushetia and Chechnya. According to the applicant, during her visit in person the investigator had refused to accept the application or include it in the case file. She had then sent it by registered mail. 34. On 29 December 2004 the applicant complained to the Sunzhenskiy District Court of the Republic of Ingushetia about the investigator’s refusal to accept the application of 25 November 2004 and to take the requested investigative measures. 35. On 25 January 2005 the Sunzhenskiy District Court examined the complaint. At the hearing the investigator submitted that the applicant had applied to be provided with information on the progress of the investigation once and had received a written reply. He had not received any other applications from her. He contended that the investigative measures requested by the applicant had been taken; however, he could not inform her of the results until the preliminary investigation was completed. The court dismissed the applicant’s complaint and held, inter alia: “In accordance with [the Code of Criminal Procedure] the victim may be familiarised with the materials of the criminal case file upon the completion of the preliminary investigation. Accordingly, [the investigator’s] refusal to familiarise the victim with the materials of the case file was lawful.” 36. The decision could be appealed against within ten days. 37. On 14 February 2005 the applicant submitted an appeal together with an application to restore the time-limit for appeal as the decision had been served on her only on 4 February 2005. 38. On 10 March 2005 the Sunzhenskiy District Court refused the application to restore the time-limit for appeal on the ground that the applicant had been present at the hearing of 25 January 2005, where the decision had been read out. 39. On an unspecified date the decisions of 25 January and 10 March 2005 were quashed by the Supreme Court of the Republic of Ingushetia and the case remitted to the Sunzhenskiy District Court for a fresh examination. According to the Government, upon the fresh examination the Sunzhenskiy District Court dismissed the complaint. The decision was not appealed against. 40. On 15 June 2005, following an application lodged by the applicant, the Karabulakskiy District Court of the Republic of Ingushetia declared Mr Adam Medov a missing person. 41. The Government submitted the following information concerning the progress of the investigation. 42. On 22 July 2004 criminal investigation no. 04600045 was instituted into the abduction of Mr Adam Medov. 43. On 29 July 2004 the investigator questioned as a witness Mr I., deputy prosecutor of the Sunzhenskiy District. Mr I. submitted that on 17 June 2004 he had been on duty at the District Prosecutor’s Office. At around 9 p.m. he was informed by the head of the Sunzhenskiy ROVD that unknown persons who had tried to take Mr Medov and K. through the checkpoint had been brought to the ROVD. They had presented themselves as FSB officers. Mr I. had immediately informed Mr B., another deputy prosecutor of the Sunzhenskiy District. Mr B. had told him that the persons brought to the ROVD had with them all necessary documents. Mr I. was questioned again on 20 October 2004. 44. On 29 July, 2 August and 5 October 2004 the investigator also questioned relatives of Mr Adam Medov. 45. On 30 July 2004 the applicant was granted the status of a victim in the criminal proceedings. She was questioned on 5 August 2004. 46. On 5 August 2004 the investigator questioned A., the head of the Sunzhenskiy ROVD. On 7 August 2004 he questioned E., an officer of the Sunzhenskiy ROVD. On 9 August 2004 the investigator questioned Bad. and Kh., the heads of the Sunzhenskiy ROVD, and on 16 August 2004 he questioned A., an officer of the Sunzhenskiy ROVD. 47. On 17 August 2004 the investigator questioned as witnesses two police officers of the special police unit of the Ministry of the Interior of Ingushetia. 48. On 13 September 2004 the investigator questioned six officers of the traffic police of Ingushetia. 49. On the same date the prosecutor of military unit no. 04062 questioned the head of the Sunzhenskiy District Department of the FSB and on 18 October 2004 his deputy. 50. On 22 December 2004 the preliminary investigation was suspended on the ground that the person to be charged with the offence had not been identified. 51. On 1 April 2005 the deputy prosecutor of the Sunzhenskiy District quashed the decision to suspend the investigation. 52. On 5 April 2005 the investigation was resumed. 53. On 5 May 2005 the preliminary investigation was suspended again on the ground that the person to be charged with the offence had not been identified. 54. On 31 May 2005 the first deputy prosecutor of the Republic of Ingushetia quashed the decision to suspend the investigation and transmitted the case to the Prosecutor’s Office of the Sunzhenskiy District for additional investigation. 55. On 1 June 2005 the investigator questioned as witnesses two neighbours of Mr Adam Medov. 56. On 1 July 2005 the investigator suspended the preliminary investigation again on the ground that the persons to be charged with the offence had not been identified. 57. On 3 October 2005 the first deputy prosecutor of the Republic of Ingushetia quashed the decision to suspend the investigation. 58. According to the Government, in the course of the investigation requests for information were sent to the Prosecutor’s Office of the Chechen Republic, prosecutor’s offices and investigating authorities of other Caucasian regions, the military prosecutor of UGA, the FSB Department for Northern Caucasia, the Ministry of the Interior of Ingushetia, medical institutions, a mobile network operator, airline and railway ticket offices, civil registrars, and passport and visa services. The investigating authorities also checked the registers of unidentified dead bodies and temporary detention facilities. According to the information received, the persons who presented themselves as FSB officers during the documents check had never served in the FSB and the documents presented had never been issued to them by the State authorities. Neither the Ministry of the Interior nor the FSB had conducted any operations in order to arrest Mr Medov and K. The Prosecutor’s Office of the UGA had neither instituted proceedings against Mr Medov and K. nor arrested them. 59. On 15 April 2007 the investigation was suspended on the ground that the persons to be charged with the offence had not been identified. The applicant was notified accordingly. 60. On 20 November 2007 the investigation was resumed. The applicant was notified of the resumption. 61. Despite specific requests made by the Court on several occasions, the Government did not submit any documents from the file in criminal case no. 04600045. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of the documents disclosing military information and the personal details of the witnesses, and without the right to make copies of the case file and transmit it to others. 62. On 10 March 2005 the applicant submitted a letter to the Court, in which she alleged that in January – March 2005 persons who claimed to belong to the FSB had offered her money via a relative of hers for the withdrawal of her application. She had also been personally contacted by a man claiming to be an officer of the FSB who had threatened her and offered money for the withdrawal of her application before the Court. 63. After the application had been communicated to the Government, the applicant maintained the complaint concerning the events that had allegedly taken place in January – March 2005. She made no new allegations. 64. The Government submitted that State agents had not hindered the applicant’s right to petition the Court. Furthermore, the applicant had not applied to law-enforcement agencies in connection with the alleged threats and offers of money for the withdrawal of her application. 65. Article 125 of the Code of Criminal Procedure provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. 66. Article 161 of the Code of Criminal Procedure stipulates that evidence from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator, but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission | 1 |
dev | 001-84786 | ENG | UKR | ADMISSIBILITY | 2,008 | KOSITSINA v. UKRAINE | 4 | Inadmissible | Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych | The applicant, Mrs Lyudmila Vladimirovna Kositsina, is a Ukrainian national who was born in 1936 and lives in Odessa, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. From 27 February to 2 March 1995 the applicant’s son, G., was allegedly detained in the village of Balka, Odessa Region, by T. and Tr. (relatives of G.’s former wife), who extorted payment of a obligation of 10,300 US dollars (USD) from G. by subjecting him to ill-treatment. On 3 March 1995 the Illichevsk Department of the Ministry of the Interior was informed by a medical clinic, to which G. came for medical treatment after being released, that he was suffering from head injuries. On 17 April 1995 the Illichevsk District Prosecutor’s Office of Odessa (прокуратура Ілічевського району м. Одеси) instituted criminal proceedings against T. and Tr. for unlawfully depriving G. of his liberty. Between 1995 and 1998 the criminal proceedings were several times terminated and subsequently reinstituted. On 12 February 1998 G. died. On 21 November 1998 the criminal case against T. and Tr. was closed for lack of evidence of crime. It was established that G. had borrowed money from T. and Tr., and that his physical injuries had occurred as a result of an epileptic fit. Following a complaint by the applicant about this decision, on 25 January 1999 the Illichevsk District Court of Odessa upheld it, finding no irregularities in the prosecutor’s decision to terminate the criminal proceedings. On 7 April 1999 the Presidium of the Odessa Regional Court, acting upon a protest lodged by the Deputy Prosecutor of the Odessa Region, quashed the decision of 25 January 1999 because the applicant had not been informed about the court hearing of 25 January 1999 and the court decision had not been reasoned. It remitted the case for a fresh examination to a different judge. On 19 July 1999 the Illichevsk District Court remitted the case for further investigation. In particular, it found a number of deficiencies in the investigation of the case and ordered the prosecution to rectify them. On 28 August 1999 the Illichevsk District Prosecutor’s Office again terminated the criminal proceedings against T. and Tr. for lack of evidence of crime. On 2 December 1999 the same prosecutor’s office quashed its own decision and reinstituted criminal proceedings. On 29 January 2000 the applicant was granted victim status. On 30 May 2000 the Illichevsk District Prosecutor’s Office terminated criminal proceedings against T. and Tr. for lack of evidence of crime. G.’s former wife, her mother and T. testified that the applicant had borrowed money from T. and that he had suffered from epilepsy. On 29 September 2000 the Malinovskyy District Court of Odessa, on a complaint by the applicant, quashed the prosecutor’s decision and remitted the case for further investigation. On 13 December 2000 the prosecutor quashed the decision of 29 January 2000 granting the applicant victim status, as contrary to Article 49 of the Code of Criminal Procedure. On 22 February 2001 the prosecutor terminated the criminal proceedings for absence of evidence of crime and as time-barred. On 27 November 2001 the Illichevsk District Court, on a complaint by the applicant, quashed the prosecutor’s decision and remitted the case for further investigation. In particular, it ordered that the deficiencies in the investigation of the case be rectified. However, the court underlined that the applicant had no victim status in the case. On 21 February and 25 June 2002 the Odessa Regional Court of Appeal and the Supreme Court of Ukraine upheld this decision. Between August 2003 and February 2004 the criminal proceedings were several times terminated and subsequently reinstituted. On 25 June 2004 the Malinovskyy District Court, by a separate decision, ordered the prosecutor to inform the court about the investigative actions which the prosecution had taken in the case. It emphasised the failure of the prosecution to abide by the courts’ previous decisions. On the same date, on a complaint by the applicant, the court remitted the case for a new investigation. On 21 September 2004 the Odessa Regional Court of Appeal upheld the decision of 25 June 2004, by which the case had been remitted for a new investigation. Between November 2004 and June 2005 the criminal proceedings were several times terminated and subsequently reinstituted. On 23 June 2005 the case was transferred to the court in order to terminate proceedings as time-barred. On 3 October 2005 the Malinovskyy District Court of Odessa refused to terminate the criminal proceedings against T. and Tr. and remitted the case for a new investigation. On 6 December 2005 the Odessa Regional Court of Appeal quashed this decision and remitted the case for a fresh judicial examination. The applicant was recognised by the court as her late son G.’s representative. On 3 April 2006 G.’s daughter was granted victim status in the proceedings. On 26 April 2006 the Malinovsky District Court terminated the criminal proceedings as time-barred. On 25 May 2006 the Malinovskyy District Court dismissed the applicant’s appeal against the decision of 26 April 2006 since the applicant was not a party to the proceedings. On 12 September and 5 December 2006 the Odessa Regional Court of Appeal quashed the decisions of 25 May and 26 April 2006 respectively and remitted the case to the Malinovskyy District Court for fresh consideration. On 16 February 2007 the Malinovskyy District Court granted the applicant victim status and remitted the case to the prosecutor for an additional investigation. On 26 April 2007 the Malinovskyy District Prosecutor’s Office terminated the criminal proceedings for the absence of the event of crime. On 12 July 2007 the Malinovskyy District Court upheld this decision. The applicant appealed against it and the proceedings are still pending. According to Article 28 of the Code, a person who has sustained pecuniary damage as a result of a crime can lodge a civil claim against an accused at any stage of the criminal proceedings before the beginning of the consideration of the case on the merits by a court. Article 49 of the Code provides in so far as relevant: “A person who has suffered moral, physical or property damage from the crime can be recognised as an aggrieved party. ... A citizen, who has been recognised as an aggrieved party from the crime, shall be entitled to give evidence in the case. An aggrieved party, or his or her representative, shall be entitled to: ... make requests; to study all the materials of the case-file when the pre-trial investigation is completed, ... to lodge complaints against the actions of inquirer, investigator, prosecutor and court, ... In cases where the crime caused the death of the victim, the rights provided for in this Article shall be conferred upon the deceased’s next kin.” | 0 |
dev | 001-58338 | ENG | LIE | GRANDCHAMBER | 1,999 | CASE OF WILLE v. LIECHTENSTEIN | 1 | Violation of Art. 10;Violation of Art. 13;Not necessary to examine Art. 6-1;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Elisabeth Palm | 6. In 1992 a controversy arose between His Serene Highness Prince Hans-Adam II of Liechtenstein (“the Prince”) and the Liechtenstein government on political competences in connection with the plebiscite on the question of Liechtenstein’s accession to the European Economic Area. At the relevant time, the applicant was a member of the Liechtenstein government. Following an argument between the Prince and members of the government at a meeting on 28 October 1992, the matter was settled on the basis of a common declaration by the Prince, the Diet (Landtag) and the government. 7. Following elections and the constitution of the new Diet in May 1993, discussions on various constitutional issues took place between the Prince and the government, when the applicant no longer held a government office. The applicant had not stood for re-election in May 1993, and he was appointed President of the Liechtenstein Administrative Court (Verwaltungsbeschwerdeinstanz) in December 1993 for a fixed term of office (see paragraph 26 below). 8. On 16 February 1995, in the context of a series of lectures on questions of constitutional jurisdiction and fundamental rights, the applicant gave a public lecture at the Liechtenstein-Institut, a research institute, on the “Nature and Functions of the Liechtenstein Constitutional Court” (“Wesen und Aufgaben des Staatsgerichtshofes”). In the course of the lecture, the applicant expressed the view that the Constitutional Court was competent to decide on the “interpretation of the Constitution in case of disagreement between the Prince (government) and the Diet” (“Entscheidung über die Auslegung der Verfassung bei einem Auslegungsstreit zwischen Fürst (Regierung) und Landtag”). 9. On 17 February 1995 the newspaper Liechtensteiner Volksblatt published an article on the lecture given by the applicant, mentioning, inter alia, his views on the competences of the Constitutional Court. 10. On 27 February 1995 the Prince addressed a letter to the applicant concerning the above lecture, as summarised in the article published in the Liechtensteiner Volksblatt. 11. The letter, written on heraldic letter paper, read as follows: “Vaduz Castle, 27 February 1995 Dr Herbert Wille President of the Liechtenstein Administrative Court [applicant’s private address] Sir, I was astonished to read the report in the 17 February issue of the Liechtensteiner Volksblatt on your lecture on the theme of the ‘Nature and Functions of the Liechtenstein Constitutional Court’. I assume that the statements you made on the Court’s areas of responsibility have been correctly reproduced in this report, in particular the comment that the Constitutional Court can, as a court that interprets the law, be appealed to in the event of a disagreement between the Prince and the people. You will doubtless remember the discussion between the government and me in the period before 28 October 1992, at which you were present as deputy head of government. I drew the government’s attention during this exchange of views at Vaduz Castle to the fact that it was not abiding by the Constitution and read out the relevant Articles thereof. You replied that you did not agree (or words to that effect) with these parts of the Constitution in any case and that you therefore did not consider yourself bound by it. Since the other members of the government did not contradict you, I was forced to assume that the entire government was of the opinion that the two bodies that hold supreme power, the people and the Prince, must observe the Constitution and the ordinary laws but not the members of the government, who have sworn an oath of allegiance to the Constitution. I considered your statement at that time and the government’s attitude to be incredibly arrogant and therefore informed the government in no uncertain terms that it had lost my confidence. Following the compromise that was fortunately reached a little later between the government and the Diet, on the one hand, and myself, on the other, I declared that I once again had confidence in the government, doing so in the hope that individual members had realised that they had taken up an inexcusable position in relation to our Constitution and now recognised that they were bound by it. Just as I would have appointed Mr Brunhart head of government, had his party won the election, I appointed you President of the Administrative Court on the Diet’s recommendation. Unfortunately, I had to realise following the publication of the report in the Liechtensteiner Volksblatt that you still do not consider yourself bound by the Constitution and hold views that are clearly in violation of both the spirit and the letter thereof. Anyone reading the relevant Articles of the Constitution will be able to establish that the Constitutional Court has no competence to decide as a court of interpretation in the event of a disagreement between the Prince and the people (the Diet). In my eyes your attitude, Dr Wille, makes you unsuitable for public office. I do not intend to get involved in a long public or private debate with you, but I should like to inform you in good time that I shall not appoint you again to a public office should you be proposed by the Diet or any other body. I only hope that in your judgments as President of the Administrative Court you will abide by the Constitution and the ordinary laws for the rest of your term of office. Yours sincerely, Hans-Adam II Prince of Liechtenstein” “Schloss Vaduz, 27. Februar 1995 Herrn Dr. Herbert Wille Präsident der Fürstlich Liecht. Verwaltungsbeschwerdeinstanz ... Sehr geehrter Herr Präsident Mit Erstaunen habe ich im Liechtensteiner Volksblatt vom 17. Februar den Bericht über Ihren Vortrag am Liechtenstein Institut zum Thema ‘Wesen und Aufgaben des Staatsgerichtshofes’ gelesen. Ich nehme an, dass Ihre Aussagen über die Zuständigkeitsbereiche des Staatsgerichtshofes in diesem Bericht korrekt wiedergegeben wurden, insbesondere jene, in der Sie feststellen, dass der Staatsgerichtshof als Interpretations-gerichtshof bei unterschiedlichen Auffassungen zwischen Fürst und Volk angerufen werden könne. Sie werden sich bestimmt noch an die Auseinandersetzung zwischen der Regierung und mir vor dem 28. Oktober 1992 erinnern, bei der Sie als stellvertretender Regierungschef anwesend waren. Ich habe damals bei der Aussprache auf Schloss Vaduz die Regierung darauf aufmerksam gemacht, dass sie sich nicht an die Verfassung hält, und die entsprechenden Artikel aus der Verfassung der Regierung vorgelesen. Sie haben dazumal sinngemäss geantwortet, dass Sie mit diesen Teilen der Verfassung sowieso nicht einverstanden seien, und sich deshalb auch nicht an die Verfassung gebunden fühlten. Nachdem die anderen Regierungsmitglieder Ihrer Aussage nicht widersprochen haben, musste ich davon ausgehen, dass die gesamte Regierung der Auffassung ist, dass sich zwar die beiden Souveräne, Volk und Fürst, an Verfassung und Gesetze zu halten haben, nicht aber die Regierungsmitglieder, welche einen Eid auf die Verfassung abgelegt haben. Ich habe Ihre damalige Aussage sowie die Haltung der Regierung als unglaubliche Arroganz empfunden, und deshalb habe ich der Regierung in sehr klaren Worten mitgeteilt, dass sie mein Vertrauen verloren hat. Beim Kompromiss, der glücklicherweise etwas später zwischen Regierung und Landtag auf der einen Seite und mir auf der anderen Seite erzielt wurde, habe ich der Regierung wieder mein Vertrauen ausgesprochen. Ich habe dies auch in der Hoffnung getan, dass die einzelnen Regierungsmitglieder ihre unentschuldbare Haltung gegenüber unserer Verfassung eingesehen haben und die Verfassung für sie wieder als bindend anerkennen. Ebenso wie ich Herrn Brunhart bei einem Sieg seiner Partei wiederum zum Regierungschef ernannt hätte, so habe ich Sie über Vorschlag des Landtages zum Präsidenten der Verwaltungs-beschwerdeinstanz ernannt. Leider muss ich aufgrund des Berichtes im Liechtensteiner Volksblatt nun feststellen, dass Sie sich nach wie vor nicht an die Verfassung gebunden fühlen und Auffassungen vertreten, die eindeutig gegen Sinn und Wortlaut der Verfassung verstossen. Jeder wird beim Lesen der einschlägigen Verfassungsartikel feststellen können, dass der Staatsgerichtshof eben nicht Interpretationsgerichtshof bei unterschiedlichen Auffassungen zwischen Fürst und Volk (Landtag) ist. In meinen Augen sind Sie, Herr Dr. Wille, aufgrund Ihrer Haltung gegenüber der Verfassung ungeeignet für ein öffentliches Amt. Ich habe nicht die Absicht, mich mit Ihnen öffentlich oder privat in eine lange Auseinandersetzung einzulassen, aber ich möchte Ihnen rechtzeitig mitteilen, dass ich Sie nicht mehr für ein öffentliches Amt ernennen werde, sollten Sie mir vom Landtag oder sonst irgendeinem Gremium vorgeschlagen werden. Es verbleibt mir die Hoffnung, dass Sie sich während des Restes Ihrer Amtszeit als Präsident der Verwaltungsbeschwerdeinstanz in Ihren Urteilen an Verfassung und Gesetze halten. Mit vorzüglicher Hochachtung Hans-Adam II. Fürst von Liechtenstein” 12. By letter of 9 March 1995 the applicant informed the President of the Diet about the letter of 27 February 1995. He denied having ever made a statement to the effect that he did not consider himself bound by the Constitution or parts thereof. He further explained his research on the competences of the Constitutional Court in constitutional matters. According to him, the expression of an opinion not shared by the Prince could not be regarded as a failure to comply with the Constitution. However, taking into account the conclusions drawn by the Prince in the said letter, his office as President of the Administrative Court was called into question. The President of the Diet subsequently informed the applicant that the Diet had discussed the matter in camera and had come to the unanimous conclusion that the applicant’s office was not called into question on account of his legal opinions as stated in the context of his lecture. 13. On 20 March 1995 the applicant replied to the letter sent by the Prince on 27 February 1995, and enclosed a copy of his letter to the President of the Diet. He explained in particular that it was his conviction as a lawyer that his statements on the occasion of the lecture of 16 February 1995, namely that the Constitutional Court was competent to decide on the interpretation of the Constitution in case of a dispute between the Prince and the people (Diet), were correct and did not infringe the Constitution. The applicant concluded that the declaration made by the Prince that he did not intend to appoint the applicant to a public office, amounted to an interference with his rights to freedom of opinion and to freedom of thought, as guaranteed under the Constitution and the European Convention on Human Rights. It further called into question the constitutional right to equal access to public office and constituted an attempt to interfere with judicial independence. 14. In his letter in reply dated 4 April 1995, the Prince noted that Mr Wille had distributed the letter of 27 February 1995 to a large group of persons. The Prince stated that it had been his intention to avoid a public discussion in informing Mr Wille, in a personal letter, about his decision as early as possible. He considered that a long debate between them on the question of Mr Wille’s qualification for the office of judge was inappropriate, as Mr Wille had remained in office and the Prince’s criticism had not been directed at the decisions of the Administrative Court, but at Mr Wille’s general attitude towards the Constitution. 15. The Prince added that it was left to his discretion whether or not to appoint a candidate for public office and that he was not obliged to give any reasons for such a decision. However, as he had known Mr Wille for many years, he had considered it appropriate to state the reasons for his decision regarding him. Moreover, the decision no longer to appoint him to the office of President of one of the highest courts, on account of his attitude in the past as well as the opinions expressed by him, did not amount to an interference with Mr Wille’s rights to freedom of expression and to freedom of thought. All citizens were free to propose and to plead for amendments to constitutional or other legal provisions. However, Mr Wille, during his term of office as a member of the government and in his lecture, had not availed himself of such constitutional and democratic means, but had simply ignored those parts of the Constitution with which he disagreed. 16. The Prince further explained that the relevant provision, namely Article 112 of the Constitution, concerned the competence of the Constitutional Court to decide on the interpretation of the Constitution in case of a dispute between the government and the Diet. Confusing the terms “Government” and “Diet” with “Prince” or “people”, as Mr Wille had done, would undermine the rule of law. As head of State, he was obliged to safeguard the constitutional order and the democratic rights of the people. He would be failing in his duties if he were to appoint to one of the highest judicial offices a person whom, owing to his attitude and the statements he had made, he could not regard as being committed to upholding the Constitution. 17. On 2 June 1995 the Prince sent to the applicant, President of the Administrative Court, an open letter which was published in Liechtenstein newspapers. The Prince noted that Mr Wille had made public at least part of the Prince’s letter of 27 February 1995. As this had given rise to various comments, the Prince considered it necessary to explain his point of view in an open letter. 18. In his opinion, in a democratic State based on the rule of law (demokratischer Rechtsstaat), a distinction had to be drawn between freedom of expression and the means used by an individual for imposing his views in such a society. In that connection, the individual should respect the rules defined in the Constitution and other statutory provisions. The Prince further stated that it was the right of Mr Wille, in his position as a judge, to express the opinion that the monarchy was no longer opportune; that Article 7 of the Constitution should be amended; that the Prince should be subject to the jurisdiction of the Liechtenstein judiciary; and that the Liechtenstein Constitutional Court should be given supplementary competences. However, Mr Wille was not entitled to place himself above the existing Constitution or incite the Constitutional Court to lay claim to competences which were not vested in it by virtue of the Constitution. The Prince considered that Mr Wille, having regard to his education and professional experience, knew that the terms “people” (“Volk”), “Diet” (“Landtag”), “Government” (“Regierung”) and “Prince” (“Fürst”) and their respective rights and obligations were clearly defined in the Constitution. The applicant’s contention that these terms were interchangeable would jeopardise the Constitution and the constitutional State as a whole. 19. The Prince also made reference to the political events in the autumn of 1992 and, lastly, he stated that, on the basis of the article in a Liechtenstein newspaper of 17 February 1995, he was forced to conclude that Mr Wille continued to have the intention of placing himself above the Liechtenstein Constitution. He explained that he had therefore intended to inform Mr Wille, in a personal letter and as early as possible, about his decision not to appoint him to public office in future. 20. In spring 1997 the applicant’s term of office as President of the Administrative Court expired. On 14 April 1997 the Liechtenstein Diet decided to propose the applicant again as President of the Administrative Court. 21. In a letter of 17 April 1997 to the President of the Diet the Prince refused to accept the proposed appointment. He explained that, considering his experiences with Mr Wille, he had become convinced that Mr Wille did not feel bound by the Liechtenstein Constitution. In these circumstances, he would be failing in his duties as head of State if he were to appoint Mr Wille as President of the Administrative Court. The Prince further stated that Mr Wille, on account of his other professional qualifications, had made important contributions as a judge of the Administrative Court and that he (the Prince) could therefore understand the proposal made to a certain extent. If the Diet did not share his doubts regarding Mr Wille, it could elect him as associate judge of the Administrative Court. 22. The applicant is currently employed as a researcher by the Liechtenstein-Institut. 23. The Principality of Liechtenstein is a constitutional, hereditary monarchy on a democratic and parliamentary basis; the power of the State is inherent in and emanates from the Prince and the people and shall be exercised by both of them in accordance with the provisions of the Constitution (Article 2 of the Constitution of 24 October 1921). 24. Chapter II of the Constitution is entitled “The Prince”. In its Article 7, it stipulates that the Prince is the head of the State and exercises his sovereign authority in conformity with the provisions of the Constitution and of the other laws; and that his person is sacred and inviolable. Further competences are laid down in Articles 8 to 13. According to Article 11, the Prince appoints the State officials, in conformity with the provisions of the Constitution (see Article 79 concerning the head of the government, the government councillors and their substitutes; Article 97 concerning the president of the Administrative Court and his deputy; Article 99, in conjunction with the Court Organisation Act, concerning the first-instance judges; Article 102 § 3 concerning the members of the High Court (Obergericht) and the Supreme Court of Justice (Oberster Gerichtshof)). By letter of 28 April 1997, the Prince informed the Liechtenstein government that he instructed it to proceed, within its competence, with the appointment in 1997 of State officials who, pursuant to Article 11 of the Constitution, were to be appointed by the Prince. 25. Chapter IV of the Constitution contains the general rights and obligations of citizens of the Principality. Article 31 stipulates the equality of all citizens before the law, and also provides that the public offices are equally open to them, subject to observance of the legal regulations. 26. According to Article 97 of the Constitution, all decisions or orders by the government are subject to appeal before the Administrative Court. The Administrative Court consists of a president trained in the law and of his deputy, who are appointed by the Prince on the proposal of the Diet, and of four appeal judges and their substitutes, who are elected by the Diet. The president and his deputy must be Liechtenstein nationals. Their term of office coincides with that of the Diet, and ends at such time as they are replaced. 27. According to Article 104 of the Constitution, the Constitutional Court is, inter alia, competent to protect rights accorded by the Constitution. Section 23 of the Constitutional Court Act (Staatsgerichtshofgesetz) provides that decisions of a court or of an administrative authority may be challenged before the Constitutional Court, by alleging that there has been an infringement of constitutional rights or of rights guaranteed under the Convention for the Protection of Human Rights and Fundamental Freedoms. 28. Pursuant to Article 105 of the Constitution, in conjunction with section 4 of the Constitutional Court Act, the judges of the Constitutional Court are elected by the Diet; the election of the president and the deputy president are subject to confirmation by the Prince. 29. Article 112 of the Constitution reads as follows: “If doubts arise as to the interpretation of specific provisions of the Constitution and cannot be dispelled on the basis of an agreement between the Government and the Diet, the Constitutional Court is called upon to decide on the matter.” “Wenn über die Auslegung einzelner Bestimmungen der Verfassung Zweifel entstehen und nicht durch Übereinkunft zwischen der Regierung und dem Landtage beseitigt werden können, so hat hierüber der Staatsgerichtshof zu entscheiden.” 30. In 1991 the Liechtenstein government introduced a bill in Parliament with the object of amending the Constitutional Court Act of 1925. In its comments on the provision regarding the Constitutional Court’s competence to decide on the interpretation of specific provisions of the Constitution, the government explained, inter alia, its views on the wording and purpose of Article 112 of the Constitution and in particular on the term “Government” which should be understood as referring to the Prince. At the preparatory stage, the Prince, in a letter addressed to the applicant, who at the time held the office of deputy head of the Liechtenstein government, had stated his disagreement with the proposed interpretation. The applicant explained the bill in Parliament when it received its first reading in April 1992. In the course of the discussions, the President of the Parliament questioned the interpretation of Article 112 of the Constitution, as contained in the government’s comments. The bill was passed by the Diet on 11 November 1992; however, the Prince failed to sign it so that it did not enter into force. 31. Under section 20 of the Liechtenstein Court Organisation Act (Gerichtsorganisationsgesetz, LGBl 1922 Nr. 16), judges are required to swear an oath, including the duties of loyalty to the Prince and of obedience to the laws and the Constitution. | 1 |
dev | 001-69779 | ENG | BGR | CHAMBER | 2,005 | CASE OF MIHAILOV v. BULGARIA | 3 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Christos Rozakis | 8. In a decision of 27 November 1989 the LabourExpert Medical Commission (“the LEMC” – see paragraph 19 below) specialised in pulmonary diseases diagnosed the applicant as suffering from asbestosis and various other diseases and determined that he qualified for second-degree disability. From that point on the applicant was undergoing biannual medical examinations at the LEMC, and each time his diagnosis and degree of disability were confirmed. 9. Apparently due to a deterioration of the applicant's health, in a decision of 9 December 1997 the competent LEMC revised his disability to firstdegree, without the need for another person's assistance. Later, on 21 May 1998, another LEMC decided that the applicant qualified for firstdegree disability in need of another person's assistance. 10. The chief expert at the Central LabourExpert Medical Commission (“the CLEMC” – see paragraph 19 below) at the Ministry of Health appealed against the latter decision. On 18 June 1998 the CLEMC overturned the LEMC's decisions of 9 December 1997 and 21 May 1998 and the applicant's disability status was set back to seconddegree. 11. The applicant lodged an appeal against this decision with the Supreme Administrative Court. 12. On 6 October 1998 a threemember panel of the court declared the applicant's appeal inadmissible. It held that the appealed decision was not subject to judicial review, in accordance with section 23(c) of the Implementing Regulations of the Labour Code of 1951, section 29a of Regulation no. 36 of the Minister of Health, and section 11(2) of the Implementing Regulations of the Pensions Act (see paragraph 22 below). 13. The applicant appealed to a fivemember panel of the Supreme Administrative Court, arguing that the refusal of the three-member panel to examine the appeal was contrary to Article 120 § 2 of the Constitution and Article 6 of the Convention. He submitted that the CLEMC's determination directly affected the amount of disability pension that was allotted to him. 14. The fivemember panel upheld the three-member panel's decision in a final decision of 1 March 1999, holding that under section 23(c) of the Implementing Regulations of the Labour Code of 1951 the CLEMC's decisions were final and not subject to judicial review. 15. Under Bulgarian law, as it stood at the relevant time, there existed three degrees of disability, differentiated according to the character and the course of the disabling illness, the functional status of the ailing organ and of the organism as a whole, and the requirements of the disabled's profession (section 46(1) of Regulation no. 36 on the expert assessment of longlasting incapacity to work, issued by the Minister of Health in 1975 and superseded in July 2000 by a newer statutory instrument). The first degree of disability was reserved for persons who had, due to their state of health, lost all ability for work, or persons with durable, incurable, or worsening ailments set forth in a special list (section 52 of the Regulation); the second one covered persons who had lost the ability to perform theirs or any other work, but who could be accommodated for work under conditions suitable for their health, or persons with durable, incurable, or worsening ailments set forth in the above list (section 54 of the Regulation); and the third one covered persons who, as a result of their state of health, had to change their profession with one requiring lower qualifications, or who had to change their conditions of work within the same profession (section 55 of the Regulation). If a person was disabled on account of several illnesses, the decision determining his or her disability status had to set forth his or her degree of disability pursuant to each of the separate illnesses, as well as the overall degree of disability (section 50 of the Regulation). 16. Persons with a firstdegree disability were divided in two subcategories: those who needed another person's assistance, and those who did not. The determination who was in need of such assistance was made on the basis of the findings about that person's need of everyday care, help or supervision (section 53 of the Regulation). 17. Section 17 of the Pensions Act of 1957, as in force at the material time, provided that the amount of the professional disability pension was to be set pursuant to the degree of disability: those under the first degree were entitled to 70% of their average earnings, those under the second degree to 55%, and those under the third degree to 35%. The amount of the general disability pension was to be likewise set pursuant to the degree of disability: 55%, 40% and 25% respectively (section 20 of the Pensions Act of 1957). 18. Persons with a firstdegree disability in need of another person's assistance were entitled, in addition to the pension they received, to a further 75% of the amount of the social pension (section 46(2) of the Pensions Act of 1957). 19. The LEMCs and the CLEMC were established pursuant to the abovementioned Regulation no. 36 under the authority of the Minister of Health (sections 2 and 23 of the Regulation). The LEMCs were responsible for, inter alia, determining the degree of a person's disability (section 13 of the Regulation). The CLEMC heard appeals against decisions of the LEMCs (section 21 of the Regulation). 20. The presidents and the members of the commissions, who were exclusively medical professionals (section 7a(5) of the Regulation), were remunerated under employment contracts they entered into with the local mayors, the Minister of Health, or the medical directors of the local hospitals (section 7a(2) and (3) of the Regulation). 21. There were no written rules regulating the procedure before the commissions. Regulation no. 36 provided only that they had to proceed on the basis of an examination of the person concerned and of medical documents, making no provision for witness testimony or other evidence. No hearings were held. 22. By Article 120 § 2 of the Constitution, all “administrative acts” are subject to judicial review, unless otherwise provided by statute. Section 2 of the Administrative Procedure Act (“the APA”) defines “individual administrative acts” as “acts issued [by public authorities], which create rights or obligations for, or affect rights or legitimate interests of, individuals or legal entities, as well as the refusals to issue such acts”. By sections 33 and 34 of the APA, all “administrative acts”, save those relating to the security of the country or specifically enumerated by statute, are subject to judicial review. 23. Section 23(c) of the Implementing Regulations of the Labour Code of 1951 provided that the CLEMC's decisions pursuant to appeals by the disabled or the administration were final. So did section 29a of the abovementioned Regulation no. 36 and section 11(2) of the Implementing Regulations of the Pensions Act. 24. In contrast to the previous practice, in a series of decisions and judgments starting with a reported decision of 4 February 1999 in which it quashed a decision of the Sofia City Court declaring an appeal against the decision of a special medical commission inadmissible, the Supreme Administrative Court started allowing judicial appeals against the decisions of special medical commissions. It reasoned that the general rule under Article 120 § 2 of the Constitution was that administrative acts were subject to judicial review unless otherwise provided by statute. The commissions' decisions affected the individuals' rights and were thus administrative acts within the meaning of Article 120 § 2 of the Constitution and section 2 of the APA. Since the exclusion of judicial review of the commissions' decisions was set out in statutory instruments, it was invalid and their decisions were appealable before a court. In a number of those judgments and decisions the court also relied on Article 6 § 1 of the Convention and, in particular, its access-to-a-court requirement (опред. № 1580 от 4 февруари 1999 г. по адм. д. № 4869/1998 г., ВАС, І о.; опред. № 4491 от 6 август 1999 г. по адм. д. № 937/1999 г., ВАС, І о.; опред. № 446 от 1 февруари 2000 г. по адм. д. № 3513/1999 г., ВАС, І о.; опред. № 3450 от 30 май 2000 г. по адм. д. № 7347/1999 г, ВАС, І о.; реш. № 6475 от 3 юли 2002 г. по адм. д. № 2611/2002 г., ВАС, петчленен състав). 25. At present section 112(1)(4) of the Health Act of 2004 provides that the decisions of the National Expert Medical Commission (the successor body of the CLEMC) are reviewable by the Sofia City Court. | 1 |
dev | 001-22419 | ENG | SVK | ADMISSIBILITY | 2,002 | D.K. v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr D.K., is a Slovakian national living in Košice. The respondent Government are represented by Mr P. Vršanský, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 December 1996 the applicant lodged an action for protection of his good name and reputation with the Košice I District Court (Okresný súd). He claimed that his registration as a collaborator of the former secret police in the files kept by the Slovak Information Service had no justification. The applicant further requested that the entry concerning his person should be deleted from the files. On 8 January 1997 the District Court asked the Slovak Information Service to submit its memorial in the action. The defendant complied with the request on 28 January 1997. On 10 February 1997 the applicant submitted his observations in reply. He extended his action and asked the District Court to find that he had not been an agent of the former State Security. On 28 May 1997 the applicant requested the District Court to decide on his action. On 11 August 1997 the applicant complained to the president of the District Court that there had been no progress in his case. On 13 August 1997 the president of the District Court admitted that there had been delays in the proceedings due to the transfer of the judge dealing with the case to another court. On 20 August 1997 the applicant lodged a petition with the Constitutional Court (Ústavný súd) alleging that his case had not been heard within a reasonable time. On 2 September 1997 the applicant complained about undue delays in the proceedings to the president of the Košice Regional Court (Krajský súd). On 13 November 1997 the Košice I District Court held the first hearing in the case. On 18 November 1997 the applicant submitted documentary evidence to the District Court. On 7 January 1998 the Constitutional Court found that the applicant’s constitutional right to have his case examined without undue delays had been violated. It noted, in particular, that the District Court had failed to decide on the action for protection of the applicant’s personal rights within a year after its introduction as required by Section 200i (4) of the Code of Civil Procedure. On 15 January 1998 the Košice I District Court held another hearing and on 19 February 1998 it dismissed the applicant’s action. The judgment stated that the relevant facts of the case were secret and that the evidence available indicated that the action was manifestly ill-founded. On 30 March 1998 the applicant appealed to the Košice Regional Court. He alleged that the District Court had not established all relevant facts of the case. On 27 August 1998 the Supreme Court (Najvyšší súd) transferred the case to the Prešov Regional Court. On 30 October 1998 the Košice I District Court dismissed the applicant’s request for an exemption from the obligation to pay court fees. The applicant appealed. On 10 January 1999 the applicant informed the Prešov Regional Court that he wished to withdraw his action against the Slovak Information Service lodged on 11 December 1996 and requested that he be exempted from the obligation to pay court fees. On 24 February 1999 the Prešov Regional Court quashed the first instance judgment and discontinued the proceedings on the ground that the applicant had withdrawn his action concerning his claims that (i) he had not been an agent of the State Security, (ii) he had been erroneously entered in the files of the State Security as a collaborator of the latter and (iii) the defendant be ordered to delete the entry concerning the applicant in the files of the former State Security. The Regional Court further upheld the District Court’s decision on the court fees of 30 October 1998 and ordered the applicant to pay the defendant’s fees. The decision became final on 19 April 1999. On 9 June 1999 the applicant complained to the president of the Prešov Regional Court that the appellate court had failed to decide on his claim that he had not been an agent of the former State Security. The applicant alleged, with reference to his earlier submissions, that he had not withdrawn this part of his action and asked the court to proceed with it without delay. On 11 August 1999 the president of the Prešov Regional Court replied to the applicant that the proceedings had been discontinued on 24 February 1999 and that there had been no undue delays in them. On 12 November 1999 the Ministry of Justice found unjustified the applicant’s complaint about delays in the proceedings. On 12 January and on 15 March 2000 the applicant filed a petition to the Constitutional Court. He alleged that he had not withdrawn his claim submitted on 15 February 1997 in extension of his original action. The Regional Court had failed to proceed with that part of the action and thus caused delays in the proceedings. On 30 March 2000 the Constitutional Court dismissed the petition. It held that it was evident from the Regional Court’s decision of 24 February 1999 that the appellate court had interpreted the applicant’s submission of 10 January 1999 as concerning his action as a whole and that the proceedings had been discontinued in respect of all his claims. The applicant’s expectation that the Prešov Regional Court would proceed with the examination of one of his claims after the delivery of the decision of 24 February 1999 was therefore ill-founded. The applicant’s constitutional right to a hearing without delays could not have been therefore violated as a result of the Regional Court’s failure to proceed with the case after 24 February 1999. The Constitutional Court’s decision further stated that it had been open to the applicant to seek redress by means of an appeal on points of law after he had learned from the appellate court’s decision that his submission of 10 January 1999 had been misinterpreted. Pursuant to Section 237 (f) of the Code of Civil Procedure, an appeal on points of law may be lodged against a decision of the court of appeal if a party to the proceedings was prevented from acting before the court due to a wrong court procedure. Section 240 (1) provides that an appeal on points of law can be lodged within one month after the appellate court’s decision has become final. In accordance with the Supreme Court’s case-law, the possibility of filing an appeal on points of law pursuant to Section 237 (f) of the Code of Civil Procedure extends to cases when the merits of an action have not been examined as a result of an erroneous action of the court. | 0 |
dev | 001-107412 | ENG | SRB | ADMISSIBILITY | 2,011 | PETROVIC v. SERBIA | 4 | Inadmissible | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi | The applicant, Mr Mihailo Petrović, is a Serbian national who was born in 1963 and lives in Gornji Milanovac. He is a licensed attorney and a member of the Belgrade Bar Association (Advokatska komora Beograda). On 9 December 2010 the Court’s Registry sent the following letter to the President of the said bar association: “As you will know, the European Court of Human Rights and its Registry are always looking to develop a relationship of trust with the community of legal professionals. Only through this mutual trust can the Court function to ensure the highest standards of protection of human rights. It is for this reason that the President of the Second Section considers it appropriate ... to inform you about the practices of one of your colleagues and a member of your distinguished association. You will certainly be well informed about the volume of cases being lodged before the European Court of Human Rights against the Republic of Serbia, which today amounts to more than 3,500. In about 400 of those cases, the applicants appeared to be represented by Mr Mihailo Petrović, an attorney registered with the Belgrade Bar Association, but ... [apparently] ... having an office and most of his clients in Gornji Milanovac. In the course of the examination of some of these cases, it transpired that on at least three occasions Mr Petrović had submitted applications on behalf of deceased persons (with the power of attorney signed on behalf of at least one of those persons after his death). In a number of other cases, the Court had doubts as to the authenticity of the powers of attorney supplied with the applications. As it is necessary for the Court to be able to rely on the veracity of the material submitted to it, the President of the Second Section, to which the cases at issue were assigned, decided, [on 3 March 2010 and] in the best interests of the applicants, to ban Mr Petrović from representing applicants before the Court[, at present and in the future,] ... [T]he Court informed Mr Petrović himself, as well as each of the applicants, about this development ... [A] letter ... [to this effect] ... was served upon Mr Petrović on 12 March 2010. Since he continued to act as the applicants’ attorney [thereafter], the Court reminded him of the ban. This second letter was served upon Mr Petrović on 26 April 2010. Recently, Mr Petrović continued acting on behalf of the applicants, sometimes as their attorney and sometimes only by preparing [their] submissions for the Court, but each time requesting reimbursement of his fees, even though he is well aware that the Court will not take into consideration such requests. ... [Aware] ... of the importance of our [common] calling and the necessity of being led by the highest moral and professional standards[,] ... [we] ... address you on this delicate subject, being certain that you will know how best to approach this issue, and make sure that those standards continue to guide members of your association in [their] dealings with the Court.” In his correspondence of 18 January 2011, received by the Court on 1 February 2011, the President of the Belgrade Bar Association responded as follows: “I am hereby informing you that, ... I have[,] with utmost seriousness[, taken] into consideration ... [the contents of your letter, particularly given] ... the fact that in the ... [conduct of Mr] ... Mihailo Petrović there are elements ... [indicating a breach of the Attorneys’] ... [P]rofessional [E]thics ... [Code] ... I [have also] forwarded ... [your] ... letter to the Disciplinary bodies of the Bar Association of Belgrade. ... [Further,] ... your ... letter will be considered at the meeting of the Managing Board of the Bar Association of Belgrade ... [which shall] ... be held at the end of January 2011. You will be ... notified ... [in a timely manner of] ... the ... [measures which] ... will be taken by the Disciplinary bodies of the Bar Association of Belgrade and the Managing Board. [Since] ... the European Court of Human Rights[,] as well as the legal profession[,] both protect the same values, i.e. human rights, I share your opinion that attorneys-at-law[,] in their professional engagement[s,] should fulfil the highest moral standards.” The Court has received no further information from the Belgrade Bar Association. The facts, as submitted by the applicant, may be summarised as follows. On six separate occasions, between 1998 and 2000, the police confiscated foreign currency from Mr A, who had been suspected of illegal currency trading. In 2001 Mr A passed away, leaving behind a wife and two children (B and C). In 2005 Ms D’s employment with a public corporation was terminated. Less than two months thereafter Ms D filed a civil claim, seeking salary arrears. It is unclear as to whether these proceedings are still pending. In 1999 Mr E was involved in a traffic accident with a bus belonging to a “socially-owned company” (see R. Kačapor and Others v. Serbia, nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, §§ 71-76, 15 January 2008). In order to avoid a collision, he apparently swerved off the road and sustained injuries. In 1987 Mr F was injured in a traffic accident. In 1988 Mr G, driver of the socially-owned vehicle who had caused the accident, was convicted, fined, and ordered to pay litigation costs. Mr F was advised by the competent court to seek pecuniary and/or non-pecuniary damages in a separate civil suit. This judgment became final several months thereafter. There is no information in the case file as to whether the said civil suit was ever initiated. In 2003, in a reinstatement and personal injury case, the competent court ruled partly in favour of Mr H. Several months later, this judgment was partially quashed on appeal and remitted to the competent court of first instance for re-examination. It remains unclear as to what happened in this suit thereafter. In 2004 the competent court ruled in favour of Mr I, ordering his former employer to pay him the accrued salary arrears. On an unspecified date thereafter this judgment apparently became final. In 1994 the competent court ruled in favour of Mr J and Mr K, ordering an agricultural cooperative to pay them a certain amount of compensation on account of the land confiscated by the former communist authorities. This decision became final several months thereafter. It would appear that in 1999 insolvency proceedings were instituted in respect of the agricultural cooperative in question. In 2001 Mr J passed away and was succeeded by his son and legal heir, Mr L. In 1987 a civil case concerning, inter alia, the re-possession of a vehicle was filed against Ms M. Shortly thereafter the competent court ordered Ms M to return the truck at issue to the plaintiff for “safekeeping”, until the conclusion of the civil suit. By 1989 the proceedings were concluded, the final decision being partly in favour of Ms M. The plaintiff’s claim as regards the re-possession of the truck was rejected. In the meantime, however, the plaintiff had apparently sold the truck to third persons. In 2001 Mr N filed an employment-related claim with the competent court, seeking salary arrears. In 2004 the court ruled partly in favour of Mr N, and in 2005 this judgment was confirmed on appeal. In 2006 the Supreme Court rejected Mr N’s appeal on points of law as inadmissible. In 2001 Mr O filed an employment-related personal injury claim. Within a month the competent court ruled in favour of Mr O, but this judgment was subsequently quashed on appeal. In 2003 the competent court of first instance once again ruled in favour of Mr O. There is no information in the case file as to what happened in the proceedings thereafter. Ms P was employed with a socially-owned company between 1989 and 1991. It would appear that during this time her employer had, inter alia, failed to fully cover her social security contributions. In addition to the present eleven applications, the applicant has filed more than 500 separate applications with the Court against Serbia, Croatia, Slovenia, Montenegro, Bosnia and Herzegovina, as well as the Former Yugoslav Republic of Macedonia. Most of these applications have yet to be assigned to a decision body. Of the said 500 applications, more than 400 correspond in character to the applications at issue in the present case, whilst as regards the remainder the applicant appears as the legal representative of his clients, who have themselves been identified as applicants. | 0 |
dev | 001-100141 | ENG | TUR | CHAMBER | 2,010 | CASE OF ABDOLKHANI AND KARIMNIA v. TURKEY (no. 2) | 4 | Violation of Art. 3 | Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 4. The applicants were born in 1973 and 1978 respectively. The first applicant resides in Turkey whereas the second applicant lives in Sweden. 5. The applicants, refugees under the mandate of the United Nations High Commissioner for Refugees (UNHCR), arrived in Turkey on an unspecified date. They were arrested by security forces and, as they had entered Turkish territory illegally, were deported back to Iraq on 17 June 2008. 6. The applicants immediately re-entered Turkey. 7. On 21 June 2008 they were arrested by road checkpoint gendarmerie officers from the Gökyazı gendarme station, in Muş, as their passports were found to be false. 8. The applicants were subsequently placed in the police headquarters in the Hasköy district of Muş. 9. On 30 June 2008 the applicants lodged an application with the Court and requested not to be deported to Iran or Iraq (application no. 30471/08). On the same day the President of the Chamber to which the case was allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Turkey, under Rule 39 of the Rules of Court, that the applicants should not be deported to Iran or Iraq until 4 August 2008. On 22 July 2008 the President of the Chamber decided to extend until further notice the interim measure indicated under Rule 39 of the Rules of Court. 10. Between 21 June and 26 September 2008 the applicants were detained at the Hasköy police headquarters. On the latter date the applicants were transferred to the Kırklareli Foreigners' Admission and Accommodation Centre, where they were held until 26 October 2009. 11. The applicants submitted that the detention facility where they were held was in the basement of the building. Therefore, it was damp and received insufficient natural light. The facility measured 70 square metres in total and consisted of three open rooms. The rooms measured 1216 square metres. There was one bathroom and a hallway, where there were two beds. There were eight and four bunk beds in the first and the second rooms respectively. The third room was empty. 12. For the first five weeks of the detention the applicants were held with eighty-three other detainees. From the sixth to the tenth week of their detention the number of detainees dropped to thirty-one. During the final two weeks those remaining were also deported. At the end of their detention in Hasköy the applicants were alone in the facility. 13. The mattresses and blankets were dirty and infested with lice. No pillows or bedding were provided. During the first weeks of their detention, the applicants had to sleep on the floor without mattresses, with blankets only, due to the overcrowding. The facility did not have showers or hot water. The applicants were taken to a public bathhouse only twice during the three months that they spent in that facility. Nor were they provided with towels, toilet paper, toothbrush, toothpaste, shaving items or shampoo. The toilets were very dirty and were never cleaned. Nor did the administration provide proper cleaning material to the detainees for them to do the cleaning. The facility was infected with cockroaches and mosquitoes. As a result of the poor detention conditions, the applicants suffered from dermatological diseases and infections. They were taken to a doctor for the skin problems, but they were never given the prescribed medication. They were ill as a result of water contamination at the beginning of their detention in Hasköy. Furthermore, the first applicant suffered from arthritis and the second applicant had back problems. They did not receive any medical check-ups for their health problems. The applicants were provided with meals twice a day. The meals consisted of soup and an insufficient amount of bread. They were not given any drinkable water. They were also not provided with clothing. Therefore, they had to wear the same clothes for three months. 14. The detention facility did not have any provision for indoor or outdoor activities. The applicants were taken out only when they were forced to do work, such as collecting rubbish, watering the lawn, sweeping the floors and the stairs, or loading and unloading, for which they were never paid. 15. Finally, throughout their detention in the Hasköy police headquarters, the applicants were not allowed to make or receive telephone calls. Nor could they have visits, except for one visit from a UNHCR officer. At the request of the UNHCR Ankara office, a lawyer went to the Hasköy police headquarters to visit the applicants. He was however not allowed to meet the applicants. 16. The applicants submitted several written complaints regarding the conditions of their detention. However, the authorities refused to accept the letters containing their complaints. 17. The Government submitted that the applicants were held in the Hasköy police headquarters building between 21 June and 26 September 2008 on a temporary basis while awaiting transfer to a foreigners' admission and accommodation centre. The Government noted that during the period in question a total of ninety-six foreigners stayed in the facility. However, no more than forty-two persons were detained at any given time. Besides, between 2 August and 26 September 2008 the applicants were held alone. 18. The Government further submitted that a foreigners' guesthouse had been constructed in Hasköy subsequent to the applicants' transfer to Kırklareli foreigners' admission and accommodation centre. According to the Government's submissions, in this new facility the food is provided three times a day by the centre administration. Although there is no health clinic within the facility, the detainees are provided with adequate medical assistance in the nearby clinics and State hospitals. They are allowed to go into the open air and can exercise in the garden of the facility, where they are served their meals and play football with the staff working at the centre. The Government contended that lavatories, toilets and bathrooms were provided in the centre and the immigrants were sent to the Turkish bath periodically. They finally noted that the applicants could contact the outside world by telephone and internet. 19. In their submissions dated 12 October 2009 the applicants complained about the conditions of detention in the Kırklareli Foreigners' Admission and Accommodation Centre. They complained in particular about the quality of food and water, insufficient medical support, unsatisfactory sanitary facilities, their inability to take exercise and the increase in the number of detainees held in the Kırklareli Foreigners' Admission and Accommodation Centre. In support of their allegations the applicants submitted a number of photos, including four photos which were taken on 11 October 2009 and which allegedly showed the back and legs of the first applicant who claimed to be suffering from a skin rash. 20. The Government submitted that the application concerned the conditions of detention at the Hasköy police headquarters and not those in the Kırklareli Foreigners' Admission and Accommodation Centre. They therefore requested the Court not to examine the application in so far as it concerned complaints regarding the detention conditions at the Kırklareli Centre. 21. A description of the relevant law can be found in the judgments of Z.N.S. v. Turkey (no. 21896/08, §§ 34-35, 19 January 2010) and Charahili v. Turkey (no. 46605/07, § 48, 13 April 2010). | 1 |
dev | 001-76467 | ENG | UKR | CHAMBER | 2,006 | CASE OF SOKURENKO AND STRYGUN v. UKRAINE | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 5. The applicants live in the village of Samgorodok, the Cherkassy region, Ukraine. 6. In February 2002 the “Agro-Ros” Ltd company instituted two sets of proceedings against the Smilyanskiy District Council and each of the applicants, challenging the decision of the Council to provide the applicants with certain plots of land. 7. By two decisions of 12 August 2003, the Cherkassy Regional Commercial Court found against the applicants. On 18 November 2003 the Kyiv Commercial Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the first-instance court. 8. On 16 March 2004 the Higher Commercial Court of Ukraine, upon the applicants’ appeals, quashed the decisions of the lower courts and remitted the case for a fresh consideration. 9. On 25 May 2004 the Supreme Court of Ukraine, upon appeal of the “Agro-Ros” Ltd company, quashed the resolutions of the Higher Commercial Court (постанови Вищого господарського суду) on the ground that the findings of the Higher Court had not corresponded to the factual circumstances and had been unfounded and erroneous, and upheld the resolutions of the Kyiv Commercial Court of Appeal. 10. The relevant extract of the Constitution of Ukraine reads as follows: “State power in Ukraine is exercised on the principles of its division into legislative, executive and judicial power. Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine.” “Justice in Ukraine is administered exclusively by the courts... The jurisdiction of the courts extends to all legal relations that arise in the State. Judicial proceedings are performed by the Constitutional Court of Ukraine and courts of general jurisdiction...” “In Ukraine the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation. The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction...” “...The main principles of judicial proceedings are: 1) legality...” 11. The relevant provisions of the Act (in the wording of 18 March 2004) read as follows: “1. The Supreme Court of Ukraine is the highest judicial body within the system of courts of general jurisdiction... 2. The Supreme Court of Ukraine shall: 1) review ... the cases under the cassation procedure in the situations established by law... 7) exercise other powers pursuant to the law.” 12. The Code of Commercial Procedure (formerly Arbitration Procedure) was significantly reworded on 21 June 2001. At that time the fourth level of jurisdiction was introduced in the Commercial Procedure. According to the relevant provisions of the Code, a cassation appeal to the Higher Commercial Court, similar to the one found in other member States of the Council of Europe, and a second (or repeated) cassation appeal to the Supreme Court are now available to the parties in a commercial case. The Commercial Procedure is the only judicial procedure of Ukraine where the fourth level of jurisdiction exists and where the Supreme Court acts as a second cassation instance (in criminal and civil procedures it acts as an ordinary court of cassation and in administrative and administrative offences’ procedures, it performs only extraordinary review). The relevant provisions of the Code of Commercial Procedure (in the wording of 15 May 2003) read as follows: “A commercial court shall nullify proceedings in the case, if 1) a dispute is not subject to examination in the commercial courts of Ukraine;...” “The parties to a case as well as the Prosecutor General of Ukraine have the right to appeal in cassation to the Supreme Court of Ukraine against the resolution of the Higher Commercial Court of Ukraine adopted following the review of a decision of a first instance commercial court, that has entered into force, or a resolution of the Commercial Court of Appeal, [as well as the ruling of the Higher Commercial Court of Ukraine on return of the appeal (request for review) in cassation].” “The Supreme Court of Ukraine reviews in cassation the resolutions [or rulings] of the Higher Commercial Court of Ukraine if they are appealed against: 1) on the basis of the application by the Higher Commercial Court of Ukraine of a law or normative act which contravenes the Constitution of Ukraine; 2) where a decision contravenes decisions of the Supreme Court of Ukraine or of a higher court of a different specialisation on the issue of the application of the norms of substantive law; 3) where it is revealed that the Higher Commercial Court of Ukraine has applied the same provision of the law or any other normative act differently in similar cases; [3-1) due to the inconsistency of the resolutions or rulings with the international treaties of Ukraine agreed as binding by the Verkhovna Rada of Ukraine;] 4) where an international judicial body whose jurisdiction is recognised by Ukraine finds that a resolution [or ruling] has violated the international obligations of Ukraine.” “...The resolution [or ruling] of the Higher Commercial Court of Ukraine shall be reviewed in cassation on the basis of the rules for consideration of the case in the first-instance commercial court, save for “The Supreme Court of Ukraine, following consideration of an appeal in cassation, or a request for review in cassation lodged by the Prosecutor General of Ukraine against a resolution [or ruling] of the Higher Commercial Court of Ukraine, shall be entitled to: 1) leave the resolution [or ruling] unchanged and dismiss the appeal (request); 2) quash the resolution and remit the case to the first-instance court for further consideration [or quash the ruling and remit the case for further consideration to the Higher Commercial Court]; 3) quash the resolution [or ruling] and nullify the proceedings in the case.” “The resolutions [or rulings] of the Higher Commercial Court of Ukraine shall be quashed if they contravene the Constitution of Ukraine, international treaties agreed as binding by the Verkhovna Rada of Ukraine, or if the substantive law has been misapplied otherwise.” “... A resolution of the Supreme Court of Ukraine shall be final and shall not be subject to appeal.” “Instructions, contained in the resolution of the Supreme Court of Ukraine, shall be binding for the first-instance court during a new consideration of the case [and for the Higher Commercial Court of Ukraine during consideration of the materials of the appeal in cassation or the request for review in cassation]. The resolution of the Supreme Court of Ukraine, following a re-examination of the case on the basis of an appeal in cassation against the resolution [or ruling] of the Higher Commercial Court of Ukraine shall not include instructions as to the admissibility or inadmissibility of evidence, the superiority of one type of evidence over another, the norms of substantive [or procedural] law which shall be applicable or the kind of decision that shall be adopted as a result of the further consideration of the case.” | 1 |
dev | 001-78843 | ENG | POL | ADMISSIBILITY | 2,006 | WIDAWSKA v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Ms Katarzyna Widawska is a Polish national who was born in 1980 and lives in Warsaw. 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. 1. The proceedings initiated upon the applicant’s motion On 27 July 1999 the applicant lodged an action against her father with the Warsaw District Court. She sought an increase of the amount of maintenance to be paid by her father, who was partially incapacitated. On 18 August 1999 the first hearing was held. On an unknown date the court requested the case file of the proceedings for annulment of the marriage of the applicant’s parents. On 25 August 1999 the applicant supplemented her action by seeking maintenance also from her grandfather. On 25 October 1999 the court was informed by the Warsaw Court of Appeal that in the proceedings for annulment of the applicant’s parents’ marriage the court had not ruled on the issue of the applicant’s maintenance. On 20 July 2000 the applicant amended her claim as she no longer wished to claim maintenance from her grandfather and changed the amount of maintenance claimed from her father. On 29 September 2000 the Warsaw District Court gave a judgment. The applicant’s father was ordered to pay the applicant monthly maintenance in the amount of 200 PLN in place of the previous amount of 80 PLN per month. The court made the judgment immediately enforceable. On 10 October 2000 the applicant’s father lodged an appeal. On 13 October 2000 the court requested the guardian of the applicant’s father to confirm his appeal as the applicant’s father was partially incapacitated. In a letter of 22 October 2000 the legal representative of the applicant’s father stated that he did not support the appeal. On 22 January 2001 the Warsaw Regional Court rejected the applicant’s father’s appeal of 10 October 2000 on formal grounds. 2. The proceedings initiated upon the applicant’s father’s motion On 23 January 2001 the applicant’s father lodged a motion for exemption from court fees, which was subsequently granted by the Warsaw District Court. On 20 April, 24 May and 25 June 2001 the District Court held hearings in the case. By a judgment of 18 July 2001 the Warsaw District Court reduced the amount of maintenance from 200 PLN to 120 PLN. The court-appointed guardian lodged an appeal on behalf of the applicant’s father. It was rejected on 6 September 2001 by the Warsaw Regional Court for non-compliance with the prescribed time-limit. On 3 December 2001 the Warsaw Regional Court dismissed the applicant’s appeal against the judgment of 18 July 2001. The applicant was served with the decision on 11 February 2002. At a hearing held on 2 April 2002 the applicant’s father withdrew his motion for annulment of the alimony decision. | 0 |
dev | 001-100972 | ENG | UKR | CHAMBER | 2,010 | CASE OF LOGVINENKO v. UKRAINE | 3 | Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award | Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva | 5. The applicant was born in 1976 and is currently serving a life sentence in Kherson. 6. On 2 March 2001 the applicant was arrested and placed in the Kyivskyy District police station of Simferopil on suspicion of murder. 7. On 7 March 2001 the applicant was transferred to the Simferopil police temporary detention centre (the “ITT”). 8. On 27 April 2001 the applicant was transferred to the Simferopil no. 15 pre-trial detention centre (“the SIZO”) and on the same date placed in the Crimean Psychiatric Hospital for in-patient psychiatric assessment. 9. On 24 May 2001 the applicant was transferred back to the SIZO. 10. On 26 October 2001 the Court of Appeal of the Autonomous Republic of Crimea convicted the applicant of murder and sentenced him to life imprisonment. 11. On 28 February 2002 the Supreme Court of Ukraine upheld this judgment and it became final. 12. In October 2004 the applicant was transferred to Sokalska no. 47 Penitentiary, Lviv Region (“Penitentiary no. 47”). 13. In November 2006 the applicant was transferred to Kherson no. 61 Penitentiary (“Penitentiary no. 61) and placed in the prison hospital. 14. In spring 1997 (prior to his detention) the applicant was diagnosed with infiltrated tuberculosis of the lung. In February 2000 he was also diagnosed with late stage of HIV (Aids). 15. According to the applicant, throughout the period of 2001-2008 the medical assistance afforded to him on account of his HIV and tuberculosis was grossly inadequate, while the physical arrangements of his detention were incompatible with his state of health. 16. In particular, as regards HIV, no treatment was offered whatsoever. Furthermore, in spite of the doctors' recommendations and the applicant's numerous requests, throughout the period of his detention he was denied blood tests to establish his count of CD-4 immunity cells, which are instrumental in combating tuberculosis and possibly inhibited as a result of HIV. On several occasions the applicant was informed that antiretroviral therapy would become available to him after the successful treatment of his tuberculosis. 17. As regards the treatment for tuberculosis, it was irregular and insufficient. In particular, in spite of the applicant's numerous complaints about his state of health (namely, shortness of breath, fever, chest pain, and so on), no medical assistance whatsoever was provided to him between March and May 2001. 18. On 28 May 2001 the applicant was examined by a panel of the SIZO medical officers, who found that he was at risk of death if his state of health was not promptly addressed and recommended his release in view of the fact that the SIZO lacked the necessary facilities for his treatment. The applicant submitted a copy of the letter from the medical panel addressed to the SIZO governor and a letter from the governor to the district court dated 16 July 2001 requesting his release on humanitarian grounds. It is not clear whether these letters generated any reaction from the court. The applicant, however, remained in detention. 19. Since June 2001 the applicant has been receiving treatment for tuberculosis, but it has not been effective. On many occasions he was denied routine consultations in spite of his demands. However, even when he was able to obtain consultations, the recommendations of the doctors were not followed through effectively. For example, on 13 July 2006 the applicant consulted a panel of medical specialists and was advised to undergo a number of tests. However, these tests were not carried out because the necessary facilities were unavailable, with the exception of two blood tests (biochemical and general) carried out in August 2006. The applicant was likewise unable to obtain timely tests on a number of other (unspecified) occasions in spite of his demands. 20. The applicant's recovery from tuberculosis was further impeded by the physical conditions of his detention. In all of the facilities in which he was detained, the applicant was largely confined to his cell. In the ITT he had to sleep on a bare mattress, as no linen was provided. Furthermore, he had no opportunity to wash, shave or take outdoor exercise. In Penitentiary no. 47 the cells had no mirrors or drawers and were poorly heated. The air was so damp that the walls and ceilings were covered with fungi and mould, as well as frost during the winter months. The drinking water was rusty and hot water for washing was not available more than once every two to three weeks. Despite suffering from active tuberculosis, on some occasions the applicant had to share a cell with other prisoners, including those who were healthy, which provoked conflicts. As a result of the lack of treatment and the inadequate conditions of his detention, the applicant caught bronchitis and pneumonia on various occasions, while his tuberculosis spread further and became chronic. 21. By way of evidence, the applicant presented a statement by his cellmate, Mr G. According to him, he shared the applicant's cell on various occasions for periods lasting from several days to several weeks. Their cell was very cold and no adequate clothing was provided. On numerous occasions the applicant's requests for medical assistance were ignored and the actual administration of anti-tuberculosis drugs was irregular, provoking the aggravation of his condition and resistance of the bacteria to treatment. 22. On numerous occasions the applicant complained to various authorities, including the ombudsman, the Prosecutor's Office and the local Department for the Enforcement of Sentences, of the inadequacy of his medical assistance and the incompatibility of the conditions of his detention with his state of health. His complaints, however, were to no avail. 23. On two occasions the applicant attempted to lodge complaints about the conditions of his detention with two different courts; however, his submissions were rejected with reference to a lack of territorial jurisdiction. At one time the applicant demanded that a court clerk be commissioned to assist him in drafting his submissions, but this request was refused as not based on law. The applicant never appealed against the court decisions not to examine his claims. 24. In September 2006, following the applicant's numerous complaints to the prosecutor's office, the Lviv Prosecutor's Office contacted the Chief of the Regional Department for the Enforcement of Sentences and the governor of Penitentiary no. 47, urging them to take urgent measures to ensure that the applicant receive a comprehensive medical examination. Following this intervention, in November 2006 the applicant was transferred to Kherson no. 61 Penitentiary Hospital. However, following the applicant's transfer, healthcare arrangements did not improve significantly. In particular, no HIV therapy was made available to him. 25. The Government presented extensive handwritten medical notes, which are hardly legible, and a typed synopsis of the applicant's treatment history, on the basis of which they alleged that the applicant was regularly and consistently supervised and received treatment in compliance with the applicable Ministry of Health guidelines. 26. According to the synopsis, on 27 April 2001 the applicant was examined by a tuberculosis specialist and diagnosed as suffering from focal tuberculosis of the upper part of the right lung in the consolidation stage. 27. On 28 May 2001 the applicant was x-rayed. His x-ray indicated small low-intensity foci of the tuberculosis infection in the upper part of the right lung. Following this test, the applicant was prescribed standard treatment of a combination of “first-line” anti-tuberculosis antibiotics (streptomycin, isoniazid, rifampicin, ethambutol and pyrazinamide) and vitamins. 28. The applicant was further examined by a tuberculosis specialist and (or) x-rayed in September 2001 (infiltrating tuberculosis; same treatment continued); March 2002 (diffusion and consolidation of the infection – positive dynamics); September and November 2004 (disseminated tuberculosis of the upper parts of both lungs, diffusion and consolidation stage); February 2005 (positive dynamics: namely, large remaining modifications after the tuberculosis infection – anti-recurrence treatment with “first-line” antibiotics and diet prescribed); May 2005 (same as before); June and November 2005 (recurrence of the tuberculosis infection in both lungs, including tissue destruction); January and February 2006 (recurrent tuberculosis, consolidation stage (positive dynamics), same treatment); June and July 2006 (same diagnosis including tissue destruction; same treatment); October 2006 (chronic tuberculosis including pulmonary fibrosis, numerous polymorphous foci of various sizes and numerous tuberculomas); October 2007 (results unspecified); August 2008 (the number of foci increased in both lungs); February 2009 (slight diffusion and consolidation of the infection foci (positive dynamics)). 29. The synopsis further gives a detailed account of the numerous tests carried out of the applicant's blood, urine and sputum between November 2006 and December 2007 and a record of a drug-resistance test taken in February 2007. Following the test for drug resistance, it was established that the applicant was resistant to some of the “first-line” anti-tuberculosis medication and his treatment regime was supplemented with some “second-line” drugs. 30. In addition, in May and June 2005 the applicant received anti-inflammatory treatment on account of pneumonia in May 2005 and was treated for bronchitis in August 2005. In August 2008 the applicant was diagnosed with chronic bronchitis and hepatitis. 31. In the light of the positive tuberculosis dynamics, the applicant began preparing for HIV therapy at the beginning of 2009. 32. According to the applicant, immediately upon his and two other convicts' arrival at Penitentiary no. 47 in October 2004, they had their heads covered with sacks, were forced onto their knees, handcuffed and beaten by unnamed junior officers for no reason. Furthermore, they were threatened with a dog, strip searched, and then forced to do sit-ups which were counted. Subsequently, on numerous occasions the officers continued to humiliate the applicant and create a stressful atmosphere. In particular, on numerous occasions they beat him, threatened him with a dog, knocked on the door with a stick for no reason, interrupted his sleep, opened the door to the cell suddenly for various checks, and verbally insulted him. During the daytime the applicant was forbidden to lie on the bed. Furthermore, when the applicant needed to leave the building, for instance for fluorography, his head was covered with a sack and he was made to walk in an unnatural position (“a duck”- legs bent with hands behind the head). On 6 April 2005 the applicant was beaten for lying on his bed during the daytime when ill and on 29 June 2005 for refusing to assume the “duck” walking position. Each day the applicant was handcuffed and body-searched, being forced to stand barefoot on the concrete floor while the officers searched his shoes. 33. The applicant presented a handwritten statement of claim dated 14 June 2006 referring to the above conduct of the prison officers and addressed to the Shevchenkivskyy District Court of Kyiv. However, he did not provide any evidence that this statement was received by the court or even despatched from the penitentiary. 34. According to the Government, none of the incidents mentioned above concerning the applicant's ill-treatment at the hands of the penitentiary officers ever took place. 35. Article 55 of the Constitution of Ukraine, insofar as relevant, reads as follows: “Human and citizens' rights and freedoms are protected by the courts. Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ... Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” 36. Article 248-1 of the Code (Chapter 31-A) provided in so far as relevant: “Every citizen has the right to apply to court ... with an application, should he consider that a decision, action or inactivity of a public authority, legal person or official during the exercise of their administrative functions has violated his rights or freedoms ...” 37. Article 2 of the Code, insofar as relevant, reads as follows: “1. The task of the administrative justice system is the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public law relations from violations by public authorities ... 2. Any decisions, actions or inactivity of public authorities can be appealed against in administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or inactivity ...” 39. According to paragraph 14 of the Order, depending on the stage of the disease, HIV sufferers should have their count of CD-4 cells tested every one to six months. 40. According to paragraphs 2.1 and 2.3 of the Instruction, approved by the Order, medical assistance for HIV sufferers is viewed as comprising compulsory dispensary supervision, treatment of opportunistic diseases and access to antiretroviral therapy. In-patient treatment of patients with stage III-IV HIV suffering from active tuberculosis infections should be administered in prison hospitals specialising in the treatment of tuberculosis. 41. According to paragraph 6.1 of the Protocol, tuberculosis treatment was to be administered in specialised anti-tuberculosis institutions and to consist of two phases: basic chemotherapy and rehabilitation. The basic chemotherapy course consisted of intensive and supportive treatment stages with “first-line” anti-tuberculosis antibiotics (streptomycin, isoniazid, rifampicin, ethambutol and pyrazinamide), or, in the event of resistance of the infection to the above drugs, with “second-line” or “reserve” antibiotics. 42. According to paragraph 6.6.1, to obtain maximal results, medical or surgical treatment was to be implemented in conjunction with a particular hygiene and exercise regime (complete bed rest, part-time bed rest or training regime) prescribed to an individual patient based on an assessment of his condition. 43. Treatment was to be followed by rehabilitation, including curative exercise, massage and physiotherapy, which was recommended to be started within two to two and a half months after the antibiotic treatment. 44. According to paragraph 6.6.4, within several months of starting treatment, a medical commission was to examine whether the intensive treatment stage could be substituted by the supportive stage based on x-ray and microbiological tests. If treatment appeared ineffective at this stage the patient was to be tested for drug resistance, and, if necessary, his case referred to a more qualified institution. In the event that chemical treatment remained ineffective, surgical intervention was to be explored as a possible alternative. 45. According to paragraph 6.6.4.3, it was recommended that antibiotic treatment be supplemented with anti-pathogenic medicines. 46. According to paragraph 6.7, tuberculosis patients were to be continuously monitored, which included x-rays every two months; blood (general and biochemical) and urine tests every month during the intensive therapy stage and once every two months during the supportive stage. 47. On 9 June 2006 Order no.45 was replaced with the Order no. 384 approving an updated Protocol; however, the major approaches remained the same. 48. According to the Protocol, patients co-infected with HIV and tuberculosis should predominantly be administered anti-tuberculosis therapy first, based on the same principles as for patients suffering from tuberculosis only. Under the general rule, antiretroviral therapy should be administered after the completion of the intensive anti-tuberculosis therapy stage, unless the level of CD-4 immunity cells is lower than a certain threshold, in which case antiretroviral therapy is administered immediately. On average, the level of CD-4 cells is expected to be tested once every three months. 49. Relevant parts of the Committee for the Prevention of Torture's report on its visit to Ukraine in 2005 read as follows: “ ... 115. Access to medical care in specialised facilities remains problematic for this category of prisoner, both male and female... Further, the transfer of life-sentenced prisoners suffering from tuberculosis to specialised medical penitentiary facilities was still not possible. Such persons were kept in their detention units, isolated in their cells, sometimes for many months. The CPT recalls that obliging prisoners to stay in an establishment where they cannot receive appropriate treatment due to a lack of suitable facilities or because such facilities refuse to admit them, is an unacceptable state of affairs which could amount to inhuman and degrading treatment. The CPT recommends that the Ukrainian authorities ensure that life sentenced prisoners – men and women – who require treatment in a specialised hospital facility can be transferred to such a facility without undue delay.” 50. Other relevant domestic and international materials can be found in the judgments in the cases of Melnik v. Ukraine (no. 72286/01, §§ 47-53, 28 March 2006), Yakovenko v. Ukraine (no. 15825/06, §§ 49-55, 25 October 2007) and Kats and Others v. Ukraine (no. 29971/04, §§ 85-86, 18 December 2008). | 1 |
dev | 001-94967 | ENG | POL | CHAMBER | 2,009 | CASE OF BARTOSINSKI v. POLAND | 4 | Violation of Article 8 - Right to respect for private and family life | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | 6. The applicant, Mr Krzysztof Bartosinski, is a Polish national who was born in 1972 and lives in Lubianka. 7. By a decision of the Bydgoszcz District Court of 14 September 2002 the applicant was arrested and remanded in custody on suspicion of illegal production and sale of alcohol, selling cigarettes without payment of excise duty and membership of an organised criminal group. According to the applicant's submissions, police officers used force against him during his arrest and insulted him. When ordering his detention, the court found that the evidence obtained in the case, in particular the testimonies of the other suspects and of a witness, bills, minutes of searches and telephone conversations, indicated a high probability that the applicant had committed the offences. The applicant's detention was therefore necessary in order to prevent collusion and to avert the risk that he would exert pressure on witnesses or that the suspects would coordinate their testimonies. 8. During the investigation the applicant's detention was successively prolonged by detention orders issued by the Inowrocław District Court or the Gdańsk Court of Appeal and dated 11 December 2002, 11 March and 27 August 2003. 9. The applicant submits that the decision of 11 December 2002 was served on him on 16 December 2002 and that for 4 days he had been kept in custody without having been provided with a relevant detention order. 10. In his letter of 3 April 2003 the Bydgoszcz Regional Prosecutor admitted that the service of the applicant's motion for release had been delayed for 5 days before reaching the Prosecutor Office. 11. In further letters, the Regional Prosecutor stated among other things that the applicant's correspondence with the prosecutor had not been delayed by the Prosecutor Office. On 15 May 2003, following the applicant's complaint to the Ombudsman about delays in the service of official letters, the President of the Inowrocław District Court clarified that the applicant's letter to the Regional Prosecutor of 27 January 2003 had been forwarded to the prosecutor on 14 February 2003 and that a letter dated 13 February had been served on the applicant on 28 February 2003. 12. The applicant submitted an envelope containing a letter from the Court, bearing several stamps of the Police Detention Centre dated 8 and 16 March 2004 including a stamp “censored” (“ocenzurowano”) with an illegible date. 13. By a decision of 14 August 2003 the Bydgoszcz Regional Prosecutor granted the applicant permission to receive a visit from members of his family in the presence of an officer of the Central Investigation Office. The prosecutor stated that the applicant had previously been granted two visits, on 28 February and 10 June 2003, and that neither the family nor the applicant had requested more frequent meetings. On 29 September 2003 the Regional Prosecutor replied to the applicant that further visits had not been granted since no requests for such had been made. 14. On 29 March 2004 the applicant was released from detention. The proceedings are pending. 15. The legal provisions governing monitoring of detainees' correspondence applicable at the material time are set out in a judgment delivered by the Court on 6 December 2005 (Wasilewski v. Poland, no. 63905/00, §§ 16-21) | 1 |
dev | 001-23757 | ENG | HUN | ADMISSIBILITY | 2,004 | KAPITANY v. HUNGARY | 4 | Inadmissible | null | The applicant, Ms Ilona Kapitány, is a Hungarian national, who was born in 1949 and lives in Pécs, Hungary. She is represented before the Court by her father, Mr I. Kapitány. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. At the applicant’s request, in 1991 the Pécs City Council ordered her neighbours to arrange for the drainage of rainwater on their land. On 25 February 1992 the Office of the Representative of the Republic (Köztársasági Megbízott Hivatala) quashed this decision and remitted the case to the first administrative instance. The applicant’s related court action was finally dismissed on 19 November 1992. On 28 December 1993 the City Council discontinued the resumed administrative proceedings. On 20 May 1994 the Office of the Representative of the Republic quashed this decision and again remitted the case to the first administrative instance. On 11 August 1994 the City Council discontinued the resumed proceedings. On 12 October 1994 the Office of the Representative of the Republic quashed this decision and again remitted the case to the first administrative instance. Subsequently, the Komló Town Mayor’s Office was appointed to deal with the case as a first administrative instance in the resumed proceedings. On 3 April 1995 it ordered the neighbours to carry out the necessary works by 1 September 1995. On 28 June 1995 the County Administrative Office essentially upheld this decision. On 31 July 1995 the neighbours brought an action seeking judicial review of the above administrative decisions. On 28 August 1995 the applicant challenged the competent Szekszárd District Court for bias. On 3 October 1995 she intervened in the proceedings on the side of the defendant Administrative Office. On 15 January 1996 the Supreme Court appointed the Nyíregyháza District Court to hear the case. On 26 June 1996 the District Court dismissed the plaintiffs’ action holding that the defendant Office’s procedure had been in compliance with the law. On appeal, on 10 December 1996 the Szabolcs-Szatmár-Bereg County Regional Court upheld this decision. The plaintiffs filed a petition for a review by the Supreme Court. On 17 March 1997 the applicant requested the enforcement of the Regional Court’s decision. In reply to the applicant’s enquiry, on 8 July 1997 the President of the Baranya County Regional Court confirmed that the pending review proceedings were not an obstacle to the execution of the decision of 10 December 1996. On 6 January 1999 the Supreme Court dismissed the plaintiffs’ petition for review. On 28 January 1999 the Komló Town Mayor’s Office ordered the execution of its decision of 3 April 1995. A time-limit was set for 15 June 1999. On 15 June 1999 the neighbours notified the Mayor’s Office that the works had been completed. On 22 June 1999 the applicant informed the Csongrád County Administrative Office that she was not satisfied with the technical solution adopted for the drainage works. On 3 July 1999 the Komló Town Mayor’s Office appointed an expert. On 24 August 1999 the Mayor’s Office, relying on the expert opinion, ordered the neighbours to alter the construction. After several postponements, the Mayor’s Office decided that they would have until 30 April 2001 to complete the necessary works. An inspection of the works was carried out on 18 May 2001. On 23 May 2001 a fine was imposed on the neighbours for non-compliance with the administrative orders. On appeal, on 17 August 2001 the County Administrative Office increased the amount of the fine. A further fine was imposed on the neighbours on 29 November 2001. On 23 May 2002 another inspection took place. It was found that a major part of the works had been completed. The applicant’s criminal complaints against various officials involved in the case were to no avail. | 0 |
dev | 001-88554 | ENG | SRB | CHAMBER | 2,008 | CASE OF VRENCEV v. SERBIA | 3 | Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award | András Sajó;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 6. The applicant was born in 1968 and lives in Pančevo, Serbia. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. On 16 November 2003, the applicant was stopped and searched by a police officer at the main bus station in Belgrade and a packet containing 4.13 grams of cannabis was found on his person. 9. He was then taken to a police station but was released after a short period of time. Whilst in custody, an on-duty police officer issued a receipt confirming seizure of the cannabis in question (potvrda o privremeno oduzetim predmetima). This receipt was signed by the applicant and the officer and contained the applicant’s registered home address – M.K. Street no. 32, Pančevo. 10. In a subsequent incident report of the same date, however, the officer appears to have made a mistake by stating that the applicant’s address was M.K. Street no. 30 rather than no. 32. This report was neither seen nor signed by the applicant. 11. Having found his number in a telephone directory, on 6 July 2004 the police contacted the applicant’s father by telephone. He in turn informed the applicant that the police were looking for him. The applicant subsequently called the police and was told that he needed to come to the station in order to pick up the court summons. Upon arrival at the station, he was arrested and placed in detention. 12. It subsequently became clear that a detention order had been issued by the District Court (Okružni sud) in Belgrade on 29 June 2004, as part of the criminal proceedings brought against the applicant regarding the cannabis seizure of 16 November 2003. In its reasoning, the court first explained that the applicant had not appeared at the hearing scheduled for 17 March 2004 and noted that the return receipt attached to its summons had stated that he “was unknown at M.K. Street no. 30”. Secondly, the applicant had failed to appear at the following hearing scheduled for 20 May 2004 and the police, who had been ordered to serve the summons, had reported on 20 April 2004 that a neighbour had confirmed that the applicant had not been living at the address in question since 1999. Thirdly, on 20 April 2004 the police had also run a search in their database and had made additional inquiries, confirming that, as of 1986, the applicant’s registered residence was indeed M.K. Street no. 30, but could not discover any information concerning his current whereabouts. Finally, the court concluded that there was a sufficient factual basis to indicate that the applicant was hiding and/or in flight and had therefore ordered his detention. (It must, however, be noted that the neighbour’s statement and the original police report of 20 April 2004 were cited erroneously by the District Court and that in fact both had referred to M.K. Street no. 32 only, as the applicant’s registered residence, there being no mention of M.K. Street no. 30.) 13. On 29 June 2004 the District Court had also adopted a separate decision requesting the police to issue a wanted notice (poternica) and arrest the applicant. Therein the applicant’s address had again been stated as M.K. Street no. 30. 14. Various other documents successively referred to both addresses. Thus the District Court’s letter sent to the police on 20 May 2004 referred to M.K. Street no. 32 while all court summonses, the criminal complaint of 11 December 2003 (krivična prijava) and the indictment (optužni predlog) of 26 December 2003 consistently stated the applicant’s address as M.K. Street no. 30. 15. Throughout this time the applicant’s identity card, issued by the police on 30 August 2000, and his residence registration remained unchanged, stating his address as M.K. Street no. 32, Pančevo. 16. On 7 July 2004 the applicant’s lawyer filed an appeal by telegram against the District Court’s detention order of 29 June 2004. Therein he stated that the applicant had never lived at M.K. Street no. 30 and pointed out that his registered residence was in fact M.K. Street no. 32. The applicant consequently had no knowledge of the criminal proceedings against him; nor could he have deliberately avoided receiving the court summons. 17. On 8 July 2004 the applicant’s lawyer supplemented this appeal with additional written arguments requesting that the impugned detention order be revoked and his client released. In particular, he noted that the applicant had gone to the police station “of his own free will” as soon as he had found out that they were looking for him. Upon arrival at the police station, he had been arrested and it was then that he had first found out about the criminal charges against him. 18. On 12 July 2004 the Supreme Court (Vrhovni sud Srbije) rejected the appeal. It did so without an oral hearing. In its ruling the Supreme Court affirmed the reasons for detention given by the District Court and further held that there was no evidence in the case file that the applicant’s correct address was indeed M.K. Street no. 32. On the contrary, police reports suggested that “the applicant’s residence throughout the proceedings had remained unknown”. 19. On 14 July 2004 this decision was received by the applicant’s lawyer. 20. On 16 July 2004 he filed a motion with the District Court, seeking the applicant’s release on bail or, alternatively, that his detention be replaced with a prohibition on leaving his place of residence until the conclusion of the criminal proceedings. The lawyer further noted that the applicant’s detention had been ordered due to the court’s error in the establishment of his true home address and concluded by requesting that a hearing in the case be scheduled urgently. 21. The District Court appears not to have considered this motion. 22. Following a hearing on 26 July 2004, the District Court found the applicant guilty of illicit possession of narcotics and fined him in the amount of 10,000 Serbian dinars (at the time approximately 128 euros). 23. In a separate decision of the same date the District Court released the applicant from detention. It held, inter alia, that “the current phase of the criminal proceedings had been completed” and that “the defendant had provided correct information about his present address”. 24. On 24 September 2004 the applicant filed a complaint with the Court of Serbia and Montenegro (Sud Srbije i Crne Gore). 25. Following the communication of the present application to the respondent State, the Government produced two signed witness statements, taken by the police on 23 January 2006, wherein the applicant’s neighbours, both residing at M.K. Street no. 32, confirmed that the applicant had indeed not been living there for years. One of them further specified that he had already told the police as much in April 2004, while the other recalled that the applicant had not been living at the address in question since 1999. 26. Articles 10 and 16, taken together, stated that the “provisions of international treaties on human and minority rights applicable in ... [the State Union of] ... Serbia and Montenegro shall be directly enforceable” and, further, that “the ratified international treaties” shall “have precedence” over domestic legislation. 27. Article 7 provided that “international treaties in force in the State Union [of Serbia and Montenegro] shall be guaranteed by this Charter and be directly applicable”. 28. Article 14 § 8 provided that a person “who has been deprived of his liberty unlawfully [nezakonito lišen slobode] shall have the right to compensation”. 29. Article 23 § 4 provided, inter alia, that a person who has been deprived of his liberty, “without any basis [bez osnova] ... shall have the right to ... compensation ...”. 30. The relevant provisions of this Code provide as follows: “The courts, as well as State bodies taking part in the criminal proceedings, shall establish truthfully and comprehensively all facts which are of importance for the adoption of a lawful decision. The courts and State bodies shall examine and establish with equal care facts which incriminate the defendant, as well as those in his favour.” “First instance courts sit in a panel of three judges [“Judicial Panel”] when deciding on appeals against rulings of the investigating judge and other rulings when it is so prescribed by this Code ... ” “The ... [defendant’s participation in the criminal proceedings may be secured by means of sending] ... summonses, his forcible production in court, the issuance of a prohibition of his leaving his place of residence, [as well as] through the imposition of bail or detention. The competent court shall ... [attempt not to apply] ... a more severe measure ... [in order to secure the defendant presence] ... if a less severe measure may achieve the same purpose. These measures shall be vacated ex officio when the reasons for their application have ceased to exist, or shall be replaced with other less severe measures once the conditions are met.” “The defendant is obliged to immediately inform the court of any change of address, as well as of his intent to change his abode. The defendant shall be informed of this obligation at his first hearing ... [or] ... upon receipt of the indictment ... and warned about the consequences ... [of any non-compliance] ... provided for under the Code.” “ ... [The court shall order the forcible production of the defendant before it if the defendant] ... could not be properly summoned and it is obvious from the facts that he has been avoiding receipt [of court summonses].” “If there are circumstances indicating that the defendant might abscond, hide, go to an unknown place or abroad, the court may, by a reasoned decision, prohibit him from leaving his place of residence. ... In the course of the [judicial] investigation the [measure] referred to in [paragraph 1] ... of this Article shall be ordered and vacated by the investigating judge, and when the indictment is preferred by the President of the Chamber. ... Parties may appeal the ruling ordering, extending or vacating ... [the said measure] ... and the Public Prosecutor may also appeal the ruling rejecting his motion for [its] application. The Judicial Panel ... shall decide on the appeal ... [within a period of three days] ... The appeal does not stay the execution of the ruling. ... ” “The defendant who is to be or has already been detained based only on circumstances indicating that he will abscond ... may remain at large or may be released providing that he personally, or another person on his behalf, gives bail guaranteeing that he shall not abscond until the conclusion of the criminal proceedings and the defendant himself promises that he shall not hide or change his place of residence without permission.” “The decision on bail before and in the course of a [judicial] investigation shall be rendered by the investigating judge. After the indictment is preferred the decision on bail shall be rendered by the President of the Chamber and [subsequently] at the main hearing by the Chamber itself.” “Detention may be ordered only in accordance with the conditions provided by this Code and only if the same purpose cannot be achieved by another measure. The authorities taking part in the criminal proceedings ... are bound to proceed with particular urgency if the defendant is in detention. In the course of the ... proceedings, detention shall be vacated as soon as the grounds therefor have ceased to exist.” “Detention shall be ordered by a decision of the competent court. ... A decision on detention shall be served on the person to whom it relates at the moment of his deprivation of liberty, but no later than within 24 hours ... [as of this moment] ... A detained person may file an appeal against the decision on detention with the Judicial Panel within 24 hours as of the moment of its receipt. The appeal, the decision on detention and other files shall immediately be forwarded to the Judicial Panel. The appeal shall not stay the execution of the [impugned] decision. ... In the situation referred to ... [above,] ... the Judicial Panel shall rule on the appeal within 48 hours.” “Against decisions [rešenja] ... adopted by courts acting at first instance, the parties and persons whose rights have been breached may file an appeal, unless this Code expressly provides that an appeal shall not be permitted. ... There shall be no appeal against a decision [rešenje] of the Supreme Court of Serbia, unless provided otherwise by this Code.” “An appeal against a decision [rešenje] adopted by a court at first instance shall be decided at a session held before the court of second instance, unless provided otherwise by this Code.” “For the purposes of unhindered conduct of the criminal proceedings [in respect of crimes punishable by a fine or imprisonment of up to three years,] detention may be ordered against a person who is under reasonable suspicion of having committed a criminal offence if: (1) he is in hiding or his identity cannot be established or if there are other circumstances clearly indicating a danger of flight...” “[The following persons shall be] ... entitled to recover ... [any] ... damages ... [suffered] ... (1) [a person] who was detained but against whom no criminal proceedings were instituted, where these proceedings were discontinued by a final ruling, where ... [the person in question] ... was [ultimately] acquitted by a final judgment or where the charge against him was rejected; ... (3) [a person] who due to an error committed or an unlawful action undertaken by a [State] body has been deprived of his liberty in the absence of any legal basis [neosnovano lišeno slobode] ... ” 31. The person requesting bail, under Article 137, “does not have to ... specify the amount of bail” to be posted (see Komentar Zakonika o krivičnom postupku, Prof. dr Tihomir Vasiljević and Prof. dr Momčilo Grubač, IDP Justinijan, Belgrade, 2005, p. 247). 32. Parties to the proceedings “shall not be informed about ... [the session referred to in Article 401 § 1 of the Criminal Procedure Code] .., including the State Prosecutor ... [who shall] .., prior to the session, be provided with the case file and shall submit his proposal ... [to the court] ... in writing” (see Komentar Zakonika o krivičnom postupku, cited above, pp. 705-706). 33. Articles 6 § 1, 8 § 1, 14 and 20 provide, inter alia, that citizens must inform the police about any change in their address, within eight days as of their moving, which information shall then be entered into an official register. 34. Articles 199 and 200 of the Obligations Act provide, inter alia, that anyone who has suffered fear, physical pain or, indeed, mental anguish as a consequence of a breach of his “personal rights” (prava ličnosti) is entitled, depending on their duration and intensity, to sue for financial compensation in the civil courts, as well as to request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction. 35. The relevant provisions concerning the Court of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16, ECHR 2006...). | 1 |
dev | 001-98259 | ENG | TUR | CHAMBER | 2,010 | CASE OF TEHRANI AND OTHERS v. TURKEY | 3 | Remainder inadmissible;Violation of Art. 3 (in case of expulsion to Iran or Iraq);Violation of Art. 13+3;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 6. The applicant was born in 1969 and is currently being held in the Kırklareli Foreigners' Admission and Accommodation Centre (Kırklareli Yabancılar Misafirhanesi) (the “Kırklareli Accommodation Centre”). 7. The applicant left Iran on 30 December 2002 and joined the People's Mojahedin Organisation of Iran (“PMOI”) in the Al-Ashraf camp in Iraq on 11 January 2003. Following the disarmament of the PMOI on 3 June 2004, he started living at the Temporary Interview Protection Facility (“the TIPF”), also in Iraq. On 5 May 2006 the United Nations High Commissioner for Refugees (“UNHCR”) in Iraq recognised the applicant as a refugee. 8. With the assistance of a people-smuggler, the applicant left Iraq at the end of June. In his application form the applicant stated that he was arrested on 4 July 2008, whereas in his two subsequent statements given to the Turkish authorities he stated that he was arrested in Turkey on 7 July 2008. Among the documents submitted by the Government is a list of individuals arrested on 7 July 2008 and the applicant's name is included therein. 9. The applicant was initially taken to a police station following his arrest. It appears from the documents submitted by the Government that at this station the applicant's fingerprints were taken on 5 July 2008 and, during his questioning on 7 July 2008, he was informed that he had been arrested for illegal entry into the country. The statement form dated 7 July 2008 bears the applicant's signature as well as that of a translator. 10. On 7 July 2008 the applicant was transferred to the Tunca Foreigners' Admission and Accommodation Centre (Tunca Yabancılar Misafirhanesi, the “Tunca Accommodation Centre”) in Edirne where, on 22 July 2008, he was questioned about his entry into Turkey, his political background and the reasons for his flight from his country of origin. 11. The authorities initially transferred the applicant to a larger building at the Tunca Accommodation Centre on 7 December 2008, then to the Kırklareli Accommodation Centre on 1 June 2009. 12. The applicant, an Iranian national, was born in 1951 and is currently being held at the Kırklareli Accommodation Centre. 13. The applicant was living in Iran with his wife and five children when he became involved with the PMOI. In 1990 they fled to Turkey, where he was recognised as a refugee by the UNHCR. At the time the applicant's wife was pregnant with their sixth child. The applicant and his family resettled in Finland in 1992. The following year the applicant left Finland to join the PMOI in Iraq. In 2004 he defected from the PMOI and initially stayed at the TIPF and then at the Al-Ashraf camp until 2008. 14. Some time in early 2008 the applicant re-established contact with his family in Finland and left the Al-Ashraf camp on 4 March 2008. With the assistance of a people-smuggler he entered Turkey illegally in either May or June 2008 and went to İstanbul. He lodged a request with the Finnish authorities in Turkey for a visa to enter Finland. While waiting for the outcome the applicant decided to flee to Greece. 15. The applicant stated before the Court that he was arrested by the Turkish authorities on the night of 4 August 2008 and taken to a gendarmerie station in Didim, Aydın, where he asked for asylum and temporary leave to remain in Turkey. He was then transferred the same night to an abandoned warehouse operated by the Didim Gendarmerie Headquarters and kept there for ten days, before being transferred to a detention facility in Didim on 15 August 2008. The applicant was held here for a period of twenty-two days. 16. In their submissions the Government maintained that, following his arrest, the applicant was held at the accommodation centre for foreigners within the premises of the Aydın Security Headquarters (the “Didim Accommodation Centre”). Among the documents submitted by the Government, an arrest report lists the names of twenty-two foreigners arrested on 4 August 2008, among whom there is a certain Perviz Muhammed, an Iranian national aged sixty-six. A transfer document dated 14 August 2008 lists seventeen Iranian nationals, which includes the same Perviz Muhammed but notes that he was arrested on 5 August 2008. This document further indicates that these seventeen individuals were transferred from the gendarmerie headquarters to the Didim Accommodation Centre. 17. On 28 August 2008 the Finnish authorities granted the applicant a visa to enter Finland. On 4 September 2008 he was further granted work and residence permits for Finland. 18. On 5 September 2008 the authorities transferred the applicant to the Kırklareli Accommodation Centre where he has been held since. 19. On 5 September 2008, either in Didim or in Kırklareli, a police officer took the applicant's statement in relation to the asylum procedures. The applicant stated that he and his family had been resettled in Finland sixteen years earlier by the UNHCR. He had then returned to Iraq on duty. He had been arrested by the Turkish authorities while attempting to return to Finland after having completed his duty. 20. On 12 January 2010 the Court received a letter from the applicant requesting to withdraw his application. On 22 January 2010 the applicant's representative notified the Court that the applicant wished to pursue his application. On 11 February 2010 the applicant's representative sent to the Court two letters written by the applicant on 7 February 2010, in English and in Turkish, noting that he had been held in detention for seventeen months and specifying that he wanted to be deported to Iran where his life would be in danger. The applicant's representative further submitted a psychological status report drawn by C.S., apparently a free lance psychologist. The report indicated that the applicant was showing depressive symptoms, stress and anxiety disorder and that he needed urgent psychological and psychiatric support. In this connection it was further stated that the applicant said that he wished to go back to Iran which meant committing suicide and that he considered this to be better than the vagueness of his present situation. 20. Following the Court's interim measure requesting diagnosis of the applicant's mental state to be carried out in a fully equipped state hospital, the Government submitted on 5 March 2010 a medical report drawn by a psychiatrist on 1 March 2010. This single paragraph report stated that the applicant did not suffer from a psychotic illness, that he had insight into his condition and further diagnosis could not be carried out since the applicant refused to undergo a thorough psychiatric examination. 21. The applicants were born in 1960 and 1966 respectively. They are currently settled in Kırklareli on the basis of a temporary residence permit. 22. The first applicant (K.M.) was involved with the PMOI in the early 1980s, while he was studying in the United Kingdom (“the UK”) where he lived between 1978 and 1986. He then went to Iraq, was recruited by the PMOI and lived in the Al-Ashraf Camp until 19 November 2006. After leaving the Al-Ashraf Camp, the applicant went to the TIPF where the UNHCR recognised his refugee status on 16 October 2007. The applicant left the TIPF on 23 December 2007 and went to Erbil, where he met the second applicant. 23. The second applicant (P.R.S.) joined the PMOI in Iraq in 1990. In April 2004 he defected from the organisation and went to reside in the TIPF, where the UNHCR recognised him as a refugee on 5 May 2006. 24. In 2008 the applicants decided to flee Iraq and go to the UK; they paid 7,000 United States dollars (USD) to people-smugglers. On 11 September 2008 they crossed the border from Turkey to Greece, where they were arrested and sent back. Upon arrival on Turkish territory on the same day, the Turkish border officials arrested the applicants along with many others and drew up a list of names involving sixty-seven foreigners. It is further stated in this document that, in the absence of a translator, those listed could not be questioned with regard to the alleged breach of the Passport Code. The authorities took the applicants to the Tunca Accommodation Centre the following day. 25. On 17 September 2008 officers at the Passports and Foreigners' Directorate (“Pasaport Yabancılar Şube Müdürlüğü”) questioned the applicants. Statement forms drawn up during the questioning indicate that, stating they spoke Turkish, the applicants did not request a translator and gave a brief description of their background as well as how they had travelled to Greece. The Statement forms further indicate that the applicants were transferred to the said Directorate following judicial proceedings against them for having illegally entered Turkey. 26. On 14 October 2008 the applicants were transferred to the Kırklareli Accommodation Centre. 27. On 14 May 2009 the applicants requested the Ministry of Interior to release them. 28. The Ankara Administrative Court ordered the applicants' release on 7 and 27 October 2009 respectively. The authorities released the applicants on 25 November 2009 and granted a temporary residence permit valid for five months. On an appeal by the General Security Headquarters, the Ankara Regional Administrative Court overturned, by a decision of 11 November 2009, the Ankara Administrative Court's decision in respect of the first applicant. The court based its decision on public order and general security grounds due to the applicant's former PMOI membership. At the time the judgment was drafted the applicant had not yet been recalled to the Kırklareli Accommodation Centre. 29. The applicants in applications nos. 32940/08 and 43616/08 mainly complained about overcrowded rooms, poor hygiene, the poor quality of food, a lack of proper drinking water, medical attention, insufficient hot water for bathing, an insufficient number of public telephones, and a lack of fresh air and exercise. 30. In this connection the applicant in application no. 32940/08 submitted varying figures in respect of the size and capacity of the accommodation centre. Accordingly, he claimed in his initial application form that he had been kept in a building (“the first building”) consisting of three rooms, each measuring 20-25 square metres with about twenty beds and accommodating up to 160 detainees. Thus he had to sleep on the floor for three nights before being able to occupy a bunk bed. Following his transfer to a bigger building (“the second building”), the applicant submitted that this new place had been approximately 250 square metres accommodating a varying number of people, from 30 to 280. In his final submissions to the Court, the applicant maintained that the men's unit in the first building measured 233 square metres, the sleeping area of which was 169 square metres, containing 55 beds for an average of 120 to 150 persons. In these submissions the applicant further stated that the second building was 408 square metres with a sleeping area of 288 square metres and accommodated an average of 250 to 300 persons without any ventilation or sufficient light. The applicant added that, during the two months following his transfer to the second building, there had been no beds at all and the occupants had had to sleep on an insufficient number of dirty blankets and mattresses placed on the floor. 90 bunk beds had gradually been brought into the accommodation centre. The building furthermore had no heating. There had been three toilets without a flush, scarce hot water and no working showers. The applicant had only been allowed into the fresh air eight times during his eleven-month stay at the Tunca Accommodation Centre. 31. The applicant in application no. 32940/08 initially submitted fourteen photographs in respect of the first building he had been kept in. The photographs seem to have been taken with a mobile telephone. It is not clear whether these photographs are of the same room or of different rooms. There are bunk beds closely lined up parallel to the walls of the room with no apparent sheets, covers or pillows, some with blankets. In all photographs there is an uncountable number of men either lying down in the space in the middle of the room, within touching distance of each other, or sitting on blankets on the floor. Some of the men seem to be walking around those who are lying down. One of the photographs shows men leaning over some individuals lying on the floor to reach a public telephone on the wall. In another photograph a crowd of men is sitting on the floor elbow to elbow eating a meal while others appear to be queuing for theirs at the far end of the room. 32. The applicant in application no. 32940/08 subsequently submitted video footage of the second building and photographs derived from it, which had been recorded on the mobile telephone of another individual following the applicant's departure. These visual submissions indicate that individuals were kept in a hangar-like hall with bunk beds lined up close to each other by the walls and numerous dirty mattresses spread around on the floor in the middle, mostly without any linen, pillows or blankets. The photographs and footage lack sufficient light. Daylight seems to enter the hall from a number of windows placed near the high sloping roof and the main entrance to the hall, which is accessed through iron bars. The exact number of toilets and showers is not clear, since a piece of cloth has been placed in front of a door, blocking the view behind. However, as far as can be established, there appear to be two stained toilets, a broken shower and a row of taps near a wall, possibly for washing feet. The building in general appears worn and dirty. The visual submissions do not reveal lockers, tables, chairs or any sort of personal items. 33. The applicants in application no. 43616/08 submitted the same fourteen photographs described above in respect of application no. 32940/08. They claimed in their initial application form that the facility they had been kept in consisted of three rooms and a bathroom, measuring in total 130 square metres with an average of 120 people and 44 beds. In their subsequent submissions they stated that the facility measured 233 square metres in total, with an average of 120 to 150 individuals and a total of 55 beds. The applicants maintained that, as a result, many individuals had to sleep on the floor with no bedding at all. They contended that the rooms did not have proper lighting or ventilation. Furthermore, they had not been allowed to spend time outdoors, which had been particularly unbearable due to cigarette smoking indoors. 34. The applicants contested the Government's replies summarised below. 35. The Government maintained that there were two buildings for the purpose of holding illegal migrants, the total capacity of which amounted to 300 persons. In this connection the Government stated that the photographs submitted by the applicants had been taken during a two-hour period when newcomers were gathered for pre-interview, interview and medical screening stages, following which they would have been settled in their rooms. 36. The food distributed at the accommodation centre consisted of three-course meals and was supplied by a catering company. There was constant hot water for bathing and a water purifier for drinking water. The accommodation centre did not have a clinic but had an infirmary. Those who were sick were taken to local hospitals. The wards were regularly disinfected to ensure hygiene. 37. In support of their submissions the Government provided ten photographs, which showed a big glass medicine container, rows of bunk beds placed close to each other with brand new mattresses still in their plastic coverings and pillows piled in a corner, a shower which did not appear to have a door or a curtain, a public telephone, a three-course meal served on a tray, a water purifier, an on-site shop and a playground for children, as well as a small football field. 38. In application no. 32940/08 the applicant referred to the submissions of the applicants in application no. 43616/08, and maintained that the conditions at the Kırklareli Accommodation Centre were better than those at the Tunca Accommodation Centre due to fewer detainees and time outdoors. He maintained however that this facility was intolerable for an extended stay, because the food distributed lacked nutritional and calorific value, the water was undrinkable, hot water was not regularly available, work and educational activities were not provided and there was only minimal medical support. 39. In their submissions to the Court, the applicants in application no. 43616/08 maintained that the physical conditions in the Kırklareli Accommodation Centre were below the minimum standards set by the European Committee for the Prevention of Torture (“the CPT”). In this respect they submitted a drawing of a room which they maintained was 14.2 square metres. Providing a number of photographs the applicants complained in particular that the hygiene and quality of food served to detainees had been poor and the drinking water extremely chalky. They therefore had to buy food from the over-priced on-site shop. The applicants further contended that they had insufficient access to hot water for showering. The applicants additionally complained that the Kırklareli Accommodation Centre lacked proper recreation and exercise space, as well as medical facilities. The exercise facilities outdoors were only accessible between noon and 5 p.m. 40. Photographs presented by the applicants show three-course meals varying between soup, mixed vegetables, bulgur, beans, chick-peas, lentils, bread and jam. There seems to be a white chalky substance at the bottom of a glass of water. Large cauldrons of food appear placed on tables in a hall. There are photographs of a dilapidated, unused kitchen. Some photographs show meals distributed by staff members, others by detainees. One of the photographs indicates that the staff member distributing food is wearing plastic gloves. There are no queues for meals. The applicants further submitted photographs of two showers in closed cabins. One of the showers appears to be broken. There are also photographs of two squat toilets, one with dark stains and the other appearing reasonably clean. Applicants also submitted photographs of barbed wire surrounding the accommodation facility, metal bars outside their windows, a tower water tank, rubbish containers where there seem to be large amounts of cartons, paper and plastic bags lying around, as well as a broken plastic chair, and a volleyball field with overgrown grass. There are also photographs of a round-table gathering apparently between State officials and occupants of the accommodation centre, as well as of a religious ceremony, the subsequent distribution of meat and an exchange of greetings. 41. The applicants objected to the Government's replies below. 42. The Government submitted that the rooms were of a standard size, shared by four people and measuring 35 square metres. They maintained that the kitchen facility seen in the photographs submitted by the applicants was not in use and the food was supplied externally by a catering company. With regard to the tap water, the Government stated that the staff had been using the same water supply and that there had been no medical incident arising from its use. Additionally the Government provided photographs of various social events organised at the accommodation centre. Other photographs included those of a medical clinic in the centre, individuals playing volleyball and walking around in the garden, playing in the snow, a girl around the age of three riding a small bicycle outdoors, the distribution of meals, toilets and sinks, a prayer room, a football field, a television room and a table tennis facility. One of the rooms appears to have a toilet and shower. Other photographs indicate that there is a separate shower and toilet area as well as a washing machine for common use. Some of the photographs provide images of daily life, such as an individual painting on canvas or two individuals having tea in a room. Rooms seem to have natural light coming through large windows. Whether bunk beds or ordinary beds, all beds appear to have pillows, blankets and linen. Photographs show that the rooms are equipped with curtains, ceiling lights, large personal lockers and central heating radiators. They are decorated with detainees' personal belongings, such as carpets on floors or posters on walls. Some rooms seem to have plastic tables and chairs. In one of the photographs there is a computer, a ventilator and a small Christmas tree. The Government also presented photographs of the barbed-wire perimeter, empty rubbish containers, the collection of garbage by municipality staff and an official giving presents to occupants. 43. The applicant in application no. 41626/08 complained that he had initially been detained for a period of ten days in poor conditions in an overcrowded warehouse operated by the Didim Gendarmerie Headquarters. He claimed to have been held in unhygienic conditions with insufficient natural light and ventilation, insufficient access to sanitary facilities, without bedding, safe drinking water, proper food, medical support, sufficient hot water, any indoor or outdoor activities or contact with the outside world. 44. With respect to the conditions at the Didim Accommodation Centre, the applicant maintained that he shared a dormitory with six other people and had no privacy. He suffered from a lack of fresh air, proper food, drinking water, proper bedding, extra clothing, personal hygiene items and hot water, as well as insufficient access to sanitary facilities. He had observed a total of 60 beds and 60 occupants in the centre during his stay. He had not been allowed access to the outdoors and was refused contact with the outside world. 45. The applicant further contested the Government's replies summarised below. 46. The Government maintained that the applicant had been taken to the Didim Accommodation Centre following his arrest, and did not reply to the applicant's allegations regarding his alleged detention in a warehouse operated by the Didim Gendarmerie Headquarters. With respect to the Didim Accommodation Centre, the Government maintained that there were ten dormitories with bunk beds. The families were kept in separate rooms where possible. All rooms had windows opening outward. The facility had a kitchen, prayer room, dining hall, television room, toilet, bathroom and twenty-four-hour hot water. According to the Government, the tap water was drinkable and the food at the centre was provided by a catering company. The inhabitants of the accommodation centre underwent monthly medical checkups and medicine was provided by the State. Likewise, cleaning materials such as washing powder, soap and bleach, was provided by the Aydın Security Headquarters. In this connection the Government provided a number of receipts indicating payments to a catering company, bakery, market and a dairy products company. The Government also submitted the menu served at the accommodation centre between July and December 2008. The menu indicates that meals consisting of two to three courses were served every day of the week. The food varied between soup and vegetables, pasta and meat or meatballs and dried beans and yoghurt. Salad and fruit seem to be served occasionally. The Government further submitted two receipts dated 7 and 8 August 2008 indicating payment to a pharmacy for a total of thirty-eight prescriptions. 47. The Government provided thirteen photographs of the Didim Accommodation Centre. There are photographs of two separate rooms, seemingly occupied by two families. The rooms have large windows with curtains and iron bars on the outside, central heating radiators and bunk beds with white bedding and blankets. In one of the rooms there is a flat carpet and in the other a plastic chair. There are also photographs of a kitchen with an electric stove, a squat toilet, an electric water heater, a small sink and what seems to be the main entrance of the centre. 48. A description of the relevant domestic law and practice concerning asylum procedures may be found in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-44, 22 September 2009). 49. A.A., an Iranian refugee, was held in an accommodation centre at the relevant time. On 14 July 2008 he requested the Ministry of the Interior to release him and subsequently lodged a case with the Ankara Administrative Court on 6 August 2008. Stating that he had been recognised as a refugee by UNHCR, A.A. mainly argued that his detention was unlawful. At the time, A.A.'s request for a residence permit on family reunification grounds was under examination by the Swedish authorities. On 17 September 2008 the Ankara Administrative Court ordered A.A.'s release. 50. Following his visit to Turkey between 28 June and 3 July 2009, the Commissioner for Human Rights of the Council of Europe published a report on 1 October 2009 regarding, inter alia, the situation of asylum seekers and refugees. The relevant part of the executive summary reads as follows: “... Having welcomed the efforts made by the Turkish authorities to improve living conditions in places of detention he visited [İstanbul and İzmir], the Commissioner remains concerned about reports of severe deficits in other holding facilities. He urges the authorities to secure dignified standards of living for all detained asylum seekers, to ensure that detention is the exception and be limited to certain purposes and to the shortest possible time. ... Further he urges the authorities to ensure the prompt provision of information to asylum-seekers in a language they understand, including the reasons of their arrest and detention, [and] to provide for prompt judicial review of detention ...” 51. The relevant paragraphs of the CPT Standards (the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment) concerning the conditions of detention of foreign nationals, as well as of a report on the Kırklareli Accommodation Centre issued by Human Rights Watch on 6 November 2008, may be found in the case of Z.N.S. v. Turkey (no. 21896/08, §§ 34-37, 19 January 2010). 52. In June 2008 Human Rights Watch visited, inter alia, the Tunca Accommodation Centre and published a report on 6 November 2008 entitled 'Stuck in a Revolving Door'. The relevant extracts from the report read as follows: “... Human Rights Watch spent two full days visiting the Edirne Tunca detention facility. The access we were given to the facility was particularly remarkable given the absolutely dreadful conditions we found there. On the first day we visited, June 11, 2008, the detainee population was 703. The capacity of the facility is 200. By our second visit, 263 people had been released, including, as it turned out, nearly everyone who spoke Arabic and Farsi, the languages of our interpreters. Nevertheless, we were permitted to interview anyone we chose in a completely private setting in a courtyard outside a building holding most of the detainees. The Tunca facility at Edirne is comprised of two buildings, each divided into two rooms. The smaller of the two buildings holds in one room women and children and in the other men who appear to have prospects of relatively quick identification and cooperation from their home consulates to effect their removal from Turkey. The countries of origin of the men in the small building included Algeria, Iran, Iraq, Kazakhstan, and Ecuador. The larger building which holds by far the larger number of detainees is divided into a smaller room for men who will be released to Istanbul because they are members of nationalities that cannot be deported, such as Somalis and Palestinians, and the larger room which holds the largest number of men—about 400 on our first visit—who are held indefinitely pending their relatives providing tickets for their return flights or until they can be deported. Most of the men in the big room appeared to be south Asians from countries like Bangladesh, Pakistan, Sri Lanka, India, as well as various African nationalities. The authorities also put “Afghans,” “Somalis,” “Burmese,” and “Palestinians” in the big room when they doubted their declared nationalities. ... The conditions in the big building, particularly in the bigger of the two rooms, are abysmal—completely unfit for human habitation, even for a short duration. As a place of indefinite detention, the conditions alone are inhuman and degrading. Words fail to describe the sight and smell of 400 men crammed into a single room. For our own security, we were not allowed to walk into the room, but stood at the only door to the room, a padlocked iron gate, where we peered into the darkness. Though men crowded toward us, they parted their human sea so we could see the jammed crowd all the way to the wall. There was no space between any bodies; they sat shoulder to shoulder both along the walls and in the room's interior. ... The big building looks like an old warehouse. It is dark and fetid. There are only small windows at the ceiling level and these are made of glass so are useless in terms of air circulation and cooling. There is only one window fan and one other fan at the end of the room. Although the larger of the two rooms has an exit that leads to the courtyard that could theoretically be used to provide fresh air and exercise, in fact, except for those interviewed by Human Rights Watch, none of the detainees had ever been allowed into the yard. The smaller of the two rooms doesn't even have a door that leads to the yard. ... The strongest first impressions of Edirne are the overcrowding, the desperation, the stench and the grime. ...” | 1 |
dev | 001-5051 | ENG | GRC | ADMISSIBILITY | 2,000 | GLYFADA MUNICIPAL COUNCIL v. GREECE | 4 | Inadmissible | Marc Fischbach | The applicant is a Municipal Council of a suburb of Athens. It is represented before the Court by Mr N. Frangakis, a lawyer practising in Athens. In 1985, the Municipal Council constructed five tennis courts, a warehouse, a dressing-room and a small bar in an area owned by it. In 1992, it enlarged the site and transferred it to the Tennis Club of Glyfada. By decision no. 406/1992 which altered the development plan in this area, the Municipal Council invited the Pireus Prefecture to designate the area as a green and sports area. The Pireus Prefecture did so by decision no. 10976/1993 of 9 August 1993. On 1 October 1993, a number of residents of Glyfada applied to the Supreme Administrative Court for judicial review of decisions nos.406/1992 and 10976/1993. The application was directed against the Minister of Environment, Town Planning and Public Works. On 11 September 1995, the Municipal Council intervened in the proceedings in favour of the Minister. The hearing took place on 5 June 1996 and the judgment delivered on 29 June 1998. | 0 |
dev | 001-22882 | ENG | FRA | ADMISSIBILITY | 2,002 | KESLASSY v. FRANCE | 1 | Inadmissible | null | The applicant, Mr Claude Keslassy, is a French national, who was born in 1941 and lives in Paris. He was represented before the Court by Mr V. Delaporte, a member of the Conseil d’État and Court of Cassation Bar. The facts of the case, as submitted by the parties, may be summarised as follows. At the material time the applicant controlled nine private limited companies (société à responsabilité limitée – SARL), either through direct or indirect majority shareholdings, or through de iure managers appointed from members of his family or close contacts, or through the control of the premises from which the companies were operating. By an order of 3 June 1997 a judge delegated by the President of the Paris Tribunal de Grande Instance authorised tax inspectors from the National Head Office for Tax Investigations, the Revenue Department and the National and International Tax Audit Department, assisted by tax controllers from those departments, to search and seize documents on eight sets of business and residential premises used by the applicant, his wife and the managers of the various companies concerned. Among the premises to be searched was the applicant’s home. The order also specified the senior police officers (officiers de police judiciare) with territorial jurisdiction to assist with the authorised operations and to ensure compliance with the rights of the defence. The order was issued pursuant to Article L 16 B of the Code of Tax Procedures following an application by the National Head Office for Tax Investigations. It stated that the aim of the searches was to seek evidence that the nine private limited companies controlled by the applicant had failed to “to calculate and pay income tax in the industrial and trading profits category, and/or corporation tax and value added tax (VAT), by engaging in purchases and sales for which no invoices had been issued and/or by issuing invoices or documents that did not correspond to genuine transactions and/or by knowingly omitting to make or to cause to be made accounting entries or by knowingly causing to be made inaccurate or false entries in the accounting records that are required to be kept by the General Tax Code...”. Among the evidence that was cited by the judge in the order as giving rise to a presumption of fraud was a typewritten letter dated 10 March 1995 that had been sent to the Revenue Department in Paris and bore a hand-written signature and a note stating that it was from B., the manageress of C. company. In the letter B. said that she was unable to control the conduct of her brother, the applicant, who held 60% of the shares in the company, and that she had no access to the accounts. She also said that the company’s activity generated very substantial cash revenues and that the applicant was in the habit of siphoning off large sums of money from the company with which to purchase paintings. The judge also noted that on 15 January 1997 officials from the Revenue Department had given a statement in which they said that on 31 October 1996 they had received a visit from a person who wished to remain anonymous who had affirmed that the applicant creamed off part of the income of the various companies in which he held a controlling stake of the share capital by appropriating to himself cash and cheques on which the name of the payee had been left blank. The informant had also stated that the money was used to enable the applicant to buy works of art and thus to build up a collection with a view to personal gain. Finally, the informant had added that the applicant held a customer account at Christie’s in London and gave his contacts business cards on which he presented himself as a seller of oriental paintings. The judge also referred to previous proceedings that had been issued on a complaint by the authorities for tax fraud following an audit of the accounts of one of the companies concerned. The Paris Tribunal de Grande Instance had at the time held that the applicant was a de facto manager of the company concerned and found that it had failed to keep any accounts. Furthermore, in a judgment of 17 February 1988 the Paris Court of Appeal had found that the applicant and his wife had fraudulently failed to calculate and pay any income tax for the 1983 tax year. Lastly, in a judgment of 25 November 1994 the Paris Court of Appeal had found that the applicant was the de facto manager of another private limited company and had convicted him of working illegally. In his warrant of 3 June 1997 the judge noted lastly: “[The applicant] does not disclose any income... The telephone number on the business card mentioned by the informant was allocated to [C. company] from July 1989 to July 1996... That telephone number appeared in an advertisement that was placed with the 22/23 May 1995 edition of Le Monde... The advertisement was for the purchase at premium prices of furniture, bronze sculptures, objects and oriental paintings and stated that commission would be paid to any intermediaries... The inference from the advertisement is that substantial funds are available. [The applicant] arranged for a bank account to be opened... by referring to a company registration number [numéro de SIRENE – an acronym for a computer system for the registration of undertakings and places of business, which enables all undertakings to be assigned a registration number] ... [which] does not appear on the list kept by the National Institute of Industrial Property... He is also able to use the ... premises, receives post there and lives there with his partner, by whom he has a child... Thus, the investigations made by the department have enabled the information obtained to be confirmed in so far as it concerns [the applicant’s] activities in the aforementioned companies. The results of the investigation carried out largely match the information provided by the de iure manageress of C. company and the statements made by the person who attended the department’s offices on 31 October 1996... Presumptions exist that the companies which [the applicant] controls ... reduced their business receipts by omitting to enter all its dealings in the accounts and have thus avoided calculating or paying income tax on industrial and business profits and/or corporation tax and value added tax (VAT), by knowingly omitting to make accounting entries or to cause accounting entries to be made or by knowingly causing inaccurate or false entries to be made in the accounting records that are required to be kept by the General Tax Code... Thus the application is founded and it may be possible to obtain proof of the presumed fraudulent acts by making a search without prior warning.” The applicant, his wife and sons, the managers of the companies and the companies themselves appealed to the Court of Cassation against the order (that being the sole remedy available to them). In particular, they argued that the letter written by B. was inadmissible in evidence and contested its origin (as only the signature was written by hand). They alleged that it could not constitute a witness statement within the meaning of Article 202 of the New Code of Civil Procedure, as it did not satisfy the formal requirements set out in that provision. They also contested the evidential value of the anonymous statement that had been referred to as, in their submission, the judge, who was only entitled to rely on previous offences or convictions for tax fraud as additional circumstantial evidence, had not identified and analysed any other information that corroborated it. They noted too that the judge had, improperly in their submission, omitted to specify the accounting years to which the presumptions of tax fraud applied. They said in conclusion that that evidence was insufficient to raise a presumption of tax fraud justifying a search of residential property and that the judge had failed to give sufficient reasons for his decision in view of his obligations under Article L 16 B of the Code of Tax Procedures. On 23 February 1999 the Commercial, Financial and Economic Division of the Court of Cassation dismissed the appeal in a judgment in which it gave the following reasons: “Firstly, the appellants sought in the first and fifth limbs of the ground of appeal to contest the value of the evidence relied on by the judge as proof that the application was well-founded. Their arguments do not constitute valid grounds for invalidating the order in which, by assessing the evidence that had been adduced by the authorities, the judge sought to establish whether presumptions existed that there had been unlawful conduct that warranted a search being made of all premises, including private premises, for proof thereof and the seizure of any relevant documents. Secondly, reference is made in the order to the origin of the letter dated 10 March 1995, which was produced as Exhibit II-a. A failure to comply with the formal requirements of Article 202 of the New Code of Civil Procedure governing the production of statements in evidence in civil proceedings does not render such statements inadmissible in evidence. It is for the trial court to decide in its unfettered discretion whether a witness statement that does not comply with the formal requirements affords guarantees sufficient to satisfy it. This ground of appeal, the remainder of which the appellants devote to contesting the content of that piece of evidence, fails. Thirdly, the anonymous statement received on 31 October 1996 is corroborated by the letter of 10 March 1995, Exhibit II-a, which was described and analysed in the warrant. Article L 16 B of the Code of Tax Procedures does not render a warrant invalid if the judge fails to specify the accounting years concerned by the presumed fraud. It follows from the above that none of the limbs of the ground of appeal are founded.” At the material time, the relevant provisions of Article L 16 B of the Code of Tax Procedure (as worded prior to the enactment of Law no. 2000-516 of 15 June 2000) provided: “I. If the judicial authority, on an application by the tax authority, considers that presumptions exist that a taxpayer is avoiding the calculation or payment of taxes on revenue or profits or of value added tax by making purchases or sales without invoices, by using or issuing invoices or documents that do not correspond to genuine transactions or by knowingly omitting to make or to cause to be made accounting entries or by knowingly making or causing to be made inaccurate or false entries in the accounting records that are required to be kept by the General Tax Code, it may, in accordance with the conditions set out in II, authorise tax officials of at least inspector rank and holding authority from the Director-General of the Revenue to that end to seek proof of such acts by carrying out searches of all premises, including private premises, where evidence and documents relating thereto may be kept and to seize such evidence and documents. II. All searches must be authorised by an order of the president of the tribunal de grande instance for the jurisdiction in which the premises to be searched are located or by a judge delegated by him or her. The judge shall verify whether there is concrete evidence that the application for authorisation which has been made to him or her is well-founded. The application must contain all the information in the possession of the authority that may serve to justify a search. The order shall include: (i) where appropriate, a statement that the president of the tribunal de grande instance has delegated the requisite power; (ii) the address of the premises to be searched; (iii) the name and capacity of the accredited civil servant who has sought and obtained authorisation to carry out the search. The judge shall give reasons for his or her decision by indicating the elements of fact and law on which he or she relies and which raise a presumption in the case before him or her of the existence of the fraudulent acts for which evidence is sought. If during the course of the search the accredited officials discover the existence of a safe-deposit box in a financial institution in the name of the person occupying the premises searched in which items of evidence and documents relating to the acts referred to in I are likely to be found, they may, with the permission – which may be given in any form – of the judge who made the order, immediately search the safe-deposit box. A reference to such permission shall be entered in the record referred to in IV. The search and seizure shall be carried out under the authority and supervision of the judge who authorised them. To that end, he or she shall give all instructions to the officials engaged in the operations. He or she shall appoint a senior police officer to assist with the operations and to keep him or her informed of their progress. The judge may, if he or she considers it appropriate, attend the premises while the operations are under way. He or she may at any time decide to suspend or halt the search. The occupier of the premises or his or her representative shall be orally informed of the order on site when the search is carried out and shall receive a full copy of it, for which he or she shall either sign a receipt or initial the record referred to in IV. In the absence of the occupier of the premises or his or her representative, the order shall be served by registered letter with an acknowledgement of receipt form after the search has been performed. Service shall be deemed to have been effected at the date of receipt entered on the form. If the order is not received, it shall be served personally in accordance with the provisions of Articles 550 et seq. of the Code of Criminal Procedure. The time-limit and procedure for appealing shall be set out in the documents accompanying postal or personal service. The only remedy against the order referred to in the first sub-paragraph shall be an appeal on points of law in accordance with the rules set out in the Code of Criminal Procedure. Such appeals shall have no suspensive effect. For the purposes of an appeal on points of law, time shall start to run from the date of postal or personal service of the order. III. Searches, which may not be started before 6 a.m. or after 9 p.m., shall be conducted in the presence of the occupier of the premises or of his or her representative. If that is not possible, the senior police officer shall appoint two witnesses or shall not be from his or her department or the tax authority. The tax-authority officials referred to in I may be assisted by other tax-authority officials who have been accredited in the same conditions as the inspectors. The accredited tax officials, the occupier of the premises or his or her representative and the senior police officer are the only persons authorised to see the evidence and documents before their seizure. The senior police officer shall ensure that there is no breach of professional confidence and that the rights of the defence are complied with in accordance with the provisions of the third sub-paragraph of Article 56 of the Code of Criminal Procedure. Article 58 of that Code shall be applicable. IV. A record stating how the operation was organised and how it proceeded and recording any findings shall be compiled forthwith by the tax-authority officials. An inventory of the evidence and documents seized shall be appended to it. The record and the inventory shall be signed by the tax-authority officials, a senior police officer and the persons mentioned in the first sub-paragraph of III. Any refusal to sign them shall be noted in the record. Should it prove impractical to take an inventory on site, the evidence and documents seized shall be placed under seal. The occupier of the premises or his or her representative shall be informed that he or she may be present when the seals are broken in the presence of the senior police officer. The inventory shall be taken at that time. V. The originals of the record and the inventory shall be sent to the judge who issued the search warrant as soon as they have been compiled. A copy of those documents shall be provided to the occupier of the premises or his or her representative...” Article 202 of the New Code of Civil Procedure provides: “A witness statement shall contain an account of the facts which the maker has witnessed or has personally observed. It shall state the surname, first names, date and place of birth, home address and occupation of its maker and, if relevant, any relationship by birth or by marriage to the parties, and whether the maker is in the service or employment of or has a community of interest with any of the parties. It shall also contain a statement that it has been made with a view to its being used in evidence and that its maker is aware that false testimony will render him or her liable to prosecution. The statement shall be written, dated and signed by its maker in his or her own hand. The maker of the statement shall append to it an original or photocopy of any official document establishing his or her identity and containing his or her signature.” The trial court may, however, declare witness statements that do not comply with these requirements admissible in evidence and in such cases it will be for the trial court to “decide in its unfettered discretion whether a witness statement that does not comply with the requirements of Article 202 affords guarantees sufficient to satisfy it” (Court of Cassation, Civil Division, 29 April 1981, Civil Bulletin I, no. 143; Court of Cassation, Civil Division, 23 January 1985, Civil Bulletin II, no. 20). | 0 |
dev | 001-106169 | ENG | UKR | CHAMBER | 2,011 | CASE OF PASKAL v. UKRAINE | 3 | Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-3;Violations of Art. 6-1 | Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy | 7. The applicant was born in 1966 and lives in Simferopol. In 1999 the applicant obtained a university degree in law and at the material time was serving as a police officer in Simferopol. 8. On 1 July 1999 the applicant was arrested on suspicion of having taken part in a robbery on 10 February 1999. 9. At 9:20 a.m. on 1 July 1999 the applicant signed a procedural rights notification form, having noted in it that he wished to appoint M. as his advocate. 10. At 9:25 a.m. on the same date the applicant was questioned, without a lawyer, about the robbery. During this questioning the applicant provided various personal details and stated that he had no knowledge of the robbery, as on the date at issue he was dividing his time between his professional duties as a police officer and his studies at law school. He also named witnesses on his behalf. The interview transcript started with the following paragraph, undersigned by the applicant in addition to his general signature under the document: “My rights have been explained to me under Article 63 of the Constitution of Ukraine, according to which I have a right to refuse to testify concerning myself. I wish to testify concerning the case at issue”. 11. On 3 July 1999 the applicant, being questioned in the presence of M. (the advocate, mentioned by the applicant in his rights notification form), stated that he confirmed his testimony of 1 July 1999 and had nothing to add. 12. In the course of further investigation, the authorities increased the charges, eventually imputing to the applicant organisation of a gang and participation in over thirty robberies. The investigation questioned some 120 witnesses, carried out some twenty reconstructions of crime scenes and ordered numerous expert assessments. 13. On 20 July 2000 the pre-trial investigation was completed and the applicant, along with eighteen other individuals implicated in membership of his gang, was committed for trial to the Supreme Court of the Autonomous Republic of the Crimea (subsequently renamed the Court of Appeal of the Autonomous Republic of the Crimea, and hereafter “the ARC Court”). 14. On 4 May 2001, following familiarisation of the defendants with the case file materials and completion of other procedural formalities, the ARC Court held a preliminary hearing in the case and scheduled the trial for 5 June 2001. 15. Having held some eighteen hearings between June and December 2001, the ARC Court adjourned the proceedings following a request by one of the defendants that the hearings be recorded, for which the technical means were not available at the time. 16. On 15 May 2002 the ARC Court resumed consideration of the case. 17. On 17 January 2003 the applicant complained in court that he had been tortured during the pre-trial investigations. Following an inquiry in respect of his complaint, on 5 February 2003 the Prosecutors’ Office of the ARC refused to institute criminal proceedings against the police officers implicated by the applicant in his ill-treatment, for want of evidence of any such ill-treatment. According to the materials in the case file the applicant did not appeal against this decision. 18. On 29 January 2003 A.K., the applicant’s co-defendant, complained that Judge Sh., presiding over the case, was not impartial. In particular, in the beginning of the trial she had given an interview to the Flag Rodiny newspaper, expressing an opinion about the defendants’ guilt. A.K. presented a copy of the newspaper published on 29 June 2001, featuring the article entitled ‘Changelings with police epaulettes’. In this article the Judge was, in particular, quoted as saying: “Most often it was the well-off residents of the Crimea or the Zaporizhzhya Region who were the victims of armed assaults ... The robbers acted cruelly and coldheartedly, using any means to get the money. They acted as persons absolutely certain of their impunity. Such audacity ... I, frankly speaking, have never encountered during my eleven years of judicial practice. Yes, I am aware of occasions when criminals have used police uniforms for various criminal plots, however, those individuals had nothing to do with the law-enforcement bodies, unlike Paskal and his comrades, who managed to combine law-enforcement service with robbery. The defendants, I should say, admit their guilt in part, however, their conduct is extremely challenging. They constantly lodge absolutely unfounded requests for the removal of the judge and the prosecutor. I assume, however, that in the course of the hearings their arrogance will vanish. The hearings are likely to last a long time”. 19. On the same date Judge Sh. addressed a letter to the Prosecutor of the ARC requesting that the circumstances of the publication be investigated. She maintained that the publication, which, in her opinion, could adversely influence the proceedings, was inaccurate, as she had never given the said interview to the newspaper. 20. Following Judge Sh.’s application, the Prosecutors’ Office established that the Flag Rodiny newspaper belonged to the Black Sea Fleet of the Russian Federation in Sevastopol. A request was sent to the Military Prosecutors’ Office of the Russian Federation to investigate the matter. According to the case file materials, there was no further follow-up. 21. Between 15 May 2002 and 22 May 2004 the ARC Court held some 150 hearings in the applicant’s case. 22. On 17 November 2004 the ARC Court pronounced its judgment, which was presented on some 200 pages. The court convicted the applicant of being a member of a gang and of numerous counts of robbery, and sentenced him to fourteen and a half years’ imprisonment. The court examined in detail and rejected the complaints by the applicant and his coaccused that they had been ill-treated by the investigative authorities. 23. On 22 December 2004 the applicant appealed in cassation, alleging that the trial court had erred in its assessment of the facts and application of the law and imposed a disproportionately heavy sentence on him. 24. On 15 August 2005 the applicant amended his initial appeal. He contended, in particular, that Judge Sh. was not impartial, since she had given an interview to the Flag Rodiny newspaper implying that the applicant was guilty long before the conviction had been pronounced. He also complained in general terms that his right to defence had been infringed, in particular as the trial court had not allowed him to be represented by several unnamed defenders and as the initial bill of indictment allegedly contained fewer charges than those examined by the court. 25. On 16 March 2006 the Supreme Court rejected the applicant’s appeal, finding that the trial court had properly assessed the facts and applied the law to his case and that there were no procedural irregularities in the proceedings such as would prejudice the applicant’s right to a fair trial. It likewise found that there was no evidence that the applicant had been illtreated. 26. On 3 July 1999 the Prosecutors’ Office of the ARC remanded the applicant in custody for ten days pending determination of the grounds for his indictment. 27. On 12 July 1999 the applicant was presented with a bill of indictment and his detention was extended until 1 September 1999. Subsequently, on several occasions the Prosecutors’ Office of the ARC took decisions to extend the term of the applicant’s detention, the reasoned texts of which, if any, have not been provided to the Court. 28. Initially the applicant was held in several Temporary Detention Centres (ITU), which were purportedly not suitable for long-term detention. Eventually, by May 2000 he was transferred to the Simferopol Pretrial Detention Centre (SIZO) no. 15, where he had allegedly no access to quality medical assistance, in particular to the services of a specialist in endocrinology. 29. On 7 April 2000 the Prosecutors’ Office of the ARC extended the applicant’s detention until 3 May 2000. According to the applicant, after this date and before the date of his conviction on 17 November 2004 his detention was not based on any formal decision. The applicant raised a relevant complaint before the Supreme Court of Ukraine in amendments to his cassation appeal and obtained no response. 30. According to the Government, on 4 May 2001 the ARC Court extended the applicant’s detention for the period of the trial, finding that there were no reasons to release him and modify the custodial preventive measure in his respect. The Government did not provide a copy of this decision. 31. On 7 June 2005 the applicant instituted civil proceedings against Flag Rodiny and several other newspapers and a local television company which had provided media coverage of the trial, complaining that they had portrayed him as a criminal before he had been finally convicted. 32. On 7 May 2007 the Kyivsky District Court of Simferopol rejected his claims, in particular, as lodged outside the one-year statute of limitations without any valid grounds for the delay. 33. On 5 March 2008 the ARC Court upheld this decision. 34. On 14 July 2008 the Supreme Court of Ukraine refused the applicant’s request for leave to appeal in cassation. 35. The relevant provisions of Articles 59 and 63 of the Constitution of Ukraine of 1996 concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25). 36. The relevant provisions of the Code of Criminal Procedure of Ukraine of 1960 concerning preventive measures pending trial are quoted in the judgment in the case of Yeloyev v. Ukraine, no. 17283/02, § 35, 6 November 2008. | 1 |
dev | 001-78031 | ENG | RUS | CHAMBER | 2,006 | CASE OF KLIMENTYEV v. RUSSIA | 3 | No violation of Art. 6 | Peer Lorenzen | 7. The applicant was born in 1954 and lives in the city of Nizhniy Novgorod. 8. On 7 March 1995 criminal proceedings were brought against the applicant on suspicion of his involvement in a number of economic crimes. 9. From 30 July to 28 October, on 15 November 1996 and on 15 and 16 January 1997 the applicant and his defence team studied the case-file. 10. On 21 April 1997 the Nizhniy Novgorod Regional Court (“the Regional Court”, Судебная коллегия по уголовным делам Нижегородского областного суда) convicted the applicant of some charges and acquitted him of the rest, sentencing him to one and a half year of imprisonment and the forfeiture of part of his property. 11. The judgment of 21 April 1997 was quashed on appeal by the Supreme Court of the Russian Federation (“the Supreme Court”, Верховный Суд Российской Федерации) on 17 July 1997. The case was remitted for fresh examination at first instance. 12. Between 30 September and 20 November 1997 the applicant and his counsel were again given an opportunity to study the case-file. 13. On 24 November 1997 the hearings recommenced at first instance. 14. The applicant's civil defender Mr Chumak and his counsel Mr Kozlov failed to attend the hearing of 6 May 1998. 15. Mr Chumak excused himself by reference to his previous engagements in a different set of proceedings. It appears that Mr Kozlov was undergoing medical treatment in a hospital. 16. In view of their absence, the court adjourned the hearing until 8 May 1998. On 8 May 1998 Mr Chumak and Mr Kozlov were again absent and, despite the applicant's proposal to continue the examination of the case in their absence, the court again adjourned the hearing, this time until 19 May 1998. 17. On 19 May 1998 both the civil defender and counsel Kozlov attended the hearing. 18. According to the transcript, at the hearing the applicant requested the court to admit Mrs Moskalenko as a “specialist in international law”. The court considered the request unfounded and irrelevant as there was no need for advice on international law at that stage of proceedings. 19. According to the applicant, he requested to admit Mrs Moskalenko as a replacement counsel for Mr Kozlov who was present and unfit effectively to participate in the hearing due to his medical condition. 20. From the hearing transcript it does not transpire that either the applicant or his defence counsel objected to the decision rejecting the applicant's request with reference to Mr Kozlov's alleged inability to participate in the further examination of the case on medical grounds. 21. During the trial the Regional Court heard more than thirty five witnesses in total, both for the prosecution and the defence. 22. The court refused the applicant's requests to call certain witnesses, including the former Regional Governor, the Regional Prosecutor and other officials, and admitted and considered five witness statements taken at the pre-trial stage of proceedings and during the first round of proceedings at first instance without hearing the respective witnesses in person. 23. Two of these witnesses were the Norwegian nationals R. and B. who had both been questioned by the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (“the Norwegian authority”, ØKOKRIM) and the Russian investigators in Norway on 20 February 1996. 24. The trial court attempted to secure the presence of these witnesses in person by making an official request to that effect to the Norwegian authorities. 25. By letters of 26 and 27 January 1998 R. and B. refused to appear and give evidence to the court, and on an unspecified date the Norwegian authorities refused to secure their presence at the trial by force. 26. Consequently, the witnesses R. and B. did not attend the trial and the applicant could not cross-examine them. 27. The third witness was a German national P. who gave evidence at the pre-trial stage of proceedings and during the first round of proceedings in 1997. The applicant and his counsel were able to cross-examine him during the first round of proceedings. 28. The trial court unsuccessfully tried to secure his presence but P. was in Germany and could not be found. 29. The fourth and fifth witnesses, the Russian nationals M. and A., were also questioned during the pre-trial investigation and during the trial in 1997. The applicant and the defence team were able to cross-examine them during the proceedings in 1997. 30. From the case-file and the documents presented by the Government it transpires that during the hearings the court summoned these two witnesses and the authorities repeatedly undertook various measures, including questioning the close relatives and the witnesses' connections, with a view to securing their presence at the trial. Apparently these measures proved futile as the witnesses' whereabouts could not be established. 31. It appears that the prosecution case contained several documents in English and Norwegian. 32. All documents admitted by the court as evidence were translated either by certified translators or by the staff of the Norwegian embassy. Most of the translations were attached to the case-file prior to the beginning of the first instance hearings, whilst some of them on 24 April 1998 (numbering 28 pages) and 19 May 1998 (16 pages), were submitted already after the beginning of the trial. 33. According to the Government, on one occasion the defence requested translation of a document which had not been used by the prosecution or the court. The request was granted and the necessary translation was made. 34. The court also admitted a number of expert reports (technical, medical, graphologist and others) which had been ordered by the prosecution during the pre-trial stage of proceedings. 35. It follows from the case-file that the applicant was officially notified of most of the prosecution decisions to carry out expert examinations (counting more than twelve) within a month from the date on which such decisions had been taken. 36. The decisions of 22 December 1995, 18 and 22 January 1996 to carry out expert examinations were served on the applicant on 12 April 1996. The decision to carry out expert examination dated 28 March 1996 was served on him on 16 May 1996. 37. At the time when these decisions were served, both the applicant and his counsel were officially informed about the procedural rights of the accused, including the right to challenge an expert, seek an appointment of a particular person as an expert, adduce further questions, be present during the expert examination in person and make any comments and be informed of expert conclusions. The accused also had an opportunity to make related requests and motions in writing. 38. In respect of the decisions of 28 March and 30 April 1996 to carry out technical examinations, the applicant requested to provide him with copies of some documents. The copies were provided to him on 21 June 1996. As regards the decision of 22 January 1996 to carry out technical examinations, the applicant stated that it “might have been more objective” to carry out that examinations in Moscow or St Petersburg. 39. The copies of the notification reports state that the applicant and his counsel did not make any additional requests and motions. 40. On 27 May 1998 the Regional Court found the applicant guilty on charges of misappropriation, embezzlement, bribery and the attempt not to return money from abroad. 41. According to the judgment, the applicant and a co-accused Mr K., the director of a shipyard “Oka”, had tampered with documents with a view to embezzling the shipyard's property. The director, acting on behalf of the shipyard, was found to have arranged large-scale money transfers under fraudulent contracts with the companies owned by the applicant, whereas the applicant was found to have bribed the director by opening bank accounts in the name of Mr K. in Norway and transferring the stolen money there. Among other things, the applicant was also convicted of having extorted money from a marketplace owned and run by the companies “Zhanto” and “NL TOP”, and from a casino owned and run by a company “Slot”. 42. In total, the court sentenced the applicant to six years' imprisonment and the confiscation of part of his property. The court also upheld civil claims for damages by the shipyard “Oka” and three other companies, “Zhanto”, “NL TOP” and “Slot”. 43. The applicant's conviction was based on various pieces of evidence, i.e. numerous documentary items, including accounting, financial and contractual papers reflecting the operation of sham companies owned and run by the applicant and Mr K. as well as oral and written evidence given by more than thirty-five witnesses and various expert examinations. 44. A copy of the judgment of 27 May 1998 was served on the applicant on 3 June 1998. 45. Later it was discovered that the copy contained errors and misprints. 46. On 8 June 1998 the Regional Court corrected a number of clerical and technical mistakes in the judgment and ordered that the applicant be furnished with the amended version. 47. The applicant claims that he did not receive the amended version. 48. The records in the case-file indicate that the amended copy of the judgment was served on the applicant against his signature on 11 June 1998. 49. The Government submit that the whole trial was taken down in shorthand and taped and that the respective records were all available to the interested parties, including the applicant and his counsel. 50. On 28 May 1998 the applicant requested to study records, audiotape recordings and shorthand records. 51. The applicant was provided with this opportunity on 10, 11, 15 and 16 June 1998. 52. On the last date a specialist of the Regional Court certified that the applicant had been given access to the trial record, though he had refused to study audio records and shorthand records. 53. On 17 June 1998 a judge of the Regional Court decided that the defence counsel should be given access to the records between 17 June and 23 June 1998. 54. The deadline for filing objections was set on 25 June 1998 accordingly. 55. It does not appear from the case-file that the applicant ever challenged the accuracy of the trial records. 56. On 27 May 1998 the Regional Court made a number of separate rulings (частные определения) in the case. 57. In one of these rulings the court noted that there had been breaches of the relevant rules of criminal procedure during the investigation and that these breaches had been remedied during the trial. 58. In particular, the court established that the defendants had been informed about the commissioning of expert reports in the case only after the respective examinations were over. 59. The court considered that this failure did not invalidate the conclusions of the experts' reports and that the applicant had failed to contest the results of the reports during the investigation or during the trial or request additional or repeated examinations to be carried out. 60. The court also noted that a number of documents in the case-file were in foreign languages, but considered that this did not violate the applicant's defence rights because the documents were similar to or copies of other documents in Russian and that in any event all relevant documents had been translated into Russian during the trial. 61. The court further noted that certain statements of witnesses had been admitted as evidence, even though they gave no indication as to the time or place of questioning. To verify the relevant points, these witnesses as well as other witnesses had been questioned in the courtroom on the circumstances of the questioning. 62. The defence appealed against the judgment of 27 May 1998 to the Supreme Court. 63. In their appeal, inter alia, the applicant's counsel contested the admissibility of certain evidence admitted by the court such as expert reports, documents in foreign languages, certain procedural documents, statements of witnesses made during the pre-trial investigation and at the first round of proceedings at first instance, statements of witnesses taken by the Norwegian police, and other evidence obtained in Norway, claiming that were allegedly in breach of the domestic procedural rules. 64. Furthermore, it was stated that the applicant's defence had not had due access to the trial records and the quality of the defence had been impaired by the Regional Court's refusal to admit Mrs Moskalenko as a replacement for a lawyer who was sick. 65. On 16 June 1998 Mrs Moskalenko joined the defence team. In July and on 10 August 1998 she referred to various difficulties in organising the defence and made several requests to the Supreme Court to adjourn the hearing. 66. She also complained that the applicant had been served neither with the final copy of the judgment, nor with the rulings of 27 May 1998 and that the defence had had no access to the verbatim record and certain volumes of the case-file. 67. On 29 June 1998 the Supreme Court granted one of her requests to adjourn the hearing. The hearing initially scheduled for 29 June 1998 was postponed. 68. Thereafter Mrs Moskalenko failed to appear at the hearing on 30 July 1998. 69. On 10 August 1998 Mrs Moskalenko requested to postpone a further hearing claiming that the defence had not been properly notified of the judgment and separate rulings. 70. In response to her request for adjournment, the Supreme Court ruled that both the defence in general and Mrs Moskalenko in particular had had sufficient time to examine the trial records, study the first instance judgment and prepare for the case at least between 16 June and 30 July 1998 and turned down the request as unfounded. 71. The appeal hearing took place on 10 August 1998. 72. On 10 August 1998, in the presence of the applicant's defenders, Mrs Moskalenko and Mr Chumak, and the prosecution, the Supreme Court examined the appeals and, with minor alterations, confirmed the judgment of 27 May 1998. 73. The court concluded that there had been no significant breaches of national procedural law or international standards during the trial. 74. As to the complaints about the handling and assessment of the evidence, the court found that the lower court had properly admitted and considered the evidence in the case and that the conclusions of the lower court had been reasonable and substantiated. It also noted that the defence had been furnished with Russian translations of foreign documents during the hearing. 75. The court further considered that the applicant had been adequately represented throughout the pre-trial investigation and the trial, and that at no time during the proceedings had he been deprived of professional legal advice. 76. In respect of the events of 19 May 1998, the court noted that the applicant's lawyer had never applied for an adjournment of the hearing for health reasons and the Regional Court's refusal to admit Mrs Moskalenko as a further lawyer did not constitute a violation of the applicant's right to defence. 77. According to Sections 78 and 80 of the Code of Criminal Procedure of the RSFSR (the Russian Soviet Federal Social Republic) of 1960, as in force at the relevant time, in cases requiring special knowledge of science, technology, art or particular skill, an investigative authority or a court may appoint an expert to carry out an expert examination. The conclusions of an expert are not binding on an investigating authority or a court but any disagreement with them must be motivated. By Sections 81 and 290 of the Code incomplete, unclear, unjustified or dubious expert conclusions may trigger a decision by a court or an investigator ordering additional or repeated expert examinations. In such cases the court takes the decision having heard the opinions of the participants of the proceedings (Section 276 of the Code). 78. Section 185 of the Code states that an accused and his counsel have the right to challenge an expert, seek an appointment of a particular person as an expert, adduce further questions, be present during the expert examination in person and make any comments and be informed of expert conclusions. In case the respective request was granted, an investigation alters its decision to carry out the examination accordingly. 79. By Section 193 of the Code, expert conclusions should be presented to the applicant who has the right to respond or object to these conclusions as well as the right to request the authority to put additional questions to the expert or carry out an additional or a repeated expert examination. 80. Having decided that the collected evidence is sufficient to prepare the bill of indictment, an investigator informs the accused that the investigation is terminated and that the accused has the right to study the entirety of the case personally and with the assistance of his defence counsel and to request the investigator to carry out an additional investigation (Sections 201, 202 and 203 of the Code). The investigator should draw up a report reflecting the progress of the defence in studying the case. The investigator cannot limit the time for study, except in cases where the accused and his counsel manifestly protract the process. 81. According to Section 17 of the Code, criminal proceedings are conducted in Russian. The contents of documents relating to court proceedings and investigation are made available to the accused in a language that he understands. 82. A translator appointed by a court or an investigator is under an obligation to make correct translations and may be held criminally liable for incorrect translations under Section 57 of the Code and Section 307 of the Criminal Code of Russia. 83. By Section 276 of the Code of Criminal Procedure, participants in the proceedings, including the accused and his defendants, have the right to make requests to summon new witnesses, experts and specialists or retrieve items of evidence and documents etc. A court, having heard other participants in the proceedings, should examine each such request and either grant it or give a motivated decision refusing it. 84. Section 292 of the Code provides that documents adduced to the case or presented by a party during a hearing and containing description of relevant facts should be read out. 85. By Section 320 of the Code, a copy of the first instance judgment should be served on an accused or an acquitted within three days from its delivery. 86. By Section 249 of the Code, a defender takes part in examination of the body of evidence, gives his opinion on various issues arising during the court proceedings, including the substance of accusations, any mitigating circumstances as well as the penalty and civil liability for the commission of a crime. 87. By Section 47 of the Code, advocates (counsel) and representatives of professional or other social unions may act as defenders. According to Section 250 of the Code, representatives of social organisations and staff may act as “civil defenders” (общественные защитники). As such they have the right to present evidence, take part in examination of evidence, make motions and challenges, participate in arguments as well as give their opinion on any mitigating or acquitting circumstances and the penalty. 88. Section 73 of the Code imposes an obligation on a witness to attend and to give truthful evidence to the best of his knowledge as well as to respond to questions. In case of failure to respect this obligation the witness may be brought before the authority by force and punished by a fine of up to a third of a monthly minimum wage and/or be held liable of a criminal offence. 89. According to Sections 240 and 245 of the Code, a trial court must carry out a first-hand examination of all evidence in the case, including, among other things, hearing of witnesses, the participants in criminal proceedings (a prosecutor, an accused, a defender, a victim, a civil claimant and a civil respondent and their representatives) having equal procedural rights concerning submission and examination of evidence as well as making of various requests. 90. Sections 277 and 286 of the Code state that in case of a witness's objective inability to attend a court, having heard the participants of the proceedings, may decide to read out the statements given by the witness at earlier stages of the proceedings. | 0 |
dev | 001-60822 | ENG | GBR | CHAMBER | 2,002 | CASE OF A. v. THE UNITED KINGDOM | 1 | No violation of Art. 6-1 as regards parliamentary immunity;No violation of Art. 6-1 as regards lack of legal aid;No violation of Art. 8;No violation of Art. 14+6;No violation of Art. 13 | Gaukur Jörundsson;Nicolas Bratza | 11. The applicant is a United Kingdom national, born in 1971 and living in Bristol. She lives with her two children in a house owned by the local housing association, Solon Housing Association (SHA). 12. The SHA moved the applicant and her children to 50 Concorde Drive in 1994 following a report that she was suffering serious racial abuse at her then current address. 13. Concorde Drive is in the parliamentary constituency of Bristol NorthWest. On 17 July 1996, the member of Parliament (MP) for the Bristol North-West constituency, Mr Michael Stern, initiated a debate on the subject of municipal housing policy (and the SHA in particular) in the House of Commons. During the course of his speech, the MP referred specifically to the applicant several times, giving her name and address and referring to members of her family. He commented as follows: “The subject of anti-social behaviour by what newspapers frequently call 'neighbours from hell' has been a staple of social housing throughout the country for some time, and the government are, of course, in the process of taking steps to provide local authorities with the power to do something about such behaviour. Whether authorities such as Bristol will actually use the power is another matter. My reason for raising the subject of 50 Concorde Drive in my constituency and the behaviour of its shifting population is not just to draw attention to another example of neighbours from hell; it is also to note that housing practices by local authorities, which it appeared had been stamped out in the 1970s, are beginning to re-emerge in the voluntary housing movement. ... Solon Housing Association (South-West) Ltd purchased 50 Concorde Drive in my constituency in the early 1990s ... and in early 1994 it moved in as the new tenants [the applicant] and her two children, who are now aged three and six. Her brother, currently in prison, also gives 50 Concorde Drive as his permanent address. ... The Government's own Green Paper, 'Anti-Social Behaviour on Council Estates', published in April 1995, noted: 'Such behaviour manifests itself in many different ways and at varying levels of intensity. This can include vandalism, noise, verbal and physical abuse, threats of violence, racial harassment, damage to property, trespass, nuisance from dogs, car repairs on the street, joyriding, domestic violence, drugs and other criminal activities such as burglary.' Inevitably, the majority – if not all – of these activities have been forced on the neighbours of 50 Concorde Drive during the tenancy of that property and the garage further up the street that goes with it, by [the applicant], her children and their juvenile visitors, who seem strangely reluctant to attend school during normal hours, and even more adult visitors who come to the house at all times of the day and night, frequently gaining entry by unorthodox means such as the bathroom window. Indeed, it is fair to say that there have been times when occupation of the house by the visitors has been more frequent than that of [the applicant]. So far as the garages grouped further along Concorde Drive are concerned – one of the garages automatically comes with the tenancy of No. 50 – complaints consist of numerous youths hanging around, vandalising cars, climbing on and damaging the garage roofs, under the apparent leadership, or at least the spirited concurrence of the [applicant's] family, adult and children, which makes improvement of those garages by other owners a complete waste of time. More seriously, arson inside the garage belonging to No. 50, and the regular destruction of its doors, have led other legitimate users of the garage to park their vehicles elsewhere for safety reasons. But it is the conduct of [the applicant] and her circle which gives most cause for concern. Its impact on their immediate neighbours extends to perhaps a dozen houses on either side. Since the matter was first drawn to my attention in 1994, I have received reports of threats against other children; of fighting in the house, the garden and the street outside; of people coming and going 24 hours a day – in particular, a series of men late at night; of rubbish and stolen cars dumped nearby; of glass strewn in the road in the presence of [the applicant] and regular visitors; of alleged drug activity; and of all the other common regular annoyances to neighbours that are associated with a house of this type.” 14. The applicant denies the truth of the majority of the allegations. The MP has never tried to communicate with her regarding the complaints made about her by her neighbours and has never attempted to verify the accuracy of his comments made in his speech either before or after the debate. Shortly before the debate, the MP issued a press release to several newspapers, including the Bristol-based Evening Post and the national Daily Express. The press release was subject to an embargo prohibiting disclosure until the precise time when the speech commenced. The contents of the press release were substantially the same as those of the MP's speech. The following day, both newspapers carried articles consisting of purported extracts of the speech, although these were based upon the press release. Both articles included photographs of the applicant and mentioned her name and address. The main headline in the Evening Post was: “MP Attacks 'Neighbours From Hell' ” In the Daily Express the headline was: “MP names nightmare neighbour” 15. The applicant was approached by journalists and television reporters asking for her response to the MP's allegations and her comments were summarised in each newspaper the same day, although they were not given as much prominence. 16. The applicant subsequently received hate mail addressed to her at 50 Concorde Drive. One letter stated that she should “be in houses with your own kind, not in amongst decent owners”. Another letter stated: “You silly black bitch, I am just writing to let you know that if you do not stop your black nigger wogs nuisance, I will personally sort you and your smelly jungle bunny kids out.” 17. The applicant was also stopped in the street, spat at and abused by strangers as “the neighbour from hell”. 18. On 7 August 1996 a report was prepared for the SHA by a group which monitors racial harassment and attacks. The report found that “it has now come to the point where [the applicant] has been put in considerable danger as a result of her name being released to the public”. The report recommended that the applicant be re-housed as a matter of urgency. She was re-housed in October 1996 and her children were obliged to change schools. 19. On 2 August 1996 the applicant wrote through her solicitors to the MP outlining her complaints and seeking his comments thereon. The letter was referred to the Office of the Parliamentary Speaker by the MP. The Speaker's representative replied to the MP on 12 August 1996 to the effect that the MP's remarks were protected by absolute parliamentary privilege: “Subject to the rules of order in debate, Members may state whatever they think fit in debate, however offensive it may be to the feelings or injurious to the character of individuals, and they are protected by this privilege from any action for libel, as well as from any other molestation.” This letter was copied and forwarded to the applicant's solicitors in September 1996. 20. Also on 2 August 1996, the applicant's solicitors wrote to the then Prime Minister, Mr John Major, asking that, as leader of the political party to which Mr Stern belonged, he investigate the applicant's complaints and take appropriate action. The Prime Minister's Office replied on 6 August 1996, stating that: “It is a matter for individual Members of Parliament to decide how they deal with their constituents and it is not for the Prime Minister to comment. There is a strict Parliamentary convention that Members of Parliament do not intervene in the affairs of other Members' constituencies and this applies equally to the Prime Minister.” 21. Words spoken by MPs in the course of debates in the House of Commons are protected by absolute privilege. This is provided by Article 9 of the Bill of Rights 1689, which states: “... the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in a court or place out of Parlyament.” 22. The effect of this privilege was described by Lord Chief Justice Cockburn in Ex parte Watson (1869) Queen's Bench Reports 573 at 576: “It is clear that statements made by Members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third party.” 23. Statements made by MPs outside the Houses of Parliament are subject to the ordinary laws of defamation and breach of confidence, save where they are protected by qualified privilege. 24. The question whether or not qualified privilege applies to statements made in any given political context turns upon the public interest. In Reynolds v. Times Newspapers Ltd [2001] 2 Appeal Cases 127, which concerned allegations made in the British press about an Irish political crisis in 1994, Lord Nicholls of Birkenhead stated in the House of Lords, at page 204: Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegations may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.” 25. Press coverage, to the extent that it fairly and accurately reports parliamentary debates, is generally protected by a form of qualified privilege which is lost only if the publisher has acted “maliciously”. “Malice”, for this purpose, is established where the report concerned is published for improper motives or with “reckless indifference” to the truth. A failure to make proper enquiries is not sufficient in itself to establish malice, but it may be evidence from which malice (in the sense of reckless indifference to the truth) can reasonably be inferred. 26. MPs can waive the absolute immunity which they enjoy in Parliament as a result of section 13 of the Defamation Act 1996, which provides: “(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament. (2) Where a person waives that protection – (a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and (b) none of those things shall be regarded as infringing the privilege of either House of Parliament. (3) The waiver by one person of that protection does not affect its operation in relation to another person who has not waived it. (4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.” 27. General control is exercised over debates by the Speaker of each House of Parliament. Each House has its own mechanisms for disciplining members who deliberately make false statements in the course of debates. Deliberately misleading statements are punishable by Parliament as a contempt. Alternatively, as the Parliamentary Select Committee on Procedure (1988-89) has observed: “... there already exists a wide range of avenues which can be pursued by an aggrieved person who wishes to correct or rebut remarks made about him in the House. He can approach his Member of Parliament with a view to his tabling an Early Day Motion, or an amendment where appropriate; there may be cases which can be raised through Questions if some ministerial responsibility can be established; he can petition the House, through a Member; and he can approach directly the Member who made the allegations in the hope of persuading him that they are unfounded and that a retraction would be justified. We believe that in these circumstances, the House would not expect a rigid adherence to the convention that one Member does not take up a case brought by the constituent of another, particularly if the latter was the source of the statement complained of, and so long as the courtesies of proper notification were observed.” 28. Under Schedule 2, Part II of the Legal Aid Act 1988, “[p]roceedings wholly or partly in respect of defamation” are excepted from the scope of the civil legal aid scheme. 29. “Green Form” assistance is available to potential litigants with insufficient means in order to allow them to receive two hours' free legal advice from a solicitor in cases of alleged defamation. The time can be extended upon application. 30. Under section 58 of the Courts and Legal Services Act 1990, solicitors may enter into conditional fee agreements in respect of any type of proceedings specified in an Order made by the Lord Chancellor. A conditional fee agreement is defined under that section as an agreement in writing between a solicitor and his client which provides that the solicitor's fees and expenses, or any part of them, are to be payable only in specified circumstances. The Conditional Fee Agreements Order 1998 (Statutory Instrument 1860 of 1998) permitted conditional fee agreements in relation to “all proceedings”. The Order entered into force on 30 July 1998. A conditional fee agreement cannot prevent an unsuccessful litigant from being potentially liable to pay all or part of his opponent's costs in connection with the proceedings. 31. The limitation period applicable to defamation proceedings in respect of statements made in July 1996 was three years pursuant to section 4A of the Limitation Act 1980, as inserted by section 57(2) of the Administration of Justice Act 1985. 32. A joint committee of both Houses of Parliament was set up in July 1997 and tasked with reviewing the law of parliamentary privilege. The committee received written and oral evidence from a wide variety of sources from within the United Kingdom and abroad and held fourteen sessions of evidence in public. Its report was published in March 1999. Chapter 2 sets out its conclusions on parliamentary immunity: “38. The immunity is wide. Statements made in Parliament may not even be used to support a cause of action arising out of Parliament, as where a plaintiff suing a member for an alleged libel on television was not permitted to rely on statements made by the member in the House of Commons as proof of malice. The immunity is also absolute: it is not excluded by the presence of malice or fraudulent purpose. Article 9 protects the member who knows what he is saying is untrue as much as the member who acts honestly and responsibly. ... In more precise legal language, it protects a person from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament. 39. A comparable principle exists in court proceedings. Statements made by a judge or advocate or witness in the course of court proceedings enjoy absolute privilege at common law against claims for defamation. The rationale in the two cases is the same. The public interest in the freedom of speech in the proceedings, whether parliamentary or judicial, is of a high order. It is not to be imperilled by the prospect of subsequent inquiry into the state of mind of those who participate in the proceedings even though the price is that a person may be defamed unjustly and left without a remedy. 40. It follows that we do not agree with those who have suggested that members of Parliament do not need any greater protection against civil actions than the qualified privilege enjoyed by members of elected bodies in local government. Unlike members of Parliament, local councillors are liable in defamation if they speak maliciously. We consider it of utmost importance that there should be a national public forum where all manner of persons, irrespective of their power or wealth, can be criticised. Members should not be exposed to the risk of being brought before the courts to defend what they said in Parliament. Abuse of parliamentary freedom of speech is a matter for internal self-regulation by Parliament, not a matter for investigation and regulation by the courts. The legal immunity principle is as important today as ever. The courts have a duty not to erode this essential constitutional principle.” 33. Article 40 of the Statute of the Council of Europe provides: “(a) The Council of Europe, representatives of members and the Secretariat shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions. These immunities shall include immunity for all representatives to the Parliamentary Assembly from arrest and all legal proceedings in the territories of all members, in respect of words spoken and votes cast in the debates of the Assembly or its committees or commissions. (b) The members undertake as soon as possible to enter into agreement for the purpose of fulfilling the provisions of paragraph (a) above. For this purpose the Committee of Ministers shall recommend to the governments of members the acceptance of an agreement defining the privileges and immunities to be granted in the territories of all members. In addition, a special agreement shall be concluded with the Government of the French Republic defining the privileges and immunities which the Council shall enjoy at its seat.” 34. In pursuance of paragraph (b) above, the member States, on 2 September 1949, entered into the General Agreement on Privileges and Immunities of the Council of Europe. This provides, in its relevant parts, as follows: “Article 14 Representatives to the Parliamentary Assembly and their substitutes shall be immune from all official interrogation and from arrest and from all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions. Article 15 During the sessions of the Parliamentary Assembly, the Representatives to the Assembly and their substitutes, whether they be members of Parliament or not, shall enjoy: (a) on their national territory, the immunities accorded in those countries to members of Parliament; (b) on the territory of all other member States, exemption from arrest and prosecution. ...” 35. Article 5 of the Protocol to the General Agreement on Privileges and Immunities of the Council of Europe provides: “Privileges, immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned, but in order to safeguard the independent exercise of their functions in connection with the Council of Europe. Consequently, a member has not only the right but the duty to waive the immunity of its representative in any case where, in the opinion of the member, the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded.” 36. Article 9 of the Protocol on the Privileges and Immunities of the European Communities, adopted in accordance with Article 28 of the Treaty establishing a Single Council and a Single Commission of the European Communities, provides: “Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.” 37. Under Article 57 § 1 of the Federal Constitutional Law members of the Nationalrat (the lower house of Parliament) may never be held liable for votes cast in the exercise of their functions or on the ground of oral or written statements made in the course of their functions – so-called “professional immunity”. In these matters, members enjoy immunity from criminal, civil and administrative proceedings. The President however may require a member to keep to the subject or call the member to order if he/she violates the decency and dignity of the House or makes defamatory statements (section 102 of the Standing Orders Act). 38. Under Article 57 § 3, criminal or civil proceedings against an MP may be taken without the consent of the Nationalrat only where they are “manifestly not connected with the political activity of the member in question” – so-called “non-professional immunity”. MPs may therefore be subject to civil proceedings, the issue of whether the matter has manifestly no connection with their duties being determined by the prosecuting authorities. Where the authority considers that that connection is manifest or unclear, it must seek the consent of the Nationalrat. Where the MP concerned or one-third of the members of the Immunity Committee require it, consent must also be asked of the Nationalrat. According to the prevailing view, this level of immunity merely prevents legal action for a limited period of time, proceedings becoming possible once the MP loses his/her immunity status. 39. The Austrian Government emphasised that these provisions had strong historical roots in the national legal system, serving to guarantee the protection of MPs in their political activity, in particular their freedom to vote and state their views. 40. Articles 58 and 59 of the Belgian Constitution prohibit proceedings against a member of either Federal Chamber of Parliament concerning the expression of opinion or votes cast. Save in the case of flagrant délit, no member of a Chamber may be summoned before a court or arrested during a parliamentary session unless the Chamber has given consent. This immunity, even against acts infringing the rights of citizens, is regarded in domestic law and practice as an essential guarantee for the functioning of the legislature and its absolute nature as essential to the efficacy of that guarantee. Private rights have to be regarded as ceding to the overriding public interest. 41. The Netherlands Government drew attention to Article 71 of the Netherlands Constitution, which confers upon members of the Senate and House of Representatives of the States General an immunity from every category of legal proceedings. 42. They pointed out that the right to parliamentary immunity in the Netherlands is not absolute. The Rules of Procedure of both the Senate and the House of Representatives cover cases in which an MP abuses the protection afforded by Article 71. The President in each Chamber may admonish any member who violates the Rules of Procedure and then offer the member concerned a chance to retract the offending remark. If the member refuses to make a retraction, or persists in violating the Rules of Procedure, the President may forbid him or her from speaking further or from attending the rest of the sitting or further sittings the same day. Similar immunities and disciplinary procedures apply at the provincial and municipal level. 43. The Netherlands Government submitted that parliamentary immunity is indispensable to the operation of democracy and that to give the judiciary authority over what MPs say in their deliberations would represent an unacceptable infringement of the separation of powers. 44. According to section 30(1) of the Constitution (1999), an MP shall not be prevented from carrying out his or her duties as a representative. Section 30(2) provides that an MP cannot be charged in a court of law or be deprived of liberty owing to opinions expressed by the representative in Parliament or owing to conduct in the consideration of a matter, unless Parliament gives consent by a majority of five-sixths of the votes cast. The provisions concerning parliamentary privilege and immunities have a long tradition in the work of Parliament, dating back to 1723. The only restriction on the exercise of the freedom of expression of a representative is the requirement in section 31(2) that a representative conduct himself or herself with decorum and not act offensively towards another person. If a representative breaches this condition, the Speaker may issue a warning or prohibit the representative from continuing to talk. Parliament may caution a representative who has repeatedly breached the order or suspend him or her for a maximum of two weeks. 45. A waiver of immunity may be requested by any person having the right to prosecute or to request prosecution. The Speaker examines whether the party has such a right and whether the intended prosecution concerns the MP's official actions. Parliament decides on such a request in ordinary session and the decisive question is whether the intended prosecution is of such a nature that there is a public or private interest to refer the matter to a court of law. In most cases, Parliament has deemed such requests manifestly ill-founded and rejected them. In no case based on alleged damage to another person's reputation or allegedly incorrect information given by an MP has a prosecution been authorised. 46. The Finnish Government considered that freedom of speech and the general freedom to act were essential for the performance of the duties of an MP. 47. The provisions in the French system which protect the representatives of the people in the performance of their duties date back to 1789, deriving from respect for the expression of the will of the people and the necessity in a democratic State for elected representatives to exercise their mandate freely without fear of legal action or interference from either the executive or the judiciary. The immunity bestowed is absolute in that it covers all acts carried out by MPs in the exercise of their functions regarding criminal and civil liability and permanent since it continues after expiry of their mandates. The immunity is not concerned with the private interests of the MP but with the function that he or she exercises. Thus, it cannot be waived by an individual MP. 48. However, the immunity conferred is strictly interpreted and does not extend to acts outside the exercise of the MP's mandate, including speech in a private capacity within the Assembly or statements in press articles even where these merely repeat statements made during an Assembly debate. Parliamentary immunity carries with it a requirement of discretion (devoir de réserve) and unacceptable forms of expression may be subject to internal admonition. 49. The Irish Government submitted that parliamentary immunity has developed throughout the world not as a constraint upon the rights of the citizen, but as a fundamental liberty. They argued that a cursory consideration of the history of the principle, its widespread domestic and international constitutional entrenchment and the case-law of the Court all suggest that parliamentary immunity is protected by the Convention. They supported this argument by reference to the preamble to the Convention. 50. The Irish Government pointed to, inter alia, Articles 15.10 and 15.13 of the 1937 Constitution of Ireland, which provide: “[15.10] Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate ... [15.13] The Members of each House of the Oireachtas [Parliament] ... shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.” 51. Article 40.3.2 of the Constitution expressly recognises, and imposes upon the State, an obligation to defend and vindicate the citizen's right to his or her good name. However, the Irish Government indicated that there is no absolute right to reputation or protection from defamatory utterances under Irish law. 52. They drew attention also to the privileges and immunities enjoyed by representatives to the Parliamentary Assembly of the Council of Europe and members of the European Parliament (see paragraphs 33-36 above). They submitted that it was difficult to see how such immunities could be consistent with the Convention if the conferring by individual States of similar immunities in respect of their own Parliaments itself violated the Convention. 53. The Irish Government argued that the importance of the legitimate objectives pursued by parliamentary immunity was difficult to overstate and that it was for the national authorities to seek to balance the right of individual citizens to a good name with the right of free parliamentary expression. In reviewing the proportionality of the balance struck, they said that the Court must have regard to the fact that States were in principle better placed than an international court to evaluate local needs and conditions. 54. The Italian Government pointed out that parliamentary privilege is recognised by a large number of democratic countries across Europe and the rest of the world, including Italy, together with international bodies such as the Council of Europe and the European Union. They submitted that such a privilege is a fundamental aspect of the separation of powers and the rule of law, both of which are political traditions upon which the Convention and the Council of Europe were founded. 55. They stated that, notwithstanding a recent revision in Italy of the rules of parliamentary privileges and immunities, the protection of free speech in Parliament against interference by the courts has never been questioned there and continues to be considered essential to parliamentary government. In the event of any dispute between Parliament and the judiciary as to the application of a privilege, it is a “neutral” authority, in the form of the Italian Constitutional Court, which has the final decision. That court is made up of fifteen judges, five of whom are appointed by Parliament, five by the supreme courts and five by the President of the Republic. 56. The Italian Government submitted that parliamentary privilege pursues its legitimate aim in a proportionate manner, particularly since its scope is limited to parliamentary activity. They argued that MPs would not be able to speak their mind freely in Parliament in the absence of an absolute immunity. 57. There is no general provision granting members of Parliament (Storting) immunity from judicial processes. However, Article 66 of the Constitution confers immunity in two limited situations. Members cannot be arrested on the way to or from Parliament (unless apprehended in “public crimes”) and cannot be called to account outside the meetings of Parliament for opinions expressed there. This immunity comprises both criminal and civil liability, and extends even to speech where it is alleged that the member has intentionally expressed untruths or where the member has expressed himself or herself on a subject unconnected with the issue under debate. An individual member cannot waive the immunity. The absolute nature of the immunity is regarded as necessary to prevent undermining the general purpose of the provision, which is to guarantee the unfettered exchange of information and ideas in Parliament, being considered indispensable in the Norwegian democratic system. 58. However, a member may be held accountable within Parliament, improper or insulting behaviour being prohibited and subject to the potential sanction of a warning from the President or exclusion by Parliament from the right to speak or participate in the proceedings for the rest of the day. | 0 |
dev | 001-66713 | ENG | SWE | ADMISSIBILITY | 2,004 | ROSENQUIST v. SWEDEN | 4 | Inadmissible | Nicolas Bratza | The applicant, Nils-Inge Rosenquist, is a Swedish national, who was born in 1955 and lives in Spain. He is represented before the Court by Mr Bengt-Inge Björkhem, a lawyer practising in Kristianstad. The respondent Government are represented by their Agent, Mrs Inger Kalmerborn of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. I. In the beginning of the 1990s the applicant was carrying out his business through some private limited companies in Sweden. He emigrated from Sweden to Spain on 6 November 1995. As to the income year 1991, the applicant failed to fulfil his obligation to file his tax return. Thus, in 1992 the Tax Authority in Kristianstad made a discretionary assessment, that the applicant for the said year had had 55,124 Swedish kronor (SEK) as income from employment, SEK 295,401 as income from capital, and that his taxable property amounted to SEK 1,032,755. At the same time, pursuant to the Taxation Act (Taxeringslagen 1990:324) a tax surcharge of SEK 43,801 was imposed on the applicant, which he did not appeal against. In 1995, a search was carried out at the premises of the applicant’s auditor. In this connection information was found, which indicated that the applicant’s taxable income for 1991 had been considerably larger than the Tax Authority has assessed in 1992. Accordingly, the Tax Authority carried out an additional assessment. By decision of 30 October 1995 the applicant’s income from employment, capital, and taxable property was increased by respectively SEK 702,800, SEK 6,442,283, and SEK 3,087,721, resulting in an additional tax calculated at SEK 2,336,723. By decision of 15 November 1995 an additional tax surcharge was imposed pursuant to chapter 5, section 2 of the Taxation Act, amounting to SEK 934,683 equal to 40 per cent of the additional income tax levied. The applicant appealed against the Tax Authority’s decision of 30 October 1995 to the County Administrative Court in Skåne (Länsrätten i Skåne Län), which rejected his appeal by judgment of 28 October 1999. On 13 December 2002, the Administrative Court of Appeal in Gothenburg (Kammarrätten i Göteborg), confirmed this decision. Leave to appeal was refused by the Supreme Administrative Court on 8 March 2004. II. In the meantime, by indictment of 11 January 1999 the applicant was charged inter alia pursuant to sections 2 and 4 of the Tax Offences Act (Skattebrottslagen, 1971:69) with aggravated tax fraud in that he had failed to file his tax return for the fiscal year 1991 allegedly with the intent of evading tax. On 4 April 2000 before the District Court in Kristianstad (Kristianstad Tingsrätt) the prosecution applied for the detention of the applicant on remand in absentia. The applicant, being absent but represented by counsel, applied for the criminal trial against him to be dismissed by invoking Article 4 of Protocol no. 7 to the Convention. By decision of the same day the court found against the applicant. On 27 April 2000, on appeal, the Court of Appeal (Hovrätten över Skåne ock Blekinge) upheld the decision and the Supreme Court (Högsta Domstolen) refused the applicant’s request for leave to appeal on 8 May 2000. The applicant reported himself voluntarily to the police in Kristianstad in August 2001, whereupon the criminal trial against him commenced before the District Court in Kristianstad. Having heard inter alia the applicant’s auditor as a witness, by a judgment of 24 October 2001 the District Court in Kristianstad convicted the applicant of aggravated tax fraud as it found it established that he had failed to file his tax return for the income year 1991 with the intent of evading part of the tax due, amounting in total to SEK 2,336,723. The applicant was sentenced to one year’s imprisonment. On appeal, by judgment of 24 April 2003 the Court of Appeal upheld the conviction but increased the sentence to two years’ imprisonment. Leave to appeal against the judgment to the Supreme Court was refused on 22 October 2003. 1. Taxes and tax surcharges Income tax and property tax are determined by the county tax authorities, to which taxpayers are obliged to submit information relevant to the assessment of taxes. For the purpose of securing timely, sufficient and correct information, there are provisions stipulating that, under certain circumstances, the tax authorities may impose administrative sanctions in the form of special charges - tax surcharges and delay charges – on the taxpayer. The said charges were introduced into Swedish tax legislation in 1971 (up till then a taxpayer’s submission of incorrect information could only be sanctioned within the penal system). According to the preparatory notes (Government Bill 1971:10) the main purpose of the reform was to create a more effective and fairer system of penalties than the old one, which was based entirely on criminal penalties determined by the ordinary courts following police investigation and prosecution. Unlike sanctions for tax offences, the administrative charges are determined solely on objective grounds, without regard to any form of intent or negligence on the part of the taxpayer. A tax surcharge is imposed on a taxpayer in two situations: if he or she, in a tax return or in any other written statement, has submitted information of relevance to the tax assessment which is found to be incorrect (chapter 5, section 1 of the Taxation Act) or if, following a discretionary assessment, the tax authority decides not to rely on the tax return (chapter 5, section 2). It is not only statements expressly submitted that may lead to the imposition of a surcharge; concealment, in whole or in part, of relevant facts may also be regarded as incorrect information. However, incorrect claims are not penalised; if the taxpayer has given a clear account of the factual circumstances but has made an incorrect evaluation of the legal consequences thereof, no surcharge is imposed. The burden of proving that the information is incorrect lies with the tax authority. A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that the tax authority cannot base its tax assessment on it or if he or she has not filed a tax return despite having been reminded of the obligation to do so (chapter 4, section 3). In the latter case the decision to impose a tax surcharge will be revoked if the taxpayer files a tax return within a certain time-limit. The surcharge amounts to 40 per cent of either the income tax which the Tax Authority would have failed to levy if it had accepted the incorrect information or the income tax levied under the discretionary assessment (the corresponding provisions on value-added tax and employer’s contributions stipulate that the surcharge equals 20 per cent of the supplementary tax levied on the taxpayer. In certain circumstances, the rates applied are 20 per cent or 10 per cent respectively, for the various types of tax). Notwithstanding the fact that the taxpayer has furnished incorrect information, no tax surcharge will be imposed in certain situations, for example when the tax authority has corrected obvious miscalculations or written errors by the taxpayer, when the information has been corrected or could have been corrected with the aid of certain documents that should have been available to the tax authorities, such as a certificate of income from the employer, or when the taxpayer has corrected the information voluntarily (chapter 5, section 4). Moreover, in certain circumstances, a tax surcharge will be remitted. Thus, taxpayers will not have to pay a surcharge if their failure to submit correct information or to file a tax return is considered excusable owing to their age, illness, lack of experience or comparable circumstances. The surcharge should also be remitted when the failure appears excusable by reason of the nature of the information in question or other special circumstances, or when it would be manifestly unreasonable to impose a surcharge (chapter 5, section 6). The phrase “the nature of the information” primarily covers situations where a taxpayer has had to assess an objectively complicated tax question. According to the preparatory documents (Government Bill 1991/92:43, p. 88), the expression “manifestly unreasonable” refers to situations in which the imposition of a tax surcharge would be disproportionate to the fault attributable to the taxpayer or would be unacceptable for other reasons. If the facts of the case so require, the tax authorities must have regard to the provisions on remission, even in the absence of a specific claim to that effect by the taxpayer (chapter 5, section 7). In principle, however, it is up to the taxpayer to show due cause for the remission of a surcharge. If dissatisfied with a decision concerning taxes and tax surcharges, the taxpayer may, before the end of the fifth year after the assessment year, request the tax authority to reconsider its decision (chapter 4, sections 7 and 9). A decision concerning surcharges may also be reviewed at the taxpayer’s request after the expiry of this time-limit, if the decision on the underlying tax issue has not yet become final (chapter 4, section 11). The tax authority may also, on its own motion, decide to review its own earlier decision. A review to the taxpayer’s disadvantage must be made before the end of the year following the assessment year unless the taxpayer, inter alia, has submitted incorrect information during the course of the tax proceedings or has failed to file a tax return or to furnish required information, in which case the time-limit normally expires at the end of the fifth year after the assessment year (chapter 4, sections 7 and 14-19). The tax authority’s decision may also be appealed against to a county administrative court. As with requests for reconsideration, an appeal has to be lodged before the end of the fifth year after the assessment year (chapter 6, sections 1 and 3), unless it concerns a tax surcharge based on a tax decision that has not yet become final (chapter 6, section 4). Following the appeal, the tax authority must reconsider its decision as soon as possible and, if it decides to vary the decision in accordance with the taxpayer’s request, the appeal will become void (chapter 6, section 6). If the decision is not thus amended, the appeal is referred to the county administrative court. If special reasons exist, an appeal may be forwarded by the tax authority to the county administrative court without reconsidering the assessment (chapter 6, section 7). Further appeals lie to an administrative court of appeal and, subject to compliance with the conditions for obtaining leave to appeal, the Supreme Administrative Court. A tax surcharge is connected to the tax in respect of which it has been imposed in that a successful objection to the underlying tax has an automatic effect on the tax surcharge, which is reduced correspondingly (chapter 5, section 11). The tax surcharge may, however, be challenged separately, if grounds for reduction or remission exist (see above). Decision concerning taxation can also be reconsidered on the tax authorities’ own initiative. A review to the taxpayer’s disadvantage must be made before the end of the year following the assessment year. However, in some situation such a review may be made until the end of the fifth year following the assessment year, so-called additional assessment (eftertaxering). This is the case, inter alia, if the taxpayer has provided incorrect information during the course of the tax proceedings or has failed to file a tax return despite the obligation to do so (chapter 4, sections 14-16 of the Taxation Act). An additional assessment shall only be made if an amount of some importance is at stake. When undertaking an additional assessment the tax authority has to decide about additional tax, i.e. tax that is imposed after the imposition of final tax has been concluded. It may also decide to impose a tax surcharge according to the principles above. 2. Criminal law provision A taxpayer who has not fulfilled his obligation to submit correct and relevant information to the tax authorities or who, with the object of evading tax, has failed to file a tax return or a similar document may be subjected to a criminal charge according to provisions laid down in the Tax Offences Act. For the taxpayer to be convicted on such a charge it has to be established that the failure to submit correct information or to file a tax return is the result of criminal intent or gross negligence on his part. A charge under the provisions of the Tax Offences Act is brought in accordance with the rules governing criminal proceedings in general, which means among others things that a taxpayer can only be convicted upon prosecution and trial by the general courts and that the burden of proof is on the prosecutor. It follows from sections 2-4 of the Tax Offences Act that a taxpayer who intentionally submits incorrect information in writing to the tax authorities or who fails to file a tax return, thereby causing risk of an erroneous taxation to his advantage, shall be sentenced to a penalty ranging from a fine for petty offences to imprisonment for a maximum of six years for cases of aggravated tax crime (grovtt skattebrott). The fact that a tax surcharge has already been imposed on the same grounds as those forming the basis of the criminal charge is no bar to criminal proceedings. Moreover, a decision to impose a tax surcharge has no binding force or any other effect that might prejudice the determination of the criminal charge. When considering the penal sanction, however, the general courts are supposed to pay attention to the fact that a surcharge has been imposed (cf. Government Bill 1971:10, pp 351 and 364). A criminal charge should be brought against a taxpayer only if the evaded tax is of some significance. According to an agreement between the Prosecutor General (Riksåklagaren) and the National Tax Board (Riksskatteverket) the tax authorities shall not normally inform the prosecutor unless the evaded tax amounts to at least 75 per cent of the basic amount for national security purposes (which in 1992 amounted to SEK 33,700). In addition, section 13 provides that an indictment shall not be brought for a petty tax offence, unless there are special reasons therefore. 3. Tax surcharges and the Convention in Swedish case law In a judgment delivered on 29 November 2000 the Swedish Supreme Court considered whether a person could be convicted of a tax offence in criminal proceedings following the imposition of a tax surcharge in tax proceedings (case no. B 868-99, published in Nytt juridiskt arkiv (NJA) 2000, p. 622). Having noted that, under Swedish law, a surcharge is not considered a criminal penalty and thus does not prevent trial and conviction for a tax offence relating to the same act, the Supreme Court went on to examine the matter under the Convention. It first considered, in the light of the European Court’s case-law, that there were weighty arguments for regarding Article 6 as being applicable under its criminal head to proceedings involving a tax surcharge. Even assuming this to be the case, it held, however, that the principle of ne bis in idem, as set forth in Article 4 of Protocol no. 7 to the Convention, did not prevent criminal proceedings from being brought against someone for an act in respect of which a surcharge had already been levied as it was a matter of two different offences. It underlined in this connection that the imposition of tax surcharges requires neither intent nor negligence, while in order to be convicted of tax fraud it must be established that the accused had a criminal intent. In a judgment delivered on 13 September 2002 the Supreme Administrative Court considered whether the imposition of a tax surcharge in tax proceedings could be upheld following a person’s conviction of a tax offence in criminal proceedings (case no. 624-1999, published in Regeringsrättens Årsbok (RÅ) 2002, ref 79). The Supreme Administrative Court recalled inter alia: “that taxation in Sweden is largely based on information given by the individual and certification by him or her of information received from other sources. The purpose of the tax surcharge is to emphasise, inter alia, that the individual is required to be meticulous in fulfilling the duty of filing a tax return and the related obligation to submit information. In principle, carelessness is not acceptable. Furthermore, the taxpayer must normally have an understanding of what information is of relevance to the examination of a claim in order to avoid the risk of incorrect information being considered to have been given and a surcharge imposed. In other words, the taxpayer is required to have a certain knowledge of the tax rules”. The Supreme Administrative Court concluded that the applicant had not been punished twice for the same offence as prohibited by Article 4 of Protocol no. 7 to the Convention, notably in that: “a tax surcharge is a general and standardised sanction the purpose of which is, inter alia, to prevent inaccuracy when complying with the legal obligation to complete a tax return. Provided there is no ground for remission it is always set at one of two fixed percentages. It is imposed regardless of intent or negligence. If a person intentionally submits incorrect information or fails to file a tax return, an additional sanction may be imposed for tax fraud. The intent, which the prosecutor must prove, is one of the essential elements of this offence. The offence leads either to imprisonment or, having regard to the personal circumstances of the accused, some of the other possible punishments. Thus, in comparison with the grounds required for imposing a tax surcharge, in order to convict an accused of tax fraud, another essential requirement must be fulfilled. Accordingly, in the sense of the European Convention, it is a question of two different offences.” Recently, the Council on Legislation (Lagrådet), which is composed of three judges from the two highest courts in Sweden, scrutinised a Government Bill proposing amendments to the Taxation Act and commented in this connection on the principle of ne bis in idem. The Council considered, inter alia, in the light of the decision Ponsetti and Chesnel v. France (dec.), nos. 36855/97 and 41731/98, decision of 14 September 1999, ECHR 1999-VI, that is was reasonable to assume that the fundamental conditions for tax surcharges and intentional tax offences differed in such a way that no conflict with Article 4 of Protocol no. 7 to the Convention would arise (opinion of 23 January 2003 of the Council of Legislation). | 0 |
dev | 001-109322 | ENG | GRC | COMMITTEE | 2,012 | CASE OF ZAFIROV v. GREECE | 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) | Anatoly Kovler;Erik Møse;Linos-Alexandre Sicilianos | 4. The applicant was born in 1977 and lives in Patras. 5. On 20 October 2006 the applicant was arrested and criminal proceedings were brought against him for drug related offences. 6. After four adjournments - three on the court’s initiative and one on the request of the applicant - on 14 March 2008 the Athens First Instance Criminal Court convicted the applicant and sentenced him to life imprisonment and a fine of 55,000 euros (judgment no. 1579/08). 7. On the same date the applicant lodged an appeal with the Athens Criminal Court of Appeal challenging the court’s findings and its evaluation of the evidence, which was scheduled for hearing on 1st October 2010. 8. After several adjournments the hearing of the appeal took place on 3 June 2011 and the applicant’s sentence was reduced to fourteen years of imprisonment. 9. There is no indication in the case file whether an appeal on points of law was lodged challenging the appellate judgment. | 1 |
dev | 001-108843 | ENG | SWE | ADMISSIBILITY | 2,012 | HIKMAT HABIB v. SWEDEN | 4 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska | The applicant, Mr Rawand Hikmat Habib, is an Iraqi national who was born in 1984 and is currently in Sweden. , may be summarised as follows. On 13 September 2006 the applicant applied for asylum and a residence permit in Sweden, claiming that he had arrived in Sweden four days earlier. In written submissions and during interviews with the Migration Board (Migrationsverket), where the applicant’s legal counsel was present, he stated that he was Kurdish, born in Kirkuk, but that his family had been moved to Erbil (the capital of the Kurdistan Regional Government area, hearafter “the KRG area”) in 1988 and had lived there until 2003 when, after the fall of Saddam Hussein, they had returned to the family’s house in Kirkuk. He claimed that his father had then worked for the American Army as an interpreter and that, in 2006, they had heard from neighbours that terrorists were looking for his father because he had cooperated with the Americans. The applicant further alleged that he and his uncle had owned a catering business which delivered food to the American troops in the area of Aton Kopri (Prdé). Thus, when his father was threatened by the terrorists, the applicant had also felt insecure and under threat due to his own work. He therefore terminated the contract with the Americans and he and his family, including his uncle, moved to the city of their ancestors, Hassar (a town outside Kirkuk). The applicant acknowledged that he had never been personally threatened but, during his time in Hassar, the family was informed that the terrorists were still looking for them in Kirkuk. Moreover, the applicant claimed that he could not return to Erbil since he had no relatives left there and the terrorists could find him there as well. To prove his identity, the applicant submitted a certificate of citizenship issued in Erbil in 2002 and an identity card issued in Kirkuk in 2006. On 15 April 2007 the Migration Board rejected the application. It first noted that the applicant had lived most of his life in Erbil and that he was Kurdish and that, therefore, it would try his asylum claim on the basis that he came from the KRG area of Iraq. The Board then observed that he had not shown that he could not benefit from the protection and help of the authorities in the KRG area against the alleged terrorist threat. In its view, nothing in the case indicated that the applicant would not benefit from the authorities’ protection to the same extent as other citizens of the area. As the Board found that there were no other grounds on which to grant the applicant leave to remain in Sweden, it rejected his application. The Board added, for information, that it had a contract with a German organisation with the goal of facilitating reintegration for returnees to the KRG area through labour market measures, such as financial support to create a business. The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and adding that, in June 2007, his family’s house in Hassar had been the target of a grenade attack. His family had then moved to Syria. Thus, it was clear to him that the authorities could not protect him. Moreover, he wanted his application to be tried on the basis that he came from Kirkuk and not the KRG area since he had no personal connection to that area. On 27 September 2007 the Migration Court, after having held an oral hearing, rejected the appeal. It first noted that since the Migration Board had tried the applicant’s claim in relation to the KRG area, the court would do so as well. Moreover, since he had lived there most of his life and done all his schooling there, including after reaching maturity, the court found that he had a close connection to Erbil. In respect to this, it also noted that his certificate of citizenship had been issued in Erbil in 2002 for which reason he should have no practical problems returning there. As concerned the threat from terrorists, the court noted that these had primarily been directed against the applicant’s father and that they had emanated from individual persons, not the authorities. Furthermore, the threats had occurred in Kirkuk. As the applicant had not been able to specify any concrete threat against him personally, in particular if he were to return to Erbil, the court concluded that he had not shown that he would face a real and personal risk of persecution or ill-treatment in the KRG area. As there was no other ground on which to grant the applicant leave to remain in Sweden, the court upheld the Migration Board’s decision in full. On 11 January 2008 the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. The deportation order thereby became enforceable. In June 2008 the applicant lodged an application with the Migration Board for reconsideration of his case due to new circumstances. He maintained his previous claims but added that he had contacted the US Army in Kirkuk to ask some former colleagues about the threats against him. In reply, he had received a letter, via e-mail on 7 May 2008, from Deron R. Haught, Company Commander in Kirkuk which he insisted proved that he was sought by terrorists and that they wanted to kill him. The e-mail included a “Memorandum for Swedish Migration Board”, dated 7 May 2008, and signed by Deron R. Haught, Company Commander in Iraq. In this, the commander stated that, during his first deployment to Iraq in 2004-2005, he had been stationed in Kirkuk where the applicant’s father had been his interpreter. In this connection, he had also come to know the applicant who had “played a key role in the establishment of a new Iraqi Army Company in Kirkuk Province through the coordination and delivery of a food service contract in support of this Company.” This Iraqi Company had provided security for over 30,000 Iraqi citizens but had put the applicant at risk from Anti-Coalition Forces. Against this background, the commander asked the Swedish Migration Board to “give special consideration to [the applicant] when deciding his immigration status” since “[f]orcing him to return to Iraq at this time poses great risks to his personal safety.” On 4 July 2008 the Migration Board decided not to reconsider the case since no new circumstances had been presented and it had already considered the applicant’s fear of being targeted by terrorists. The applicant appealed to the Migration Court, insisting that the letter clearly showed that he was a target for terrorists and that he was at the top of their “death list”. On 16 September 2008 the court upheld the Board’s decision in full. It is unclear whether this judgment was appealed against to the Migration Court of Appeal. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act). As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act). Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act). Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist. The UNCHR’s “Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers”, dated April 2009 states, inter alia, that since 2003 the three Northern Governorates of Dahuk, Erbil and Sulaymaniyah have largely escaped the violence and collapse of law and order prevalent in many parts of the Centre and South and remain relatively quiet and stable although the security situation remains tenuous and unpredictable for a number of reasons. Therefore, the UNHCR maintains its position thus far that claims from asylum-seekers from these three Northern Governorates should be individually assessed based on the 1951 Convention refugee definition. The UNCHR further observes that persons originating from this area can enter the Governorate of Erbil without any restrictions. Moreover, it notes that, generally, the Kurdish authorities will be able and willing to provide protection although certain persons, particularly those fleeing “honour killings” or tribal conflict (blood feud), may still be reached by their persecutors if relocated within Iraq. As concerns the situation of Iraqis affiliated with the Multi-National Forces (MNF-I) in all of Iraq, the UNHCR maintains its previous position that civilians employed or otherwise affiliated with the MNF-I are at risk of being targeted by non-state actors. In areas where security has improved over the last year (2008), the risks to persons affiliated with the MNF-I have diminished to some extent, but are still considerable given the continued influence of extremist groups. The risk is particularly high for persons working as interpreters for the MNF-I given their exposure and possible involvement in military activities, for example arrests, raids or interrogation of insurgent or militia members. The position of the UNCHR in the above Guidelines has been endorsed as still being valid in their “Note of the Continued Applicability of the April 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers”, dated 28 July 2010. This note further observes that the Kurdistan Region remains relatively stable, though assaults on journalists and political opponents have been reported. Moreover, Amnesty International’s “Report 2011 on Iraq” states, inter alia, that the Kurdistan region remains largely unaffected by the political violence seen in other parts of Iraq and that human rights conditions continues generally to improve, although many abuses are reported. This view is shared by the “2010 Report on Human Rights in Iraq” by UNAMI Human Rights Office/OHCHR, dated January 2011, which notes that the situation is generally improving in the Kurdistan region. In their view, the security situation is stable, with very few security incidents or casualties reported (only 22 reported civilian deaths in the KRG area during 2010). They further observe that the improved security situation, matched with the increasing openness of the Kurdistan Regional authorities, means greater participation of civil society and NGOs in seeking solutions to the remaining human rights concerns in the region. In this respect, the Kurdistan Regional Government has shown itself to be open to dialogue and to work in a largely cooperative manner with the United Nations in relation to human rights issues throughout the region. | 0 |
dev | 001-58084 | ENG | CHE | GRANDCHAMBER | 1,997 | CASE OF BALMER-SCHAFROTH AND OTHERS v. SWITZERLAND | 2 | Preliminary objection rejected (victim);Not necessary to examine preliminary objection (non-exhaustion of domestic remedies) | C. Russo;John Freeland;N. Valticos | 7. The applicants live in the villages of Wilteroltigen, Deltigen and Gümmenen, situated in containment zone no. 1 (Alarmzone 1) within a radius of between four and five kilometres from the nuclear power station at Mühleberg (Canton of Berne). They either own or rent their homes. 8. On 9 November 1990 the company which had operated the power station since 1971, the Bernische Kraftwerke AG (“the operating company”), applied to the Swiss Federal Council (the government) for an extension of its operating licence for an indefinite period and for permission to increase production by 10%. The application was published in the Official Gazette of 4 December 1990 together with a notice inviting persons satisfying the requirements laid down by section 48 of the Federal Administrative Proceedings Act (see paragraph 15 below) to file an objection. 9. More than 28,000 objections in all were sent to the Federal Energy Office, 21,000 of which came from Germany and Austria. In their objection of 4 March 1991, to which several expert opinions were attached, the applicants requested the Federal Council to refuse an extension of the operating licence and to order the immediate and permanent closure of the nuclear power station. Relying in particular on section 5 (1) and (the former) section 10 (1) of the Nuclear Energy Act (see paragraph 12 below), they maintained that the power station did not meet current safety standards on account of serious and irremediable construction defects and that, owing to its condition, the risk of an accident occurring was greater than usual. In addition, they asked the authorities to obtain further data and in the meantime take certain provisional measures. With regard to the fact that under the applicable law the Federal Council would consider the application for an operating licence as an authority of both first and last instance, they pointed out that its decision could give rise to an application based on Article 6 § 1 of the Convention since it affected their civil rights. 10. On 3 September 1991 and 23 June 1992 the Federal Department of Transport, Communications and Energy rejected the requests for interim measures and for gathering the additional data. 11. On 14 December 1992 the Federal Council dismissed all the objections as being unfounded and, subject to compliance with various specified safeguards, granted an operating licence until 31 December 2002 and authorised a 10% increase in production. In its decision it relied on an expert report by the Central Office for Nuclear Safety, an independent report prepared at the request of the Federal Energy Office on the effects of the power station on the nearby river and opinions of the Nuclear Technology and Safety Measures Section of the Federal Energy Office, the Federal Commission for the Safety of Nuclear Power Installations and the cantonal authorities. The Federal Council found firstly that the objectors living in containment zone no. 1 were entitled to take part in the proceedings, unlike the objectors who lived further away from the power station, mainly in Germany and Austria. It then recapitulated the factors which, under section 5 of the Nuclear Energy Act (see paragraph 12 below), justified refusing an operating licence or granting it subject to conditions and stated that applicants who satisfied all the statutory requirements were entitled to an operating licence. It went on to note that although power stations built twenty years earlier certainly no longer met current technical standards, they could nonetheless be maintained and modernised so that they could continue to operate quite safely. In order to satisfy itself that this was so in the instance under review, the Federal Council considered each of the objections in turn. It found them to be unfounded. With regard to the complaint based on the right to life protected by the Constitution, the Federal Council drew attention to the position under the Federal Court's case-law, whereby only deliberate infringements could constitute a breach of that right. That did not apply to the operation of a nuclear power station, at least so long as appropriate technical and operating procedures were adopted to prevent such an infringement and so long as these could reasonably be considered to provide a level of protection comparable to that existing in other generally accepted technical installations. 12. Under section 4 (1) (a) of the Federal Act of 23 December 1959 on the Peaceful Use of Nuclear Energy (“the Nuclear Energy Act”), a licence from the Confederation is required for the construction and operation of nuclear installations and for any changes in the purpose, nature or scale of such installations. Section 5 (1) provides that a licence must be refused or granted subject to appropriate conditions or obligations if that is necessary in order, in particular, to protect people, the property of others or important rights. Section 6 provides that the Federal Council or a body designated by it decides licence applications. No appeal lies against its decisions. 13. Under the Federal Court's case-law, the safety of nuclear power stations can only be considered by the Confederation as part of its licensing procedures (Judgments of the Federal Court (ATF), vol. 119 Ia, p. 402). 14. Section 97 of the Federal Judicature Act of 16 December 1943 provides that the Federal Court hears, as a final court of appeal, administrative-law appeals against decisions of the federal authorities. However, by section 99 (e), as worded at the material time, no appeal lay against the grant of a licence for technical installations to be brought into service. 15. Section 44 of the Federal Administrative Proceedings Act of 20 December 1968 lays down the principle that administrative decisions are appealable. By section 46, however, an appeal is inadmissible if it is made against a decision against which an administrative-law appeal lies to the Federal Court. Under section 48 (a) a person has locus standi to appeal if he is affected by the decision and has an interest worthy of protection in having the decision set aside or varied. 16. The relevant provisions of the Civil Code read as follows: “Any person who sustains or is exposed to damage because an owner abuses his right may bring an action against that owner requiring him to restore the previous position or to take preventive measures, without prejudice to any damages.” “1. When exercising their right, especially when carrying on industrial processes, owners are required to refrain from acting in a manner detrimental to neighbouring properties. 2. The following, in particular, are prohibited: emissions of smoke or soot, offensive smells, noises, and vibrations which are harmful and exceed the limits of the tolerance which neighbours must show to each other having regard to local custom and the situation and type of the buildings.” 17. By virtue of section 1 of the Federal Expropriation Act of 20 June 1930, expropriations may be carried out “for the purposes of works that are in the interest of the Confederation or of a substantial area of the country and for any other public-interest aim recognised by federal law”. Section 5 (1) provides: “The following may be expropriated: rights in rem over land, rights arising from land ownership that concern relations between owners and occupiers of adjacent premises and the rights in personam of tenants or farmers of the property to be expropriated.” 18. With regard to the latter provision, the Federal Court has held: “Actions brought under Articles 679 and 684 to 686 [of the Civil Code] ... are included among the rights which may be expropriated under section 5 ... If the emissions or other allegedly adverse effects result from the construction, in accordance with the applicable law, of a building in the public interest for which land has been expropriated, or are the consequence of using the building for its intended purpose, no private-law action lies for the purpose of obtaining an injunction or compensation. A claim for compensation for expropriation replaces the cause of action under private law and must be made to the expropriations judge, who has jurisdiction not only to assess compensation but also to rule on whether the right ... exists. An expropriating authority's refusal to commence proceedings may be challenged, at last instance, by means of an administrative-law appeal to the Federal Court.” (ATF, vol. 116 Ib, p. 253) In another judgment the Federal Court held: “By virtue of section 5 ..., rights arising from land ownership that concern relations between owners and occupiers of adjacent premises may be expropriated and be forfeited or restricted, temporarily or permanently, provided that the proportionality principle is complied with ...” (ATF, vol. 119 Ib, p. 341) 19. Section 5 of the Act has applied in the case of people living near very busy main roads who were concerned about pollution from exhaust fumes (ATF, vol. 118 Ib, p. 205). Under the Federal Court's case-law, compensation is awarded if the nuisance was not foreseeable and resulted in substantial damage and if the owner suffered special loss (loc. cit., p. 205). In order to assess foreseeability, it is necessary to determine whether the owner could reasonably have known of the future nuisance when he became the owner of the property (ATF, vol. 111 Ib, p. 234). | 0 |
dev | 001-83541 | ENG | SRB | CHAMBER | 2,007 | CASE OF JOVICEVIC v. SERBIA | 4 | Violation of Art. 6-1;Violation of Art. 13 | null | 4. The applicant was born in 1935 and lives in Beograd. 5. On 16 July 2001 the applicant, along with fourteen other individuals, instituted civil proceedings against his former employer seeking payment of certain sums of money. 6. On 13 August 2003 the Beograd Fourth Municipal Court declared the action inadmissible because the plaintiffs' lawyer had failed to submit a full list of plaintiffs and their addresses, a specification of their claims and a power of attorney. 7. On appeal, on 28 April 2004 the Beograd District Court quashed the first-instance decision and remitted the case. It found that the plaintiffs' lawyer had supplied the requested documents and that the case was suitable for examination on its merits. 8. On 16 November 2004 the applicant filed a complaint with the Supreme Court concerning the length of the proceedings. The Supreme Court forwarded that complaint to the president of the Beograd Fourth Municipal Court, who, having reviewed the case file, informed the applicant that the next hearing in his case was scheduled for 22 December 2004. 9. At the hearing held on that date, the court decided to split the claims made by the various plaintiffs into separate proceedings and another judge was appointed to hear the applicant's case. The newly appointed judge ordered the joinder of the applicant's case to the initial case file, but was unable to obtain that file until 11 June 2005. 10. The court apparently held hearings on 19 January, 11 April, 6 June, 3 July and 23 October 2006. 11. On 5 April 2007 the first-instance court gave judgment in the case and, according to the information provided by the parties to date, the proceedings are currently pending before the second-instance court following the applicant's appeal. 12. The relevant provisions of this legislation are set out in the V.A.M. v. Serbia judgment (no. 39177/05, §§ 70-72, 13 March 2007). 13. Sections 359, 360 and 361 of this Code define abuse of office (zloupotreba službenog položaja), judicial malfeasance (kršenje zakona od strane sudije) and official malfeasance (nesavestan rad u službi) as separate criminal offences. 14. Article 25 of the Serbian Constitution (Ustav Republike Srbije), published in the Official Gazette of the Socialist Republic of Serbia (OG SRS - no. 1/90), provided as follows: “Everyone shall be entitled to compensation for any pecuniary and non-pecuniary damages suffered due to the unlawful or improper conduct of a State official, a State body or a public authority, in accordance with the law. Such damages shall be met by the Republic of Serbia or the public authority [in question].” 15. This Constitution was repealed on 8 November 2006, which is when the “new” Constitution (published in OG RS no. 98/06) entered into force. 16. The substance of Article 35 § 2 of the new Constitution corresponds, in its relevant part, to the above-cited text of the previous Article 25. | 1 |
dev | 001-23674 | ENG | FIN | ADMISSIBILITY | 2,004 | KUSTILA and OKSIO v. FINLAND | 4 | Inadmissible | Nicolas Bratza | The first applicant is Mr Marko Kustila, a Finnish national, who was born in 1962 and was serving a prison sentence at the time of the application. The second applicant is Mr Jukka Oksio, a Finnish national who was born in 1967 and was serving a prison sentence at the time of the application. They are represented before the Court by Mr Jaakko Tuutti, a lawyer practising in Tampere, Finland. The facts of the case, as submitted by the applicants, may be summarised as follows. The first applicant had been detained pending a criminal trial concerning – amongst others – two serious drug offences. On 5 July 2000, at the end of the hearing, the District Court (käräjäoikeus, tingsrätten) of Jyväskylä informed the parties that it had decided to reserve the judgment until 12 July 2000. The public prosecutor demanded a sentence of seven years imprisonment and that the first applicant should remain in detention pending the delivery of the judgment. The District Court ordered that the first applicant be detained pending the delivery of the judgment, basing the detention on Sections 26 and 26a of Chapter 1 of the Act on Coercive Means of Criminal Investigation (pakkokeinolaki, tvångsmedelslag; 450/1987). It held, inter alia, as follows: “Because the District Court has in its decision after the end of the principal hearing notified the date of the reserved judgment, the grounds for K.’s [the first applicant’s] detention are based on the principles supporting section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation. K., who has been detained throughout from 21 May 2000, has been charged with offences for which, if proven guilty as charged, he will clearly, according to normal case law, be sentenced to imprisonment for longer than two years. Without prejudice to the length of the final imprisonment sentence and taking into consideration that the reserved judgment will be given in less than one week’s time, the arguments presented in favour of K. do not disclose that his detention is excessive.” On the same day (5 July 2000) the first applicant applied to the Court of Appeal (hovioikeus, hovrätten) of Vaasa, claiming that his detention was unlawful and demanding the District Court’s decision to be quashed as well as his immediate release. He claimed that the District Court could not have based its decision on Section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation, because he had not yet been sentenced as required by that provision. He also maintained that Finnish legislation did not contain any basis for detention of a defendant in a case where the hearing had been closed and the judgment reserved and invoked Article 5 § 1 of the Convention. On 7 July 2000 the Court of Appeal of Vaasa quashed the District Court’s decision to detain the first applicant and ordered his immediate release. The Court of Appeal reasoned its decision, inter alia, as follows: “Because K. had not been sentenced at the end of the principal hearing on 5 July 2000, he could not have been ordered to remain detained pursuant to Section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation.” On 12 July 2000 the District Court of Jyväskylä sentenced the first applicant to five years’ imprisonment. It also ordered the arrest of the first applicant, who had gone missing after his release on 7 July 2000. On 11 July 2000 the first applicant meanwhile applied to the District Court of Tampere, claiming compensation under the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons. The District Court rejected the applicant’s claims on 10 November 2000, referring to section 2 of that Act. It held, inter alia, as follows: “It is undisputed in the case that K. was detained during the time mentioned in his application for summons. It is also undisputed that the Court of Appeal of Vaasa released K. because it was not possible to keep K. detained on the grounds that the public prosecutor put forward and on which the District Court had made the decision, i.e. pursuant to Section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation. Therefore, the detention was not based on the grounds on which the public prosecutor and the District Court justified the detention. ... Taking into account the seriousness of the offences that underlie the detention of K., his guilt as stated in the judgment and the length of the imposed penalty, it would be excessive to oblige the State to pay K. compensation for the deprivation of his liberty. Compensation would be excessive also because he was deprived of his liberty for only two days and because this time has been subtracted from the sentenced imprisonment according to Section 11 of Chapter 3 of the Criminal Code. Because of K.’s guilt the deprivation period cannot be deemed to cause him such mental suffering as would be the case if an innocent person had been detained.” The Court of Appeal of Turku upheld the District Court’s judgment on 24 April 2001. The Court of Appeal reasoned its judgment, inter alia, as follows: “As the District Court has maintained, there were no legal grounds for K.’s detention during 5 July – 7 July 2000. However, on 12 July 2000 K. was sentenced to five years’ imprisonment for the crimes that initially led to his detention, and ordered to be taken into custody. K. has subsequently been avoiding the implementation of the sentence and a warrant for his arrest has been issued. Therefore it would be excessive to oblige the State to pay him compensation for his short term detention. Further, because it cannot be maintained that K.’s liberty has been restricted in an arbitrary fashion or without justification, he is not entitled to compensation on the basis of the Convention for the Protection of Human Rights and Fundamental Freedoms either.” In a letter dated 11 November 2000 the first applicant asked the police to investigate whether the judge and laymen of the District Court of Jyväskylä had committed a crime when they ordered his detention. On 14 November 2000 the police sent a report to the Chancellor of Justice and informed him that a criminal investigation would not commence before the Chancellor of Justice had examined the matter. On 18 April 2001 the Deputy Chancellor of Justice noted in his decision that there was no directly applicable statute in the law concerning detention of an accused by a court when reserving a judgment to a later date. He concluded however that both the District Court and the Court of Appeal had erred as the defendant could, and should have, been detained, under Section 23 of Chapter 1 of the Act on Coercive Means of Criminal Investigation. According to the Deputy Chancellor of Justice, that interpretation of law had been accepted by the Court of Appeal in similar cases. He did not find any grounds for prosecution in the case. The second applicant was serving a term of imprisonment in an open prison when on 23 September 1997 he was taken in police custody to a police station as suspected of another crime. Some time later he was transferred to the Hämeenlinna Central Prison, from which he was transferred to a prison in Köyliö on 5 November 1997. On 31 December 1998 a public prosecutor decided not to press further charges against the second applicant. On 31 May 1999 the second applicant filed a suit against the State under the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons. He demanded, inter alia, compensation for non-pecuniary damages caused by his detention from 23 September 1997 to 5 November 1997. On 18 October 1999 the District Court rejected the second applicant’s claims. It reasoned its decision, inter alia, as follows: “Even though [the second applicant’s] liberty and possibilities to act were de facto restricted to a greater degree due to his transferral to the police jail compared to the conditions in an open prison establishment, [the second applicant] was also nevertheless a prisoner in the open prison. As [the second applicant] was already imprisoned and as transferral to a different kind of prison does not require compensation pursuant to the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons, and as [the second applicant] cannot be considered as equivalent to a detained or convicted innocent person or to a person subject to an injunction order, the District Court holds that the State is not obliged to pay [the second applicant] compensation for any possible non-pecuniary damage caused by the transferral to a police jail.” The second applicant complained to the Court of Appeal which, on 5 October 2000, upheld the District Court’s judgment. The Supreme Court refused the second applicant leave to appeal on 30 July 2001. Section 23 of Chapter 1 of the Act on Coercive Means of Criminal Investigation (693/1997), as in force at the time of the events, provided: “When the court cancels or defers the principal hearing in a case where the defendant has been detained, the court has to examine and assess whether there are reasons to keep the defendant detained.” Section 23 of Chapter 1 of the Act on Coercive Means of Criminal Investigation was amended on 27 June 2003 (646/2003). The new section entered into force on 1 January 2004 and it provides: “When the court cancels or defers the principal hearing or orders a new principal hearing in a case where the defendant has been detained, the court has to examine and assess whether there are reasons to keep the defendant detained. However, the question of detention does not have to be re-examined or reassessed during the time when the principal hearing has been deferred due to a mental examination of one of the defendants in the case. The court must also rule on the question of detaining the defendant, if the court does not deliver its judgment directly after the principal hearing.” Section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation (213/1995) states: “The court may detain a person convicted and sentenced to imprisonment, or order the continuation such a person’s detention, if: (1) the defendant has been sentenced to at least two years imprisonment.” Section 26a of Chapter 1 of the Act on Coercive Means of Criminal Investigation (213/1995) provides: “Nobody may be detained or ordered to continue to be detained if the detention would be excessive due to the nature of the case, the suspect’s or sentenced person’s age or due to other personal circumstances of the person in question.” Section 1 of the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons (1974/422) provides: “A person who has been arrested or detained as a suspect for a crime has a right to compensation from the State, if: (1) a criminal investigation has ended without a criminal charge being brought; (2) a criminal charge is withdrawn or dismissed; (3) he or she has been found guilty of an offence which did not justify arrest or detention, or; (4) there was no legal basis for the arrest or detention. There is no right to compensation if the deprivation of liberty has not exceeded twenty-four hours.” Section 2 of the above-mentioned Act (1974/422) states: | 0 |
dev | 001-99409 | ENG | POL | CHAMBER | 2,010 | CASE OF ADAMCZUK v. POLAND | 4 | Violation of Art. 6-1 | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 6. The applicant was born in 1933 and lives in Szczecin. 7. On 29 March 1989 M.B. instituted civil proceedings for the dissolution of a co-ownership before the Pruszków District Court. 8. On 21 March 1991 the case was transmitted to the Warsaw District Court. 9. On 12 August 1991 the parties to the proceedings (the applicant, A.A., M.A., W.A., J.N., ZB.A., ZD.A.) lodged with the court their proposal for the dissolution of the co-ownership. 10. On 15 April 1993 the court stayed the proceedings as M.B. had died. On 7 April 1995 M.B.'s representative requested the court to resume the proceedings since M.B.'s heirs had been determined by the Pruszków District Court's decision of 30 March 1995. 11. On 30 November 1995 the court summoned A.C. and A.C.R. (“the plaintiffs”) to participate in the proceedings. 12. Several subsequent hearings, namely of 30 November 1995, 20 February, 10 April and 4 June 1996 were adjourned as some of the parties had not been properly summoned. 13. On 12 September 1996 the court held a hearing and heard evidence from an expert as to the technical condition of the real property and possibilities of dividing it, and from some other parties, including the applicant. 14. On 30 December 1996 the court decided to obtain another expert opinion. 15. On 17 April 1998 the expert, W.K., submitted an evaluation report on the real property in question. 16. Two subsequent hearings, scheduled for 23 September and 25 November 1998, were adjourned as some of the parties had not been properly summoned. 17. On 3 February 1999 a hearing was held. The applicant stated that the plaintiffs had erroneously declared their shares in the co-ownership and he evoked in this context the real property sale contract concluded in 1972 between M.B. and A.C. (sellers) and the members of the applicant's family (buyers). The court adjourned the hearing and obliged the parties to substantiate the above statement within twenty-one days. 18. On 11 June 1999 the court adjourned a hearing as the applicant and some other parties failed to appear, although they had been properly summoned. 19. On 24 September 1999 the court adjourned a hearing as some of the parties had not been properly summoned and the applicant submitted a medical certificate justifying his absence. 20. On 17 November 1999 the court held a hearing and heard evidence from some of the parties to the proceedings. 21. On 26 November 1999 the court issued a preliminary decision (postanowienie wstępne) wherein it determined the co-owners and their shares in the real property. 22. On 7 February 2000 the applicant appealed against the above decision. 23. On an unspecified date the court requested the applicant to rectify the formal lacunae in his appeal. On 22 March 2000 the applicant complied with the court's order. 24. On 12 September 2000 the Warsaw Regional Court held a hearing and quashed the impugned decision. 25. On 25 April 2001 the court adjourned a hearing as some of the parties had not been properly summoned. 26. Between 13 June 2001 and 26 September 2002 no actions were taken by the court apart from dealing with A.A.'s request for legal aid. 27. On 26 September and 25 November 2002 hearings were held and the court heard evidence from the plaintiffs and the applicant. 28. On 3 June 2003 the court adjourned a hearing as one of the plaintiffs failed to appear although he had been properly summoned. 29. The applicant requested an inspection of the real property. 30. On 26 September 2003 the court summoned A.C. to specify his and A.C.R.'s shares in the co-ownership. 31. On 23 October 2003 and 14 January 2004 A.C. complied with the court's order. 32. On 16 July 2004 the court adjourned a hearing at the request of one of the plaintiffs and the expert. 33. On 16 September 2004 the court held a hearing and again heard evidence from the expert and summoned the parties to indicate the way in which the co-ownership should be dissolved. 34. On 29 September 2004 the applicant sought the withdrawal of the judge dealing with his case. 35. On 5 October 2004 the Pruszków District Court dismissed the applicant's request. The applicant lodged an interlocutory appeal against this decision. 36. On 22 March 2005 the Warsaw Regional Court dismissed the applicant's interlocutory appeal. 37. On 30 May 2005 a hearing was held at which some of the parties, including the applicant, requested the court to exempt them from court fees and appoint a legal-aid lawyer to represent them in future proceedings. The court ordered them to complete their request and submit information on their financial situation within seven days. 38. On 10 August 2005 the court dismissed the above request as neither the applicant nor the other parties had submitted any information on their financial standing. 39. On 21 October 2005 the court held a hearing. The applicant again challenged the ownership title of the plaintiffs. 40. On 28 November 2005 the court ordered another expert opinion. The applicant lodged an interlocutory appeal against this decision but it was rejected as inadmissible. 41. On 1 February 2006 the expert, A.S.M, submitted her opinion. 42. On 24 May 2006 the court granted the applicant's request for an inspection of the real property and adjourned the hearing, as in respect of one of the parties there was no proof that the summons had been served. 43. On the same date the court dismissed a request by the applicant motion to provide security for the claim by putting on deposit a sum equivalent to the rents collected from the current tenants of the property. The applicant's interlocutory appeal against this decision was rejected due to formal lacunae. 44. On 12 July 2006 an inspection of the real property took place. 45. Between 13 July 2006 and 7 July 2007 the court held three hearings at which it heard evidence from the parties and ordered them to indicate the manner in which the co-ownership should be dissolved. 46. On 27 July 2007 the court decided to obtain another expert opinion to establish the possibilities of creating individual premises in the disputed real property. The applicant appealed against this decision but his appeal was rejected as inadmissible. 47. On 5 September 2007 the expert returned the case file and informed the court that he would not be able to prepare the expert opinion for health reasons. 48. On 4 October 2007 the court sent the case file to another expert and ordered him to prepare an expert opinion within thirty days. 49. On 19 November 2007 the court allowed the expert's request for an extension of the time-limit for the submission of the expert opinion until 10 December 2007. 50. On 22 November 2007 the case file was sent to the Ministry of Justice in connection with the proceedings before the European Court of Human Rights. 51. On 11 December 2007 the expert submitted his opinion. The proceedings are pending. 52. On 1 December 2004 the applicant lodged a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). On 9 February 2005 the Warsaw Regional Court confirmed that the proceedings in question had indeed been lengthy. The court considered that an award of 3,000 Polish zlotys (PLN) would be adequate (approx. 738 euros (EUR), according to the exchange rate at the relevant time). The court stated, inter alia, that the measures taken by the District Court on 26 September 2003 and 31 May, 16 September and 20 December 2004 not only infringed the relevant provisions of the civil procedure code but also appeared to be futile, as some of them had had to be taken for a second time. The court further stated that the fact the District Court had failed to establish the scope of the claim for fifteen years could only be explained by the fact that the court had contributed to the excessive length of the proceedings. 53. As the proceedings continued to be lengthy, on 24 February 2006 the applicant lodged a second complaint under the 2004 Act. On 4 April 2006 the Warsaw Regional Court confirmed that the proceedings in question had been lengthy and ordered the Warsaw District Court to conduct an immediate examination of the applicant's motion for the inspection of the real property in question. 54. As the proceedings continued to be lengthy, on 5 April 2007 the applicant filed another complaint under the 2004 Act. On 22 May 2007 the Warsaw Regional Court dismissed the applicant's complaint on the ground that there had been no undue delay in the proceedings between 4 April 2006 (the date of the previous decision ascertaining that there had been an undue delay) and the time of the lodging of the complaint by the applicant. 55. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V; 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 | 001-78425 | ENG | ALB | CHAMBER | 2,006 | CASE OF BAJRAMI v. ALBANIA | 1 | Remainder inadmissible;Violation of Art. 8;Not necessary to examine Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 4. The applicant was born in 1964 and lives in Caralevë, in the municipality of Shtime (Kosovo). 5. On 28 April 1993 the applicant married F.M., an Albanian national. The couple had a child, I.B., who was born on 20 January 1997. In 1998 the applicant and F.M. separated. 6. F.M., together with her daughter, moved to her parents’ house in Vlora, Albania. 7. On 6 May 1999, using forged documents, the applicant’s wife married another person without being divorced from the applicant. 8. It appears that on 15 September 1999 the Vlora District Court annulled F.M.’s second marriage. On an unspecified date she married H.I., an Albanian national who resided in Greece. 9. During the years that followed F.M.’s third marriage, she frequently travelled to Greece, leaving her daughter for long periods with her parents in Vlora, or taking her to Greece without the applicant’s consent. 10. F.M. and her parents prohibited the applicant from having contact with his daughter. Since his separation from F.M., the applicant has been permitted to see his daughter only twice, in September 2000 and May 2003. 11. On 24 June 2003 the applicant brought divorce proceedings before the Vlora District Court. 12. On 26 June 2003 the applicant requested the Vlora Police District to block his daughter’s passport in view of the fact that his wife was planning to take her to Greece without his consent. 13. Despite the applicant’s requests to the Vlora Police District, it appears that his wife took the child to Greece on 15 January 2004, using an official certificate in which the applicant’s daughter had been registered with the name I.M., using F.M.’s surname. 14. The applicant’s wife was not present at the hearings. The latter’s father testified before the court that his grandchild was in Greece with her mother, who resided there as an economic refugee. 15. On 4 February 2004 the Vlora District Court decreed the parties’ divorce. The court granted custody of the child to the applicant, having regard to the wife’s lack of interest in the child’s life, the instability of her residential arrangements and her long periods of separation from the child. 16. On 19 March 2004 the divorce and custody decisions became final. 17. On 5 April 2004 the Vlora District Court issued a writ for the enforcement of the Vlora District Court’s judgment of 4 February 2004. 18. On 13 July 2004 the Vlora Bailiffs’ Office informed the applicant that it was impossible to enforce the judgment since the child was not in Albania. 19. On 15 August 2004 and 13 January 2005 the applicant applied to the Albanian Ministry of Justice to secure the return of his daughter. 20. On 11 January 2005, when questioned by the bailiffs, F.M.’s father declared that F.M. and the child were living abroad and that he had no news of their whereabouts. The bailiffs went to F.M.’s home on three occasions between January 2005 and May 2005. 21. In May 2005 the Selenice District Police Station informed the bailiffs that F.M. and her daughter were not living in Athens and that F.M.’s father had moved to an unknown address in Tirana. 22. In July 2005 the Bailiffs’ Office informed the applicant that in order to comply with the bilateral agreement between Albania and Greece he had to introduce a request and specify the precise address of the child in Greece. 23. The applicant sent numerous requests to the Albanian authorities, the Greek Embassy in Albania, the Ombudsperson of Albania (Avokati i Popullit) and the Ombudsperson of Kosovo, in order to obtain assistance in securing the enforcement of the custody decision. 24. On 14 August 2004 the applicant initiated criminal proceedings with the Vlora District Court against his former wife, accusing her of child abduction. 25. On 13 October 2004 the Vlora District Court informed the Albanian Ombudsperson that no lawsuit had been filed with it relating to the abduction of the applicant’s daughter. 26. On 15 December 2003 the applicant initiated criminal proceedings against A.C., a Civil Status Office employee. He accused her of falsifying various documents that had enabled F.M. to remove I.B. from Albania, and particularly of forging documents declaring his wife to be unmarried and altering his daughter’s surname. 27. On 26 January 2004 the Vlora District Court decided to discontinue the proceedings. 28. On 22 August 2006 the Government informed the Registry that on 31 March 2006 the Vlora Court of Appeal had repealed the custody judgment of 4 February 2004 on the grounds that F.M. had not been duly informed of the proceedings on the custody of her daughter. The domestic court decided to send the case to the Vlora District Court for a fresh examination and thus the custody proceedings are still pending. 29. On 23 August 2006, following the Registry’s request, the applicant stated that he had neither been informed of the institution of the new proceedings nor about their outcome. 30. The proceedings had been brought by F.M.’s lawyer and held in the applicant’s absence. 31. At present, Albania has not ratified the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. 32. Article 11 of the Convention on the Rights of the Child of 20 November 1989, ratified by Albania on 27 February 1992, requires States Parties to take measures to combat the illegal transfer and non-return of children abroad. For that purpose, States should promote the conclusion of bilateral or multilateral agreements or accession to existing agreements. 33. This Agreement, signed on 17 May 1993, was ratified by Albania pursuant to Law no. 7760 of 14 October 1993 and by Greece pursuant to Law no. 2311/1995. Articles 2, 3, 23 and 24 of the Agreement provide for the possibility for the Ministries of Justice of both Contracting Parties to cooperate in the recognition and execution in their territories of final judicial decisions given by the authorities of the other Party in civil, family and commercial matters. 34. The Code of Civil Procedure, which governs, inter alia, execution of final judgments, does not contain any provisions specifically applicable to the transfer of custody of children. As a result, the general procedural rules on the execution of judgments are applicable mutatis mutandis. 35. In cases where a parent’s refusal to comply constitutes a criminal offence, the matter should be referred to the prosecuting authorities. 36. Failure to abide by a final decision concerning custody of children may be punishable under Article 127 of the Criminal Code. | 1 |
dev | 001-61454 | ENG | GBR | CHAMBER | 2,003 | CASE OF LEWIS v. THE UNITED KINGDOM | 4 | Violation of Art. 8;Violation of Art. 13 | Matti Pellonpää;Nicolas Bratza | 7. The applicant is a United Kingdom national, who was born in 1944 and is currently serving a sentence of imprisonment in HMP Maidstone. 8. The applicant and his wife frequently travelled between various European countries. On 16 April 1997, the Chief Constable of South Wales authorised the installation of covert recording devices at the applicant's cottage and this was carried out on 23 April 1997. Authority for a further 28 days' surveillance was granted on 14 May 1997. 9. Over 160 hours of tapes were obtained between the period of 25 April to 9 June 1997, on which latter date the applicant and his wife were arrested. The transcripts of the taped conversations made up the bulk of the case against the applicant. 10. At trial, the applicant's defence alleged that the recorded discussions, which occurred while he and the others concerned were under the influence of drugs, were “drug-crazed ramblings” and challenged their admissibility. A “voir dire” took place from 28 May to 1 June 1998, during which the defence made submissions concerning the procedure for authorisation of the surveillance and seeking inter alia to exclude irrelevant or prejudicial material under sections 78 of the Police and Criminal Evidence Act 1984 (PACE). By agreement, the transcript evidence was reduced from five to two files and an agreed schedule was adopted by all counsel concerning the occasions on which the conversations occurred at the same time as drug taking. In summing up to the jury at the conclusion of the trial, the judge directed their attention to the fact that the supposedly incriminating statements taped at the cottage were or may have been the product of the participants' intoxicated state and that it was for them to assess whether despite the drugs the defendants were expressing rational, genuine thoughts, real ideas, plans or arrangements. 11. On 15 June 1998, the applicant was convicted of charges inter alia of conspiracy to import controlled drugs and possession of controlled drugs in connection with importation of marijuana and cocaine from overseas. He was sentenced to a total of fifteen years' imprisonment. A confiscation order was imposed on him on 24 September 1998 in the sum of 50,169.18 pounds sterling (GBP). 12. On 10 November 1999, a single judge of the Court of Appeal refused an extension of time to appeal against sentence and refused leave to appeal against conviction, noting that no satisfactory or sufficient reason had been given for the 11 month delay in lodging the application. The applicant's renewed application was refused by the Court of Appeal on 17 October 2000. 13. At the relevant time, the Home Office Guidelines of 1984 on the use of equipment in police surveillance operations provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices. The Guidelines were available in the library of the House of Commons and were disclosed by the Home Office on application. 14. In each case, the authorising officer had to satisfy himself that the following criteria were met: (a) the investigation concerned serious crime; (b) normal methods of investigation had been tried and failed, or had been, from the nature of things, unlikely to succeed if tried; c) there must have been good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism and d) the use of equipment was operationally feasible. 15. The 1997 Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy. The relevant sections relating to the authorisation of surveillance operations, including the procedures to be adopted in the authorisation process, entered into force on 22 February 1998. 16. Since 25 September 2000, these controls have been augmented by Part II of the Regulation of Investigatory Powers Act 2000 (“RIPA”). In particular, covert surveillance in a police cell is now governed by sections 26(3) and 48(1) of RIPA. RIPA also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police. | 1 |
dev | 001-71886 | ENG | DEU | ADMISSIBILITY | 2,005 | OTTO v. GERMANY | 3 | Inadmissible | null | The applicant, Mr Detlef Otto, is a German national who lives in Kusterdingen (Baden-Wuerttemberg). He was represented before the Court by Mr R. Schlierer, a lawyer practising in Stuttgart. The applicant is a member of the political party “the Republicans” (Partei der Republikaner, in the following Die Republikaner). The party is considered as populist and right-wing and has therefore been under scrutiny by the offices for the protection of the constitution (Verfassungsschutzämter) in various German States (Länder). In the general elections in September 2005, Die Republikaner achieved 0.6 % of the votes. The party has not been declared unconstitutional by the Federal Constitutional Court in accordance with Section 21 (2) of the German Basic Law. The applicant stood for the party as a candidate in local elections in 1994 and as a substitute candidate in regional elections in the State (Land) Baden-Wuerttemberg in 1996. Moreover, he contributed to activities of the party’s county association on a regular basis. The applicant had been employed as a civil servant with the BadenWuerttemberg police since 1968. He was promoted several times, lastly in 1993 to the position of detective superintendent (Kriminalkommissar). He retired in 2002. Although the applicant received above-average appraisals at work, he was not considered for a further promotion to chief inspector (Kriminaloberkommissar) despite the fact that there were such openings as from 1 July 1994. Following his inquiry about the reasons for not having been promoted, the Tübingen Regional Council informed the applicant in a letter dated 7 February 1995 that promotions were generally based on suitability, capabilities and professional qualifications. Regarding his suitability, the Regional Council expressed severe doubts due to his active membership of Die Republikaner, a party which was suspected to pursue anti-constitutional goals. Therefore, his promotion process had been stayed until further instructions by the Baden-Wuerttemberg Ministry of the interior would be received regarding the matter. The applicant subsequently instituted proceedings against the lack of promotion to the position of chief inspector. On 12 December 1996, the Sigmaringen Administrative Court dismissed the applicant’s claim, finding that the decision not to promote the applicant had been lawful. The court noted that public servants were generally not entitled to a promotion which was subject to the employer’s discretion with regard to suitability, capabilities and professional qualifications. The employer enjoyed a margin of appreciation in this respect. That margin had not been overstepped by basing unsuitability for promotion of a public servant on active membership in a political party seeking to undermine the free democratic constitutional system. Having regard to a judgment by the Baden-Wuerttemberg Administrative Court of Appeal of 11 March 1994, the court considered Die Republikaner as a party with unconstitutional goals. Both before and during the proceedings, the applicant had failed to dissociate himself from right-wing fundamentalist utterances of party officials. Moreover, the fact that only the Federal Constitutional Court could declare a prohibition of a political party with unconstitutional goals (and had not yet done so with regard to Die Republikaner) was no obstacle. Whereas the German constitution granted every citizen the right to work the free democratic constitutional system as a member of a party which is not prohibited, the duty of loyalty required from public servants (which is laid down in Section 33 (4) of the German Basic Law) would demand that every public servant defend this order. Lastly, the court found that the judgment of the European Court of Human Rights in the case of Vogt v. Germany (judgment of 26 September 1995, Series A no. 323) would not require a different ruling. That case concerned the dismissal of a public servant as opposed to non-promotion in the present case. Hence the question of proportionality had to be considered differently. On 4 October 1999, the Baden-Wuerttemberg Administrative Court of Appeal dismissed the applicant’s appeal and refused to grant leave to appeal on points of law. The court found that the applicant’s employer had not overstepped his margin of appreciation as the suitability of public servants could lawfully be assessed with regard to their duty of loyalty. Membership in a party which pursued goals which were not in accordance with the free democratic constitutional system was sufficient to cast doubt on whether a public servant was a suitable candidate for promotion. Since the party in question had been scrutinised by various offices for the protection of the constitution in Germany, and this scrutiny had been found lawful by numerous Administrative Courts of Appeal in Germany, the court did not itself have to establish whether or not the activities of Die Republikaner were unconstitutional. With regard to the proportionality of the decision not to promote the applicant, the court found that the judgment in the case of Vogt v. Germany (above-mentioned) did not demand a different ruling since the applicant in the present case had already been promoted several times and had not been deprived of his professional and economic basis by the decision not to promote him further. The applicant’s appeal against the refusal to grant leave to appeal on points of law was dismissed by the Federal Administrative Court on 19 May 2000. On 17 December 2001, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It held that the administrative courts’ assessment concerning the unconstitutional goals of Die Republikaner was in line with the jurisprudence of various Administrative Courts of Appeal in different German States (Länder). The courts had rightly granted the employer a margin of appreciation when assessing the applicant’s suitability for promotion. The Federal Constitutional Court found that the domestic authorities and courts had lawfully taken into account the applicant’s political activities even though it had not yet itself declared Die Republikaner an unconstitutional party in accordance with Section 21 (2) of the German Basic Law. The relevant provisions of the Basic Law are worded as follows: Section 21 “2. Parties which, through their aims or the conduct of their members, seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be anticonstitutional. The Federal Constitutional Court shall determine the question of anti-constitutionality.” Section 33 “2. All Germans shall have an equal right of admission to the civil service according to their suitability, capabilities and professional qualifications. 4. The exercise of sovereign authority on a regular basis shall, as a rule, be entrusted to members of the public service who stand in a relationship of service and loyalty defined by public law.” The relevant provision of the Baden Wuerttemberg Public Servant Act is worded as follows: Section 11 (1) “Nominations shall be carried out on the basis of suitability, capabilities and professional qualifications regardless of sex, race, religious or political beliefs, origin or relationships.” | 0 |
dev | 001-102750 | ENG | SRB | ADMISSIBILITY | 2,010 | SIMIC v. SERBIA | 4 | Inadmissible | András Sajó;Kristina Pardalos | The applicants, Mr Žarko Simić (“the first applicant”), Mr Vid Malešević (“the second applicant”) and Ms Smiljka Malešević (“the third applicant”) are all Serbian citizens who were born in 1958, 1935 and 1938, respectively. The first applicant lives in Kragujevac and was represented before the Court by Mr M. Ribarić, a lawyer practising in the same town. The other two applicants live in Paris and were represented before the Court by Mr W. Bourdon, a lawyer practising in the same town. The Government of Serbia (“the Government”) were represented by their Agent, Mr S. Carić. The facts of the case, as submitted by the parties, may be summarised as follows. Following the financial collapse of numerous banks in Serbia, in 1998 and 2002 the respondent State adopted specific legislation accepting to convert the foreign currency deposits in these banks, including the banks here at issue, into a public debt and then went on to set the time-frame (2016) and the amounts, including interest, to be paid back to their former clients. This legislation, inter alia, also explicitly provided that Serbian citizens living abroad, i.e. those living outside of the territory of the former Socialist Federal Republic of Yugoslavia, were also entitled to benefit from it. On 1 March 1987 the applicant’s father deposited an unspecified amount of German Marks for a fixed period of time with the Jugobanka - Kragujevac, the interest rate having been stipulated at 7.25% annually. It would appear that by 1 April 1992 the applicant’s father had a total of 41,900 German Marks on the account in question. After the expiration of the fixed-period deposit contract, in 1993 the bank appears to have refused to release his funds or even to apply the interest rate initially stipulated. On an unspecified date thereafter, the applicant’s father died and the applicant became his sole successor. Just like his father, however, the applicant was unable to withdraw or otherwise freely use his foreign currency savings. On 16 June 2003 the applicant had 26,887.49 Euros converted into Government bonds, having in the meantime been paid back a total of 3,978 Euros in accordance with the said legislation. There is no information that the applicant had received any payments thereafter. By the late 1990s the second applicant had a total of 143,000 Swiss Francs, 53,000 German Marks, and 39,000 French Francs deposited for a fixed period of time with the Privredna Bank Beograd AD, the interest rate having initially been stipulated at 11% annually. By the same time, the third applicant had deposited a total of 42,000 French Francs for a fixed period of time with the Privredna Bank Beograd AD, the interest rate having initially been stipulated at 12.5% annually. On an unspecified date thereafter the bank in question refused to release the applicants’ funds or even to apply the interest rate stipulated. It would appear that, following the adoption of the relevant legislation, the first applicant converted his foreign currency savings deposited in two other banks into public debt in August 2003. However, none of the applicants requested the conversion of the foreign currency savings deposited with the Privredna Bank Beograd AD. The relevant domestic law is set out in the Court’s decision of Šekerović v. Serbia (dec.), no. 32472/03, 4 January 2006, at sections B.1 and B.2. | 0 |
dev | 001-92351 | ENG | MLT | CHAMBER | 2,009 | CASE OF STEPHENS v. MALTA (No. 1) | 2 | Violation of Art. 5-1;No violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 6. The applicant was born in 1963 and prior to the events in question he had been living in Alicante. He is currently serving a prison sentence in Malta. 7. On 5 August 2004, the applicant was arrested and detained in Spain following a request for his extradition (quoting the Council of Europe’s European Convention on Extradition) by the Maltese authorities, pursuant to an arrest warrant issued by the Court of Magistrates as a Court of Criminal Inquiry. 8. The arrest warrant had been issued on the basis of an allegation that the applicant had in Spain conspired with another person or persons in Spain to transport drugs to Malta. 9. While detained in Spain, the applicant, through his legal counsel, lodged proceedings in Malta contesting the legality of the arrest warrant. 10. On 12 October 2004, while he was in Spain, the applicant, through his legal counsel, requested the Court of Magistrates to re-examine the lawfulness of his arrest on the ground that it had not been competent to issue the warrant and that Malta did not have jurisdiction to try the applicant. 11. On 28 October 2004 the Court of Magistrates rejected both claims. It held that the facts which formed the basis of the charges against the applicant amounted to a crime falling under the Maltese authorities’ jurisdiction and that in the referral stage (“rinviju”), it had been competent to issue the warrant. 12. On 29 October 2004 the applicant complained under Article 5 §§ 1 and 4 of the Convention. He maintained that his arrest in Spain had occurred consequent to an arrest warrant which was unlawful on the grounds, first, that the Maltese Courts did not have jurisdiction on the facts as alleged. According to section 5 of the Maltese Criminal Code (hereinafter “CC”), the Maltese courts had jurisdiction over foreigners acting outside Maltese territory only in cases specifically provided for in law and this could not be extended by means of interpretation. There was no specific law and none of the legal provisions cited in the arrest warrant (section 22 (1) (f) of the Dangerous Drugs Ordinance and the 120 A (1) (f) of the Medical and Kindred Professions Ordinance) referred to the alleged facts. Secondly, the applicant claimed that the warrant had been issued by an authority which was not competent to issue it. Moreover, he complained that the Court of Magistrates which had been requested to examine speedily the lawfulness of his arrest did not satisfy the requirements of Article 5 § 4 of the Convention in so far as, according to section 409A of the CC (see paragraph 35 below), only the prosecution had a right of appeal, not the accused. He requested the court to uphold the alleged violations, revoke the arrest warrant and the consequential request for extradition, and to grant him compensation. 13. On 12 November 2004 the Civil Court partly upheld the applicant’s claims. It held that the arrest warrant of 5 February 2004 should be rescinded as the court issuing it had acted ultra vires. Indeed, the Court of Criminal Inquiry in its referral stage had no competence to issue the arrest warrant, even more so since the issuing of such warrant had not been requested by the Attorney General and such action did not fall within the ambit of Article 405 of the CC regarding the examination of witnesses; therefore the applicant’s arrest was devoid of any legal basis and contrary to Article 5 § 1 and the applicant should accordingly be released. Moreover, it held that the Court of Magistrates when examining the lawfulness of the arrest warrant did not comply with the requirements of Article 5 § 4 in so far as it granted the Attorney General (hereinafter “AG”) an “appeal” and no equivalent remedy to the applicant. The Civil Court granted the applicant compensation amounting to 250 Maltese Liri (MTL – approximately 600 euros (EUR)). 14. However, it held that according to the CC the Maltese courts had jurisdiction over any individual who committed a crime expressly stated in law even if such crime had been committed outside Malta. In the present case there was no doubt that the relevant laws, namely section 22 (1), (e) and (f) of the Dangerous Drugs Ordinance and section 120 A (1), (e) and (f) of the Medical and Kindred Professions Ordinance (see paragraphs 2930 below), which were similarly worded, covered crimes considered as such in Malta, notwithstanding that they had occurred outside Malta. While subsection (e) covered only persons who were Maltese citizens or residents, subsection (f) covered any person in Malta or outside the territory of Malta, and was not a follow-up to the previous subsection; therefore it did not carry the same limitations. Had the legislator wanted to limit subsection (f) he would have done so explicitly but no such qualification had been made. Further, nothing else provided reason to believe that subsection (f) had to be read as a continuation of subsection (e); indeed, the use of the word “or” suggested that the contrary interpretation applied. Moreover, since subsection (f) particularly contemplated crimes against the Maltese State and which were to the detriment of Maltese society, it was plausible to infer that there was no qualification to the subsection. 15. On 12 November 2004 the applicant appealed requesting that his arrest be declared unlawful on the additional ground that Malta lacked jurisdiction to try a British national, who was not a permanent resident in Malta, for acts committed outside Malta and that the alleged conspiracy conferred jurisdiction solely on those who had acted on or from Maltese soil. Moreover, he complained that the sum granted by way of compensation was too low in view of the fact that he had been under arrest since August. 16. According to the Government, on the same day Interpol Malta informed Interpol Spain by e-mail that the warrant had been declared unlawful. However, in line with the Government’s interpretation, Interpol Spain was also informed that the judgment was not final and had no effect until the appeal, yet to be lodged, had been decided. 17. In the meantime the AG lodged a cross-appeal. 18. It appears that the applicant’s legal counsel had informed the Spanish authorities of the judgment in favour of the applicant and had requested the applicant’s release on this basis. According to the Government, on 16 November 2004 a Spanish court decided that the applicant’s release was a matter to be decided on the basis of Spanish law without any reference to Maltese law. The applicant was not released. 19. Consequently, pending the main constitutional proceedings, on 16 November 2004, the applicant filed another application with the Constitutional Court requesting the execution of his release according to the judgment of 12 November 2004. He claimed that according to Maltese law, namely section 267 of the Code of Organisation and Civil Procedure (hereinafter “COCP”), a judgment declaring an arrest unlawful was immediately enforceable, notwithstanding any pending appeal. 20. On 17 November 2004 the AG filed a reply making reference to Article 22 of the European Convention on Extradition (hereinafter “ECE”), submitting, inter alia, that section 267 of the COCP was not applicable to situations such as the present where a person was detained in a foreign jurisdiction under the law of that jurisdiction. Moreover, although the applicant had so requested, the judgment of 12 November 2004 had not ordered the cancellation of the extradition request. 21. On 22 November 2004 the applicant limited his ancillary claim lodged on 16 November 2004 to the applicability of section 267 of the COCP, thus de facto withdrawing his request for release under these proceedings in favour of a more generic request on the applicability of the law. The Constitutional Court upheld the applicant’s request stating that the judgment at issue was indeed provisionally enforceable in terms of section 267 (b) of the COCP in so far as it provided remedies against unlawful arrest. 22. On 23 November 2004 the Constitutional Court, dealing with the main proceedings, delivered judgment on the applicant’s appeal and the AG’s cross-appeal. It revoked the first judgment in so far as it had found inter alia a violation of Article 5 § 4, and in so far as it had ordered the applicant’s release. It ruled that the arrest warrant was null and void, but only on the ground that the Court of Magistrates in the referral stage (“rinviju”) had not been competent to issue the warrant and that consequently the arrest was unlawful and in violation of Article 5 § 1. However,Malta, his release could not be ordered by the court. Furthermore, in its view, the arrest warrant had been validly grounded in law. Notwithstanding the general provisions of the CC, particularly section 48 A, which might have provided otherwise, section 22 (1), (e) and (f) of the Dangerous Drugs Ordinance and section 120 A (1), (e) and (f) of the Medical and Kindred Professions Ordinance prevailed, according to section 5 of the CC, given that they were special laws. Nevertheless, the Constitutional Court could not usurp the function of the Criminal Court, which was the only court competent to decide on the matter of jurisdiction. Having regard to the fact that the unlawfulness was solely due to a procedural defect, it found the compensation granted by the first court to be adequate and confirmed the sum. It further held that the parties were to bear their own costs and advised that a new warrant under section 355 V of the CC could be issued and would be perfectly legal. 23. On 22 November 2004 the applicant was granted bail by the Spanish authorities with the obligation to report daily to a police station. His passport was impounded. 24. On 1 December 2004 the applicant was re-arrested by the Spanish authorities on the basis of a new request by the Maltese authorities, but as a continuation of the previous extradition proceedings. 25. On 28 March 2005, the Audiencia Nacional in Spain confirmed the applicant’s extradition to Malta. On 9 September 2005 the applicant was extradited to Malta to stand trial. 26. By a decision of the Court of Magistrates of 23 February 2006, and by the judgment of the Criminal Court of 18 July 2007 confirmed by the Criminal Court of Appeal judgment of 18 January 2008, it was held that the Maltese Courts had the necessary jurisdiction over the facts of which the applicant was accused. The latter judgment found the applicant guilty of the said charges. The applicant has been in prison ever since. 27. On 9 August 2006 the applicant, who at the time was under house arrest in Malta, also introduced another application with the Court with further complaints regarding later stages of his proceedings in Malta (application no. 33740/06). 28. Section 5 of the Maltese Criminal Code, in so far as relevant reads as follows: “(1) Saving any other special provision of this Code or of any other law conferring jurisdiction upon the courts in Malta to try offences, a criminal action may be prosecuted in Malta – ... (i) against any person who commits an offence which, by express provision of law, constitutes an offence even when committed outside Malta.” 29. Section 48 (1) of the Maltese Criminal Code, reads as follows: “Whosoever in Malta conspires with one or more persons in Malta or outside Malta for the purpose of committing any crime in Malta liable to a punishment of imprisonment, not being a crime in Malta under the Press Act, shall be guilty of the offence of conspiracy to commit that offence.” 30. Section 22 of the Dangerous Drugs Ordinance, Chapter 101 of the Laws of Malta, in so far as relevant, reads as follows: “(1) Any person – ... (d) who in Malta aids,... ;or (e) being a citizen of Malta or a permanent resident in Malta, who in any place outside Malta does any act which if committed in Malta would constitute an offence of selling or dealing in a drug against this Ordinance or an offence under paragraph (f); or (f) who with another one or more persons in Malta or outside Malta conspires for the purposes of selling or dealing in a drug in these Islands against the provisions of this Ordinance or who promotes, constitutes, organises or finances the conspiracy, shall be guilty of an offence against this Ordinance.” 31. This same wording is reproduced in section 120 A (1), (e) and (f) of the Medical and Kindred Professions Ordinance, Chapter 31 of the Laws of Malta, in defining the offences related to psychotropic drugs. 32. As regards practice, it appears that the Maltese courts have regularly convicted persons (particularly drug couriers) of the crime of conspiracy where the offence is alleged to have taken place outside Malta (see, for example, The Republic of Malta v. Gregory Robert Eyre, 4 October 2004 and The Republic of Malta v. Winnie Wanjiku Kanmaz, 5 October 2004). 33. The Council of Europe’s European Convention on Extradition (“ECE”) (Paris, 1957) which came into force in respect of Malta ninety days after its ratification on 13 July 1979, requires that a request made by a requesting State shall be supported by the original or a copy of the warrant of arrest issued in accordance with the procedure laid down in the law of the requesting Party. Except where the ECE otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party (extraditing State). Articles 12 and 22 of the said Convention, in so far as relevant, read as follows: “The request shall be in writing and shall be communicated through diplomatic channels. Other means of communication may be arranged by direct agreement between two or more Parties. The request shall be supported by: the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party; ...” “Except where this Convention otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party.” 34. The European Union (“EU”) Member States now make use of a European arrest warrant (“EAW”), which discontinues the use of the extradition procedure. The new procedure takes the form of a judicial decision issued by a EU Member State with a view to the arrest and surrender by another Member State of a person being sought in connection with a criminal prosecution or a custodial sentence. The European Union scheme makes procedures faster and simpler without requiring any political involvement. The EU Member States were required to introduce legislation to bring the EAW into force by 1 January 2004. However, Malta having joined the European Union at a later date, this legislation came into force there on 7 June 2004 by virtue of the Extradition (Designated Foreign Countries) Order, 2004. 3. As regards the remedies against unlawful detention 35. Section 409A of the Maltese Criminal Code regarding an application by a person in custody alleging unlawful detention, reads as follows: “ (1) Any person who alleges he is being unlawfully detained under the authority of the police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to the Court of Magistrates, which shall have the same powers which that court has as a court of criminal inquiry, demanding his release from custody. Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on the same day of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained. The Commissioner of Police or public authority, as the case may be, may file a reply by not later than the day of the hearing. (2) On the day appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour or against the lawfulness of the continued detention of the applicant. (3) If, having heard the evidence produced and the submissions made by the applicant and respondents, the court finds that the continued detention of the applicant is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the applicant it shall allow the application. Otherwise the court shall refuse the application. (4) Where the court decides to allow the application the record of the proceedings including a copy of the court’s decision shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may, within two working days from the receipt of the record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this Code or of any other law, apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released from custody. The record of the proceedings and the court’s decision transmitted to the Attorney General under the provisions of this subarticle shall be filed together with the application by the Attorney General to the Criminal Court.” 36. Section 267 of the Code of Organisation and Civil Procedure, in so far as relevant reads as follows: “The following shall be in all cases provisionally enforceable: (b) any judgment ... providing remedies against illegal arrest...;” 4. As regards the role of the Constitutional Courts 37. The European Convention Act, in so far as relevant, reads as follows: Article 3 “(4) The Constitutional Court shall ... have jurisdiction to hear and determine all appeals under this Act and exercise all such powers as are conferred on it by this Act.” Article 4 “(1) Any person who alleges that any of the Human Rights and Fundamental Freedoms, has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress. (2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub-article (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, of the Human Rights and Fundamental Freedoms to the enjoyment of which the person concerned is entitled: Provided that the court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law. ... (4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.” Consequently, a complaint must be lodged with both instances before it is introduced with the Strasbourg Court. However, in Sabeur Ben Ali v. Malta, no. 35892/97, 29 June 2000, § 40, the Court held that this procedure was rather cumbersome and therefore lodging a constitutional application would not have ensured a speedy review of the lawfulness of the applicant’s detention. Consequently in the cited case the applicant had not had at his disposal, under domestic law, a remedy for challenging the lawfulness of his detention under Article 5 § 4. | 1 |
dev | 001-69288 | ENG | POL | ADMISSIBILITY | 2,005 | TOPOLAN v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Stanisław Topolan, is a Polish national who was born in 1932 and lives in Głogów. The facts of the case, as submitted by the parties, may be summarised as follows. On 26 September 1991 the applicant lodged a claim for a higher amount of sickness benefit with the Wrocław Regional Court (Sąd Wojewódzki we Wrocławiu). On 18 November 1999 the Wrocław Regional Court issued a relevant judgment. The enforcement proceedings were terminated on 31 December 2001. On 26 January 2000, the date on which the application was lodged with the Court, the enforcement proceedings were pending before the Głogów District Court. On 17 September 2004 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”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. Section 2 of the 2004 Act reads, in so far as relevant: Section 5 reads, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. ...” On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied. | 0 |
dev | 001-57934 | ENG | FRA | CHAMBER | 1,995 | CASE OF NASRI v. FRANCE | 3 | Violation of Art. 8 (if deportation order executed);Not necessary to examine Art. 3;Lack of jurisdiction (injunction to State) | null | 6. Mr Nasri, an Algerian national, was born deaf and dumb in June 1960, in Algeria. He is the fourth of ten children, one of whom is deceased and six of whom are French nationals. He came to France with his family in February 1965. He is currently subject to a compulsory residence order pursuant to which he is required to live with his parents, at Nanterre (Hauts-de-Seine). 7. According to the information provided to the Court, the applicant's schooling may be summarised as follows. 8. On their arrival in France in 1965 Mr and Mrs Nasri wanted to enrol their son in kindergarten, but he was refused admittance on account of his handicap. They then sought to have him admitted to the Institut Saint-Jacques in Paris, a specialist establishment for the deaf and dumb. The institute could not however take him because of a lack of places and because his intellectual level was not regarded as sufficient. As a result Mr Nasri was not able to attend a school until 1968. In that year, after a social worker had intervened, he was admitted to the Centre audiométrique médico-psychopédagogique at Boulogne (Hauts-de-Seine) (a school specialising in hearing and speech difficulties). There he underwent therapy for his condition and received training adapted to his needs. On 11 December 1971 he was expelled for violent behaviour. 9. He then spent a further period with no schooling or training, which lasted until 1974, when he entered a training centre for the deaf and dumb at Tours (Indre-et-Loire). However, as his parents were unable to pay the boarding fees, he was returned to them after seven months. On 20 September 1976 he began training as a house painter. On 20 October 1977, following various incidents, he was obliged to quit. 10. The applicant has indicated that he has no proficiency in deaf and dumb sign language, can neither read nor write and expresses himself in elementary fashion through signs that are intelligible only to his immediate circle of family and friends. 11. As early as 1977 the applicant came to the notice of the police as a result of a number of thefts. He appeared in court on several occasions. 12. At 10 March 1992 his police file recorded the following convictions: (a) on 3 November 1981, 2 February 1982 and 21 January 1983 he was sentenced by the Paris Criminal Court to terms of imprisonment ranging from six months to one year for theft and attempted theft; (b) on 15 May 1986 he was sentenced to five years' imprisonment, two of which were suspended, and five years' probation by the Hauts-de-Seine Assize Court for gang rape; (c) on 17 September 1987 he was sentenced to one year and three months' imprisonment by the Nanterre Criminal Court for theft with violence; (d) on 10 November 1988 he was sentenced to ten months' imprisonment by the Paris Court of Appeal for theft with violence; (e) on 7 September 1989 he was fined two thousand francs by the Paris Criminal Court for assaulting a public official; (f) on 10 December 1990 he was sentenced to six months' imprisonment by the Versailles Court of Appeal for theft with violence and receiving stolen goods. In addition, on 21 May 1982 he had been given a suspended sentence of eight days' imprisonment for criminal damage and on 13 May 1992 he was sentenced to eight months' imprisonment for theft. On 31 March 1993 he was convicted of theft with violence, but the Court does not have any further details. 13. On 21 August 1987 the Minister of the Interior ordered the applicant's deportation on the ground that his presence on French territory represented a threat to public order. The order, which was issued pursuant to sections 23 and 24 of the Order of 2 November 1945 as amended (see paragraph 27 below), cited the applicant's five recent convictions, including that of 15 May 1986 (see paragraph 12 above). 14. On 10 March 1988 the Versailles Administrative Court quashed the above-mentioned order. It found that the Minister had not been entitled to rely on the 1945 Order as amended by the Act of 9 September 1986, because the provisions of that Act were stricter than those that had previously been in force. To rely on them in the applicant's case, in respect of criminal convictions which all preceded that date, amounted to wrongfully modifying established situations. 15. On 15 February 1991 the Conseil d'Etat overturned the Administrative Court's judgment and dismissed Mr Nasri's applications for the quashing of the order or for a stay of execution. It took the view that the deportation of an alien was not a sanction, but an administrative measure exclusively designed to prevent disorder and to preserve public safety. Accordingly, the provisions of the Act of 9 September 1986 could be applied as soon as they entered into force to aliens satisfying the conditions laid down therein, whatever the date of the convictions on which the measure was based. 16. On 30 January 1992 the applicant complied with a summons requiring him to report to the Hauts-de-Seine Prefecture at Nanterre, where he was first taken into police custody and then placed in administrative detention by order of the Prefect, for a period of twenty-four hours, with a view to his deportation to Algeria. As it proved impossible to deport him within that period, the Nanterre tribunal de grande instance issued a compulsory residence order dated 31 January requiring Mr Nasri to live with his parents. 17. On 31 January 1992, relying on Articles 3, 6, and 8 (art. 3, art. 6, art. 8) of the Convention, Mr Nasri lodged an application with the Paris Administrative Court challenging, inter alia, the deportation order and the detention order. On 28 October 1992 his application was dismissed. According to the Administrative Court, the applicant's presence on French territory represented a serious threat to public safety in view of his numerous previous convictions, the gravity of the offences committed and his persistent re-offending. The impugned decision had not therefore constituted an infringement of his right to a family life that was "disproportionate to the aims pursued by the measure in question". 18. The deportation order has so far not been enforced, in compliance with the request for a stay of execution made by the President of the European Commission of Human Rights (see paragraph 29 below). On 4 February 1992 the Minister of the Interior issued a compulsory residence order requiring Mr Nasri to live with his parents "until such time as he is in a position to comply with the deportation order concerning him". That measure has since been renewed. 19. In connection with the criminal proceedings brought against the applicant, several expert reports were ordered with a view to studying his personality, his behaviour and his social environment. 20. A report of a psychiatric examination effected in October 1977 at the request of the investigating judge of the Nanterre tribunal de grande instance presented the following conclusions: "The accused is an adolescent aged 17; he is deaf and dumb and has not yet acquired the skills needed to cope with his handicap; he is not mentally retarded or mentally ill. He is, however, very easily influenced. He is not insane within the meaning of Article 64 of the Criminal Code, but his emotional immaturity and intermittent personality disorders, combined with the fact that he is deaf and dumb, mean that his criminal responsibility is diminished to a considerable extent. He is by no means an insane person. He is not dangerous in a psychiatric sense. He can be restored to his family. He is unlikely to respond to a criminal penalty ..." 21. A medico-psychological report drawn up on 26 November 1982 at the request of the investigating judge of the Paris tribunal de grande instance, stated as follows: "The subject's personal history is very sketchy, for the very reason that he mimes more than he uses sign anguage. None the less, we learn that he was born in Algeria some twenty-two years ago; he is unable to provide us with his precise date of birth. He indicates that he came from Algeria to France while still a very young child. Both parents are living. His father still works. His mother stays at home and is described as an invalid. ... As regards his schooling, [he] indicates that he attended a special school for the deaf and dumb, where he learnt the trade of house painter. He further indicates that he is unable to write and has to ask another deaf and dumb person to assist him in that task. He does not know his parents' address in Paris. ... His intellectual level is very low. He is incapable of accurately identifying significant dates in his life. He indicates that he can neither write nor read. The interpreter for the deaf and dumb tells us that he has a very poor knowledge of sign language and that he uses mime more than an appropriate language. ... He should receive socio-professional supervision and be helped to find employment genuinely compatible with his condition." 22. A report of a medico-psychological examination submitted on 21 November 1983 notes: "Mohamed Nasri appears to us to have only very limited means of communication and of understanding of the world. In his family and in society he has been in a situation apart where he has built up a closed universe for himself. As his communication with the outside world remains rudimentary, it is often expressed in aggressive terms, especially since he is only able to identify with individuals who embody a certain aggressiveness towards a social environment that has not provided him with the means of communication he could expect. He thus appears to have taken refuge in the North African community, the only one to confer any status on him, but one which places him in a situation where he manifests this status by means of criminal or aggressive acts. That is what makes any intervention or assistance difficult. Mohamed Nasri has the level of understanding and communication of a child. His perception of the world remains rudimentary; his expression and comprehension are poor. The therapy he has received has been unable to equip him with proper and adequate means of communication and he has had to revert, in a way that is regressive, to his milieu of origin, with which he has to identify in order to have a status and an identity. In his milieu of origin, where he is integrated under the nickname which establishes his difference, 'the mute', it is inevitable that [he] should adopt attitudes of criminality and aggression, which in view of his condition are the only means he has of maintaining his status and identity." 23. A psychiatric report of the same date concluded as follows: "We know very little of a personal history that has been marked by deaf-mutism and attempts at therapy which have achieved very moderate results ... [He] spent his childhood and his entire adolescence in France and has never returned to Algeria, although he has kept his Algerian nationality ... He lives with his parents, goes out, hangs around, uses the pocket money that his mother gives him; they now live in publicly subsidised housing at Nanterre. He was sent to prison a year or two ago for picking pockets; while in prison he presented signs of acute anxiety that made it necessary for him to be transferred to a psychiatric ward, where he spent three months. ... [His] intelligence, which was no doubt normal at the outset, is now to be assessed in terms of intellectual efficiency, namely he uses a limited number of signs and his technique is rudimentary; his comprehension is inadequate. He therefore has very little understanding of abstract concepts of time, place, etc. ... His scholastic accomplishments are limited: he cannot read, or only titles, street names; he writes his name but nothing else; and he has not mastered the mechanism of addition involving the carrying-over of numbers. Our interpreter sees him as a young deaf and dumb boy aged 7 or 8 who has never had the benefit of specialist attention ..." 24. According to the findings of a psychiatric report of 31 July 1984: "He is deaf and dumb and has received practically no therapy. It is well known that such deficiencies, over and above the mere physical defect, affect in a much more general way the whole process of conceptualisation and in particular the acquisition of moral values; it may therefore be concluded that he does not obey the same scales of values as a person who is normally integrated in society and who hears normally; these psychological factors should be taken into account when assessing the offence that he has committed. ... An examination of Mr Mohamed Nasri does not disclose any major mental, psychological or behavioral anomalies amounting to insanity; he is nevertheless a person who has been uprooted, who is badly integrated, desocialised and handicapped by his deaf-mutism with the implications that that has for his process of conceptualisation and his understanding of moral rules. He was not insane within the meaning of Article 64 of the Criminal Code at the material time. From a strictly psychiatric point of view, the anomalies found are not such as to diminish his responsibility. He is susceptible to the imposition of a criminal sanction. He does not need special treatment, but would benefit from specialised supervision for his deaf-mutism, which might improve the prognosis for his rehabilitation. Placing him in a psychiatric hospital does not appear desirable either in his interests or in those of the community." 25. According to a medico-psychological report submitted on 18 June 1985: "The examination reveals nothing to justify the conclusion that [Mr Nasri] is not in a position to understand normally social rules and prohibitions, or that his capacity for self-control has been diminished by a clear pathological process. It is, on the other hand, evident that the frustration that he feels, the difficulty of communicating, the impossibility of expressing his wishes by word combine to create the psychological conditions in which there is very low resistance to acting out his desires." 26. A police report of 13 April 1992 concerning the applicant states as follows: "His handicap, deaf-mutism, is real and does not prevent him from wandering the streets of Villeneuve-la-Garenne and other villages at all hours of the day and night and rom assiduously frequenting the bars where he drinks alcohol, which makes him aggressive or even violent. ... He inspires terror in many inhabitants of Villeneuve and also in his accomplices. He has been involved in numerous incidents of theft or violence. This violent and antisocial individual makes no effort whatsoever to be integrated in our society and takes advantage of his handicap and of the favourable provisions of the administrative and justice systems. He is a real danger to public order, especially since he appears to be the leader of the young delinquents of Villeneuve owing to the fear he inspires." 27. Deportation of aliens is governed by the Order of 2 November 1945 concerning the conditions of entry and residence of aliens in France. Section 23, as amended on 29 October 1981, provides: "Deportation may be ordered by an order of the Minister of the Interior if the alien's presence on French territory constitutes a serious threat to public order." An Act of 9 September 1986 had deleted the word "serious" from the above provision, but on 2 August 1990 the wording adopted in 1981 was reinstated. | 1 |
dev | 001-111244 | ENG | DEU | ADMISSIBILITY | 2,012 | TARON v. GERMANY | 3 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger | 1. The applicant, Mr Reinhold Taron, is a German national who was born in 1955 and lives in Drentwede. He was represented before the Court by Ms P. Nieweg, a lawyer practising in Steinhagen. The respondent Government were represented by their agent Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant lives outside residential building zones in a rural area that is primarily designated for agriculture. In July 2000, the Diepholz Administrative District (Landkreis) granted his neighbour a construction permit for an industrial poultry shed (Legehennenstall) some 265 metres from the applicant’s home. All appeals of the applicant and related applications to suspend execution of the permit were dismissed. The permit became final on 29 September 2003 when the Lower Saxony Administrative Court of Appeal refused the applicant’s request to be granted leave to appeal. 4. On 20 July 2005 the applicant lodged an action for reopening of the proceedings regarding the first shed with the Hannover Administrative Court. 5. The Hannover Administrative Court has not decided on this claim. 6. On 21 June 2004 the Diepholz Administrative District granted the applicant’s neighbour a permit according to the Federal Act on Protection against Emissions (Bundesimmissionsschutzgesetz) concerning the erection of a second industrial poultry shed some 580 metres from the applicant’s home. 7. The applicant objected on 25 June 2004. 8. On 26 July 2004 the Diepholz Administrative District allowed the applicant’s neighbour to make use of the permit despite the pending proceedings of the applicant. All four subsequent requests of the applicant to reinstate the suspensive effect of his objection with the Hannover Administrative Court were dismissed. 9. On 29 September 2005 the Hannover Administrative Court held that the numerous submissions of the applicant showed that he had become unable to properly represent himself and decided that he had no longer locus standi in the proceedings. The applicant’s related application for legal aid was rejected for lack of reasonable prospects. 10. On 15 February 2007 the applicant, represented by counsel, lodged an action for failure to act (Untätigkeitsklage) with the Hannover Administrative Court. 11. After the Diepholz Administrative District dismissed on 12 March 2007 the applicant’s objection of 25 June 2004 the applicant pursued his legal action and challenged the merits of this decision. 12. On 17 November 2008 the Administrative Court held an oral hearing and later on the same day dismissed the applicant’s claim as ill-founded. The court heard expert evidence on the environmental impact of the poultry farm, and also the applicant and the applicant’s neighbour. 13. On 8 and 28 January 2009 the applicant requested leave to appeal the judgment with the Lower Saxony Administrative Court of Appeal. 14. On 14 February 2011 the Lower Saxony Administrative Court of Appeal refused the applicant’s request to be granted leave to appeal. 15. On 7 December 2011 the Government informed the Court that in response to the pilot judgment Rumpf v. Germany (no. 46344/06, 2 September 2010) a federal Act against Protracted Court Proceedings and Criminal Investigations had entered into force on 3 December 2011. 16. In December 2011 the Court informed the applicant in the present case and other applicants in the same position of the enactment of a new domestic remedy. The Court referred to the case Brusco v. Italy ((dec.), no. 69789/01, ECHR 2001IX) and invited him to inform the Court whether he intended to make use of the new remedy within the time limit set by the transitional provision of that Act. 17. By letter of 17 February 2012 the applicant informed the Court in response that he considered it unacceptable to pursue yet another national remedy. He pointed out that his case had been already pending for four years with this Court in distinction from the factual situation in Brusco v. Italy, cited above. It would lead to further delay to initiate a new set of proceedings to which no national case-law exists. Finally, he requested that his application before the Court be maintained. 18. The Act on Protracted Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren, henceforth: the Remedy Act) was published in the Federal Law Gazette – Part I, 2011, page 2302 et seq. – on 2 December 2011 and entered into force the next day. 19. The Remedy Act introduces general provisions for civil and criminal cases in sections 198 to 201 of the Courts Constitution Act (Gerichtsverfassungsgesetz, henceforth: CCA). For specialised – such as at hand the administrative – jurisdictions only one provision was introduced in the respective codes of procedure, here Article 173 Sentence 2 of the Code of Administrative Procedure (Verwaltungsgerichtsordnung) referring to the general rules with marginal adaptions regarding the competent court. 20. The new remedy combines an instrument to expedite the proceedings, an objection to delay (Verzögerungsrüge), which has to be raised before the court whose proceedings are allegedly unduly delayed (henceforth: trial court), with a subsequent compensation claim to be lodged at the Court of Appeal (henceforth: compensation court), see section 198 paragraph 1 and 3 CCA. 21. According to section 198 paragraph 1 CCA a party to proceedings (Verfahrensbeteiligter) who suffers a disadvantage from protracted proceedings is entitled to adequate compensation. The amount depends on the length of the individual case taking into account its difficulty and importance as well as the conduct of the parties and relevant third persons. A compensation award is not dependent on the determination of fault. 22. The compensation is awarded in monetary form, if other forms of compensation for lengthy proceedings are not available. Another form of compensation may consist in the court pronouncing that there has been an unreasonable delay in proceedings, section 198 paragraph 4 CCA. 23. The compensation for one year of protraction amounts to 1,200 euros 24. A prior objection to delay before the trial court is a prerequisite for a subsequent compensation claim. The action for compensation may not be lodged with a compensation court until six months after the objection had been raised, see section 198 paragraph 5 CCA. The compensation claim must at the latest be lodged within six months of the final judicial decision of the trial court. 25. Proceedings for compensation are subject to court fees. However, the plaintiff will be reimbursed according to the quota of his success in court. 26. The judgment of the compensation court is subject to appeal on points of law (Revision) only. 27. According to its Article 23 the Remedy Act applies to pending as well as to terminated proceedings whose duration may still become or have already become the subject of a complaint with this Court. 28. In pending proceedings the objection to delay (Verzögerungsrüge) should be raised without delay when the Remedy Act entered into force. In these cases the objection preserves a subsequent compensation claim even for the past. 29. For terminated proceedings whose duration may still become or have already become the subject of a complaint with this Court it is not necessary to raise the objection prior to filing a compensation claim. The claim based on Article 23 of the Act has to be lodged with the competent court on 3 June 2012 at the latest. | 0 |
dev | 001-67633 | ENG | GBR | ADMISSIBILITY | 2,004 | JORDAN v. THE UNITED KINGDOM | 4 | Inadmissible | Josep Casadevall;Nicolas Bratza | The applicant, John Colin Campbell Jordan, is a United Kingdom national, who was born in 1923 and lives in Harrogate. The respondent Government are represented by Mr John Grainger of the Foreign and Commenwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 July 1998, a search warrant was issued against the applicant under Section 24(1) of the Public Order Act 1986 in connection with an investigation into suspected offences involving the possession and distribution of racially inflammatory material. A large number of items of property, including papers, were seized in the course of a search at the applicant's home on 4 August 1998. An application by the applicant for permission to apply for judicial review of the decision to retain and sift through the documents was refused by a High Court judge as the judge considered that the police had acted both reasonably and lawfully in seizing and retaining the material for their investigation. A renewed application was dismissed by the High Court on 1 November 1999. On 19 April 2000 the applicant was charged with offences under the Public Order Act 1986, and on 2 November 2000 he was committed to stand trial. The applicant was charged together with another man, H. The applicant applied for a stay of the proceedings on the ground that he was too ill to stand trial. The stay was granted by the Crown Court on 23 November 2001. After hearing the prosecution, the applicant and the medical evidence, the judge stated: “... It is obvious that Mr Jordan is not fit to conduct his own defence as is his right .. And, indeed, it may well be the case that he is not fit to be tried even if counsel were able to represent him. I must say that, having seen Mr Jordan in court and having heard Mr Jordan, he is able to put his case forcibly and eloquently, although that may be on the medical evidence before me only over very short periods of time. I have therefore come to the conclusion that I should apply a stay in this case but it will not be a permanent stay. I intend to apply to this indictment a conditional stay. The indictment will be stayed upon the following conditions which I have had the opportunity of canvassing both with [counsel] on behalf of the Crown and Mr Jordan and it is right to say Mr Jordan does not agree with them, but they are the conditions which I impose. Firstly, that the stay will continue to apply providing that, one, the defendant's health does not improve by way of treatment or otherwise to a condition where he is no longer medically unfit to be tried; and, secondly, providing that the defendant does not engage in any activity, either political, social or personal, which demonstrates to the satisfaction of a court that he is in fact able to stand his trial, irrespective of his medical condition.” The formal order incorporating that ruling reads as follows: “The indictment be conditionally stayed against John Colin Campbell Jordan and the stay will continue to apply: 1. Providing the defendant's health does not improve by way of treatment or otherwise to a condition where he is no longer medically unfit to be tried. 2. Providing the defendant does not engage in any activities either political, social or personal which demonstrates to the satisfaction of a court that he is in fact able to stand his trial irrespective of his medical condition.” On 23 November 2001, after the ruling on a stay of the proceedings, the Crown Court discussed the question of materials which were still retained. The prosecution stated that they had offered to return seized material which was not relevant to the prosecution of the co-defendant, but that the applicant had stated that he wanted all of the material or none of it. The applicant did not accept the prosecution's claim, and maintained that “special procedure material” should never have been seized under the warrant. At the end of the discussions, the judge stated that all the seized material which was not of assistance to the co-defendant or the prosecution in the case against the co-defendant would be returned to the applicant. The applicant tried to challenge, by an application for judicial review, both (i) the conditions of the stay and (ii) the fact that his property had not been returned. Mr Justice Munby refused leave on 6 February 2002, and in so doing made the following comments: “1. Despite what is said by the LCD [the Lord Chancellor's Department] and the CPS [the Crown Prosecution Service] I have some disquiet about the propriety of staying an indictment on terms which might appear to suggest that freedom from future prosecution is to be in some way dependent upon abstention from political activity. 2. But (i) most of this application for [judicial review] is plainly barred by [the Supreme Court Act] 1981 Section 29 (3) and I can see no even arguable basis for saying that Section 29 (3) is not Convention compatible and (ii) that part which is not so barred is plainly without merit – the application in relation to the property is, at least in the first instance, a matter for the Crown Court, not the Administrative Court.” A renewed application was refused on 26 February 2002. On 18 April 2002, the applicant applied to the Leeds Crown Court for return of “special procedure material”. He states that he has had no reply. He further wrote to the North Yorkshire police and the Crown Prosecution Service on 26 July 2002, asking for return of 790 items of “special procedure material” to be sent to his home in Harrogate “with a complete list of all items”. He was informed that the return of property would be considered at the end of the trial against the co-defendant. The co-defendant was acquitted on 5 September 2002. On 24 October 2002, the Crown Prosecution Service informed the applicant that the material seized on 4 August 1998 could be returned to him with the following exceptions: “(i) The electronic stunning device, which is a prohibited weapon. (ii) Multiple copies of those documents which are the subject of counts on the indictment of publishing or distributing written material. Only a single copy of these documents will be returned. [There follows a list of the nine documents referred to.] [iii] Material distributed by you to others is no longer your property and will not be returned.” The letter continued: “The material is being returned to you because [H's] trial has been concluded. It is not accepted that any of the material is special procedure material.” A similar letter was sent to the applicant by the Head of Legal Services of the North Yorkshire County Council for the Chief Constable of North Yorkshire Police on 24 October, and the applicant was informed that he could collect the items from Tadcaster Police Station from 28 October onwards. The applicant replied on 26 October that “a proper return of the property to me is a return of it to the place from which it was taken ... and with a complete listing beforehand of all items, individually, so that they can be checked off on return.” The applicant repeated his demands in a letter of 31 October 2002, adding reference to a typewriter which he claimed had been damaged whilst in police custody, and again on 6 and 11 November 2002. On 7 November 2002, the High Court refused an application made by the applicant in September 2002 for permission to apply for judicial review in respect of materials held. The judge noted “The application covers substantially the same allegation[s] of illegality ... as those made on previous occasions and rejected. Furthermore, the applicant has liberty to apply to the Recorder ... for the return of any documents or original documents not required for the trial which has been conditionally stayed”. On 13 November 2002, the Head of Legal Services of the North Yorkshire County Council wrote to the applicant that the applicant's property (save for the excepted items) would be delivered to his home in Knaresborough, and the majority of items would be listed individually. Certain bulk items would not figure individually. The applicant was informed that it might not be possible to deliver his property to him before he left North Yorkshire for three months, but that it was open to him to collect it from Tadcaster Police Station. On 16 November the applicant refused to collect the property from any police station, and insisted on its return to Harrogate by the end of November. The property was not handed over or collected, and on 9 April 2003, the Head of Legal Services wrote to the applicant in the following terms: “I note, upon a review of my file in this matter, that the question of the return of your property remains outstanding. You will be aware from previous correspondence that my client is prepared to return to you all of the material seized from your house save for the items set out in my letter of 24 October 2002, a copy of which I enclose. I am instructed to indicate that my client is prepared to make arrangements for the return of your property at a time and date to suit you. It would obviously be preferable for all concerned if the hand over of your property could be undertaken at your address in Harrogate but if a trip to your property in Ross-shire is necessary, that could also be arranged. With that in mind, would you please be so kind as to contact the writer with a suggested time and date, or a number of such options, in order that arrangements can be made with my client for your property to be returned. It would assist if you would kindly revert to me in the course of the next seven days and with that in mind we enclose a stamped addressed envelope for your early response.” The applicant replied on 18 April: “My position remains as expressed during and to the end of that previous contact in the matter. I was open then to the return of all of my seized property on precisely and essentially the terms rightfully laid down by me in my letter then, and I am open now to such return on those terms, nothing other and nothing less than that. Are you people therefore now to make return in full fulfilment of those terms? ... If you are not, then determination of the matter will have to await eventual legal process encompassing the continuation of wrongful retention.” On 20 May, after a further exchange of letters, the applicant sent a draft signed Agreement to the Head of Legal Services, in which he demanded return of all items (save those which had been handed over already, the stunning device, and a single copy of each of 11 documents), a list including each individual item, and an acknowledgment of damage to a typewriter. The agreement stated that the applicant was not able to check the property against the list for more than three hours per day, and ended “No deletion or alteration or addition to the Agreement is acceptable to the property owner, the terms here set out being non-negotiable”. In his covering letter, the applicant stated “Unless I receive back, signed and dated by you, the here enclosed Agreement, nothing can be done in the matter apart from, for my part, moving towards legal action for the return of all my long withheld property”. The Head of Legal Services declined to arrange for the Agreement to be signed, but confirmed that there was still no resistance in principle to the return of the applicant's property on the lines already laid out. Correspondence continued in the same tone, the final exchange running as follows: The applicant's letter of 1 November 2003 to the Head of Legal Services: “... the agreement is absolutely essential, now or at any future time, and that I will not accept now or at any time in the future what, in the absence of the agreement, amounts to a dumping disregardful of it. Sign and return the agreement, if you want the return to go ahead, otherwise stand confirmed and revealed as opposed to a fair and proper return for suspect reasons. As I will be returning to Scotland in four weeks time, the signed agreement needs to reach me straight away. Unless you are signing and returning the agreement and arranging the return of property on this basis, there is no point in further correspondence from you which I am not prepared to deal with because it will be futile and time-wasting, having given you my final and irrevocable answer.” The Head of Legal Services, letter to the applicant of 11 November 2003: “For the avoidance of doubt, my client's position is as follows: 1. All property, save for that set out at numbered paragraphs (i) to (iii) of my correspondence dated 24 October 2002, to be listed in an inventory. 2. North Yorkshire Police to return the listed property on a date and time to be agreed. 3. Adequate and mutually convenient arrangements to be made to facilitate a thorough checking of the property against the inventory.” Section 23 (1) of the Public Order Act 1986 provides: “A person who has in his possession written material which is threatening, abusive or insulting, or a recording of visual images or sounds which are threatening, abusive or insulting with a view to (a) in the case of written material, its being displayed, published, distributed or included in a programme service, whether by himself or another, or (b) in the case of a recording, its being distributed, shown, played or included in a programme service, whether by himself or another is guilty of an offence if he intends racial hatred to be stirred up thereby or, having regard to all the circumstances, racial hatred is likely to be stirred up thereby.” Section 24 (1) of the Public Order Act 1986 provides: “If in England and Wales a justice of the peace is satisfied by information on oath laid by a constable that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of Section 23, the justice may issue a warrant under his hand authorising any constable to enter and search the premises where it is suspected the material or recording is situated.” Certain categories of material cannot be the subject of an application for a warrant before a magistrate, but must be the subject of an application to a circuit judge. This material is broadly speaking material such as personal records acquired or created in the course of any trade, profession or business. The material is known as “excluded material” and “special procedure material”. Excluded material is material, including journalistic material, held in confidence (Section 11(1) Police and Criminal Evidence Act 1984 “PACE”). Special procedure material includes journalistic material not held in confidence (Section 14 PACE). Independently of common law powers to seize and retain material falling within the terms of a warrant, a constable who is lawfully on premises may seize material on the premises if he has reasonable grounds for believing that it is evidence in relation to an offence which he is investigating or any other offence, and that it is necessary to seize it to prevent it being concealed, lost, altered or destroyed (Section 19(3) PACE). The Notes for Guidance which accompany the PACE Code of Practice relating to search and seizure (“Code of Practice for the Searching of Premises by Police Officers and the Seizure of Property found by Police Officers on Persons or Premises”, applicable to warrants and searches after 9 April 1995) state that “Any person claiming property seized by the police may apply to a magistrates' court under the Police (Property) Act 1897 for its possession, and should, where appropriate, be advised of this procedure”. Section 29 (3) of the Supreme Court Act 1981 provides that: “In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court.” Criminal courts have wide common law powers to stay proceedings. A stay typically takes the form of an order that the charge should not be proceeded with. In certain exceptional and limited circumstances the prosecution would be entitled to seek to lift a , including the rights of the accused. | 0 |
dev | 001-57708 | ENG | GBR | CHAMBER | 1,991 | CASE OF THE SUNDAY TIMES v. THE UNITED KINGDOM (No. 2) | 2 | Violation of Art. 10;No violation of Art. 13 and 14+10;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | C. Russo;N. Valticos;R. Pekkanen | 9. The applicants in this case (who are hereinafter together referred to as "S.T.") are Times Newspapers Ltd, the publisher of the United Kingdom national Sunday newspaper The Sunday Times, and Mr Andrew Neil, its editor. They complain of interlocutory injunctions imposed by the English courts on the publication of details of the book Spycatcher and information obtained from its author, Mr Peter Wright. 10. In litigation where the plaintiff seeks a permanent injunction against the defendant, the English courts have a discretion to grant the plaintiff an "interlocutory injunction" (a temporary restriction pending the determination of the dispute at the substantive trial) which is designed to protect his position in the interim. In that event the plaintiff will normally be required to give an undertaking to pay damages to the defendant should the latter succeed at the trial. The principles on which such injunctions will be granted - to which reference was made in the proceedings in the present case - were set out in American Cyanamid Co. v. Ethicon Ltd([1975] Appeal Cases 396) and may be summarised as follows. (a) It is not for the court at the interlocutory stage to seek to determine disputed issues of fact or to decide difficult questions of law which call for detailed argument and mature consideration. (b) Unless the material before the court at that stage fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction, the court should consider, in the light of the particular circumstances of the case, whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. (c) If damages would be an adequate remedy for the plaintiff if he were to succeed at the trial, no interlocutory injunction should normally be granted. If, on the other hand, damages would not provide an adequate remedy for the plaintiff but would adequately compensate the defendant under the plaintiff’s undertaking if the defendant were to succeed at the trial, there would be no reason to refuse an interlocutory injunction on this ground. (d) It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience arises. (e) Where other factors appear evenly balanced, it is a counsel of prudence to take such measures as are calculated to preserve the status quo. 11. Mr Peter Wright was employed by the British Government as a senior member of the British Security Service (MI5) from 1955 to 1976, when he resigned. Subsequently, without any authority from his former employers, he wrote his memoirs, entitled Spycatcher, and made arrangements for their publication in Australia, where he was then living. The book dealt with the operational organisation, methods and personnel of MI5 and also included an account of alleged illegal activities by the Security Service. He asserted therein, inter alia, that MI5 conducted unlawful activities calculated to undermine the 1974-1979 Labour Government, burgled and "bugged" the embassies of allied and hostile countries and planned and participated in other unlawful and covert activities at home and abroad, and that Sir Roger Hollis, who led MI5 during the latter part of Mr Wright’s employment, was a Soviet agent. Mr Wright had previously sought, unsuccessfully, to persuade the British Government to institute an independent inquiry into these allegations. In 1987 such an inquiry was also sought by, amongst others, a number of prominent members of the 1974-1979 Labour Government, but in vain. 12. Part of the material in Spycatcher had already been published in a number of books about the Security Service written by Mr Chapman Pincher. Moreover, in July 1984 Mr Wright had given a lengthy interview to Granada Television (an independent television company operating in the United Kingdom) about the work of the service and the programme was shown again in December 1986. Other books and another television programme on the workings and secrets of the service were produced at about the same time, but little Government action was taken against the authors or the media. 13. In September 1985 the Attorney General of England and Wales ("the Attorney General") instituted, on behalf of the United Kingdom Government, proceedings in the Equity Division of the Supreme Court of New South Wales, Australia, to restrain publication of Spycatcher and of any information therein derived from Mr Wright’s work for the Security Service. The claim was based not on official secrecy but on the ground that the disclosure of such information by Mr Wright would constitute a breach of, notably, his duty of confidentiality under the terms of his employment. On 17 September he and his publishers, Heinemann Publishers Australia Pty Ltd, gave undertakings, by which they abided, not to publish pending the hearing of the Government’s claim for an injunction. Throughout the Australian proceedings the Government objected to the book as such; they declined to indicate which passages they objected to as being detrimental to national security. 14. Whilst the Australian proceedings were still pending, the United Kingdom national Sunday newspaper Observer and the United Kingdom national daily newspaper The Guardian published, on Sunday 22 and Monday 23 June 1986 respectively, short articles on inside pages reporting on the forthcoming hearing in Australia and giving details of some of the contents of the manuscript of Spycatcher. These two newspapers had for some time been conducting a campaign for an independent investigation into the workings of the Security Service. The details given included the following allegations of improper, criminal and unconstitutional conduct on the part of MI5 officers: (a) MI5 "bugged" all diplomatic conferences at Lancaster House in London throughout the 1950’s and 1960’s, as well as the Zimbabwe independence negotiations in 1979; (b) MI5 "bugged" diplomats from France, Germany, Greece and Indonesia, as well as Mr Kruschev’s hotel suite during his visit to Britain in the 1950’s, and was guilty of routine burglary and "bugging" (including the entering of Soviet consulates abroad); (c) MI5 plotted unsuccessfully to assassinate President Nasser of Egypt at the time of the Suez crisis; (d) MI5 plotted against Harold Wilson during his premiership from 1974 to 1976; (e) MI5 (contrary to its guidelines) diverted its resources to investigate left-wing political groups in Britain. The Observer and Guardian articles, which were written by Mr David Leigh and Mr Paul Lashmar and by Mr Richard Norton-Taylor respectively, were based on investigations by these journalists from confidential sources and not on generally available international press releases or similar material. However, much of the actual information in the articles had already been published elsewhere (see paragraph 12 above). The English courts subsequently inferred that, on the balance of probabilities, the journalists’ sources must have come from the offices of the publishers of Spycatcher or the solicitors acting for them and the author (see the judgment of 21 December 1987 of Mr Justice Scott; paragraph 40 below). 15. The Attorney General instituted proceedings for breach of confidence in the Chancery Division of the High Court of Justice of England and Wales against The Observer Ltd, the proprietors and publishers of the Observer, Mr Donald Trelford, its editor, and Mr Leigh and Mr Lashmar, and against Guardian Newspapers Ltd, the proprietors and publishers of The Guardian, Mr Peter Preston, its editor, and Mr Norton-Taylor. The Attorney General sought permanent injunctions against the defendants (who are hereinafter together referred to as "O.G."), restraining them from making any publication of Spycatcher material. He based his claim on the principle that the information in the memoirs was confidential and that a third party coming into possession of information knowing that it originated from a breach of confidence owed the same duty to the original confider as that owed by the original confidant. It was accepted that an award of damages would have been an insufficient and inappropriate remedy for the Attorney General and that only an injunction would serve his purpose. 16. The evidential basis for the Attorney General’s claim was two affidavits sworn by Sir Robert Armstrong, Secretary to the British Cabinet, in the Australian proceedings on 9 and 27 September 1985. He had stated therein, inter alia, that the publication of any narrative based on information available to Mr Wright as a member of the Security Service would cause unquantifiable damage, both to the service itself and to its officers and other persons identified, by reason of the disclosures involved. It would also undermine the confidence that friendly countries and other organisations and persons had in the Security Service and create a risk of other employees or former employees of that service seeking to publish similar information. 17. On 27 June 1986 ex parte interim injunctions were granted to the Attorney General restraining any further publication of the kind in question pending the substantive trial of the actions. On an application by O.G. and after an inter partes hearing on 11 July, Mr Justice Millett (sitting in the Chancery Division) decided that these injunctions should remain in force, but with various modifications. The defendants were given liberty to apply to vary or discharge the orders on giving twenty-four hours’ notice. 18. The reasons for Mr Justice Millett’s decision may be briefly summarised as follows. (a) Disclosure by Mr Wright of information acquired as a member of the Security Service would constitute a breach of his duty of confidentiality. (b) O.G. wished to be free to publish further information deriving directly or indirectly from Mr Wright and disclosing alleged unlawful activity on the part of the Security Service, whether or not it had been previously published. (c) Neither the right to freedom of speech nor the right to prevent the disclosure of information received in confidence was absolute. (d) In resolving, as in the present case, a conflict between the public interest in preventing and the public interest in allowing such disclosure, the court had to take into account all relevant considerations, including the facts that this was an interlocutory application and not the trial of the action, that the injunctions sought at this stage were only temporary and that the refusal of injunctive relief might cause irreparable harm and effectively deprive the Attorney General of his rights. In such circumstances, the conflict should be resolved in favour of restraint, unless the court was satisfied that there was a serious defence of public interest that might succeed at the trial: an example would be when the proposed publication related to unlawful acts, the disclosure of which was required in the public interest. This could be regarded either as an exception to the American Cyanamid principles (see paragraph 10 above) or their application in special circumstances where the public interest was invoked on both sides. (e) The Attorney General’s principal objection was not to the dissemination of allegations about the Security Service but to the fact that those allegations were made by one of its former employees, it being that particular fact which O.G. wished to publish. There was credible evidence (in the shape of Sir Robert Armstrong’s affidavits; see paragraph 16 above) that the appearance of confidentiality was essential to the operation of the Security Service and that the efficient discharge of its duties would be impaired, with consequent danger to national security, if senior officers were known to be free to disclose what they had learned whilst employed by it. Although this evidence remained to be tested at the substantive trial, the refusal of an interlocutory injunction would permit indirect publication and permanently deprive the Attorney General of his rights at the trial. Bearing in mind, inter alia, that the alleged unlawful activities had occurred some time in the past, there was, moreover, no compelling interest requiring publication immediately rather than after the trial. In the subsequent stages of the interlocutory proceedings, both the Court of Appeal (see paragraphs 19 and 34 below) and all the members of the Appellate Committee of the House of Lords (see paragraphs 35-36 below) considered that this initial grant of interim injunctions by Mr Justice Millett was justified. 19. On 25 July 1986 the Court of Appeal dismissed an appeal by O.G. and upheld the injunctions, with minor modifications. It referred to the American Cyanamid principles (see paragraph 10 above) and considered that Mr Justice Millett had not misdirected himself or exercised his discretion on an erroneous basis. It refused leave to appeal to the House of Lords. It also certified the case as fit for a speedy trial. As amended by the Court of Appeal, the injunctions ("the Millett injunctions") restrained O.G., until the trial of the action or further order, from: "1. disclosing or publishing or causing or permitting to be disclosed or published to any person any information obtained by Peter Maurice Wright in his capacity as a member of the British Security Service and which they know, or have reasonable grounds to believe, to have come or been obtained, whether directly or indirectly, from the said Peter Maurice Wright; 2. attributing in any disclosure or publication made by them to any person any information concerning the British Security Service to the said Peter Maurice Wright whether by name or otherwise." The orders contained the following provisos: "1. this Order shall not prohibit direct quotation of attributions to Peter Maurice Wright already made by Mr Chapman Pincher in published works, or in a television programme or programmes broadcast by Granada Television; 2. no breach of this Order shall be constituted by the disclosure or publication of any material disclosed in open court in the Supreme Court of New South Wales unless prohibited by the Judge there sitting or which, after the trial there in action no. 4382 of 1985, is not prohibited from publication; 3. no breach of this Order shall be constituted by a fair and accurate report of proceedings in (a) either House of Parliament in the United Kingdom whose publication is permitted by that House; or (b) a court of the United Kingdom sitting in public." 20. On 6 November 1986 the Appellate Committee of the House of Lords granted leave to appeal against the Court of Appeal’s decision. The appeal was subsequently withdrawn in the light of the House of Lords decision of 30 July 1987 (see paragraphs 35-36 below). 21. The trial of the Government’s action in Australia (see paragraph 13 above) took place in November and December 1986. The proceedings were reported in detail in the media in the United Kingdom and elsewhere. In a judgment delivered on 13 March 1987 Mr Justice Powell rejected the Attorney General’s claim against Mr Wright and his publishers, holding that much of the information in Spycatcher was no longer confidential and that publication of the remainder would not be detrimental to the British Government or the Security Service. The undertakings not to publish were then discharged by order of the court. The Attorney General lodged an appeal; after a hearing in the New South Wales Court of Appeal in the week of 27 July 1987, judgment was reserved. The defendants had given further undertakings not to publish whilst the appeal was pending. 22. On 27 April 1987 a major summary of certain of the allegations in Spycatcher, allegedly based on a copy of the manuscript, appeared in the United Kingdom national daily newspaper The Independent. Later the same day reports of that summary were published in The London Evening Standard and the London Daily News. On the next day the Attorney General applied to the Queen’s Bench Division of the High Court for leave to move against the publishers and editors of these three newspapers for contempt of court that is conduct intended to interfere with or prejudice the administration of justice. Leave was granted on 29 April. In this application (hereinafter referred to as "the Independent case") the Attorney General was not acting - as he was in the breach of confidence proceedings against O.G. - as the representative of the Government, but independently and in his capacity as "the guardian of the public interest in the due administration of justice". Reports similar to those of 27 April appeared on 29 April in Australia, in The Melbourne Age and the Canberra Times, and on 3 May in the United States of America, in The Washington Post. 23. On 29 April 1987 O.G. applied for the discharge of the Millett injunctions (see paragraph 19 above) on the ground that there had been a significant change of circumstances since they were granted. They referred to what had transpired in the Australian proceedings and to the United Kingdom newspaper reports of 27 April. The Vice-Chancellor, Sir Nicolas Browne-Wilkinson, began to hear these applications on 7 May but adjourned them pending the determination of a preliminary issue of law, raised in the Independent case (see paragraph 22 above), on which he thought their outcome to be largely dependent, namely "whether a publication made in the knowledge of an outstanding injunction against another party, and which if made by that other party would be in breach thereof, constitutes a criminal contempt of court upon the footing that it assaults or interferes with the process of justice in relation to the said injunction". On 11 May, in response to the Vice-Chancellor’s invitation, the Attorney General pursued the proceedings in the Independent case in the Chancery Division of the High Court and the Vice-Chancellor ordered the trial of the preliminary issue. 24. On 14 May 1987 Viking Penguin Incorporated, which had purchased from Mr Wright’s Australian publishers the United States publication rights to Spycatcher, announced its intention of publishing the book in the latter country. 25. On 2 June 1987 the Vice-Chancellor decided the preliminary issue of law in the Independent case. He held that the reports that had appeared on 27 April 1987 (see paragraph 22 above) could not, as a matter of law, amount to contempt of court because they were not in breach of the express terms of the Millett injunctions and the three newspapers concerned had not been a party to those injunctions or to a breach thereof by the persons they enjoined. The Attorney General appealed. 26. On 15 June 1987 O.G., relying on the intended publication in the United States, applied to have the hearing of their application for discharge of the Millett injunctions restored (see paragraph 23 above). The matter was, however, adjourned pending the outcome of the Attorney General’s appeal in the Independent case, the hearing of which began on 22 June. 27. On 12 July 1987 The Sunday Times, which had purchased the British newspaper serialisation rights from Mr Wright’s Australian publishers and obtained a copy of the manuscript from Viking Penguin Incorporated in the United States, printed – in its later editions in order to avoid the risk of proceedings for an injunction - the first instalment of extracts from Spycatcher. It explained that this was timed to coincide with publication of the book in the United States, which was due to take place on 14 July. On 13 July the Attorney General commenced proceedings against S.T. for contempt of court, on the ground that the publication frustrated the purpose of the Millett injunctions. 28. On 14 July 1987 Viking Penguin Incorporated published Spycatcher in the United States of America; some copies had, in fact, been put on sale on the previous day. It was an immediate best-seller. The British Government, which had been advised that proceedings to restrain publication in the United States would not succeed, took no legal action to that end either in that country or in Canada, where the book also became a best-seller. 29. A substantial number of copies of the book were then brought into the United Kingdom, notably by British citizens who had bought it whilst visiting the United States or who had purchased it by telephone or post from American bookshops. The telephone number and address of such bookshops willing to deliver the book to the United Kingdom were widely advertised in that country. No steps to prevent such imports were taken by the British Government, which formed the view that although a ban was within their powers, it was likely to be ineffective. They did, however, take steps to prevent the book’s being available at United Kingdom booksellers or public libraries. 30. On 15 July 1987 the Court of Appeal announced that it would reverse the judgment of the Vice-Chancellor in the Independent case (see paragraph 25 above). Its reasons, which were handed down on 17 July, were basically as follows: the purpose of the Millett injunctions was to preserve the confidentiality of the Spycatcher material until the substantive trial of the actions against O.G.; the conduct of The Independent, The London Evening Standard and the London Daily News could, as a matter of law, constitute a criminal contempt of court because publication of that material would destroy that confidentiality and, hence, the subject-matter of those actions and therefore interfere with the administration of justice. The Court of Appeal remitted the case to the High Court for it to determine whether the three newspapers had acted with the specific intent of so interfering (sections 2(3) and 6(c) of the Contempt of Court Act 1981). 31. The Court of Appeal refused the defendants leave to appeal to the House of Lords and they did not seek leave to appeal from the House itself. Neither did they apply to the High Court for modification of the Millett injunctions. The result of the Court of Appeal’s decision was that those injunctions were effectively binding on all the British media, including The Sunday Times. 32. S.T. made it clear that, unless restrained by law, they would publish the second instalment of the serialisation of Spycatcher on 19 July 1987. On 16 July the Attorney General applied for an injunction to restrain them from publishing further extracts, maintaining that this would constitute a contempt of court by reason of the combined effect of the Millett injunctions and the decision in the Independent case (see paragraph 30 above). On the same day the Vice-Chancellor granted a temporary injunction restraining publication by S.T. until 21 July 1987. It was agreed that on 20 July he would consider the application by O.G. for discharge of the Millett injunctions (see paragraph 26 above) and that, since they effectively bound S.T. as well, the latter would have a right to be heard in support of that application. It was further agreed that he would also hear the Attorney General’s claim for an injunction against S.T. and that that claim would fail if the Millett injunctions were discharged. 33. Having heard argument from 20 to 22 July 1987, the Vice-Chancellor gave judgment on the last-mentioned date, discharging the Millett injunctions and dismissing the claim for an injunction against S.T. The Vice-Chancellor’s reasons may be briefly summarised as follows. (a) There had, notably in view of the publication in the United States (see paragraphs 28-29 above), been a radical change of circumstances, and it had to be considered if it would be appropriate to grant the injunctions in the new circumstances. (b) Having regard to the case-law and notwithstanding the changed circumstances, it had to be assumed that the Attorney General still had an arguable case for obtaining an injunction against O.G. at the substantive trial; accordingly, the ordinary American Cyanamid principles (see paragraph 10 above) fell to be applied. (c) Since damages would be an ineffective remedy for the Attorney General and would be no compensation to the newspapers, it had to be determined where the balance of convenience lay; the preservation of confidentiality should be favoured unless another public interest outweighed it. (d) Factors in favour of continuing the injunctions were: the proceedings were only interlocutory; there was nothing new or urgent about Mr Wright’s allegations; the injunctions would bind all the media, so that there would be no question of discrimination; undertakings not to publish were still in force in Australia; to discharge the injunctions would mean that the courts were powerless to preserve confidentiality; to continue the injunctions would discourage others from following Mr Wright’s example. (e) Factors in favour of discharging the injunctions were: publication in the United States had destroyed a large part of the purpose of the Attorney General’s actions; publications in the press, especially those concerning allegations of unlawful conduct in the public service, should not be restrained unless this was unavoidable; the courts would be brought into disrepute if they made orders manifestly incapable of achieving their purpose. (f) The matter was quite nicely weighted and in no sense obvious but, with hesitation, the balance fell in favour of discharging the injunctions. The Attorney General immediately appealed against the Vice-Chancellor’s decision; pending the appeal the injunctions against O.G., but not the injunction against S.T. (see paragraph 32 above), were continued in force. 34. In a judgment of 24 July 1987 the Court of Appeal held that: (a) the Vice-Chancellor had erred in law in various respects, so that the Court of Appeal could exercise its own discretion; (b) in the light of the American publication of Spycatcher, it was inappropriate to continue the Millett injunctions in their original form; (c) it was, however, appropriate to vary these injunctions to restrain publication in the course of business of all or part of the book or other statements by or attributed to Mr Wright on security matters, but to permit "a summary in very general terms" of his allegations. The members of the Court of Appeal considered that continuation of the injunctions would: serve to restore confidence in the Security Service by showing that memoirs could not be published without authority (Sir John Donaldson, Master of the Rolls); serve to protect the Attorney General’s rights until the trial (Lord Justice Ralph Gibson); or fulfil the courts’ duty of deterring the dissemination of material written in breach of confidence (Lord Justice Russell). The Court of Appeal gave leave to all parties to appeal to the House of Lords. 35. After hearing argument from 27 to 29 July 1987 (when neither side supported the Court of Appeal’s compromise solution), the Appellate Committee of the House of Lords gave judgment on 30 July, holding, by a majority of three (Lord Brandon of Oakbrook, Lord Templeman and Lord Ackner) to two (Lord Bridge of Harwich - the immediate past Chairman of the Security Commission - and Lord Oliver of Aylmerton), that the Millett injunctions should continue. In fact, they subsequently remained in force until the commencement of the substantive trial in the breach of confidence actions on 23 November 1987 (see paragraph 39 below). The majority also decided that the scope of the injunctions should be widened by the deletion of part of the proviso that had previously allowed certain reporting of the Australian proceedings (see paragraph 19 above), since the injunctions would be circumvented if English newspapers were to reproduce passages from Spycatcher read out in open court. In the events that happened, this deletion had, according to the Government, no practical incidence on the reporting of the Australian proceedings. 36. The members of the Appellate Committee gave their written reasons on 13 August 1987; they may be briefly summarised as follows. (a) Lord Brandon of Oakbrook (i) The object of the Attorney General’s actions against O.G. was the protection of an important public interest, namely the maintenance as far as possible of the secrecy of the Security Service; as was recognised in Article 10 para. 2 (art. 10-2) of the Convention, the right to freedom of expression was subject to certain exceptions, including the protection of national security. (ii) The injunctions in issue were only temporary, being designed to hold the ring until the trial, and their continuation did not prejudge the decision to be made at the trial on the claim for final injunctions. (iii) The view taken in the courts below, before the American publication, that the Attorney General had a strong arguable case for obtaining final injunctions at the trial was not really open to challenge. (iv) Publication in the United States had weakened that case, but it remained arguable; it was not clear whether, as a matter of law, that publication had caused the newspapers’ duty of non-disclosure to lapse. Although the major part of the potential damage adverted to by Sir Robert Armstrong (see paragraph 16 above) had already been done, the courts might still be able to take useful steps to reduce the risk of similar damage by other Security Service employees in the future. This risk was so serious that the courts should do all they could to minimise it. (v) The only way to determine the Attorney General’s case justly and to strike the proper balance between the public interests involved was to hold a substantive trial at which evidence would be adduced and subjected to cross-examination. (vi) Immediate discharge of the injunctions would completely destroy the Attorney General’s arguable case at the interlocutory stage, without his having had the opportunity of having it tried on appropriate evidence. (vii) Continuing the injunctions until the trial would, if the Attorney General’s claims then failed, merely delay but not prevent the newspapers’ right to publish information which, moreover, related to events that had taken place many years in the past. (viii) In the overall interests of justice, a course which could only result in temporary and in no way irrevocable damage to the cause of the newspapers was to be preferred to one which might result in permanent and irrevocable damage to the cause of the Attorney General. (b) Lord Templeman (who agreed with the observations of Lords Brandon and Ackner) (i) The appeal involved a conflict between the right of the public to be protected by the Security Service and its right to be supplied with full information by the press. It therefore involved consideration of the Convention, the question being whether the interference constituted by the injunctions was, on 30 July 1987, necessary in a democratic society for one or more of the purposes listed in Article 10 para. 2 (art. 10-2). (ii) In terms of the Convention, the restraints were necessary in the interests of national security, for protecting the reputation or rights of others, for preventing the disclosure of information received in confidence and for maintaining the authority of the judiciary. The restraints would prevent harm to the Security Service, notably in the form of the mass circulation, both now and in the future, of accusations to which its members could not respond. To discharge the injunctions would surrender to the press the power to evade a court order designed to protect the confidentiality of information obtained by a member of the Service. (c) Lord Ackner (who agreed with the observations of Lord Templeman) (i) It was accepted by all members of the Appellate Committee that: the Attorney General had an arguable case for a permanent injunction; damages were a worthless remedy for the Crown which, if the Millett injunctions were not continued, would lose forever the prospect of obtaining permanent injunctions at the trial; continuation of the Millett injunctions was not a "final locking-out" of the press which, if successful at the trial, would then be able to publish material that had no present urgency; there was a real public interest, that required protection, concerned with the efficient functioning of the Security Service and it extended, as was not challenged by the newspapers, to discouraging the use of the United Kingdom market for the dissemination of unauthorised memoirs of Security Service officers. (ii) It would thus be a denial of justice to refuse to allow the injunctions to continue until the trial, for that would sweep aside the public-interest factor without any trial and would prematurely and permanently deny the Attorney General any protection from the courts. (d) Lord Bridge of Harwich (i) The case in favour of maintaining the Millett injunctions - which had been properly granted in the first place - would not be stronger at the trial than it was now; it would be absurd to continue them temporarily if no case for permanent injunctions could be made out. (ii) Since the Spycatcher allegations were now freely available to the public, it was manifestly too late for the injunctions to serve the interest of national security in protecting sensitive information. (iii) It could be assumed that the Attorney General could still assert a bare duty binding on the newspapers, but the question was whether the Millett injunctions could still protect an interest of national security of sufficient weight to justify the resultant encroachment on freedom of speech. The argument that their continuation would have a deterrent effect was of minimal weight. (iv) The attempt to insulate the British public from information freely available elsewhere was a significant step down the road to censorship characteristic of a totalitarian regime and, if pursued, would lead to the Government’s condemnation and humiliation by the European Court of Human Rights. (e) Lord Oliver of Aylmerton (i) Mr Justice Millett’s initial order was entirely correct. (ii) The injunctions had originally been imposed to preserve the confidentiality of what were at the time unpublished allegations, but that confidentiality had now been irrevocably destroyed by the publication of Spycatcher. It was questionable whether it was right to use the injunctive remedy against the newspapers (who had not been concerned with that publication) for the remaining purpose which the injunctions might serve, namely punishing Mr Wright and providing an example to others. (iii) The newspapers had presented their arguments on the footing that the Attorney General still had an arguable case for the grant of permanent injunctions and there was force in the view that the difficult and novel point of law involved should not be determined without further argument at the trial. However, in the light of the public availability of the Spycatcher material, it was difficult to see how it could be successfully argued that the newspapers should be permanently restrained from publishing it and the case of the Attorney General was unlikely to improve in the meantime. No arguable case for permanent injunctions at the trial therefore remained and the Millett injunctions should accordingly be discharged. 37. On 24 September 1987 the New South Wales Court of Appeal delivered judgment dismissing the Attorney General’s appeal (see paragraph 21 above); the majority held that his claim was not justiciable in an Australian court since it involved either an attempt to enforce indirectly the public laws of a foreign State or a determination of the question whether publication would be detrimental to the public interest in the United Kingdom. The Attorney General appealed to the High Court of Australia. In view of the publication of Spycatcher in the United States and elsewhere, that court declined to grant temporary injunctions restraining its publication in Australia pending the hearing; it was published in that country on 13 October. The appeal was dismissed on 2 June 1988, on the ground that, under international law, a claim - such as the Attorney General’s - to enforce British governmental interests in its security service was unenforceable in the Australian courts. Further proceedings brought by the Attorney General against newspapers for injunctions were successful in Hong Kong but not in New Zealand. 38. In the meantime publication and dissemination of Spycatcher and its contents continued worldwide, not only in the United States (around 715,000 copies were printed and nearly all were sold by October 1987) and in Canada (around 100,000 copies printed), but also in Australia (145,000 copies printed, of which half were sold within a month) and Ireland (30,000 copies printed and distributed). Nearly 100,000 copies were sent to various European countries other than the United Kingdom and copies were distributed from Australia in Asian countries. Radio broadcasts in English about the book were made in Denmark and Sweden and it was translated into twelve other languages, including ten European. 39. On 27 October 1987 the Attorney General instituted proceedings against S.T. for breach of confidence; in addition to injunctive relief, he sought a declaration and an account of profits. The substantive trial of that action and of his actions against O.G. (see paragraph 15 above) - in which, by an amendment of 30 October, he now claimed a declaration as well as an injunction - took place before Mr Justice Scott in the High Court in November-December 1987. He heard evidence on behalf of all parties, the witnesses including Sir Robert Armstrong (see paragraph 16 above). He also continued the interlocutory injunctions, pending delivery of his judgment. 40. Mr Justice Scott gave judgment on 21 December 1987; it contained the following observations and conclusions. (a) The ground for the Attorney General’s claim for permanent injunctions was no longer the preservation of the secrecy of certain information but the promotion of the efficiency and reputation of the Security Service. (b) Where a duty of confidence is sought to be enforced against a newspaper coming into possession of information known to be confidential, the scope of its duty will depend on the relative weights of the interests claimed to be protected by that duty and the interests served by disclosure. (c) Account should be taken of Article 10 (art. 10) of the Convention and the judgments of the European Court establishing that a limitation of free expression in the interests of national security should not be regarded as necessary unless there was a "pressing social need" for the limitation and it was "proportionate to the legitimate aims pursued". (d) Mr Wright owed a duty to the Crown not to disclose any information obtained by him in the course of his employment in MI5. He broke that duty by writing Spycatcher and submitting it for publication, and the subsequent publication and dissemination of the book amounted to a further breach, so that the Attorney General would be entitled to an injunction against Mr Wright or any agent of his, restraining publication of Spycatcher in the United Kingdom. (e) O.G. were not in breach of their duty of confidentiality, created by being recipients of Mr Wright’s unauthorised disclosures, in publishing their respective articles of 22 and 23 June 1986 (see paragraph 14 above): the articles were a fair report in general terms of the forthcoming trial in Australia and, furthermore, disclosure of two of Mr Wright’s allegations was justified on an additional ground relating to the disclosure of "iniquity". (f) S.T., on the other hand, had been in breach of the duty of confidentiality in publishing the first instalment of extracts from the book on 12 July 1987 (see paragraph 27 above), since those extracts contained certain material which did not raise questions of public interest outweighing those of national security. (g) S.T. were liable to account for the profits accruing to them as a result of the publication of that instalment. (h) The Attorney General’s claims for permanent injunctions failed because the publication and worldwide dissemination of Spycatcher since July 1987 had had the result that there was no longer any duty of confidence lying on newspapers or other third parties in relation to the information in the book; as regards this issue, a weighing of the national security factors relied on against the public interest in freedom of the press showed the latter to be overwhelming. (i) The Attorney General was not entitled to a general injunction restraining future publication of information derived from Mr Wright or other members of the Security Service. After hearing argument, Mr Justice Scott imposed fresh temporary injunctions pending an appeal to the Court of Appeal; those injunctions contained a proviso allowing reporting of the Australian proceedings (see paragraphs 19 and 35 above). 41. On appeal by the Attorney General and a cross-appeal by S.T., the Court of Appeal (composed of Sir John Donaldson, Master of the Rolls, Lord Justice Dillon and Lord Justice Bingham) affirmed, on 10 February 1988, the decision of Mr Justice Scott. However, Sir John Donaldson disagreed with his view that the articles in the Observer and The Guardian had not constituted a breach of their duty of confidence and that the claim for an injunction against these two newspapers in June 1986 was not "proportionate to the legitimate aim pursued". Lord Justice Bingham, on the other hand, disagreed with Mr Justice Scott’s view that S.T. had been in breach of duty by publishing the first instalment of extracts from Spycatcher, that they should account for profits and that the Attorney General had been entitled, in the circumstances as they stood in July 1987, to injunctions preventing further serialisation. After hearing argument, the Court of Appeal likewise granted fresh temporary injunctions pending an appeal to the House of Lords; O.G. and S.T. were given liberty to apply for variation or discharge if any undue delay arose. 42. On 13 October 1988 the Appellate Committee of the House of Lords (Lord Keith of Kinkel, Lord Brightman, Lord Griffiths, Lord Goff of Chieveley and Lord Jauncey of Tullichettle) also affirmed Mr Justice Scott’s decision. Dismissing an appeal by the Attorney General and a cross-appeal by S.T., it held: "(i) That a duty of confidence could arise in contract or in equity and a confidant who acquired information in circumstances importing such a duty should be precluded from disclosing it to others; that a third party in possession of information known to be confidential was bound by a duty of confidence unless the duty was extinguished by the information becoming available to the general public or the duty was outweighed by a countervailing public interest requiring disclosure of the information; that in seeking to restrain the disclosure of government secrets the Crown must demonstrate that disclosure was likely to damage or had damaged the public interest before relief could be granted; that since the world-wide publication of Spycatcher had destroyed any secrecy as to its contents, and copies of it were readily available to any individual who wished to obtain them, continuation of the injunctions was not necessary; and that, accordingly, the injunctions should be discharged. (ii) (Lord Griffiths dissenting) that the articles of 22 and 23 June [1986] had not contained information damaging to the public interest; that the Observer and The Guardian were not in breach of their duty of confidentiality when they published [those] articles; and that, accordingly, the Crown would not have been entitled to a permanent injunction against both newspapers. (iii) That The Sunday Times was in breach of its duty of confidence in publishing its first serialised extract from Spycatcher on 12 July 1987; that it was not protected by either the defence of prior publication or disclosure of iniquity; that imminent publication of the book in the United States did not amount to a justification; and that, accordingly, The Sunday Times was liable to account for the profits resulting from that breach. (iv) That since the information in Spycatcher was now in the public domain and no longer confidential no further damage could be done to the public interest that had not already been done; that no injunction should be granted against the Observer and The Guardian restraining them from reporting on the contents of the book; and that (Lord Griffiths dissenting) no injunction should be granted against The Sunday Times to restrain serialising of further extracts from the book. (v) That members and former members of the Security Service owed a lifelong duty of confidence to the Crown, and that since the vast majority of them would not disclose confidential information to the newspapers it would not be appropriate to grant a general injunction to restrain the newspapers from future publication of any information on the allegations in Spycatcher derived from any member or former member of the Security Service." 43. The substantive trial of the Attorney General’s actions for contempt of court against The Independent, The London Evening Standard, the London Daily News (see paragraph 22 above), S.T. (see paragraph 27 above) and certain other newspapers took place before Mr Justice Morritt in the High Court in April 1989. On 8 May he held, inter alia, that The Independent and S.T. had been in contempt of court and imposed a fine of £50,000 in each case. 44. On 27 February 1990 the Court of Appeal dismissed appeals by the latter two newspapers against the finding that they had been in contempt but concluded that no fines should be imposed. A further appeal by S.T. against the contempt finding was dismissed by the Appellate Committee of the House of Lords on 11 April 1991. | 1 |
dev | 001-71538 | ENG | GBR | ADMISSIBILITY | 2,005 | BETSON AND COCKRAM v. THE UNITED KINGDOM | 4 | Inadmissible | Josep Casadevall;Nicolas Bratza | The applicants, Mr Raymond Betson (“the first applicant”) and William Cockram (“the second applicant”), are British nationals. The first applicant was born in 1961 and is currently detained in HMP Whitemoor. No details were provided as to the date of birth or current location of the second applicant. On 7 November 2000 the applicants and four accomplices attempted to steal the contents of the De Beers Millennium Diamond Exhibition at the Dome in Greenwich by driving a JCB digger into the said exhibition. The value of the gems they were trying to steal was 200 million pounds sterling. The applicants and their accomplices were caught in the act. On 5 November 2001 the applicants stood trial at the Central Criminal Court on charges of conspiracy to steal and conspiracy to rob. They pleaded guilty to conspiracy to steal but not guilty to conspiracy to rob. The only issue at trial was, therefore, whether there was a conspiracy to rob. The trial lasted three months. There were many witnesses, including Police Constable W, who gave evidence about ‘The Play’ (a book that he had written about the attempted theft) and G, a prosecution expert who gave evidence about the configuration of the transceivers used by the applicants. The first applicant, in the course of giving evidence, lied about the presence of another man in his car. The trial judge (“the judge”) warned him about the risk of his being in contempt of court. Later, when summing up, the judge directed the jury that the said lies were irrelevant to the first applicant’s guilt. The judge admitted that he ‘nodded off’ during the closing speeches. A solicitor’s clerk who was present at the trial noted that there were a few occasions towards the end of the trial when the judge slumped in his chair, fell asleep and was awakened by the sound of his own snoring. A journalist who was also present observed the judge fall asleep on about half a dozen occasions. The journalist could not recall when the judge had fallen asleep, other than on one occasion during the early stages of the closing speeches. The applicants’ counsel did not raise any issue at the trial in relation to the judge’s falling asleep. On 18 February 2002 the jury put a complicated question to the judge about the use of force. The applicant did not explain how the judge responded to this question. Later that day, the jury convicted the applicants of conspiracy to rob. The judge sentenced each of them to 18 years’ imprisonment. The applicants appealed. The first applicant, who was represented by junior counsel during his appeal hearing, appealed on the following grounds: in the first place, the judge displayed inadequate vigilance during the trial in falling asleep on a number of occasions; secondly, the judge improperly and inquisitorially interrupted the first applicant’s evidence on a number of occasions; thirdly, bearing in mind that the first applicant had already given evidence of his own record of dishonesty, the judge should not have taken him to task in relation to possible contempt and perjury in declining to name others to whom he had referred in the course of his evidence; fourthly, the judge at times acted like a prosecuting counsel; fifthly, the summing up was unbalanced and prejudicial to the first applicant’s case; sixthly, the judge should not have permitted the prosecution to call evidence from Police Constable W; seventhly, the judge should not have responded in detail to a question put by the jury. The second applicant, who was represented by senior counsel, only relied on the first two of those grounds. The Court of Appeal delivered its judgment on 22 January 2004. It made the following comments in relation to the sixth and seventh grounds of the first applicant’s appeal: “It is to be noted that, until that stage, no defendant had named [W] and if he had not been called, the defence and, in particular, [the first applicant], would have had free rein to implicate him in the conspiracy, without him having the opportunity of denying that that was so. The plot of the book which he had written, whether prejudicial or not, was elicited in cross-examination by leading counsel on behalf of [the first applicant]. In those circumstances, we propose to say no more about [the first applicant’s] sixth and seventh grounds save that, having read the jury’s question and the way in which the judge dealt with it, we are entirely satisfied that both these grounds are devoid of merit.” As to the second, third, and fourth grounds, the Court of Appeal found that, although on occasions the judge’s interventions were excessive, when viewed in the context of the trial as a whole, the said interventions did not render the trial unsafe. In particular it observed that, although in an ideal world the judge might have made fewer references to perjury, it was inescapably obvious that the first applicant was lying and the judge was entitled to warn him about the risk of contempt of court. As to the fifth ground, the Court of Appeal found that, having read with care the criticised passages in the summing up, there was no substance in the complaints. In particular, the direction in relation to perjury was correct. Finally, and as to the first ground, the Court of Appeal opined as follows: “There remains the ground in relation to the judge’s falling asleep. Because the appearance as well as the actuality of justice being done is important, no judge ought, in any circumstances, to fall asleep during any stage of a criminal trial. It is highly regrettable that this judge did so. But because a judge falls asleep or, for any other reason, allows his or her attention to wander, it does not necessarily follow that the trial is unfair, or that any ensuing conviction is unsafe. It is the effect, not the fact, of such inattention which is crucial. This must, in each case, depend on all the circumstances, including the period of inattention, both absolute and as a proportion of the length of the whole trial; the stage of the trial at which the inattention occurs; and, of primary importance, the impact of that inattention, if any, on the course and conduct of the trial. We give two examples by way of illustration. First, if a judge is inattentive, however briefly, during a defendant’s evidence in chief and, in consequence, fails to register and, in due course, sum up to the jury, a piece of evidence crucial to the defence, the conviction may be regarded as unsafe. The unsafety arises not because the judge slept or was otherwise inattentive but because, in consequence, the summing-up was defective in that the defence was not properly put before the jury. Conversely, a conviction is unlikely to be regarded as unsafe if, during a lengthy trial, a judge is inattentive, even for substantial periods, if, in consequence, he missed no significant point meriting inclusion in his summing-up and did not fail properly to control the admissibility of evidence, the conduct of counsel or some other aspect of the proceedings. In the present case, the judge, as he frankly and properly admits, was, for a time, asleep during the speeches of counsel for [the first applicant] and [C]. We are prepared to accept that he was also asleep on a few other occasions, sometimes to the extent that he woke himself by the sound of his snoring. It is however of some significance that, at the trial, no defendant, no counsel in the case, (of whom there were a total of 13), and no juror, was sufficiently concerned to raise the matter with the judge, other counsel, or the court usher. It is of greater significance that, before this Court, it has not been shown that, because he slept, the judge missed and failed to sum up to the jury any significant feature of the evidence or speeches. On the contrary, this summing-up, extending to approximately 250 pages of transcript and delivered, as we have said, over four days, shows every sign of having been carefully prepared. It was comprehensive and balanced, accurate as to the law and detailed as to the evidence. The defence of each defendant was fully put. Had the judge been awake when he was asleep, the appearance of justice would, of course, have been obviously enhanced. But the trial would have followed no different course. Furthermore, regrettable though it is that the judge occasionally slept, no objection having been made at the time, we are unpersuaded that the jury was, even arguably, unfairly prejudiced against any defendant, bearing in mind also the length of trial, the full, fair and accurate summing-up, the lengthy period of retirement, the pertinent question asked by the jury, and the compelling, powerful evidence against the defendants. It was for these reasons that yesterday we refused [the first applicant] and [the second applicant] leave to appeal against conviction.” The Court of Appeal then found the original sentence of 18 years to be excessive and substituted a sentence of 15 years. Section 2(1) of the Criminal Appeal Act 1968 (“the 1968 Act”), as amended by the Criminal Appeal Act 1995 (“the 1995 Act”), provides a single, composite right of appeal against a criminal conviction. It states that the Court of Appeal: “(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss an appeal in any other case.” The broad intention behind this provision was summarised by the then Lord Chief Justice, Lord Bingham, in R v. Graham and Others ([1997] vol. 1 Criminal Appeal Reports p. 302 [Court of Appeal]), when he said: “This new provision ... is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal.” In R v. Chalkley and Jeffries ([1998] 2 All ER 155, the Court of Appeal observed, however, that it: “...has no power under the substituted section 2(1) to allow an appeal if it does not think the conviction unsafe but is dissatisfied in some way with what went on at the trial...” (per Lord Justice Auld at page 172j). Subsequently, the Court of Appeal modified its approach. The scope of the “safety test” was discussed by Lord Bingham C.J. in his judgment in R v. Criminal Cases Review Commission, ex parte Pearson ([2000] 1 Criminal Appeal Reports 141 [Court of Appeal]), where he stated: “The expression ‘unsafe’ in section 2(1)(a) of the 1968 Act does not lend itself to precise definition. In some cases unsafety will be obvious, as (for example) where it appears that someone other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by some serious unfairness in the conduct of the trial or significant legal misdirection, or where the jury verdict, in the context of other verdicts, defies any rational explanation. Cases however arise in which unsafety is much less obvious: cases in which the Court, although by no means persuaded of an appellant’ This passage was subsequently cited by the Court of Appeal in the case of R v. Davis, Rowe and Johnson ([2001] 1 Criminal Appeal Reports 8), where Lord Justice Mantell, delivering the judgment of the court, stated that: “The following is not intended to be an exhaustive statement of the principles involved. We simply extract the following. The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the Court to apply the test ... which, as adapted by [counsel for the Crown], might read: ‘Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?’ That being so there is no tension between s. 2(1)(a) of the Criminal Appeal Act as amended and section 3(1) of the Human Rights Act [requiring legislation to be read and given effect in a way which is compatible with Convention rights].” Later in his judgment, Lord Justice Mantell stated that: “We are satisfied that the two questions [the questions of ‘fairness’ and ‘safety’] must be kept separate and apart. The [European Court of Human Rights] is charged with inquiring into whether there has been a breach of a Convention right. This court is concerned with the safety of the conviction. That the first question may intrude upon the second is obvious. To what extent it does so will depend upon the circumstances of the particular case. We reject, therefore, [counsel for Johnson]’s contention that a finding of a breach of Article 6 (1) by the [European Court of Human Rights] leads inexorably to the quashing of the conviction. Nor do we think it helpful to deal in presumptions. The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree. ...” | 0 |
dev | 001-98778 | ENG | UKR | CHAMBER | 2,010 | CASE OF GALAT v. UKRAINE | 4 | Violation of Art. 6-1 | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | 4. The applicant was born in 1955 and lives in the town of Kremenchug, Ukraine. 5. At the material time the applicant worked as an accountant at the Cherkasytransgas State company. 6. In May 1998 the authorities revealed a shortfall of 70,000 Ukrainian hryvnyas (UAH) in the Cherkasytransgas accounts. On 30 November 1998 the local police instituted criminal proceedings against the applicant for embezzlement of State funds. On 20 January 1999 criminal proceedings for forgery and negligence were also instituted. 7. On 26 January 1999 criminal proceedings against M. were instituted in connection with the same episode of embezzlement. On 1 April 1999 criminal proceedings against the applicant and M. were joined. 8. On 21 September 1999 the applicant gave a written undertaking not to abscond. 9. The criminal proceedings against M. were terminated on 22 October 1999. 10. On 1 December 1999 the applicant's case was sent to the court. 11. On 18 April 2000 the Kremenchug Court found the applicant guilty of embezzlement of State funds and sentenced her to ten years' imprisonment. The court also ordered confiscation of any property belonging to the applicant. 12. On the same day the applicant was imprisoned. 13. On 7 June 2000 the Poltava Regional Court (since June 2001 the Poltava Regional Court of Appeal) quashed this judgment and remitted the case for additional investigation. 14. On 15 August 2000 the applicant was released. 15. In the course of the investigation several expert reports on handwriting, accountancy and technical criminal questions were submitted. 16. By 11 January 2001 the additional investigation was completed and the case was transferred to the court. 17. On 3 December 2003 the Kremenchug Court found the applicant guilty of embezzlement and sentenced her to five years' imprisonment. The court also disqualified the applicant from holding positions of financial responsibility for three years and ordered confiscation of any property belonging to her. 18. On 12 March 2004 the Poltava Regional Court of Appeal reduced the applicant's sentence to three years and six months' imprisonment. 19. On 11 November 2004 the Supreme Court of Ukraine lifted the three year disqualification from holding positions of financial responsibility and upheld the remainder of the decisions of 3 December 2003 and 12 March 2004. 20. Subsequently the applicant requested the Supreme Court of Ukraine to review the case under the extraordinary review procedure but to no avail. | 1 |
dev | 001-112993 | ENG | ITA | CHAMBER | 2,012 | CASE OF COSTA AND PAVAN v. ITALY | 3 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque | 7. The applicants were born in 1977 and 1975 respectively and live in Rome. 8. Following the birth of their daughter in 2006, the applicants learned that they were healthy carriers of cystic fibrosis. The child had been born with the disease. 9. In February 2010, when the first applicant was pregnant again, the applicants, who wanted to have a healthy child unaffected by the genetic disease, had a prenatal test carried out. The results showed that the foetus was affected by cystic fibrosis. The applicants then decided to have the pregnancy terminated on medical grounds. 10. The applicants now want to take advantage of assisted reproduction technology (hereafter “ART”) and preimplantation genetic diagnosis (hereafter “PGD”) before the first applicant becomes pregnant again. However, under Law no. 40 of 19 February 2004, ART is available only to sterile or infertile couples. There is a blanket ban on the use of PGD. 11. By a decree of 11 April 2008, the Ministry of Health extended access to ART to couples in which the man suffers from a sexually transmissible viral disease (such as the HIV virus, or hepatitis B and C) to allow them to conceive children without the risk of contamination of the woman and/or the fœtus inherent in conception by natural means. 12. According to the information provided by the Government and the first third-party intervener, this operation is done by “sperm washing” prior to in vitro fertilisation. “Access to assisted reproduction technology shall be authorised only where proof is adduced that it is otherwise impossible to eliminate the causes of inability to procreate, and, in any event, [said access] shall be limited to medically certified inexplicable cases of sterility or infertility and to cases of sterility or infertility [deriving] from a medically certified and verified cause. ...” “... Adult couples, composed of two persons of opposite sex, who are married or living together as a couple, of potentially fertile age and alive may have access to assisted reproduction technology.” “Individuals satisfying the conditions provided for in section 5 shall be informed of the number and, at their request, the state of health of the embryos produced and destined to be transferred into the womb.” “... Any test regarding the state of health of an embryo created in vitro, within the meaning of section 14(5) [of Law no. 40 of 2004], must be for observation purposes alone (dovrà essere di tipo osservazionale). ...” 13. In this decree the reference to “observation” purposes mentioned in Ministry of Health decree no. 15165 of 21 July 2004 was deleted. 14. Furthermore, the part of this decree concerning certification of infertility or sterility provides that, for the purposes of access to assisted reproduction technology, this must be done “... having regard also to particular conditions in the presence of which – where the man is a carrier of a sexually transmissible viral disease by infection with HIV, or hepatitis B and C – the high risk of infection for the mother or for the fœtus constitutes de facto, in objective terms, an obstacle to procreation, requiring precautions that necessarily result in infertility of a kind comparable to acute male infertility deriving from a verified and medically certified cause such as that referred to in section 4(1) of Law no. 40 of 2004”. 15. In this judgment the court set aside on grounds of ultra vires the part of Ministry of Health decree no. 15165 of 21 July 2004 limiting any test relating to the state of health of embryos created in vitro to observation purposes alone. The court found that the power to establish the scope of application of such tests was a matter for the legislature alone and not the ministry, which had purely implementing powers. 16. In this order, following urgent proceedings, the delegated judge of the Salerno Court granted, for the first time, a couple who were neither sterile nor infertile, and both healthy carriers of muscular atrophy, access to PGD. 17. The judge referred, among other things, to the new provisions introduced by the Ministry of Health decree no. 31639 of 11 April 2008 no longer limiting tests on the state of health of embryos created in vitro to observation purposes alone and authorising access to assisted reproduction for couples in which the man carried a sexually transmissible viral disease. 18. He thus considered that PGD had to be regarded as one of the prenatal monitoring techniques for ascertaining an embryo’s state of health. Accordingly, prohibiting access to the technique, in the claimants’ case, engaged the medical liability of the Health Director of the Centre for Reproductive Medicine, who was the defendant in the proceedings, for failure to provide a health service. 19. The judge also found that since the mother had the right to abort an unhealthy fœtus, it would be unreasonable not to guarantee her the right to know the state of health of the embryo by means of PGD. 20. The judge accordingly ordered the health director to carry out a PGD on the claimants’ in vitro embryo in order to determine whether it was affected by muscular atrophy. 21. The relevant parts of this Convention read as follows: “Tests which are predictive of genetic diseases or which serve either to identify the subject as a carrier of a gene responsible for a disease or to detect a genetic predisposition or susceptibility to a disease may be performed only for health purposes or for scientific research linked to health purposes, and subject to appropriate genetic counselling”. 22. Paragraph 83 of the Explanatory Report to the Oviedo Convention provides: Article 12 as such does not imply any limitation of the right to carry out diagnostic interventions at the embryonic stage to find out whether an embryo carries hereditary traits that will lead to serious diseases in the future child. 23. The Oviedo Convention, signed on 4 April 1997, has not been ratified by the Italian Government. 24. This directive has established a minimum quality and safety standard for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, thus providing for harmonisation of national regulations. It also covers embryos transferred following PGD. 25. The CDBI drew up this report with a view to providing information on preimplantation and prenatal diagnosis and the legal and ethical questions arising from their use in various European countries. The relevant extracts of this document are worded as follows: [a) Context] “In vitro fertilisation has been performed since the late ‘70s to help couples with fertility problems. Advances in reproductive medicine have opened new possibilities to avoid genetic disease by selective transfer of embryos. At the beginning of the’90s, preimplantation genetic diagnosis (PGD) was introduced as a possible alternative to prenatal genetic diagnosis (PND) for couples at risk of transmitting a particularly severe genetic defect, avoiding the difficult decision of whether or not to terminate a pregnancy.” [b) PGD cycle] “A “PGD cycle” comprises the following steps: ovarian stimulation, oocyte retrieval, in vitro fertilisation of several mature oocytes, by introcytoplasmic sperm injection (ICSI), removal of 1 or 2 embryonic cells, genetic analysis of nuclear material from those cells and lastly selection and transfer of embryos not carrying the abnormal genetic characteristics in question.” [c) PGD uses] “Use of PGD for medical indications has been offered to couples at high risk of transmitting a specific genetic disease of particular gravity ... and untreatable at the time of diagnosis. The risk was often identified on the basis of family history or the birth of affected children. Numerous monogenic indications currently meet these criteria justifying application of PGD, such as cystic fibrosis, Duchenne Muscular Dystrophy, myotonic dystrophy, Huntington’s disease, spinal muscular atrophy in infants and haemophilia.” “In those countries where preimplantation genetic diagnosis (PGD) is performed, it has become an established clinical method to analyse genetic characteristics of embryos created by in vitro fertilisation, and to obtain information which is used to select the embryos to be transferred. The use of PGD is mainly requested by couples carrying genetic conditions linked to severe disorder or premature death of their offspring who wish to avoid initiation of a pregnancy that may not come to term or that may entail the difficult question of terminating the pregnancy in case of a detected particularly severe genetic defect.” 26. This report shows that PGD patients from countries where the practice is prohibited go abroad for the diagnosis. Italian patients generally go to Spain, Belgium, the Czech Republic or Slovakia. 27. The study also points to the inconsistency of legislative provisions which prohibit access to PGD yet authorise access to prenatal diagnosis and medical termination of pregnancy in order to avoid serious genetic diseases in children. 28. The relevant parts of the press release on this report read as follows: “Concerted action at EU and national level is needed to tackle this problem, according to a report adopted by Parliament today. The current EU legislative framework is poorly suited to rare diseases and not well defined. Although rare diseases contribute greatly to morbidity and mortality, they are mostly invisible in health care information systems due to the lack of appropriate coding and classification systems. ... Parliament adopted an amendment today which recommends that Member States encourage efforts to avoid rare diseases which are hereditary, through genetic counselling of carrier parents and, where appropriate and “not contrary to existing national laws and always on a voluntary basis, through pre-implantation selection of healthy embryos”.” 29. The documents in the Court’s possession (namely, the reports of the Council of Europe and the European Commission, paragraphs 25 to 27 above) show that PGD is banned, at least for the prevention of transmission of genetic diseases, in the following countries: Austria, Italy and Switzerland. 30. With regard to Switzerland, the Court notes that on 26 May 2010 the Federal Council submitted for consultation a draft amendment to the current ban on PGD contained in the Assisted Reproduction Act, to provide for regulated access. An amendment to Article 119 of the Federal Constitution will be necessary in order to implement the change. 31. It also appears that PGD is authorised in the following countries: Germany, Belgium, Denmark, Spain, Finland, France, Georgia, Greece, Norway, the Netherlands, Portugal, the Czech Republic, the United Kingdom, the Russian Federation, Serbia, Slovenia and Sweden. 32. PGD is not the subject of specific regulations in the following countries: Bulgaria, Cyprus, Malta, Estonia, Ireland, Latvia, Luxembourg, Poland, Romania, Slovakia, Turkey and Ukraine. The Court notes that three of those countries (Cyprus, Turkey and Slovakia allow access to PGD in practice. 33. The Court also observes that in the case of Roche v. Roche and Others ([2009] IESC 82 (2009)), the Irish Supreme Court established that the concept of the unborn child did not apply to embryos created through in vitro insemination, which accordingly did not benefit from the protection provided for in Article 40.3.3. of the Irish Constitution recognizing the right to life of the unborn child. In that case the applicant, who had already had a child following in vitro fertilisation, had applied to the Supreme Court for leave to have implanted three other embryos created by the same fertilisation process, despite the lack of consent of her former partner from whom she had separated in the meantime. 34. This Bill seeks to extend the use of PGD to precluding the risk of giving birth to a child who is a healthy carrier of a serious genetic disease (access to this technique to avoid giving birth to children affected by genetic diseases being already provided for in Belgian law). The relevant passages of the Bill are set out below: “Requests for preimplantation testing have increased over time and this is now an option for couples who run a high risk of giving birth to a child with a serious hereditary disorder where mutation can be detected. ... Future parents generally prefer preimplantation genetic diagnosis (PGD) to prenatal diagnosis. Indeed ... “where the fœtus is affected this will involve terminating the pregnancy from three months onwards, which is generally a source of mental distress for parents who have invested emotionally in the fœtus as their future child ... Moreover, it is possible that several successive pregnancies have to be terminated before a healthy fœtus can be obtained [Source: Bioethics Advisory Committee, opinion no. 49 on the use of PGD] Accordingly, the main advantage of preimplantation testing is that termination of pregnancy can be avoided. It has been observed that this constitutes the main motivation of the majority of couples seeking the treatment, these couples having often already endured the distressing experience of terminating a pregnancy on medical grounds.” | 1 |
dev | 001-58205 | ENG | GRC | CHAMBER | 1,998 | CASE OF SIDIROPOULOS AND OTHERS v. GREECE | 2 | Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (abuse of process);Violation of Art. 11;Not necessary to examine Art. 6-1;Not necessary to examine Art. 9;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | C. Russo;N. Valticos | 7. The applicants all live at Florina, in northern Greece, on the border of the Former Yugoslav Republic of Macedonia. Mr Sidiropoulos, an electrician, was born at Kastoria in 1949; Mr Dimtsis, a teacher, was born at Florina in 1957, Mr Anastassiadis, a farmer, was born at Florina in 1944; Mr Boules, a farmer, was born at Florina in 1941; Mr Sovislis, a farmer, was born at Florina in 1950; and Mr Seltsas, a dentist, was born at Florina in 1956. 8. On 18 April 1990 the applicants, who claim to be of “Macedonian” ethnic origin and to have a “Macedonian national consciousness”, decided together with forty-nine other people to form a non-profit-making association (somatio) called “Home of Macedonian Civilisation” (Stegi Makedonikou Politismou). The association’s headquarters were to be at Florina. According to clause 2 of its memorandum of association, the association’s objects were “(a) the cultural, intellectual and artistic development of its members and of the inhabitants of Florina in general and the fostering of a spirit of cooperation, solidarity and love between them; (b) cultural decentralisation and the preservation of intellectual and artistic endeavours and traditions and of the civilisation’s monuments and, more generally, the promotion and development of [their] folk culture; and (c) the protection of the region’s natural and cultural environment”. 9. On 12 June 1990 the applicants, who constituted the provisional management committee of the association, lodged an application under Article 79 of the Civil Code with the Florina Court of First Instance for registration of their association under the name of “Home of Macedonian Civilisation”. 10. On 9 August 1990 the court, having heard the applicants, refused their application on the following grounds: “It is apparent from the documents lodged by the applicants and from the information which the Court may take into consideration of its own motion … that recognition of the association under this same name has already been sought, in an application on 19 January 1990 which was dismissed by this Court on 19 March 1990... Now that the words [the defence of national independence] that constituted the ground on which the aforementioned application was dismissed as being contrary to law have been deleted, a fresh application has been made for recognition of the association in question. Some of the founder members of the association who are on the provisional management committee … have engaged in promoting the idea that there is a Macedonian minority in Greece (see, for example, the newspapers Makhitis, Ellinikos Voras, Nea and Stokhos of 28 June 1990, 24 June 1990, 18 June 1990 and 28 June 1990 respectively); these newspapers strengthen the Court all the more in its previous opinion as none of the applicants has so far cast any doubt on the matters set out in these newspapers …, namely that they travelled to Copenhagen on 9 June 1990 and took part in the Conference on Security and Co-operation in Europe (CSCE), where they maintained that there was a Macedonian minority in Greece and even congratulated Professor Ataov, a Turk, who read out a text containing provocative and unacceptable allegations against Greece. One of the members of the provisional management committee, Mr Constantinos Gotsis, refused, in the course of proceedings in the Florina Court of First Instance against the publisher of the newspaper Stokhos, to accept that he was Greek… Besides, sixteen founder members of the above-mentioned association reportedly contributed money so that Christos Sidiropoulos and Stavros Anastassiadis could go to Copenhagen to defend their ideas… On the basis of the foregoing circumstances, which have been proved, the Court considers that the true object of the aforementioned association is not the one indicated in clause 2 of the memorandum of association but the promotion of the idea that there is a Macedonian minority in Greece, which is contrary to the country’s national interest and consequently contrary to law. …” 11. On 7 September 1990 the applicants appealed against that judgment to the Salonika Court of Appeal. After hearing the applicants, that court dismissed their appeal on the following grounds: “… III. In view of the strong public interest at stake, the court, when examining the grounds of an application being heard under the special procedure, as in the present case, may and indeed must take into consideration, of its own motion, matters over and above the evidence submitted to the court by the parties – in particular, real events and situations reported in publications (books, magazines, newspapers, etc.) accessible to any interested person – and this notwithstanding the ordinary rules on the burden of proof. On the basis of the well-known facts set out below, whose validity the Court does not doubt, the Court accepts the following in relation to the case. Ancient (classical) Macedonia is delimited to the south by the Aegean Sea and the Kamvounia, Pieria and Olympus mountains; to the north by Lake Ohrid, the Prespa lakes, and the Babuna-Skomion (Rila Planina) and Rhodope mountains; to the east by the river Nestos; and to the west by Mount Grammos and the Pindus range (see: Makedonia, Ekdotiki Athinon, pp. 10 et seq.; A. Vakalopoulos, Synchrona Valkanika Ethnologika Provlimata, p. II; G. Mintsis, Istoria tou Makedonikou Zetematos, p. 29). Its inhabitants (the Macedonians) were one of the most ancient Greek tribes, closely related to the Thessalians, who were also of Aeolian origin, and especially to the Magnesians. Their language was one of the oldest Greek dialects, akin to Aeolian and Arcado-Cyprian and also to the Mycenean dialect. Their religion was that common to the Greeks and their myths and traditions were similar to those elsewhere in the Greek world (see H.G. Wells, The Outline of History, trans. K. Yeroyannis as Pankosmios Istoria, Pergaminai, Chapter B 1, p. 439, and Chapter I, p. 367; Will Durant, Pankosmios Istoria tou Politismou, ed. A. Daskalakis, 1965, p. 483V; Pandit Jawaharlal Nehru, Maties stin Pankosmia Istoria, trans. P. Drakou, Faros, 1954, p. 25; A. Vakalopoulos, op. cit., pp. 14 et seq.; M. Sakellariou, I taftotita ton Makedonon, communication to the Academy of Athens on 8 November 1988; K. Vavouskos, correction of the draft article on Macedonia for the new Australian encyclopedia Australian People, speech to the special meeting of the Academy of Athens on 7 March 1989; N. Andriotis, The Language and the Greek Origin of the Ancient Macedonians, Salonika, 1978). The Macedonian kings Philip II and Alexander the Great acted not just as Greeks but as pan-Hellenists, in the sense that they incarnated the old idea of the creation of a unified Greek State by bringing together the smaller Greek territories; they were bearers, and the latter was a disseminator, not of an incomplete Macedonian civilisation but of Greek civilisation (see Johann Gustav Droysen, Istoria tou Megalou Alexandrou, trans. with commentary etc. by Renos Apostolidis, 1988, pp. 1–9 and 28 et seq.; Istoria tou Ellinikou Ethnous, Ekdotiki Athinon, vol. D, pp. 10 et seq.). And in later years, especially after the appearance in the Balkans of the Bulgars and Slavs (6th–7th cent. A.D.), the Macedonian region as defined above was a stronghold and bastion of Hellenism just as it had been in ancient times. Polybius describes Macedonia as a ‘shield’ and praises the Macedonians because they fought the barbarians (non-Greeks) to ensure the safety of the (other) Greeks (Polybius, Historiae, Leipzig edition, 1898, vol. 3, book 9, p. 35). For the Byzantine period the same is affirmed by the French historian Paul Lemerle in his classic work Philippe et la Macédoine orientale, Paris, 1945, pp. 516–17. In addition, a guide to Salonika written by German historians and archaeologists during the last world war states that ‘the waves of migrating peoples which frequently swamped the Balkan peninsula broke on this most powerful bastion of Hellenism’ (see A. Vakalopoulos, op. cit., pp. 17 et seq.). Nowhere in either the recent or the distant past are Macedonia and the Macedonians mentioned in any official document as a specific ethnic group. The Treaty of Berlin, and the Treaty of San Stefano which it replaced, make no reference to such a notion. In the official Turkish census of 1905 there is mention of Greeks and Bulgarians, or inhabitants whose identity was partly Bulgarian, in the vilayets of Salonika and Monastir, where there were Greek ethnic majorities; but no mention of Macedonians, since nobody declared such descent (A. Vakalopoulos, op. cit., pp. 84 et seq.; G. Roussos, Neoteri Istoria tou Ellinikou Ethnous, vol. 5, pp. 83 et seq., which includes a reproduction of the census tables). In his work Voyage dans la Macédoine (Paris, 1831) E.M. Cousinery, the French Consul in Salonika, says that the Bulgarians (as all speakers of Slavic were then called) never penetrated the forests beyond Vermion, where the population remained Greek (see vol. 1, pp. 67–68, and vol. 2, p. 140). With reference to the same area, the German geographer Leonard D. Schultze observes that in their language, traditions, cultural affinities, ethnic preferences and religion, its inhabitants are as legitimately and authentically Greek as their brothers further to the south (Macedonien Landschafts- und Kulturbilder, Jena, 1927, p. 106). He reiterates the words of Lord Salisbury, Great Britain’s representative at the Congress of Berlin, on 19 June 1878, when he said that ‘Macedonia and Thrace are just as Greek as Crete’ (K. Vavouskos, op. cit., p. 84). The fact that a small part of this region’s population also speaks a language which is basically a form of Bulgarian with admixtures of Slavic, Greek, Vlach and Albanian words, does not prove that this minority is of Slavic or Bulgarian origin; in isolation this criterion is of no value whatsoever, as is borne out by the experience in the recent past of the forced migration from Asia Minor to Greece of populations which were indisputably Greek but totally ignorant of the Greek language. It is indicative that among the fighters of the Macedonian campaign (1904–08) there were men who spoke the Bulgarian-Slav dialect but who had a purely Greek national consciousness; for example Kotas, Dalipis, Kyrou, Gonos and others. In his Short History of the Bulgarian, Serb and Romanian Orthodox Churches (Moscow 1871), the Russian historian E. Golubinstii wrote of these non-Greek-speaking Greeks that they had an implacable hatred of and scorn for all Slavs and Bulgarians (see K. Vavouskos, op. cit., pp. 85 et seq.). After the Balkan Wars of 1912–13, 51.57% of the region corresponding to ancient Macedonia was under Greek domination, 38.32% under Yugoslav domination, and 10.11% under Bulgarian domination (see Makedonia, Ekdotiki Athinon, p. 504, which includes a map). In this way a territorial status came into being. There were exchanges of population, either voluntary or following bilateral agreements such as the Kafantari-Molov agreement between Greece and Bulgaria in 1926; and Greeks from Turkey populated the Greek part of Macedonia, so that only Greeks remained in this part of Macedonia, even if some of them were bilingual. Greek Macedonia thus became a completely homogeneous part of Greek territory (see K. Vavouskos, op. cit., p. 92; and A. Vakalopoulos, op. cit., p. 31, who refers to the work of the German Stephan Ronart, Griechenland von heute). This was especially true in the period immediately following the Second World War (1945–49), when almost all the bilingual inhabitants of this region who did not have a Greek national consciousness emigrated to neighbouring countries (see E. Kofos, Nationalism and Communism in Macedonia, Salonika, 1964, pp. 185 et seq.). There they experienced a mutation of their partly Greek or partly Bulgarian nationality into a ‘Macedonian’, i.e. a Slav-Macedonian, nationality (see E. Kofos in Yugoslavia Today, Athens, 1990, p. 50; Kentron Apodimu Ellinismou, Makedonia, Istoria kai Politismos, Ekdotiki Athinon, 1989, pp. 29 et seq.). This situation was preceded by a number of violent incidents, such as the Ilinden revolt, in which the Bulgarians claim to have revolted against the Turks on 2 August 1903 at Krusevo, a town near Monastir whose ethnic composition was overwhelmingly Greek. In fact they turned against the town’s Greek inhabitants, whom they tried to wipe out with the cooperation of the Turks and without causing the rest of the population any significant harm (see K. Vavouskos, op. cit., p. 89; Douglas Dakin, The Greek Struggle in Macedonia 1897–1913, Salonika, 1966, pp. 92 et seq.; Douglas Dakin, E.K. Mazarakis-Ainianos, E. Kofou and I. Diamantourou, O Makedonikos Agonas, Athens, 1985, pp. 30 et seq.; G. Mintsis, op. cit., pp. 53 et seq.). Until 1914 ‘Macedonia’ as a Slavic State and ‘the Macedonian nation’ as a specific nation were unheard of. The part of Macedonia which fell under Yugoslav domination, like that which fell to Bulgaria, is a narrow strip of land along the Greek border and represents only a small part of Serbia. Skopje, which today is the capital of the misleadingly named Socialist Republic of Macedonia of the Federal Yugoslav State, is far away from Macedonia. The S.R.M. was founded under the German occupation (see E. Kofos, The Impact of the Macedonian Question on Civil Conflict in Greece 1943–1948, Athens, 1989). Its foundation was part of a deliberate strategy according to which, when the regions of Skopje and Tetovo (which belonged to ancient Dardania, a non-Macedonian country) were ceded, a Serb population could be said to exist in the sparsely populated part of Macedonia that lay beyond the Greek borders and contained Serbs, Greeks, Greek Vlachs, Muslims with a partly Turkish identity, and Bulgarians; a Slav-speaking population with a specific dialect and an unstable national consciousness (see A. Vakalopoulos, op. cit., pp. 12 et seq.; N. Andriotis, The Confederate State of Skopje and its Language, Athens, 1957, with relevant bibliography). The long-term purpose of founding the S.R.M. was to re-establish a Slav Macedonian State with access to the Aegean. One of the means to this end is to enlist in various ways bilingual Greeks from Greek Macedonia. Setting up an association called ‘Home of Macedonian Civilisation’ at Florina is part of this effort and applies a directive issued by Slav organisations abroad. The aim is to create a Macedonian Question with international ramifications (see statements by Serb politicians to the Borba newspaper, 8 November 1990 and to Nin magazine, 1 February 1991). The parties applying for recognition of the above association are the enablers in this operation. Among them are Christos Sidiropoulos and Stavros Anastassiadis, who appeared at an international conference to dispute the Greek identity of (Greek) Macedonia, the former in particular by distinguishing between Macedonians and Greeks (see the Makedonikos Voras newspaper of 17 March 1991, which includes photographs of the above persons among sixteen members of the ‘Macedonian’ delegation at the CSCE in Copenhagen; and the Ethnos newspaper of 5 February 1991, p. 10). This, in combination with the name of the proposed association and with the whole content of its memorandum of association, renders at least dubious the association’s aims, which according to the founder members’ seemingly lawful statement in clause 2 of the memorandum of association, consist in the cultural, intellectual and artistic advancement of its members, cultural decentralisation, etc. This assessment is supported by the content of clause 3, paragraph 2, of the same memorandum of association, which states that all youths in the Florina area will be enrolled in the proposed association’s youth section. It is clear from this that there is a danger that the immaturity of young people will be exploited and that youths will be trapped by suitable propaganda in an ethnologically non-existent and historically evacuated Slav-Macedonian minority. Clause 4 of the same memorandum of association lays down the condition that enrolment in the association is subject to written acceptance of the association’s principles. Nowhere in the association’s memorandum of association, however, are these principles defined. Thus the memorandum of association does not provide a clear idea of who will enrol, since a clear definition of the principles governing the proposed association is deliberately omitted. Lastly, the very name of the association may be a source of confusion, because at first sight it creates the impression that it refers to Macedonia’s Greek civilisation, whereas in reality it envisages a specifically Slavic civilisation which does not exist in the region in question. Altogether, this Court has good reasons in the light of the foregoing to believe that the purpose of using the term ‘Macedonian’ is to dispute the Greek identity of Macedonia and its inhabitants by indirect and therefore underhand means, and discerns an intention on the part of the founders to undermine Greece’s territorial integrity. The impugned refusal of the application in question was therefore justified, notwithstanding that it was based on shorter and partly different reasoning; and the arguments to the contrary put forward in the present appeal must fail. …” 12. On 20 June 1991 the applicants appealed on points of law to the Court of Cassation, relying, in particular, on Articles 2, 4, 5 and 12 of the Greek Constitution and the corresponding provisions of the Convention. They maintained that, contrary to law, the Court of Appeal had (a) not confined itself to reviewing the lawfulness of the establishment of their association – namely whether the requirements of Articles 78 to 80 of the Civil Code had been satisfied – but had reviewed its desirability, relying on the presumed intentions of the founder members, which (assuming them to have any reality) could not, however, be the subject of judicial review at the stage of granting the association legal recognition; (b) taken into consideration information (in particular, irresponsible and unfounded press articles concerning some of the founder members) that had not been produced by the parties; (c) accepted as true certain matters that were of decisive importance for the outcome of the proceedings without ordering evidence to be taken to establish whether they were in fact true; (d) distorted the content of the association’s memorandum of association; and (e) not given sufficient reasons in its judgment. In a pleading filed on 25 February 1994 the applicants essentially reiterated the complaints they had set out in their appeal on points of law and stated that the refusal to authorise the founding of their association was based on assessments and assumptions as to their personalities and ideological and historical convictions which in turn rested not on the association’s memorandum of association but on suspect anonymous publications. 13. In a judgment of 16 May 1994 the Court of Cassation upheld the Court of Appeal’s judgment. It considered that the grounds of appeal were vague and unfounded. It pointed out that under the special procedure for granting recognition to associations, the inquisitorial system allowed the court to take into account, of its own motion, matters which had not been mentioned by the parties and that the court was not bound by the parties’ evidence and assertions. As to the “matters that were of decisive importance for the outcome of the proceedings”, the parties had not specified the matters in question in their appeal. The Court of Appeal had accepted the truth of certain circumstances in reliance on the content of the association’s memorandum of association and on matters that were common knowledge and supported by documents such as the press articles; and there had not, moreover, been any distortion of the content of the memorandum of association. The Court of Cassation also held that sufficient reasons had been given in the Court of Appeal’s judgment. It further noted that the assertion that Articles 2, 4, 5 and 12 of the Constitution, together with the Rome Convention, had been infringed referred not to the Court of Appeal’s judgment but to the judgment of the Florina Court of First Instance; even supposing that the applicants had put forward a ground of appeal based on Article 559 § 1 of the Code of Civil Procedure, it would have had to be dismissed as vague since they had not stated in what way the Court of Appeal had made a mistake in interpreting or applying those provisions. 14. Article in the 5 February 1991 issue of the Ethnos newspaper: “Skopje: Skopje has made use of three Greeks – one of them a public employee – who made allegations of repression against the Greek Government to a representative of the American embassy visiting villages in Florina. The three testified against Greece at a meeting of the Conference on Security and Co-operation in Europe which was held in Denmark on 15 June 1990. According to the American Macedonian Association, the men in question are Christos Stergiou Sidiropoulos, Constantinos Gotsis, and Stavros Anastassiadis. Sidiropoulos is a forestry official employed by the Greek State. These and other Greeks belonging to an association called ‘Home of Macedonian Civilisation’ are controlled by Vasil Tuvorkovsky, a member of the central committee of Yugoslavia’s Presidential Council and a frequent visitor to Greece, where he stays in a mobile home in Halkidiki.” 15. Article in the 17 March 1991 issue of the Ellinikos Voras newspaper: “First headline: Skopje’s Trojan horse in Salonika’s Court of Appeal tomorrow – Expulsion of ringleader S. Todorovski – Decisive documents. Second headline: Leader of secret organisation is a public servant – Spectre of ‘Aegean Macedonians’ – How the international plot against Greece was set up; who will be promoting it tomorrow – Tomorrow’s appeal hearing in Salonika carries out a directive issued in 1989. Radin, Popov, Skopje and ‘Consul’ Todorovski control the local leader – Application is a trap designed to vilify Greece in the International Court. As dramatic developments in a rapidly disintegrating Yugoslavia and the broader Balkan region begin to resemble a thriller, with the emergence of a ‘new order’ in the Balkans whose targets include Greek Macedonia and Thrace, the leader of a secret organisation called ‘Macedonians of the Aegean’, Christos Sidiropoulos, also a full-time employee of the Greek State, will be trying in Salonika tomorrow to embroil Greece in a satanic plot organised abroad by Skopje and the independence movements it runs in Australia. This accounts for the announcement that the Yugoslav consul in Salonika, Sasko Todorovski, is to be expelled just 72 hours before tomorrow’s hearing. Todorovski’s cover was blown when Ellinikos Voras revealed on 17 February that he was the leader of a triangle opposed to Greek Macedonia and including the American vice-consul, Colonel Donald Miller, and the educational adviser of the American embassy in Athens, John Kiesling. It is also known that Donald Miller left Salonika ‘overnight’ for the United States when Ellinikos Voras exposed his dark ‘triangular’ role in the State Department’s contemptible report. Todorovski is a tool of the Yugoslav secret service and used agents to lead an international destabilisation operation in Greek Macedonia. One stage of this destabilisation operation unfolds tomorrow in Salonika. The city’s Court of Appeal will consider the application by seventeen inhabitants of the prefecture of Florina for approval of their memorandum of association for establishing an association called ‘Home of Macedonian Civilisation’. The memorandum of association is drafted with expert care so as to provide full international legal cover for a well-planned destabilisation of the country – the legal wrapping of a Trojan horse on Greece’s borders. The application in question was refused by the lower court at Florina, where an earlier, less veiled version drawn up by the same persons had also been refused. The new application in the Salonika Court of Appeal tomorrow will be heard as ‘a straightforward everyday case’. However, evidence and information from Slavic sources reveals the following. (a) The leaders of the seventeen, most of whom were ensnared by what seemed an innocent ‘cultural’ project, are Christos Sidiropoulos from Amindaio, a forester with the Ministry of Agriculture, and Stavros Anastassiadis, a wealthy businessman from Meliti in the prefecture of Florina, both of whom are signatories of the application. The two also appeared last June at a meeting of the Conference on Security and Co-operation in Europe (CSCE) held in Copenhagen on the subject of human rights, declaring that they were Greek citizens but Macedonian nationals, and denounced the Greek State for ‘oppressing’ the ‘Macedonians’ of ‘Aegean Macedonia’ and ‘depriving’ them of all human rights. In fact, according to the newspaper run by the émigré independence movement in Australia, Australian Macedonian (1/8/1990), the two men carried letters containing similar allegations from Petros Dimtsis of Kato Klines, a village in the prefecture of Florina, who lodged a complaint in Strasbourg in May 1989, and from Stefos Skenderis, a teacher in the Greek State education service who lives at Florina. (b) As disclosed by the ‘Australian-Macedonian Committee for Human Rights’ on 1 August 1990, Christos Sidiropoulos is the invisible leader of a secret phantom organisation of ‘Aegean Macedonians’, the ‘Central organising committee for the Macedonian human rights of the Macedonians of Aegean Macedonia’. In 1984 this organisation distributed by post a manifesto containing the ‘demands of the Macedonians of Aegean Macedonia’ which caused the Greek people profound unease and distress at the activities of invisible agents belonging to an independence movement within Greek Macedonia. This secret phantom movement remains unknown; however, it claims to be based in Salonika and it is certain that it is directed from abroad and imports all its printed propaganda against Greek Macedonia from foreign countries. (c) The application to be heard tomorrow in the Salonika Court of Appeal for registration of the ‘Home of Macedonian Civilisation’ will in fact set in motion a provocation of the Greek system of justice which was planned abroad as far back as 1989. The aim is to trap Greece into a series of legal refusals which will then be used against Greece by Skopje in the European Court of Human Rights and the Committee of Ministers at the Council of Europe in Strasbourg. The plot is satanic because if the Greek courts accept the application by the leader of the ‘Aegean Macedonians’, Greece will be legalising a Trojan horse sent by Skopje to trap unwitting bilingual Greek Macedonians and deliver them into the claws of foreigners and of propaganda inspired from abroad. The Slavic plot which is to be submitted tomorrow in Salonika to unsuspecting appeal court judges is part of a directive released by independence activists in Australia two years ago, in 1989, following their first appearance on the international stage at the Council of Europe in Strasbourg. At the time ‘Macedonian’ professors Michael Radin and Chris Popov, who are Australian citizens, released a plan of action entitled ‘The road to Macedonian human rights’ on behalf of the Salonika ‘section’. The report was written in English and printed abroad and its title mentions that it is a publication of Christos Sidiropoulos’s secret phantom organisation in Salonika. It contains 55 pages; page 38 contains the following revelations: ‘The following scenario is a convincing way of lawfully challenging the denial of Macedonians’ rights by the Greek State. Macedonians from Aegean Macedonia could, for instance, set up an association for popular dances with the name “Macedonian Folklore Association”. The association will undoubtedly be forbidden by the laws mentioned above, which prohibit establishing groups on the ground of nationality. Provided that all appeals to the lower courts are turned down, the case will go through the Greek judicial system until it reaches the country’s highest court, the Court of Cassation. The refusal of an appeal at that level will mean that all domestic legal remedies have been exhausted. One of the conditions for submission of a case to the Convention for the Protection of Human Rights will thus have been fulfilled. Within six months of the Supreme Court’s decision an application can be submitted on the ground that the right to freedom of peaceful assembly and association has been violated, with the result that the Court of Human Rights, or the Committee of Ministers of the Council of Europe, will deliver a decision against Greece.’ This foreign directive will be carried out to the letter tomorrow when the Salonika Court of Appeal considers the application to establish the ‘Home of Macedonian Civilisation’. Christos Sidiropoulos and Stavros Anastassiadis are acting under the control of independence activists Radin and Popov who drew up the above report or directive. With them as leaders, along with two others from Skopje and about ten other representatives of ‘Macedonian’ independence movements from the United States, Canada and Europe, Sidiropoulos and Anastassiadis appeared in Copenhagen at a meeting of the Conference on Security and Co-operation in Europe to accuse Greece at a press conference organised by Yugoslavia’s official diplomatic delegation to the CSCE. At the conference Sidiropoulos was seated beside the secretary of the Yugoslav embassy, who directed the discussion with the foreign journalists. On 15 July 1990 Macedonia, a newspaper in the service of Slav independence activists fighting in the United States and Canada for the separation of Greek Macedonia and its incorporation into Skopje, published a revealing photograph in which Sidiropoulos and Anastassiadis appear beside their instructors Radin and Popov and their leaders from Skopje in the midst of the group of agents presented by the Yugoslavian diplomatic mission at the CSCE. In this newspaper, which is run by Slav independence activists, the photograph and report appear under the headline ‘Yugoslavia protecting minority rights’.” 16. Article 4 § 1 of the Constitution provides: “All Greeks shall be equal before the law.” 17. Article 12 § 1 of the Constitution provides: “All Greeks shall be entitled to form non-profit-making unions and associations, in accordance with the law, which may not, however, make the exercise of this right subject to prior authorisation.” 18. The Civil Code contains the following provisions concerning non-profit-making associations: “A union of persons pursuing a non-profit-making aim shall acquire legal personality as soon as it has been entered in a special public register (of associations) held at the Court of First Instance for the place where it has its headquarters. At least twenty persons shall be necessary to form an association.” “In order to have an association registered, its founders or its management committee must lodge an application with the Court of First Instance. The application must be accompanied by the document establishing the association, a list of the names of the members of the management committee and the memorandum of association dated and signed by the committee’s members.” “To be valid, the memorandum of association must specify (a) the object, name and headquarters of the association; (b) the conditions of admission, withdrawal and expulsion of its members, together with their rights and obligations; …” “The Court of First Instance shall allow the application if it is satisfied that all the legal requirements have been complied with…” “The Court of First Instance shall order the dissolution of an association … (c) if the association pursues aims different from those laid down in its memorandum of association or if its object or its functioning prove to be contrary to law, morality or public order.” 19. The non-contentious procedure (ekoussia dikeodossia) followed by the courts when they examine, among other things, applications to register an association is governed by the following provisions: “The court may of its own motion order any measure which might lead to the establishment of relevant facts, even if these are not mentioned in the parties’ submissions…” “2. Where the court directs that evidence is to be taken, such evidence shall be brought by one of the parties. 3. The court may of its own motion order any measure that it considers necessary for establishing the facts, even if in so doing it departs from the provisions governing the taking of evidence.” Furthermore, Article 336 § 1 provides: “The court may, of its own motion and without directing that evidence is to be taken, have regard to matters which are so widely known that their truth cannot reasonably be put in doubt.” Lastly, Article 345 allows a party who does not have to discharge the burden of proof to adduce refuting evidence. | 1 |
dev | 001-101558 | ENG | RUS | CHAMBER | 2,010 | CASE OF MUMINOV v. RUSSIA | 3 | Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 6. The following facts were established in the principal judgment: “38. According to the applicant's representative before the Court, the applicant had been refused permission to be represented by his privately retained counsel but legal-aid counsel had been appointed instead. Neither the applicant's representative nor his family members had been informed of the exact place of his detention in Uzbekistan. 39. The applicant's representative before the Court wrote to the Uzbek Prosecutor General's Office asking for information regarding the place of the applicant's detention and the conditions of access to him. Her request was forwarded to the prosecutor in the Surkhandaryinsk Region of Uzbekistan. On 17 January 2007 the prosecutor forwarded the request to the Surkhandaryinsk Regional Court. The applicant's representative also wrote to the Uzbek Ministry of the Interior and the Ministry of Foreign Affairs. No replies were received. 40. On an unspecified date, the Russian authorities sent a request concerning the applicant to the Uzbek authorities. On 6 March 2007 the Uzbek Ministry of the Interior replied and enclosed a letter in Russian from the applicant dated 20 December 2006 worded as follows: “... during my arrest and detention ... the police and other law-enforcement officers did not violate my rights and did not exert any physical pressure upon me. I have no claims against the police officers in Moscow or Lipetsk or against any other law-enforcement authority in Russia. I confirm that this declaration is correct and written with my own hand.” 41. According to a linguistic expert report, produced by the applicant's representative, the above letter did not contain any significant mistakes, whereas the applicant's personal letters contained numerous mistakes reflecting his Uzbek mother tongue's phonetics and grammar. The expert noted that the applicant would not have been able to acquire a sufficient command of the Russian language during the three months between the date of his sample letters (September 2006) and the letter in question (December 2006). The expert concluded that the letter of 20 December 2006 had not been written spontaneously by the applicant, who had transcribed the text from the original or written it from a letter-by-letter dictation by someone else.” 7. Following the adoption of the principal judgment by the Court, by a letter of 9 July 2009 the Prosecutor General's Office of the Russian Federation replied to a request from the applicant's representative before the Court. The Prosecutor General's Office stated that all matters relating to the execution by the applicant of the prison term imposed by an Uzbek court in 2007 were within the exclusive competence of the Uzbek authorities; the applicant's representative thus had to apply directly to those authorities. 8. By a letter of 17 July 2009, the Office of the Representative of the Russian Federation at the European Court of Human Rights indicated to the applicant's representative that any correspondence between the national authorities and the applicant's representative on procedural matters should be carried out through the European Court. Thus, the representative was directed to address all her queries to the Court. | 0 |
dev | 001-72136 | ENG | GBR | ADMISSIBILITY | 2,005 | BARROW and Others v. THE UNITED KINGDOM | 4 | Inadmissible | Josep Casadevall;Nicolas Bratza | The applicant, Mr Norman Barrow, is a British national who was born in 1930 and lives in Stoke-on-Trent. His wife died on 11 October 1985. On 25 June 2000, the applicant applied to the Benefits Agency for the payment of social security benefits. He applied for benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled under the Social Security and Benefits Act 1992 (“the 1992 Act”). He was informed that the Benefits Agency was unable to accept his application as a valid claim because the regulations governing the payment of widows' benefits were specific to women. The claim was finally rejected by the Social Security Appeal Tribunal on 14 February 2001. The applicant, Mr Joseph Roberts, is a British national who was born in 1957 and lives in Springfield. His wife died on 7 October 1999, leaving the applicant and his son, born on 2 March 1984. On 21 November 2000, the applicant applied for benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled under the Social Security and Benefits Act 1992 (“the 1992 Act”). He was informed on 27 November 2000 that the Benefits Agency was unable to accept his application as a valid claim because the regulations governing the payment of widows' benefits were specific to women. His appeal was dismissed by the Appeal Tribunal on 27 February 2001. The applicant, Mr Michael McConville, is a British national who was born in 1934 and lives in Belfast. He is represented before the Court by Campbell McKee, solicitors. His wife died on 20 June 1985, leaving two children aged 8 and 4. Shortly after her death, the applicant contacted the Department of Health and Social Security by telephone to see whether any widowers' benefits would be available. He was informed that there were no benefits available to him because he was a man. He subsequently made a claim for widowers' benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled under the Social Security and Benefits Act 1992 (“the 1992 Act”). He was informed on 5 September 2000 that the Benefits Agency was unable to accept his application as a valid claim because the regulations governing the payment of widows' benefits were specific to women. His appeal to the Social Security Appeal Tribunal was rejected on 9 November 2000. The applicant, John Kelly, is a British national who was born in 1935 and lives in Cheshire. His wife died on 23 September 1998. His claim for widow's benefit was rejected by the Department of Health and Social Security on 8 September 2000 on the ground that, as a man, he was not eligible for the benefits. His appeals to the Appeal Service of the Department were refused in April and July 2001 respectively. The domestic law relevant to these applications is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV. | 0 |
dev | 001-114279 | ENG | RUS | ADMISSIBILITY | 2,012 | TRIFONTSOV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | 1. The applicant, Mr Yevgeniy Yevgenyevich Trifontsov, is a Russian national who was born in 1963 and lives in Kaliningrad. He was represented before the Court by Mr V. Filatyev and Mr S. Baranov, lawyers practising in Kaliningrad. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and then by Mr G. Matyushkin, their Representative at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. 3. At the relevant time the applicant was working as a police investigator. He was in charge of a criminal case against N.K., a student suspected of illegal possession of drugs. The case against N.K. was opened on 23 November 1999. 4. According to the official account of events, in December 1999January 2000 the applicant repeatedly contacted N.K.’s parents offering to close the case against their son in exchange for payment of a certain sum of money. The applicant’s father, V.K., tentatively agreed. However, some time later V.K., having discussed the matter with his wife, decided to report the applicant and secretly recorded their conversations on several audiotapes. On 28 December 1999 V.K. informed the Internal Security Service (hereinafter the “ISS”) of the offer he had received from the applicant. He gave them the audiotapes at a later date. It is unclear when those recordings were made and what they contained. 5. The applicant claimed that he had been incited by V.K. to take the money. He also maintained that V.K. had been acting on ISS orders, and that the ISS had instructed V.K. to make him accept the deal and to secretly record their conversations. 6. The ISS’s first official record of V.K.’s statement reporting the applicant was dated 15 January 2000. To the extent that V.K.’s statement is legible (the record of his questioning is hand-written), it can be summarised as follows. According to V.K., in December 1999 the applicant solicited a bribe from N.K.’s mother. In January 2000 the applicant made a similar approach to V.K. The applicant allegedly asked for 5,000 US dollars (US$), which were supposed to go to a supervising prosecutor. V.K. claimed that he had taped some of his conversations with the applicant on his own initiative. 7. On the same date, the ISS conducted a covert operation targeting the applicant. They equipped V.K. with a radio-transmitting device connected to a tape-recorder and instructed him to record his conversation with the applicant. They also gave V.K. money to be handed over to the applicant, and recorded the serial numbers of the banknotes in a document, signed by two attesting witnesses – soldiers from a nearby military base. 8. Again on 15 January 2000 V.K. called the applicant, who told V.K. that they should meet at the regional Prosecutor’s Office. They met there at about noon and discussed the deal. Their conversation was recorded by the ISS through the radio transmitter. In the course of the conversation, the applicant reproached V.K. for having brought only US$ 2,500, namely half the amount agreed earlier. V.K. replied that he would bring the remaining half later. The applicant also asked V.K. whether he had told anybody about their deal. V.K. replied in the negative. The applicant then asked V.K. to leave the money on a table, in a plastic bag. When V.K. had done so, the applicant gave him an official note signed by the applicant and confirming that the case against N.K. had been closed. 9. As soon as the applicant left the building, V.K. contacted the ISS officers, who were waiting nearby and informed them that the money had been handed over. The ISS officers immediately apprehended the applicant, but found that he was not in possession of the money. They then searched the premises where V.K. had met the applicant and found the money in a plastic bag, hidden in the corridor. The serial numbers on the banknotes found there corresponded to those on the banknotes received by V.K. from the ISS. The ISS officers drew up a report of the search of the place of the incident, which was attested by the same two witnesses. The applicant was questioned and arrested. The case was then transferred to the regional Prosecutor’s Office, and on 18 January 2000 the applicant was formally charged with taking a bribe. Material obtained by the ISS during the covert operation was declassified and attached to the criminal case file. On 16 May 2000 the prosecution sent the case with a bill of indictment to the Kaliningrad Regional Court. 10. In the course of the trial the applicant pleaded not guilty and alleged that it was V.K. who had offered him money. The applicant did not deny that he had agreed to take the money but claimed that his real intention had been to report V.K. as a briber. He had arranged for the meeting to take place at the Prosecutor’s Office in order to report him to his friends who worked there. The applicant also claimed that the tape recorded on 15 January 2000 and the search report should not have been admitted in evidence. 11. The prosecution insisted that the applicant had extorted money from V.K. In support, they produced the report of “the search of the place of the incident” (namely the corridor where the money had been discovered in a plastic bag). They also produced the report of an expert examination of the fingerprints on the plastic bag, according to which the fingerprints belonged to the applicant. A record of the conversation of 15 January 2000 between the applicant and V.K. was also presented to the court. Finally, the prosecution submitted the official note signed by the applicant certifying that the case against N.K. was closed.. 12. The court heard several witnesses. V.K. testified that the applicant had offered to discontinue the proceedings against his son in exchange for a sum of money. His testimony was corroborated by N.K., who testified that in 1999 his father had told him about the offer made by the applicant. Another witness, V.K.’s wife, stated that she had known about the deal and had persuaded her husband to inform the ISS about it. The court also examined the ISS officers involved in the operation. They confirmed that V.K. had informed them about the offer made by the applicant. The applicant’s immediate superiors and colleagues were also examined. They claimed that the applicant had never told them that V.K. had offered him money to close the criminal case against N.K. 13. The court also examined the record of the applicant’s first questioning and noted that the applicant had not referred to “incitement” when questioned. The court also heard the two attesting witnesses who had been present on 15 January 2000 during the preparation of the covert operation and during the search of the premises of the regional Prosecutor’s Office. They confirmed the accuracy of the reports drawn up by the ISS. 14. Finally, the court listened to the tape recording made secretly during the meeting between V.K. and the applicant on 15 January 2000, examined the transcript of the tape and studied the official note concerning the closure of the criminal case against N.K. 15. On 13 July 2000 the Kaliningrad Regional Court found the applicant guilty of taking a bribe and sentenced him to four years’ imprisonment. 16. The applicant appealed. He maintained that ISS officers had framed him. He submitted that the ISS should have first obtained V.K.’s written statement, then opened an inquiry or instituted criminal proceedings, but that none of that had been done. The applicant also contested the admissibility and authencity of the tape recording of his conversation with V.K.. He also contested the admissibility of the search report . He submitted that those pieces of evidence had been obtained in breach of the law. Furthermore, the applicant challenged the veracity and consistency of statements of the witnesses who had testified against him. 17. On 28 December 2000 the Supreme Court of the Russian Federation upheld the decision of the Kaliningrad Regional Court and confirmed the findings of the first-instance court as to the facts of the case. It also noted that the operation that had led to the applicant’s arrest had been carried out in conformity with the applicable legislation. The material obtained by the ISS had been duly incorporated in the body of evidence. Furthermore, in accordance with criminal procedure rules, the ISS had the right to search premises without waiting for an investigator from the Prosecutor’s Office. 18. For relevant provisions of the Operational-Search Activities Act of 1995, as in force at the material time, see Bykov v. Russia [GC], no. 4378/02, § 56, 10 March 2009. | 0 |
dev | 001-4688 | ENG | GBR | ADMISSIBILITY | 1,999 | MASSEY v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is an Irish citizen, born in 1923 and living in Dublin. He is the father of Anne Massey. He is represented before the Court by Mr G. O’Neill, a lawyer practising in Dublin. On 17 May 1974 Anne Massey was killed in a terrorist bombing in Dublin. The cars used for the bombing were stolen in Belfast in Northern Ireland on the same day. The Irish authorities conducted extensive inquiries but were unable to bring charges against any person. The files remain open. The Royal Ulster Constabulary (RUC) in Northern Ireland has conducted an inquiry into the theft of the vehicle and related offences which did not produce any results. However, there was no formal murder inquiry by the RUC. On 6 July 1993 ITV, a television station in the United Kingdom, broadcast a programme in which the adequacy of the RUC inquiry was discussed. | 0 |
dev | 001-61814 | ENG | GBR | CHAMBER | 2,004 | CASE OF G.W. v. THE UNITED KINGDOM | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Matti Pellonpää;Nicolas Bratza | 9. The applicant was born in 1957 and lives in Portsmouth. In 1980 he joined the Royal Navy. 10. In or around early 1996, he was charged, pursuant to section 42 of the Naval Discipline Act 1957 (“the 1957 Act”), with three civilian offences (one under the Theft Act 1968 and two under the Forgery and Counterfeiting Act 1981). He was also charged, inter alia, on four counts of misapplication of public property contrary to section 30 of the 1957 Act. The charge sheet was signed by the convening authority, Rear Admiral N.E. Rankin (Flag Officer Portsmouth). 11. By convening order dated 1 February 1996, the convening authority acknowledged receipt of the “circumstantial letter” and ordered the convening of a court-martial for 26 February 1996 (see paragraph 21 below). He appointed the Prosecutor by name (of lower rank and in the convening authority’s chain of command). He also appointed the President of the court-martial and the other four members by name: all were subordinate in rank to the convening officer but were not in his chain of command. The Judge Advocate was also appointed by name by the convening authority and was not in the latter’s chain of command. 12. Advised that he could be represented by a civilian or naval lawyer, the applicant instructed a civilian lawyer, his current representative. 13. The court-martial took place on board HMS NELSON on 18 March 1996 and the applicant pleaded guilty to all charges. Having presented evidence in mitigation of sentence, he was sentenced, inter alia, to four months’ imprisonment, to be discharged from the navy and to stoppages of pay in the sum of 2,655 pounds sterling. 14. By letter dated 19 April 1996 the applicant was informed that his petition against sentence, which had been reviewed on behalf of the Admiralty Board by the Naval Secretary/Director General Naval Manning, had been rejected but that he could request that the petition be further considered by the Admiralty Board. He subsequently renewed his petition against sentence. On 17 May 1996 he was released from prison and by letter dated 7 June 1996 he was notified that his petition had been rejected. 15. The law and procedures in respect of naval courts-martial were contained in the Naval Discipline Act 1957 (“the 1957 Act”) and in certain statutory instruments made under the 1957 Act including the Naval Courts-Martial General Orders (Royal Navy) 1991 (“the 1991 Orders”). Following the Commission’s report in the case of Findlay v. the United Kingdom, certain provisions of the 1957 Act were amended by the Armed Forces Act 1996 (“the 1996 Act”) which Act came into force on 1 April 1997 (Findlay v. the United Kingdom, no. 22107/93, Commission’s report of 5 September 1995 and, see also, judgment in that case of 25 February 1997, Reports of Judgments and Decisions 1997-I). Sections A-G below concern the applicable law and practice prior to the entry into force of the 1996 Act. 16. Under section 42 of the 1957 Act “civilian” offences were also offences under the 1957 Act. Accordingly, even if the charge amounted to a civilian offence, in most cases naval personnel could be tried on that charge by the naval authorities under the 1957 Act. 17. At the material time a naval court-martial consisted of between 5-9 naval officers not below the rank of lieutenant, though the rank of the members might have been higher depending on the rank of the accused. Not all members belonged to the same ship or naval establishment and the captain and executive officer of the accused’s ship could not sit on the court-martial. 18. A President of the court-martial was appointed from the members. A Judge Advocate also took part in every naval court-martial. The Prosecutor could be a legally qualified naval officer or any other competent person. In exceptional cases, a civilian lawyer was appointed to act as Prosecutor. 19. An accused was allowed to engage, inter alia, an officer or civilian counsel (“the accused’s friend”) who advised the accused, examined the accused if he desired to give evidence, cross-examined witnesses for the prosecution and examined witnesses for the defence. If the accused wished to be represented by a civilian lawyer he could apply to the convening authority for approval of legal aid. 20. The convening authority was an officer authorised by the Defence Council to convene a court-martial. Appendix 5 to Volume II of the Manual of Naval Law (published by the naval authorities) gave a list of officers who could act as convening authority: Commander in Chief, Fleet; Commander in Chief, Naval Home Command; Flag Officer Plymouth; Flag Officer Scotland and Northern Ireland; Flag Officer Naval Aviation; Flag Officer Portsmouth; Flag Officer Surface Flotilla; Flag Officer Sea Training; Commander UK Task Force; and Commander British Forces Gibraltar. 21. An application for a court-martial to be held was generally made to the convening authority by the Commanding Officer by way of a “circumstantial letter”. This letter reported the circumstances upon which a charge was based in sufficient detail to show the real nature and extent of the offence. Any statement made by the accused in the course of inquiries, during investigation or after he was charged had to be forwarded in a separate document annexed to the letter. A charge sheet in the prescribed form, a list of witnesses for the prosecution, summaries of evidence of those witnesses and a list of exhibits which the Prosecutor proposed to put in evidence accompanied the letter. 22. Based on the material submitted, the convening authority decided on the charges to be retained against an accused and, if he was satisfied with the charge sheet accompanying the circumstantial letter, he could countersign the charge sheet. He also decided on the necessity to hold a court-martial on the charges retained. In this latter respect, the convening authority was guided by the principles issued by the Director of Public Prosecutions under section 10 of the Prosecution of Offences Act 1985 and was not to order the holding of a court-martial unless satisfied that the charges were correct, that the evidence was sufficient (namely, that there was a realistic prospect of a conviction) and that there was a “service interest” in trying the matter by court-martial. In convening the court-martial, the convening authority appointed the date, time and place for trial. 23. The convening authority appointed the President and other members of the court-martial. He also appointed, or directed an officer to appoint, a Judge Advocate and a Prosecutor. He ensured that the accused was properly assisted. In this latter respect, and unless the accused wished to represent himself or to instruct civilian counsel, the convening authority would nominate a competent naval officer to act as the accused’s friend. 24. The convening authority could, in exceptional circumstances, countermand the ordering of a court-martial before its commencement and dissolve a court-martial during the trial if circumstances arose which, in his opinion, rendered such action necessary (orders 13(2) and 28(2) of the 1991 Orders). 25. The Judge Advocate of the Fleet was appointed by the Queen on the recommendation of the Lord Chancellor and was removable on the same authority for inability or misbehaviour. He had to be a barrister or advocate of not less than ten years’ standing. He acted as legal advisor to the Admiralty Board on matters regarding the administration of justice under the 1957 Act. It was his duty to review all contested courts-martial whether the verdict was guilty or not guilty and, in particular, he advised that Board whether a court-martial had been properly conducted according to law and whether the conviction could stand, he gave a view on the sentence and he drew attention to any gross errors or irregularities. He also gave the Chief Naval Judge Advocate his view as to the manner in which the naval barristers had conducted themselves as Judge Advocate, Prosecutor and as the accused’s friend. As a result of the latter advice, “there may well be downstream actions issuing guidance either specifically or generally” (Manual of Naval Law, Appendix 5). 26. The Chief Naval Judge Advocate was a serving officer of the rank of captain of the Royal Navy and he was also a barrister. The Chief Naval Judge Advocate was assisted by a staff of serving naval officers who were barristers. His duties included assisting and consulting with the Judge Advocate of the Fleet, advising on the selection and appointment of naval barristers and sitting as Judge Advocate at naval courts-martial where the seriousness of the charges, the complexity of the trial, the rank of the accused or the interests of the Service so required. 27. In all other cases, a Judge Advocate was appointed to a court-martial from the staff of the Chief Naval Judge Advocate. 28. Before the trial the Judge Advocate appointed informed the convening authority of any defect in the constitution of the court-martial. He advised the court-martial, whether his opinion was requested or not, upon all questions of law and procedure which arose and the court-martial had to accept his advice unless there were weighty reasons for rejecting it, in which case those reasons had to be recorded. 29. The Judge Advocate had to ensure that the accused did not suffer any disadvantage during the hearing in consequence of, inter alia, the accused’s position, ignorance or incapacity to examine witnesses. Before the closing of the trial the Judge Advocate summed up the relevant law and evidence. The Judge Advocate was not present when the court considered its finding and, if during the court-martial’s deliberations on the charges further advice was required, the court-martial had to receive that advice in open court. The Judge Advocate advised the court-martial on sentence but not in open court. 30. The accused could object to any particular member of the court-martial and to its general constitution. If the objection to the President was upheld the court had to adjourn until another was appointed. If an objection to a member was upheld, another member could be appointed from the “spare members list” and, if an objection as to the constitution of the court-martial was upheld, the court-martial had to adjourn and report the matter to the convening authority. All members of the court and any other officers of the court-martial had to take a prescribed oath or affirmation (section 60 of the 1955 Act). The opinion of the President and of each member of the court-martial had to be given orally and on each charge separately, and their opinions had to be given in order of seniority commencing with the junior in rank. The vote of the majority determined sentence. 31. Before the court accepted a plea of guilty, the Judge Advocate had to ensure that the accused understood the charge to which he had pleaded and the different procedure which would result from that plea. The Prosecutor then read the circumstantial letter. Before the court proceeded to deliberate on sentence, the Prosecutor, whenever possible, called relevant witness evidence on information in the possession of the naval authorities as to the accused’s background and history which might have rendered the accused more likely to commit the offence, as to his service history and as to his previous convictions. The accused could also give evidence and call witnesses in mitigation. The court-martial had to take note of the accused’s naval record (for example, awards for gallantry). The members of the court-martial retired (with the Judge Advocate) to consider the sentence. The court-martial did not give reasons for its decision on sentence. 32. Having received the report of the finding and sentence, the convening authority took the necessary steps to give effect to the sentence (either by a committal order or otherwise) or he could order the suspension of the sentence pursuant to section 90 of the 1957 Act. Chapter 15 of the Manual of Naval law (Volume II) pointed out that before the convening authority gave effect to or suspended the sentence, he (or, inter alia, the Commander in Chief) had to satisfy himself so far as he was able, that no errors had been made in the conduct of the court-martial likely, in his opinion, to invalidate the finding of the court-martial. If he doubted the correctness of the finding, in fact or in law, or the legality of the sentence, he could not execute the sentence pending reference to the Defence Council. In such circumstances, the accused was retained in custody or the sentence was suspended under section 90 of the Act. 33. The convening authority (among other naval authorities) could at any time, and had to at intervals of not more than three months, reconsider any case of suspension and if on reconsideration it appeared that the conduct of the offender since his conviction had been such as to justify a remission of sentence, he had to remit the whole or any part of it (section 92 of the 1957 Act). 34. A certified transcript of the proceedings was completed and sent through the commander-in-chief or senior naval officer to the Defence Council. The Defence Council could, at any time, review a finding of guilt, any sentence awarded in respect of such a finding and any finding by a court-martial that a person was unfit to stand trial or was not guilty by reason of insanity. This had to be done by the Defence Council in the case of a court-martial as soon as practicable after the receipt of the record of proceedings (section 70(1) of the 1957 Act). 35. A convicted person could also petition the Defence Council against the findings or sentence or both (section 70(2) of the 1957 Act). Having reviewed the petition, the Defence Council could, inter alia, quash or alter findings, authorise a re-trial and annul, remit or alter sentences. However, those powers could be, and were normally, carried out by the Admiralty Board or by any officer so empowered by the Admiralty Board. Once an appeal was lodged with the Courts-Martial Appeal Court, the review functions of the Defence Council ceased. 36. The Courts-Martial Appeal Court (“CMAC”) was established by the Courts-Martial (Appeals) Act 1951 and was confirmed by the Courts-Martial (Appeals) Act 1968. The CMAC had the same status and, in essence, the same procedure as the Criminal Division of the Court of Appeal and considered appeals from courts-martial. The judges of this court included ordinary and ex officio judges of the Court of Appeal and such judges of the High Court as were nominated by the Lord Chief Justice. There was no provision for an appeal against sentence only, although certain powers of revising such sentences, pursuant to an appeal against conviction, were available to the CMAC. Once an application to the CMAC was received by the Registrar of the CMAC, the Defence Council’s duty to review ceases. 37. The changes to the naval court-martial system brought about by this Act are set out in the Court’s judgment in the case of Grieves v. the United Kingdom ([GC], no. 57067/00, §§ 16-62, ECHR 2003XII). | 1 |
dev | 001-110513 | ENG | RUS | CHAMBER | 2,012 | CASE OF JANOWIEC AND OTHERS v. RUSSIA | 2 | Preliminary objection allowed (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione temporis;Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Non-pecuniary damage - finding of violation sufficient | Anatoly Kovler;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 9. The facts of the case, as submitted or undisputed by the parties, may be summarised as follows. 10. On 23 August 1939 the Foreign Ministers of the Nazi Germany and the Soviet Union signed a non-aggression treaty (known as the MolotovRibbentrop Pact) which included an additional secret protocol whereby the parties agreed to settle the map of their “spheres of interests” in the event of a future “territorial and political rearrangement” of the then independent countries of Central and Eastern Europe, including Poland. According to the protocol, the eastern part of Polish territory was “to fall to” the Soviet Union. 11. On 1 September 1939 Germany invaded Poland, starting the Second World War. On 17 September 1939 the Soviet Red Army marched into Polish territory, allegedly acting to protect the Ukrainians and Belarusians living in the eastern part of Poland because the Polish State had collapsed under the German attack and could no longer guarantee the security of its own citizens. The Polish Army did not offer any military resistance. The USSR annexed the territory newly under its control and in November 1939 declared that the 13.5 million Polish citizens who lived there were henceforth Soviet citizens. 12. In the wake of the Red Army’s advance around 250,000 Polish soldiers, border guards, police officers, prison guards, State officials and other functionaries were detained. After they had been disarmed, about half of them were set free; the others were sent to special prison camps established by the NKVD (People’s Commissariat for Internal Affairs, a predecessor of the KGB) in Kozelsk, Ostashkov and Starobelsk. On 9 October 1939 it was decided that the Polish officer corps should be billeted at the camps in Kozelsk and Starobelsk and the remaining functionaries, including the police officers and prison guards, in Ostashkov. 13. In early March 1940 Mr Lavrentiy Beria, head of the NKVD, submitted to Joseph Stalin, Secretary General of the USSR Communist Party, a proposal to approve the shooting of Polish prisoners of war on the grounds that they were all “enemies of the Soviet authorities and full of hatred towards the Soviet system”. The proposal specified that the prisoner-of-war camps held 14,736 former Polish officers, officials, landowners, police officers, gendarmes, prison guards, settlers and intelligence officers, and that the prisons in the western regions of Ukraine and Belarus accommodated a further 18,632 former Polish citizens who had been arrested. 14. On 5 March 1940 the Politburo of the Central Committee of the USSR Communist Party, the highest governing body of the Soviet Union, took the decision to consider “using a special procedure” and employing “capital punishment – shooting” in the case of 14,700 former Polish officers held in the prisoner-of-war (POW) camps, as well as 11,000 members of various counter-revolutionary and espionage organisations, former landowners, industrialists, officials and refugees held in the prisons of western Ukraine and Belarus. The cases were to be examined “without summoning the detainees and without bringing any charges, with no statement concluding the investigation and no bill of indictment”. Examination was delegated to a three-person panel (“troika”) composed of NKVD officials, which operated on the basis of lists of detainees compiled by the regional branches of the NKVD. The decision on the execution of the Polish prisoners was signed by all the members of the Politburo, including Stalin, Voroshilov, Mikoyan, Molotov, Kalinin and Kaganovich. 15. The killings took place in April and May 1940. Prisoners from the Kozelsk camp were killed at a site near Smolensk, known as the Katyn Forest; those from the Starobelsk camp were shot in the Kharkov NKVD prison and their bodies were buried near the village of Pyatikhatki; the police officers from Ostashkov were killed in the Kalinin (now Tver) NKVD prison and buried in Mednoye. The circumstances of the execution of the prisoners from the prisons in western Ukraine and Belarus have remained unknown to date. 16. The precise numbers of murdered prisoners were given in a note which Mr Shelepin, Chairman of the State Security Committee (KGB), wrote on 3 March 1959 to Nikita Khrushchev, Secretary General of the USSR Communist Party: “All in all, on the basis of decisions of the Soviet NKVD’s special troika, a total of 21,857 persons were shot, 4,421 of them in Katyn Forest (Smolenskiy district), 3,820 in the Starobelsk camp near Kharkov, 6,311 in the Ostashkov camp (Kalininskiy district) and 7,305 in other camps and prisons in western Ukraine and Belarus”. 17. In 1942 and 1943, first Polish railroad workers and then the German Army discovered mass burials near Katyn Forest. An international commission consisting of twelve forensic experts and their support staff from Belgium, Bulgaria, Croatia, Denmark, Finland, France, Hungary, Italy, the Netherlands, Romania, Slovakia and Sweden was set up and conducted the exhumation works from April to June 1943. The remains of 4,243 Polish officers were excavated, of whom 2,730 were identified. The commission concluded that the Soviets had been responsible for the massacre. 18. The Soviet authorities responded by putting the blame on the Germans who – according to Moscow – had in the summer of 1941 allegedly taken control of the Polish prisoners and had murdered them. Following the liberation of the Smolensk district by the Red Army in September 1943, the NKVD set up a special commission chaired by Mr Burdenko which purported to collect evidence of German responsibility for the killing of the Polish officers. In its communiqué of 22 January 1944, the commission announced that the Polish prisoners had been executed by the Germans in the autumn of 1941. 19. On 14 February 1946, in the course of the trial of German war criminals before the Nuremberg Military Tribunal, the Soviet prosecutor cited the Burdenko commission’s report in seeking to charge the German forces with the shooting of up to 11,000 Polish prisoners in the autumn of 1941. The charge was dismissed by the US and British judges for lack of evidence. 20. On 3 March 1959 Mr Shelepin wrote the above-mentioned note to Mr Khrushchev, recommending “the destruction of all the [21,857] records on the persons shot in 1940 in the ... operation... [T]he reports of the meetings of the NKVD USSR troika that sentenced those persons to be shot, and also the documents on execution of that decision, could be preserved.” 21. The remaining documents were put in a special file, known as “package no. 1”, and sealed. In Soviet times, only the Secretary General of the USSR Communist Party had the right of access to the file. On 28 April 2010 its contents were officially made public on the website of the Russian State Archives Service (rusarchives.ru). The file contained the following historical documents: Mr Beria’s note of 5 March 1940, the Politburo’s decision of the same date, the pages removed from the minutes of the Politburo’s meeting and Mr Shelepin’s note of 3 March 1959. 22. The first applicant, Mr Jerzy-Roman Janowiec, was born in 1929. He is the son of Mr Andrzej Janowiec, born in 1890, who was a lieutenant in the Polish Army before the Second World War. 23. The second applicant, Mr Antoni-Stanisław Trybowski, was born in 1940. He is the grandson of Mr Antoni Nawratil, born in 1883, a lieutenantcolonel in the Polish Army. 24. Both Mr Andrzej Janowiec and Mr Antoni Nawratil were taken prisoner of war during the Soviet invasion of Poland in September 1939 and sent to the Starobelsk camp in the USSR. Mr Janowiec was listed as no. 3914 among the prisoners in the camp, and Mr Nawratil as no. 2407. They were subsequently transferred to a prison in Kharkov and executed in April 1940. 25. The first and second applicants, Ms Witomiła Wołk-Jezierska and Ms Ojcumiła Wołk, were born respectively in 1940 and 1917. They are the daughter and wife of Mr Wincenty Wołk, born in 1909, who was a lieutenant in a heavy artillery unit of the Polish Army before the Second World War. He was taken prisoner of war by the Red Army in the night of 19 September 1939 and held in Kozelsk special camp (listed in position 3 on NKVD dispatching list 052/3 04.1940). He was killed on 30 April 1940 and buried in Katyn. His body was identified during the 1943 exhumation (no. 2564). 26. The third applicant, Ms Wanda Rodowicz, was born in 1938. She is the granddaughter of Mr Stanisław Rodowicz, born in 1883, who was a reserve officer in the Polish Army. He was taken prisoner of war by the Red Army at the Hungarian border on around 20 September 1939 and held in Kozelsk special camp (listed in position 94 on list 017/2). He was killed and buried in Katyn. His body was identified during the 1943 exhumation (no. 970). 27. The fourth applicant, Ms Halina Michalska, was born in 1929. She is the daughter of Mr Stanisław Uziembło, born in 1889. An officer of the Polish Army, Mr Uziembło was taken POW by the Soviets near Białystok, Poland, and detained in the special NKVD camp at Starobelsk (pos. 3400). He was presumed killed in Kharkov and buried at Pyatikhatki near Kharkov (now Ukraine). 28. The fifth applicant, Mr Artur Tomaszewski, was born in 1933. He is the son of Mr Szymon Tomaszewski, born in 1900. The fifth applicant’s father, a commander of the police station at the Polish-Soviet border in Kobylia, was arrested there by Soviet troops and taken to the special NKVD camp at Ostashkov (position 5 on list 045/3). He was killed in Tver and buried in Mednoye. 29. The sixth applicant, Mr Jerzy Lech Wielebnowski, was born in 1930. His father, Mr Aleksander Wielebnowski, born in 1897, was a police officer working in Luck in eastern Poland. In October 1939 he was arrested by Soviet troops and placed in the Ostashkov camp (position 10 on list 033/2). He was killed in Tver and buried in Mednoye. 30. The seventh applicant, Mr Gustaw Erchard, was born in 1935. His father, Mr Stefan Erchard, born in 1900, was headmaster of a primary school in Rudka, Poland. He was arrested by the Soviets and detained at the Starobelsk camp (pos. 3869). He was presumed killed in Kharkov and buried in Pyatikhatki. 31. The eighth and ninth applicants, Mr Jerzy Karol Malewicz and Mr Krzysztof Jan Malewicz, born respectively in 1928 and 1931, are the children of Mr Stanisław August Malewicz. Their father was born in 1889 and served as a doctor in the Polish Army. He was taken prisoner of war at Równe, Poland, and held at the Starobelsk camp (pos. 2219). He was presumed killed in Kharkov and buried in Pyatikhatki. 32. The tenth and eleventh applicants, Ms Krystyna Krzyszkowiak and Ms Irena Erchard, born respectively in 1940 and 1936, are the daughters of Mr Michał Adamczyk. Born in 1903, he was the commander of the Sarnaki police station. He was arrested by the Soviets, detained at the Ostashkov camp (position 5 on list 037/2), killed in Tver and buried in Mednoye. 33. The twelfth applicant, Ms Krystyna Mieszczankowska, born in 1930, is the daughter of Mr Stanisław Mielecki. Her father, a Polish officer, was born in 1895 and was held at the Kozelsk camp after his arrest by Soviet troops. He was killed and buried in Katyn; his body was identified during the 1943 exhumation. 34. The thirteenth applicant, Mr Krzysztof Romanowski, born in 1953, is a nephew of Mr Ryszard Żołędziowski. Mr Żołędziowski, born in 1887, was held at the Starobelsk camp (pos. 1151) and was presumed killed in Kharkov and buried in Pyatikhatki. A list of Starobelsk prisoners which included his name was retrieved from the coat pocket of a Polish officer whose remains, with gunshot wounds to the head, were excavated during a joint Polish-Russian exhumation near Kharkov in 1991. 35. On 13 April 1990, during a visit by Polish President Mr Jaruzelski to Moscow, the official news agency of the USSR published a communiqué which affirmed, on the basis of newly disclosed archive materials, that “Beria, Merkulov and their subordinates bore direct responsibility for the crime committed in Katyn Forest”. 36. On 22 March 1990 a district prosecutor’s office in Kharkov opened, on its own initiative, a criminal investigation following the discovery of mass graves of Polish citizens in the city’s wooded park. On 6 June 1990 the Kalinin (Tver) prosecutor’s office instituted a criminal case into “the disappearance” in May 1940 of the Polish prisoners of war held in the NKVD camp in Ostashkov. On 27 September 1990 the Chief Military Prosecutor’s Office joined the two criminal cases under the number 159 and assigned it to a group of military prosecutors. 37. In the summer and autumn of 1991, Polish and Russian specialists carried out exhumations of corpses at the mass burial sites in Kharkov, Mednoye and Katyn. They also reviewed the archive documents relating to the Katyn massacre, interviewed no fewer than forty witnesses and commissioned medical, graphology and other forensic examinations. 38. On 14 October 1992 Russian President Yeltsin revealed that the Polish officers had been sentenced to death by Stalin and the Politburo of the USSR Communist Party. The director of the Russian State Archives handed over to the Polish authorities a number of documents, including the decision of 5 March 1940. During an official visit to Poland on 25 August 1993, President Yeltsin paid tribute to the victims in front of the Katyn Cross in Warsaw. 39. In late May 1995 prosecutors from Belarus, Poland, Russia and Ukraine held a working meeting in Warsaw, during which they reviewed the progress of the investigation in case no. 159. The participants agreed that the Russian prosecutors would ask their Belarusian and Ukrainian counterparts for legal assistance to determine the circumstances of the execution in 1940 of 7,305 Polish citizens who had been arrested. 40. On 13 May 1997 the Belarusian authorities informed their Russian counterparts that they had not been able to uncover any documents relating to the execution of Polish prisoners of war in 1940. In 2002 the Ukrainian authorities produced documents concerning the transfer of Polish prisoners from the Starobelsk camp to the NKVD prison in the Kharkov Region. 41. In 2001, 2002 and 2004 the President of the Polish Institute for National Remembrance (INR) repeatedly, but unsuccessfully, contacted the Russian Chief Military Prosecutor’s Office with a view to obtaining access to the investigation files. 42. On 21 September 2004 the Chief Military Prosecutor’s Office decided to discontinue criminal case no. 159, apparently on the ground that the persons allegedly responsible for the crime had already died. On 22 December 2004 the Interagency Commission for the Protection of State Secrets classified thirty-six volumes of the case file – out of a total of 183 volumes – as “top secret” and a further eight volumes as “for internal use only”. The decision to discontinue the investigation was given “top-secret” classification and its existence was only revealed on 11 March 2005 at a press conference given by the Chief Military Prosecutor. 43. Further to a request from the Court for a copy of the decision of 21 September 2004, the Russian Government refused to produce it, citing its secrecy classification. However, it transpired from their submissions that the investigation had been discontinued on the basis of Article 24 § 4 (1) of the Code of Criminal Procedure in connection with the suspects’ death. 44. From 9 to 21 October 2005 three prosecutors from the INR conducting the investigation into the Katyn massacre and the chief specialist of the Central Commission for the Prosecution of Crimes against the Polish Nation visited Moscow at the invitation of the Chief Military Prosecutor’s Office. They examined the sixty-seven volumes of case no. 159 which were not classified, but were not allowed to make any copies. 45. On 8 May 2010 the Russian President conveyed to the Speaker of the Polish Parliament sixty-seven volumes of the Katyn investigation files. In total, according to the information submitted by the Polish Government, the Russian authorities handed over to them certified copies of 148 volumes that contained approximately 45,000 pages. 46. In 2003, Mr Szewczyk – a Polish lawyer retained by the applicant Mr Janowiec and by the applicant Mr Trybowski’s mother – applied to the Prosecutor General of the Russian Federation with a request to be provided with documents concerning Mr Andrzej Janowiec, Mr Antoni Nawratil and a third person. 47. On 23 June 2003 the Prosecutor General’s Office replied to counsel that the Chief Military Prosecutor’s Office was investigating a criminal case concerning the execution of Polish officers in 1940. In 1991 the investigation had recovered some two hundred bodies in the Kharkov, Tver and Smolensk regions and identified some of them, including Mr Nawratil and Mr Janowiec. Their names had also been found on the list of prisoners in the Starobelsk camp. Any further documents concerning them had been previously destroyed. 48. On 4 December 2004 Mr Szewczyk formally requested the Chief Military Prosecutor’s Office to recognise Mr Janowiec’s and Mr Trybowski’s rights as relatives of the executed Polish officers and to provide them with copies of the procedural documents and also of personal documents relating to Mr Antoni Nawratil and Mr Andrzej Janowiec. 49. On 10 February 2005 the Chief Military Prosecutor’s Office replied that Mr Antoni Nawratil and Mr Andrzej Janowiec were listed among the prisoners of the Starobelsk camp who had been executed in 1940 by the NKVD and buried near Kharkov. No further materials concerning those individuals were available. Copies of the procedural documents could only be given to the officially recognised victims or their representatives. 50. Subsequently the applicants Mr Janowiec and Mr Trybowski retained Russian counsel, Mr V. Bushuev. On 9 October 2006 he asked the Chief Military Prosecutor’s Office for permission to study the case file. 51. On 7 November 2006 the Chief Military Prosecutor’s Office replied to Mr Bushuev that he would not be allowed to access the file because his clients had not been formally recognised as victims in the case. 52. Counsel lodged a judicial appeal against the Chief Military Prosecutor’s Office’s refusals of 10 February 2005 and 7 November 2006. He submitted, in particular, that the status as a victim of a criminal offence should be determined by reference to the factual circumstances, such as whether or not the individual concerned had sustained damage as a result of the offence. From that perspective, the investigator’s decision to recognise someone as a victim should be viewed as formal acknowledgement of such factual circumstances. Counsel sought to have the applicants Mr Janowiec and Mr Trybowski recognised as victims and to be granted access to the case file. 53. On 18 April 2007 the Military Court of the Moscow Command rejected the complaint. It noted that, although Mr Antoni Nawratil and Mr Andrzej Janowiec had been listed among the prisoners in the Starobelsk camp, their remains had not been among those identified by the investigation. Accordingly, in the Military Court’s view, there were no legal grounds to assume that they had died as a result of the offence in question. As to the materials in the case file, the Military Court observed that the decision to discontinue the criminal proceedings dated 21 September 2004 had been declared a State secret and, for that reason, foreign nationals could not have access to it. 54. On 24 May 2007 the Supreme Court of the Russian Federation upheld that judgment on appeal, reproducing verbatim the reasoning of the Military Court. 55. On 20 August 2008 counsel for the applicants filed a judicial appeal against the prosecutor’s decision of 21 September 2004. They submitted that the applicants’ relatives had been among the imprisoned Polish officers whose execution had been ordered by the Politburo of the USSR Communist Party on 5 March 1940. However, the applicants had not been granted victim status in case no. 159 and could not file motions and petitions, have access to the file materials or receive copies of the decisions. Counsel also claimed that the investigation had not been effective because no attempt had been made to take biological samples from the applicants in order to identify the exhumed human remains. 56. On 14 October 2008 the Military Court of the Moscow Command dismissed the appeal. It found that in 1943 the International Commission and the Technical Commission of the Polish Red Cross had excavated the remains and then reburied them, without identifying the bodies or counting them. A subsequent excavation in 1991 had only identified 22 persons and the applicants’ relatives had not been among those identified. The Military Court acknowledged that the names of the applicants’ relatives had been included in the NKVD lists for the Ostashkov, Starobelsk and Kozelsk camps; however, “the ‘Katyn’ investigation ... did not establish the fate of the said individuals.” As their bodies had not been identified, there was no proof that the applicants’ relatives had lost their lives as a result of the crime of abuse of power (Article 193.17 of the 1926 Soviet Criminal Code) referred to in the decision of 21 September 2004. Accordingly, there was no basis for granting victim status to the applicants under Article 42 of the Code of Criminal Procedure. Moreover, classified materials could not be made accessible to “representatives of foreign States”. 57. Counsel submitted a statement of appeal in which they pointed out that the lack of information about the fate of the applicants’ relatives had been the result of an ineffective investigation. The twenty-two persons had been identified only on the basis of the military identity tags found at the burial places and the investigators had not undertaken any measures or commissioned any forensic examination to identify the exhumed remains. Furthermore, it was a publicly known fact that the 1943 excavation had uncovered the remains of 4,243 people, of whom 2,730 individuals had been identified. Among those identified were three persons whose relatives had been claimants in the proceedings. The granting of victim status to the claimants would have allowed the identification of the remains with the use of genetic methods. Finally, counsel stressed that the Katyn criminal case file did not contain any information supporting the conclusion that any of the Polish officers taken from the NKVD camps had survived or died of natural causes. 58. On 29 January 2009 the Supreme Court of the Russian Federation upheld the judgment of 14 October 2008 in its entirety. It repeated verbatim extensive passages of the findings of the Moscow Military Court, but also added that the decision of 21 September 2004 could not be quashed because the prescription period had expired and because the proceedings in respect of certain suspects had been discontinued on “rehabilitation grounds”. 59. On 26 March 2008 Memorial, a Russian human-rights non-governmental organisation, lodged an application with the Chief Military Prosecutor’s office to declassify the decision of 21 September 2004. In its answer dated 22 April 2008, the prosecutor’s office informed Memorial that it was not competent to set aside the classified status which had been approved on 22 December 2004 by the Interagency Commission for the Protection of State Secrets (“the Commission”). 60. On 12 March 2009 Memorial applied to the Commission for declassification of the decision of 21 September 2004, claiming that the classification of the materials of the Katyn investigation was morally and legally unacceptable and that it had also been in breach of section 7 of the State Secrets Act which precluded classification of any information about violations of human rights. By letter of 27 August 2009, the Commission replied to Memorial that their application had been examined and rejected, without providing further details. 61. Memorial challenged the Commission’s refusal before the Moscow City Court. At the hearing on 13 July 2010 the court read out the Commission’s letter of 25 June 2010 addressed to the presiding judge. The letter stated that the Commission had not made any decision on 22 December 2004 to classify the decision of the Chief Military Prosecutor’s office from 21 September 2004. 62. To ascertain which authority was actually responsible for the classification of the decision of 21 September 2004, the court summoned representatives of the Commission and of the Chief Military Prosecutor’s office to the following hearing. That hearing was held in camera and the participants were forbidden to reveal any information from the hearing. However, it became publicly known that Memorial requested the City Court to summon representatives of the Federal Security Service. 63. On 2 November 2010 the Moscow City Court rejected, following another in camera sitting, Memorial’s application to declassify the decision of 21 September 2004. A copy of the City Court’s decision was not made available to the Court. 64. Most applicants repeatedly applied to different Russian authorities, first and foremost the Chief Military Prosecutor’s Office, for information on the Katyn criminal investigation and for the rehabilitation of their relatives. 65. By a letter of 21 April 1998 sent in response to a rehabilitation request by Ms Ojcumiła Wołk, the Chief Military Prosecutor’s Office confirmed that her husband Mr Wincenty Wołk had been held as a prisoner of war in the Kozelsk camp and had then been executed, along with other prisoners, in the spring of 1940. It was stated that her application for rehabilitation would only be considered after the conclusion of the criminal investigation. 66. Following the discontinuation of the investigation in case no. 159, on 25 October 2005 Ms Witomiła Wołk-Jezierska asked the Chief Military Prosecutor’s Office for a copy of the decision on discontinuation of the investigation. By letter of 23 November 2005 the prosecutor’s office refused to provide it, citing its top-secret classification. On 8 December 2005 the Polish Embassy in Moscow asked the prosecutor’s office for an explanation concerning the rehabilitation of Mr Wołk. In a letter of 18 January 2006, the prosecutor’s office expressed the view that there was no legal basis for the rehabilitation of Mr Wołk or the other Polish citizens because the investigation had not determined which provision of the 1926 Criminal Code had been the basis for their repression. A similarly worded letter of 12 February 2007 refused a further request to the same effect by Ms Wołk. 67. On 13 March 2008 the Chief Military Prosecutor’s Office rejected a request for rehabilitation submitted by counsel on behalf of all the applicants. The prosecutor stated that it was not possible to determine the legal basis for the repression against Polish citizens in 1940. Despite the existence of some documents stating that the applicants’ relatives had been transferred from the NKVD camps at Ostakhkov, Kozelsk and Starobelsk to Kalinin, Smolensk and Kharkov, the joint efforts by Belarusian, Polish, Russian and Ukrainian investigators had not uncovered any criminal files or other documents relating to their prosecution in 1940. In the absence of such files it was not possible to decide whether the Rehabilitation Act would be applicable. Furthermore, the prosecutor stated that the remains of the applicants’ relatives had not been discovered among the human remains found during the exhumation works. 68. Counsel lodged a judicial appeal against the prosecutor’s refusal. 69. After several rounds of judicial proceedings, on 24 October 2008 the Khamovnicheskiy District Court of Moscow dismissed the appeal. While the court confirmed that the names of the applicants’ relatives had featured on the NKVD lists of prisoners, it pointed out that only twenty bodies had been identified as a result of the exhumations conducted in the context of case no. 159 and that the applicants’ relatives had not been among those identified. The court further found that there was no reason to assume that the ten Polish prisoners of war (the applicants’ relatives) had actually been killed, and that Russian counsel had no legal interest in the rehabilitation of Polish citizens. 70. On 25 November 2008 the Moscow City Court rejected, in a summary fashion, an appeal against the District Court’s judgment. 71. On 26 November 2010 the State Duma, the lower chamber of the Russian Parliament, adopted a statement entitled “On the Katyn tragedy and its victims” which read, in particular, as follows: “Seventy years ago, thousands of Polish citizens held in the prisoner-of-war camps of the NKVD of the USSR and in prisons in the western regions of the Ukrainian SSR and Belarusian SSR were shot dead. The official Soviet propaganda attributed responsibility for this atrocity, which has been given the collective name of the Katyn tragedy, to Nazi criminals... In the early 1990s our country made great strides towards the establishment of the truth about the Katyn tragedy. It was recognised that the mass extermination of Polish citizens on USSR territory during the Second World War had been an arbitrary act by the totalitarian State... The published materials that have been kept for many years in secret archives not only demonstrate the scale of this terrible tragedy but also attest to the fact that the Katyn crime was carried out on the direct orders of Stalin and other Soviet leaders... Copies of many documents which had been kept in the closed archives of the Politburo of the Communist Party of the Soviet Union have already been handed over to the Polish side. The members of the State Duma believe that this work must be carried on. It is necessary to continue studying the archives, verifying the lists of victims, restoring the good names of those who perished in Katyn and other places, and uncovering the circumstances of the tragedy...” 72. The Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907), to which the Republic of Poland but not the USSR was a party, provided as follows: “Art. 4. Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them. They must be humanely treated. ... Art. 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden – ... (b) To kill or wound treacherously individuals belonging to the hostile nation or army; (c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion... ... Art. 50. No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.” 73. The Convention relative to the Treatment of Prisoners of War (Geneva, 27 July 1929) provided as follows: “Art. 2. Prisoners of war are in the power of the hostile Government, but not of the individuals or formation which captured them. They shall at all times be humanely treated and protected, particularly against acts of violence, from insults and from public curiosity. Measures of reprisal against them are forbidden. ... Art. 61. No prisoner of war shall be sentenced without being given the opportunity to defend himself. No prisoner shall be compelled to admit that he is guilty of the offence of which he is accused. ... Art. 63. A sentence shall only be pronounced on a prisoner of war by the same tribunals and in accordance with the same procedure as in the case of persons belonging to the armed forces of the detaining Power.” 74. The Charter (Statute) of the International Military Tribunal (Nuremberg Tribunal), set up in pursuance of the agreement signed on 8 August 1945 by the Governments of the USA, France, the United Kingdom and the USSR, contained the following definition of crimes in Article 6: “The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) war crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.” 75. The definition was subsequently codified as Principle VI in the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, formulated by the International Law Commission in 1950 under United Nations General Assembly Resolution 177 (II) and affirmed by the General Assembly. 76. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (26 November 1968), to which the Russian Federation is a party, provides in particular as follows: “No statutory limitation shall apply to the following crimes, irrespective of the date of their commission: (a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations ... (b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations ...” “The States Parties to the present Convention undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles I and II of this Convention and that, where they exist, such limitations shall be abolished.” 77. The Vienna Convention on the Law of Treaties (23 May 1969), to which the Russian Federation is a party, provides as follows: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty ...” “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.” 78. The Human Rights Committee’s General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, adopted on 29 March 2004 (2187th meeting), reads as follows: “4. The obligations of the Covenant in general and article 2 in particular are binding on every State Party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State Party. The executive branch that usually represents the State Party internationally, including before the Committee, may not point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility for the action and consequent incompatibility. This understanding flows directly from the principle contained in Article 27 of the Vienna Convention on the Law of Treaties, according to which a State Party ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty’ ...” 79. Article 7 of the Covenant, to which the Russian Federation is a party, reads as follows: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” 80. At its meeting on 3 April 2003 the Human Rights Committee, established under Article 28 of the Covenant, expressed the following views upon consideration of communication No. 886/1999, submitted on behalf of Ms Natalia Schedko and Mr Anton Bondarenko against Belarus: “10.2 The Committee notes that the author’s claim that her family was informed of neither the date, nor the hour, nor the place of her son’s execution, nor of the exact place of her son’s subsequent burial, has remained unchallenged. In the absence of any challenge to this claim by the State party, and any other pertinent information from the State party on the practice of execution of capital sentences, due weight must be given to the author’s allegation. The Committee understands the continued anguish and mental stress caused to the author, as the mother of a condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite. The complete secrecy surrounding the date of execution, and the place of burial and the refusal to hand over the body for burial have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ initial failure to notify the author of the scheduled date for the execution of her son, and their subsequent persistent failure to notify her of the location of her son’s grave amounts to inhuman treatment of the author, in violation of article 7 of the Covenant.” 81. At its meeting on 28 March 2006 the Human Rights Committee expressed the following views upon consideration of communication No. 1159/2003, submitted on behalf of Mariam, Philippe, Auguste and Thomas Sankara against Burkina-Faso: “6.2 The Committee noted the State party’s arguments concerning the inadmissibility of the communication ratione temporis. Having also noted the authors’ arguments, the Committee considered that a distinction should be drawn between the complaint relating to Mr. Thomas Sankara and the complaint concerning Ms. Sankara and her children. The Committee considered that the death of Thomas Sankara, which may have involved violations of several articles of the Covenant, occurred on 15 October 1987, hence before the Covenant and the Optional Protocol entered into force for Burkina Faso. This part of the communication was therefore inadmissible ratione temporis. Thomas Sankara’s death certificate of 17 January 1988, stating that he died of natural causes - contrary to the facts, which are public knowledge and confirmed by the State party ... - and the authorities’ failure to correct the certificate during the period since that time must be considered in the light of their continuing effect on Ms. Sankara and her children... 12.2 Concerning the alleged violation of article 7, the Committee understands the anguish and psychological pressure which Ms. Sankara and her sons, the family of a man killed in disputed circumstances, have suffered and continue to suffer because they still do not know the circumstances surrounding the death of Thomas Sankara, or the precise location where his remains were officially buried. Thomas Sankara’s family have the right to know the circumstances of his death, and the Committee points out that any complaint relating to acts prohibited under article 7 of the Covenant must be investigated rapidly and impartially by the competent authorities. In addition, the Committee notes, as it did during its deliberations on admissibility, the failure to correct Thomas Sankara’s death certificate of 17 January 1988, which records a natural death contrary to the publicly known facts, which have been confirmed by the State party. The Committee considers that the refusal to conduct an investigation into the death of Thomas Sankara, the lack of official recognition of his place of burial and the failure to correct the death certificate constitute inhuman treatment of Ms. Sankara and her sons, in breach of article 7 of the Covenant...” 82. Article 24 sets out the grounds for discontinuation of criminal proceedings. Paragraph 1 (4) specifies that the proceedings are to be discontinued, in particular, in the event of the suspect or defendant’s death. 83. Article 42 defines a “victim” as an individual who has sustained physical, pecuniary or non-pecuniary damage as the result of a crime. The decision to recognise the individual as a “victim” must be made by the examiner, investigator, prosecutor or court. 84. According to the preamble, the purpose of the Rehabilitation Act is the rehabilitation of all victims of political repression who were prosecuted on the territory of the Russian Federation after 7 November 1917, and restoration of their civil rights. Political repression is defined as any measure of restraint, including a deprivation of life, which was imposed by the State for political motives (section 1). Section 3 describes the categories of persons who are eligible for rehabilitation; section 4 contains the list of criminal offences, such as high treason, espionage, violence against prisoners of war, murder, robbery, war crimes, crimes against humanity, in respect of which no rehabilitation is allowed. 85. Section 7 of the State Secrets Act (Law no. 5485-I of 21 July 1993) contains a list of information which may not be declared a State secret or classified. The list includes in particular information about violations of rights and freedoms of individuals and citizens and information on unlawful actions by the State authorities or officials. 86. On 2 August 1997 the Government adopted the Regulation on preparing State secret information for transfer to foreign states and international organisations (no. 973). It provides that a decision on transferring such information may be made by the Russian Government on the basis of a report prepared by the Inter-agency Commission on the Protection of State Secrets (§ 3). The recipient party must undertake an obligation to protect the classified information by way of entering into an international treaty which would establish, among other matters, the procedure for transferring information, the confidentiality clause and the dispute resolution procedure (§ 4). 87. Chapter 34 contains a list of crimes against peace and security of humankind. Article 356 prohibits in particular “cruel treatment of prisoners of war or civilians”, an offence punishable by up to twenty years’ imprisonment. 88. Article 78 § 5 stipulates that the offences defined in Articles 353 (War), 356 (Prohibited means of war), 357 (Genocide) and 358 (Ecocide) are imprescriptible. | 1 |
dev | 001-5334 | ENG | CHE | ADMISSIBILITY | 2,000 | R.T. v. SWITZERLAND | 3 | Inadmissible | András Baka | The applicant, a Swiss citizen born in 1954, is a construction engineer residing in Amriswil in Switzerland. Before the Court he is represented by Mr Dähler, a lawyer practising in St. Gallen. On 16 March 1993 at 00h35 hours the applicant was driving a car in Gossau in Switzerland when he was stopped by the police. His blood level was checked, disclosing an alcohol level of 1,5 ‰ . On 11 May 1993 the Road Traffic Office of the Canton of St. Gallen (Strassenverkehrsamt) withdrew the applicant's driving licence for a period of four months. On 9 June 1993 the Gossau District Office (Bezirksamt) issued a penal order (Strafbescheid) in which it found the applicant guilty of driving under the influence of alcohol. It imposed on him a prison sentence of two weeks suspended on probation for a period of two years as well as a fine of 1,100 Swiss Francs (CHF). No appeal was filed against this penal order which acquired legal force. Against the decision of the Road Traffic Office of 11 May 1993 the applicant filed an appeal in which he complained of the length of the withdrawal of his driving licence. The appeal was dismissed by the Administrative Appeals Commission (Verwaltungsrekurs-kommission) of the Canton of St. Gallen on 25 May 1994. The applicant filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) with the Federal Court (Bundesgericht) in which he complained that he had not had a public hearing as required by Article 6 § 1 of the Convention, and that the measure imposed on him was excessive. In its judgment of 11 January 1995 the Court considered, with reference to Swiss doctrine and practice, that Article 6 § 1 of the Convention was applicable to the case concerning the withdrawal of a driving licence. Thus, even if the matter had already been decided by the criminal judge, the authorities withdrawing the driving licence were “determining a criminal charge” within the meaning of this provision. According to Article 6 § 1, the applicant should have had an oral hearing which he did not have. As a result, the Court quashed the decision of the lower court. Proceedings were resumed before the Administrative Appeals Commission. By letter of 19 May 1995 the President of the Commission informed the applicant of the public hearing (öffentliche Verhandlung) fixed for 31 May 1995 in which the applicant would be questioned and the lawyer would have the opportunity to comment on the evidence. A representative of the Road Traffic Office would also have the possibility to speak. The applicant's lawyer replied on 22 May 1999 that he intended to plead the case fully and not merely to limit himself to comment on the evidence. Any limitation in this respect would contradict the purpose of an oral hearing. By letter of 23 May 1995 the President of the Administrative Appeals Commission informed the applicant's lawyer as follows: “In reply to your letter of 22 May 1995 I can inform you that on 31 May 1995 there shall not be a 'trial' ('Hauptverhandlung') but a public hearing (öffentliche Anhörung) of the appellant, based on Article 6 § 1 of the Convention. As a lawyer of the appellant you may be present at the hearing and you may thereafter comment thereupon. If at the hearing new legal issues arise you will have the opportunity to express yourself. I would explain this manner of proceeding essentially as follows. The appeals proceedings continue to be in writing ... Despite a public hearing they are not replaced by oral proceedings. It is therefore not admissible to repeat or to add appeal grounds in open court (an Schranken). In the present case, the exchange of statements has occurred long ago and the content is known to the court.“ By letter of 24 May 1995 the applicant's lawyer replied that the oral hearing should be the same as a trial conducted in criminal proceedings, and that he would speak before the court on his complaint of ne bis in idem. By letter of 26 May 1995 the President informed the applicant's lawyer of a judgment of the Federal Court according to which the principle ne bis in idem was not breached in the applicant's situation. The letter continued: “it can be left open whether this statement (Vorbringen) is admissible in court”. The hearing before the Administrative Appeals Commission took place on 31 May 1995. The President prepared notes for this hearing which mentioned its conduct and contained prepared statements for each stage. According to the notes, the applicant was first questioned. The notes continue: “I now wish to give the floor to [the applicant's lawyer]. He may comment on the duration of the withdrawal of the licence based on the questioning of the appellant. Actual legal explanations which amount to a repetition of the written appeal statement are not admissible. Thus, the exchange of written statements has been closed, the content of the case-file is known to the court. In this sense I now ask (the applicant's lawyer) to take the floor. (To the extent that [the applicant's lawyer] evidently departs from this topic, he must be admonished. Possibly there should be a reproach (S. 69 of the Court Act) if [the applicant's lawyer] continues along the same lines. A disciplinary fine should only be imposed in last resort.) ..... listen to the statements of [the applicant's lawyer] ..... at the end thank [the applicant's lawyer] for his statement.” A representative of the Road Traffic Office was heard, and the applicant was given the final word. On 31 May 1995 the Administrative Appeals Commission gave its judgment in which it dismissed the applicant's appeal. The judgment recalled that the applicant had been questioned at the hearing; that his lawyer had been able to make comments; that the applicant had been given the final word; and that the applicant's lawyer had disagreed with this procedure, requesting a trial corresponding to criminal proceedings. The judgment continued that the topic of the appeal was limited in that the administrative authority was bound both factually and legally by the result of the criminal proceedings. As a result, the main topic in the applicant's case was the length of the withdrawal of the driving licence. With reference to Article 6 § 1 of the Convention the Administrative Appeals Commission found that the withdrawal of a driving licence resembled in many respects a criminal sanction, but it remained an administrative measure in respect of which written proceedings were in principle called for. The judgment then dealt with the applicant's complaint of ne bis in idem which he had raised in open court and also in his letter of 24 May 1995. This principle was not breached as the withdrawal of a driving licence was an administrative measure which was distinct from the penal sanction. Both the criminal and the administrative authority were called upon to consider all sanctions in their entirety when meting out the punishment. The judgment concluded that the applicant could not be acquitted on this ground, “independently thereof whether it was admissible to raise this matter at all in open court”. The applicant filed an administrative law appeal in which he complained, inter alia, of a breach of ne bis in idem and that at the hearing his lawyer had on a number of occasions been interrupted and admonished not to make any pleadings. The appeal was dismissed by the Federal Court on 5 December 1995. Insofar as the applicant complained that he had not had an oral hearing as required by Article 6 § 1 of the Convention, the Court noted that the applicant was heard orally and publicly before the Administrative Appeals Commission, and the applicant's lawyer was able to comment in court on ne bis in idem. To the extent that the lawyer complained that he had been interrupted when speaking on this matter, he had not claimed that he had been unable to comment on the points relevant for the judgment. In respect of the applicant's complaint of a breach of ne bis in idem, the Court found that the criminal judge and the administrative authority had different jurisdictions, and this was not called in question by the criminal nature of the withdrawal of the driving licence within the meaning of Article 6 § 1 of the Convention. | 0 |
dev | 001-102965 | ENG | GBR | CHAMBER | 2,011 | CASE OF MGN LIMITED v. THE UNITED KINGDOM | 2 | No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Just satisfaction reserved | David Thór Björgvinsson;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Phillips of Worth Matravers;Rupert Jackson;Vincent A. De Gaetano | 5. The applicant is the publisher of a national daily newspaper in the United Kingdom known as The Daily Mirror (formerly known as the Mirror). It is represented before the Court by Mr K. Bays of Davenport Lyons, a solicitor practising in London. A. The relevant publications 6. On 1 February 2001 the “Mirror” newspaper carried on the front page an article headed “Naomi: I am a drug addict”, placed between two colour photographs of Ms Naomi Campbell, a well-known model. The first photograph, slightly indistinct, showed her dressed in a baseball cap and had a caption: “Therapy: Naomi outside meeting”. The second showed her glamorously partially covered by a string of beads. 7. The article read as follows: “Supermodel Naomi Campbell is attending Narcotics Anonymous meetings in a courageous bid to beat her addiction to drink and drugs. The 30-year old has been a regular at counselling sessions for three months, often attending twice a day. Dressed in jeans and baseball cap, she arrived at one of NA's lunchtime meetings this week. Hours later at a different venue she made a low-key entrance to a women-only gathering of recovered addicts. Despite her £14million fortune Naomi is treated as just another addict trying to put her life back together. A source close to her said last night: 'She wants to clean up her life for good. She went into modelling when she was very young and it is easy to be led astray. Drink and drugs are unfortunately widely available in the fashion world. But Naomi has realised she has a problem and has bravely vowed to do something about it. Everyone wishes her well.' Her spokeswoman at Elite Models declined to comment.” 8. The story continued inside the newspaper with a longer article across two pages. This article was headed “Naomi's finally trying to beat the demons that have been haunting her” and the opening paragraphs read: “She's just another face in the crowd, but the gleaming smile is unmistakeably Naomi Campbell's. In our picture, the catwalk queen emerges from a gruelling two-hour session at Narcotics Anonymous and gives a friend a loving hug. This is one of the world's most beautiful women facing up to her drink and drugs addiction - and clearly winning. The London-born supermodel has been going to NA meetings for the past three months as she tries to change her wild lifestyle. Such is her commitment to conquering her problem that she regularly goes twice a day to group counselling ... To the rest of the group she is simply Naomi, the addict. Not the supermodel. Not the style icon.” 9. The article made mention of Ms Campbell's efforts to rehabilitate herself and that one of her friends had said that she was still fragile but “getting healthy”. The article gave a general description of Narcotics Anonymous (“NA”) therapy and referred to some of Ms Campbell's recently publicised activities including an occasion when she had been rushed to hospital and had her stomach pumped: while she had claimed it was an allergic reaction to antibiotics and that she had never had a drug problem, the article noted that “those closest to her knew the truth”. 10. In the middle of the double page spread, between several innocuous pictures of Ms Campbell, was a dominating picture with a caption “Hugs: Naomi, dressed in jeans and baseball hat, arrives for a lunchtime group meeting this week”. The picture showed her in the street on the doorstep of a building as the central figure in a small group. She was being embraced by two people whose faces had been masked on the photograph. Standing on the pavement was a board advertising a certain café. The photograph had been taken by a free-lance photographer contracted by the newspaper for that job. He took the photographs covertly while concealed some distance away in a parked car. 11. On 1 February 2001 Ms Campbell's solicitor wrote to the applicant stating that the article was a breach of confidentiality and an invasion of privacy and requesting an undertaking that it would not publish further confidential and/or private information. 12. The newspaper responded with further articles. On 5 February 2001 the newspaper published an article headed, in large letters, “Pathetic”. Below was a photograph of Ms Campbell over the caption “Help: Naomi leaves Narcotics Anonymous meeting last week after receiving therapy in her battle against illegal drugs”. This photograph was similar to the street scene picture published on 1 February. The text of the article was headed “After years of self-publicity and illegal drug abuse, Naomi Campbell whinges about privacy”. The article mentioned that “the Mirror revealed last week how she is attending daily meetings of Narcotics Anonymous”. Elsewhere in the same edition, an editorial, with the heading “No hiding Naomi”, concluded with the words: “If Naomi Campbell wants to live like a nun, let her join a nunnery. If she wants the excitement of a show business life, she must accept what comes with it”. On 7 February 2001, the Mirror published, under the heading “Fame on you, Ms Campbell”, a further article mocking Ms Campbell's threatened proceedings, referring to the years during which she thrust “her failed projects like the nauseating book Swan and equally appalling record Love and Tears down our throats”, stating that Ms Campbell was not an artist and that she was “about as effective as a chocolate soldier”, implying that her prior campaign against racism in the fashion industry was self-serving publicity and that “the problem is that Naomi doesn't actually “stand” for anything. She can't sing, can't act, can't dance, and can't write.” B. The substantive proceedings 1. High Court ([2002] EWHC 499 (QB)) 13. Ms Campbell claimed damages for breach of confidence and compensation under the Data Protection Act 1998. A claim for aggravated damages was made mainly as regards the article of 7 February 2001. On 27 March 2002 the High Court (Morland J.) upheld Ms Campbell's claim, following a hearing of 5 days. 14. He described Ms Campbell as an “internationally renowned fashion model and celebrity”. The first issue was whether there had been a breach of confidence and, in that respect, Ms Campbell was required to prove three elements. The first was that the details divulged by the article about her attendance at NA meetings had the necessary quality of confidence about them. Information to the effect that her treatment was regular attendance at NA meetings was clearly confidential: the details were obtained surreptitiously, assisted by covert photography when she was engaged (deliberately “low key and drably dressed”) in the private activity of therapy to advance her recovery from drug addiction. Giving details of her therapy, including her regular attendance at NA, was easily identifiable as private and disclosure of that information would be highly offensive to a reasonable person of ordinary sensibilities. There existed a private interest worthy of protection. Secondly, it was found that those details were imparted in circumstances importing an obligation of confidence given the sources of the information (either a fellow sufferer of drug addiction or one of her staff). Thirdly, and having heard evidence on the subject, she had demonstrated that the publication was to her detriment and, notably, the publication of her treatment with NA specifically had caused her significant distress and was likely adversely to affect her attendance/participation in therapy meetings. 15. The High Court considered these findings to be in conformity with the judgment of the Court of Appeal in Douglas v Hello! Ltd ([2001] QB 967 §164-168) which had held that there was no watertight division between the concepts of privacy and confidentiality and that the approach to the tort had to be informed by the jurisprudence of Article 8 of the Convention. Citing Dudgeon v. the United Kingdom (22 October 1981, Series A no. 45) it noted that Convention jurisprudence acknowledged different degrees of privacy: the more intimate the aspect of private life which was being interfered with, the more serious the justification required. 16. The High Court adopted the approach of Lord Woolf CJ in A v B plc ([2003] QB 195, see paragraph 88 below) as regards, inter alia, the qualification of the right to freedom of expression by the right to respect for private life guaranteed by Article 8 of the Convention. 17. The High Court considered at some length the extent to which Ms Campbell had exposed herself and her private life to the media and, in light of this, how to reconcile the demands of Articles 8 and 10. The High Court considered that the applicant had been fully entitled to publish in the public interest the facts of her drug addiction and treatment as Ms Campbell had previously misled the public by denying drug use. “She might have been thought of and indeed she herself seemed to be a self-appointed role model to young black women”. However, the High Court had to protect a celebrity from publication of information about her private life which had “the mark and badge of confidentiality” and which she had chosen not to put in the public domain unless, despite that breach of confidentiality and the private nature of the information, publication was justifiable. The balance of Article 8 and 10 rights involved in the present case clearly called for a remedy for Ms Campbell as regards the publication of the private material. 18. The High Court heard evidence from, inter alia, Ms Campbell as to the impact on her of the publication. It concluded: “Although I am satisfied that Miss Naomi Campbell has established that she has suffered a significant amount of distress and injury to feelings caused specifically by the unjustified revelation of the details of her therapy with Narcotics Anonymous, apart from that distress and injury to feelings she also suffered a significant degree of distress and injury to feelings caused by the entirely legitimate publication by the defendants of her drug addiction and the fact of therapy about which she cannot complain. In determining the extent of distress and injury to feelings for which she is entitled to compensation, I must consider her evidence with caution. She has shown herself to be over the years lacking in frankness and veracity with the media and manipulative and selective in what she has chosen to reveal about herself. I am satisfied that she lied on oath [about certain facts]. Nevertheless I am satisfied that she genuinely suffered distress and injury to feelings caused by the unjustified publication and disclosure of details of her therapy in the two articles of the 1st and 5th February 2002 complained of. I assess damages or compensation in the sum of £2500.” 19. As to her claim for aggravated damages (mainly the article of 7 February 2001), the High Court found that a newspaper faced with litigation was entitled to argue that a claim against it should never have been made and that any complaint should have been made to the Press Complaints Commission. Such assertions could even be written in strong and colourful language and it was not for the courts to censor bad taste. However, since the article also “trashed her as a person” in a highly offensive and hurtful manner, this entitled her to aggravated damages in the sum of GBP 1000. 20. On 14 October 2002 the Court of Appeal (Lord Phillips of Worth Matravers MR, Chadwick and Keene LJJ) unanimously allowed the newspaper's appeal. The hearing had lasted two and a half days. 21. The Court of Appeal noted that Ms Campbell was an “internationally famous fashion model” who had courted, rather than shunned, publicity in part to promote other ventures in which she was involved. In interviews with the media she had volunteered information about some aspects of her private life and behaviour including limited details about her relationships. She had gone out of her way to aver that, in contrast to many models, she did not take drugs, stimulants or tranquillisers, but this was untrue. 22. As to the impact of the Human Rights Act 1998 (“HRA”) on the law of confidentiality, the court observed that it had to balance the rights guaranteed by Articles 8 and 10 of the Convention, noting that freedom of the media was a bastion of any democratic society. 23. As to whether the information disclosed was confidential, the Court of Appeal did not consider that the information that Ms Campbell was receiving therapy from NA was to be equated with disclosure of clinical details of medical treatment. Since it was legitimate to publish the fact that she was a drug addict receiving treatment, it was not particularly significant to add that the treatment consisted of NA meetings which disclosure would not be offensive to a reasonable reader of ordinary sensibilities. While a reader might have found it offensive that obviously covert photographs had been taken of her, that, of itself, had not been relied upon as a ground of complaint. In addition, it was not easy to separate the distress Ms Campbell must have felt at being identified as a drug addict in treatment accompanied by covert photographs from any additional distress resulting from disclosure of her attendance at NA meetings. In short, it was not obvious that the peripheral disclosure of Ms Campbell's attendance at NA meetings was of sufficient significance as to justify the intervention of the court. 24. Relying on Fressoz and Roire v. France ([GC], no. 29183/95, § 54, ECHR 1999I), the Court of Appeal considered that the photographs were a legitimate, if not an essential, part of the journalistic package designed to demonstrate that Ms Campbell had been deceiving the public when she said that she did not take drugs and, provided that publication of particular confidential information was justifiable in the public interest, the journalist had to be given reasonable latitude as to the manner in which that information was conveyed to the public or his Article 10 right to freedom of expression would be unnecessarily inhibited. The publication of the photographs added little to Ms Campbell's case: they illustrated and drew attention to the information that she was receiving therapy from NA. 25. Following a hearing of 2 days, on 6 May 2004 the House of Lords allowed Ms Campbell's appeal (Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell formed the majority, Lords Nicholls of Birkenhead and Hoffman dissenting) and restored the orders made by the High Court. They delivered separate and extensive judgments. 26. Lord Hope began by noting the powerful international reputation of Ms Campbell in the business of fashion modelling, which business was conducted under the constant gaze of the media. He also noted her “status as a celebrity”. He considered that the issues were essentially questions of “fact and degree” which did not raise any “new issues of principle”. In the present case, where the publication concerned a drug addict requiring treatment and, given the fact that disclosure of details concerning that treatment together with publication of a covertly taken photograph could endanger that treatment, the disclosure was of private information. 27. The case gave rise to a competition between the rights of free speech and privacy which were of equal value in a democratic society. In balancing these rights, Lord Hope noted that the right to privacy, which lay at the heart of an action for breach of confidence, had to be balanced against the right of the media to impart information to the public and that the latter right had, in turn, to be balanced against the respect that must be given to private life. There was nothing new about this in domestic law. 28. He examined in detail the latitude to be accorded to journalists in deciding whether or not to publish information to ensure credibility. He noted the principles set out in this respect in this Court's case law (Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298 and Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999I). 29. Having examined the balancing exercise in the Jersild and Fressoz cases, Lord Hope reiterated there was no doubt that the choices made about the presentation of material that was legitimate to convey to the public was pre-eminently an editorial matter with which the court would not interfere. However, choices to publish private material raised issues that were not simply about presentation and editing. Accordingly, the public interest in disclosure had to be balanced against the right of the individual to respect for their private life: those decisions were open to review by the court. The tests to be applied were familiar and were set down in Convention jurisprudence. The rights guaranteed by Articles 8 and 10 had to be balanced against each other, any restriction of those rights had to be subjected to very close scrutiny and neither Article 8 nor Article 10 had any pre-eminence over each other (as confirmed by Resolution 1165 of the Parliamentary Assembly of the Council of Europe (“PACE”), 1998). 30. As to the Article 10 rights involved, the essential question was whether the means chosen to limit Article 10 rights were “rational, fair and not arbitrary and impair the right as minimally as is reasonably possible”. In this respect, the relevant factors were, on the one hand, the duty on the press to impart information and ideas of public interest which the public has a right to receive (Jersild v. Denmark, cited above) and the need to leave it to journalists to decide what material had to be reproduced to ensure credibility (Fressoz and Roire v. France cited above) and, on the other hand, the degree of privacy to which Ms Campbell was entitled as regards the details of her therapy under the law of confidence. However, the right of the public to receive information about the details of her treatment was of a much lower order than its undoubted right to know that she was misleading the public when she said that she did not take drugs since the former concerned an intimate aspect of her private life (Dudgeon v. the United Kingdom, 22 October 1981, § 52, Series A no. 45). While he acknowledged the great importance of political expression and, indeed, of freedom of expression (constituting one of the essential foundations of a democratic society and one of the basic conditions for its progress and the self-fulfilment of each individual, Tammer v. Estonia, no. 41205/98, § 59, ECHR 2001I), he considered that no political or democratic values were at stake and no pressing social had been identified (a contrario, Goodwin v. the United Kingdom, 27 March 1996, § 40, Reports 1996 II). 31. As to the competing Article 8 rights, the potential for harm by the disclosure was an important factor in the assessment of the extent of the restriction that was needed to protect Ms Campbell's right to privacy. From the point of Article 8, publication of details of her treatment (that she was attending NA, for how long, how frequently and at what times of day, the nature of her therapy, the extent of her commitment to the process and the publication of covertly taken photographs) had the potential to cause harm to her and Lord Hope attached a good deal of weight to this factor. The fact that she was a “celebrity” was not enough to deprive her of her right to privacy. A margin of appreciation had be accorded to a journalist but viewing details of treatment for drug addiction merely “as background was to undervalue the importance that was to be attached to the need, if Ms Campbell was to be protected, to keep these details private”. It was hard to see any compelling need for the public to know the name of the organisation that she was attending for therapy or the details of that therapy. The decision to publish these details suggested that greater weight was given to the wish to publish a story that would attract interest rather than any wish to maintain its credibility. 32. Lord Hope then considered the covert photographs. It was true that, had he to consider the text of the articles only, he would have been “inclined to regard the balance between these rights as about even”, such was the effect of the margin of appreciation that had to be, in a doubtful case, given to a journalist. However, the text could not be separated from the photographs as the captions clearly linked what might otherwise have been anonymous and uninformative pictures to the main text. In addition, the reasonable person of ordinary sensibilities would regard publication of the covertly taken photographs, linked in that way to the text, as adding greatly to the overall intrusion into Ms Campbell's private life. While photographs taken in a public place had to be considered, in normal circumstances, one of the “ordinary incidents of living in a free community”, the real issue was whether publicising the photographs was offensive in the present circumstances. He reviewed the case-law of the Court (including P.G. and J.H. v. the United Kingdom, no. 44787/98, § 57, ECHR 2001 IX and Peck v United Kingdom, no. 44647/98, § 62, ECHR 2003 I) and applied the reasoning in the Peck case. Ms Campbell could not have complained if the photographs had been taken to show a scene in a street by a passer-by and later published simply as street scenes. However, the photographs invaded Ms Campbell's privacy because they were taken deliberately, in secret, with a view to their publication in conjunction with the article and they focussed on the doorway of the building of her NA meeting and they revealed clearly her face. The argument that the publication of the photograph added credibility to the story had little weight, since the reader only had the editor's word as to the truth of Ms Campbell's attendance at a NA meeting. He continued: “124. Any person in Miss Campbell's position, assuming her to be of ordinary sensibilities but assuming also that she had been photographed surreptitiously outside the place where she been receiving therapy for drug addiction, would have known what they were and would have been distressed on seeing the photographs. She would have seen their publication, in conjunction with the article which revealed what she had been doing when she was photographed and other details about her engagement in the therapy, as a gross interference with her right to respect for her private life. In my opinion this additional element in the publication is more than enough to outweigh the right to freedom of expression which the defendants are asserting in this case.” 33. Lord Hope therefore concluded that, despite the weight that had to be given to the right to freedom of expression that the press needs if it is to play its role effectively, there was an infringement of Ms Campbell's privacy which could not be justified. 34. Baroness Hale observed that the examination of an action for breach of confidence began from the “reasonable expectation of privacy” test inquiring whether the person publishing the information knew or ought to have known that there was a reasonable expectation that the relevant information would be kept confidential. This was a threshold test which brought the balancing exercise between the rights guaranteed by Articles 8 and 10 of the Convention into play. Relying also on the PACE Resolution 1165 (1998), she noted that neither right took precedence over the other. The application of the proportionality test, included in the structure of Articles 8 and 10, was much less straightforward when two Convention rights were in play and, in this respect, she relied on the above-cited cases of Jersild v Denmark, Fressoz and Roire v France and Tammer v Estonia. 35. In striking the balance in this case, she noted: “143. ... Put crudely, it is a prima donna celebrity against a celebrity-exploiting tabloid newspaper. Each in their time has profited from the other. Both are assumed to be grown-ups who know the score. On the one hand is the interest of a woman who wants to give up her dependence on illegal and harmful drugs and wants the peace and space in which to pursue the help which she finds useful. On the other hand is a newspaper which wants to keep its readers informed of the activities of celebrity figures, and to expose their weaknesses, lies, evasions and hypocrisies. This sort of story, especially if it has photographs attached, is just the sort of thing that fills, sells and enhances the reputation of the newspaper which gets it first. One reason why press freedom is so important is that we need newspapers to sell in order to ensure that we still have newspapers at all. It may be said that newspapers should be allowed considerable latitude in their intrusions into private grief so that they can maintain circulation and the rest of us can then continue to enjoy the variety of newspapers and other mass media which are available in this country. It may also be said that newspaper editors often have to make their decisions at great speed and in difficult circumstances, so that to expect too minute an analysis of the position is in itself a restriction on their freedom of expression.” 36. However, Baroness Hale considered it not to be a trivial case and defined the particularly private nature of the information the publication of which Ms Campbell contested. It concerned the important issue of drug abuse and, consequently, her physical and mental health. She underlined the importance of, as well as the sensitivities and difficulties surrounding, treatment for addiction and, notably, of the vital therapy to address an underlying dependence on drugs. Moreover, the Court's jurisprudence had always accepted that information about a person's health and treatment for ill-health was both private and confidential (Z v. Finland, 25 February 1997, § 95, Reports 1997I). While the disclosed information may not have been in the same category as clinical medical records, it amounted to the same information which would be recorded by a doctor in such records namely, the presenting problem of addiction to illegal drugs, the diagnosis and the prescription of therapy. Baroness Hale therefore began her analysis from the fact - which was common ground - that all information about Ms Campbell's addiction and attendance at NA disclosed in the article was both private and confidential because it related to an important aspect of her physical and mental health and the treatment she was receiving for it. It had also been received from an insider in breach of confidence. 37. As to the nature of the freedom of expression being asserted on the other side, Baroness Hale recalled the main forms of expression which she recorded in descending order of importance: political speech (which included revealing information about public figures, especially those in elective office, which would otherwise be private but was relevant to their participation in public life), intellectual and educational expression as well as artistic expression. However, Baroness Hale found it difficult to see the contribution made by “pouring over the intimate details of a fashion model's private life”. It was true that the editor had chosen to run a sympathetic piece, listing Ms Campbell's faults and follies and setting them in the context of her addiction and her even more important efforts to overcome addiction and such publications might well have a beneficial educational effect. However, such pieces were normally run with the co-operation of those involved and Ms Campbell had refused to be involved with the story. The editor, nevertheless, considered that he was entitled to reveal this private information without her consent because Ms Campbell had presented herself to the public as someone who was not involved in drugs. Baroness Hale questioned why, if a role model presented a stance on drugs beneficial to society, it was so necessary to reveal that she had “feet of clay”. However, she accepted that the possession and use of illegal drugs was a criminal offence and was a matter of serious public concern so that the press had to be free to expose the truth and put the record straight. 38. However, while Ms Campbell's previous public denial of drug use might have justified publication of the fact of her drug use and of her treatment for drug addiction, it was not necessary to publish any further information, especially if it might jeopardise her continued treatment. That further information amounted to the disclosure of details of her treatment with NA and Baroness Hale considered that the articles thereby “contributed to the sense of betrayal by someone close to her of which she spoke and which destroyed the value of [NA] as a safe haven for her”. 39. Moreover, publishing the photographs contributed both to the revelation and to the harm that it might do. By themselves, the photographs were not objectionable. If the case concerned a photograph of Ms Campbell going about her business in a public street, there could have been no complaint. However, the accompanying text made it plain that these photographs were different in that they showed Ms Campbell outside a NA meeting in the company of some persons undoubtedly part of the NA group and they showed the place where the meeting took place, which would have been entirely recognisable to anyone who knew the locality. Photographs by their very nature added to the impact of the words in the articles as well as to the information disclosed. The photographs also added to the potential harm “by making her think that she was being followed or betrayed, and deterring her from going back to the same place again”. 40. Moreover, there was no need for the photographs to be included in the articles for the editor to achieve his objective. The editor had accepted that, even without the photographs, it would have been a front page story. He had his basic information and he had his quotes. He could have used other photographs of Ms Campbell to illustrate the articles. While the photographs would have been useful in proving the truth of the story had this been challenged, there was no need to publish them for this purpose as the credibility of the story with the public would stand or fall with the credibility of stories of the Daily Mirror generally. Baroness Hale added, in this context, that whether the articles were sympathetic or not was not relevant since the way an editor “chose to present the information he was entitled to reveal was entirely a matter for him”. 41. Finally, it was true that the weight to attach to these various considerations was “a matter of fact and degree”. Not every statement about a person's health would carry the badge of confidentiality: that a public figure had a cold would not cause any harm and private health information could be relevant to the capacity of a public figure to do the job. However, in the present case the health information was not harmless and, indeed, as the trial judge had found, there was a risk that publication would do harm: “... People trying to recover from drug addiction need considerable dedication and commitment, along with constant reinforcement from those around them. That is why organisations like [NA] were set up and why they can do so much good. Blundering in when matters are acknowledged to be at a 'fragile' stage may do great harm. 158. The trial judge was well placed to assess these matters. ... he was best placed to judge whether the additional information and the photographs had added significantly both to the distress and the potential harm. He accepted her evidence that it had done so. He could also tell how serious an interference with press freedom it would have been to publish the essential parts of the story without the additional material and how difficult a decision this would have been for an editor who had been told that it was a medical matter and that it would be morally wrong to publish it.” 42. Lord Carswell agreed with Lord Hope and Baroness Hale. It was not in dispute that the information was of a private nature and imparted in confidence to the applicant and that the applicant was justified in publishing the facts of Ms Campbell's drug addiction and that she was receiving treatment given her prior public lies about her drug use. He also agreed with Lord Hope as to the balancing of Articles 8 and 10 rights and, further, that in order to justify limiting the Article 10 right to freedom of expression, the restrictions imposed had to be rational, fair and not arbitrary, and they must impair the right no more than necessary. 43. Having examined the weight to be attributed to different relevant factors, he concluded that the publication of the details of Ms Campbell's attendance at therapy by NA, highlighted by the photographs printed which revealed where the treatment had taken place, constituted a considerable intrusion into her private affairs which was capable of causing and, on her evidence, did in fact cause her, substantial distress. In her evidence, she said that she had not gone back to the particular NA centre and that she had only attended a few other NA meetings in the UK. It was thus clear, that the publication created a risk of causing a significant setback to her recovery. 44. He did not minimise the “the importance of allowing a proper degree of journalistic margin to the press to deal with a legitimate story in its own way, without imposing unnecessary shackles on its freedom to publish detail and photographs which add colour and conviction”, which factors were “part of the legitimate function of a free press” and had to be given proper weight. However, the balance came down in favour of Ms Campbell. 45. Lord Nicholls began by noting that Ms Campbell was “a celebrated fashion model”, that she was a “household name, nationally and internationally” and that her face was “instantly recognisable”. He noted that the development of the common law (tort of breach of confidence) had been in harmony with Articles 8 and 10 of the Convention so that the time had come to recognise that the values enshrined in Articles 8 and 10 were now part of the cause of action for breach of confidence (Lord Woolf CJ, A v B plc [2003] QB 195, 202, § 4). 46. He found that the reference to treatment at NA meetings was not private information as it did no more than spell out and apply to Ms Campbell common knowledge of how NA meetings were conducted. 47. However, even if Ms Campbell's attendance at meetings was considered private, her appeal was still ill-founded since: “On the one hand, publication of this information in the unusual circumstances of this case represents, at most, an intrusion into Miss Campbell's private life to a comparatively minor degree. On the other hand, non-publication of this information would have robbed a legitimate and sympathetic newspaper story of attendant detail which added colour and conviction. This information was published in order to demonstrate Miss Campbell's commitment to tackling her drug problem. The balance ought not to be held at a point which would preclude, in this case, a degree of journalistic latitude in respect of information published for this purpose. It is at this point I respectfully consider [that the High Court] fell into error. Having held that the details of Miss Campbell's attendance at [NA] had the necessary quality of confidentiality, the judge seems to have put nothing into the scales under article 10 when striking the balance between articles 8 and 10. This was a misdirection. The need to be free to disseminate information regarding Miss Campbell's drug addiction is of a lower order than the need for freedom to disseminate information on some other subjects such as political information. The degree of latitude reasonably to be accorded to journalists is correspondingly reduced, but it is not excluded altogether.” 48. He observed that Ms Campbell's repeated public assertions denying her drug addiction rendered legitimate the publication of the facts that she was a drug addict and in treatment had been legitimate. The additional impugned element that she was attending NA meetings as a form of therapy was of such an unremarkable and consequential nature that its disclosure had also been legitimate. The same applied to information concerning how long Ms Campbell was receiving such treatment given that the frequency and nature of NA meetings was common knowledge. Hence, the intrusion into Ms Campbell's private life was comparatively minor. 49. Lastly, and as to the photographs, Lord Nicholls observed that she did not complain about the taking of the photographs nor assert that the taking of the photographs was itself an invasion of privacy, rather that the information conveyed by the photographs was private. However, the particular photographs added nothing of an essentially private nature: they conveyed no private information beyond that discussed in the article and there was nothing undignified about her appearance in them. 50. Lord Hoffmann began his judgment by describing Ms Campbell as “a public figure” and, further, a famous fashion model who had lived by publicity. He noted that the judges of the House of Lords were “divided as to the outcome of this appeal” but the difference of opinion related to “a very narrow point” concerning the unusual facts of the case. While it was accepted that the publication of the facts of her addiction and of her treatment was justified as there was sufficient public interest given her previous public denials of drug use, the division of opinion concerned “whether in doing so the newspaper went too far in publishing associated facts about her private life”. He continued: “But the importance of this case lies in the statements of general principle on the way in which the law should strike a balance between the right to privacy and the right to freedom of expression, on which the House is unanimous. The principles are expressed in varying language but speaking for myself I can see no significant differences.” 51. There being no automatic priority between Articles 8 and 10, the question to be addressed was the extent to which it was necessary to qualify one right in order to protect the underlying value protected by the other and the extent of the qualification should be proportionate to the need. The only point of principle arising was, where the essential part of the publication was justified, should the newspaper be held liable whenever the judge considered that it was not necessary to have published some of the personal information or should the newspaper be allowed some margin of choice in the way it chose to present the story (referring to Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999I). 52. In this respect, Lord Hoffman considered that it would be: “inconsistent with the approach which has been taken by the courts in a number of recent landmark cases for a newspaper to be held strictly liable for exceeding what a judge considers to have been necessary. The practical exigencies of journalism demand that some latitude must be given. Editorial decisions have to be made quickly and with less information than is available to a court which afterwards reviews the matter at leisure. And if any margin is to be allowed, it seems to me strange to hold the Mirror liable in damages for a decision which three experienced judges in the Court of Appeal have held to be perfectly justified.” 53. Given the relatively anodyne nature of the additional details, the Mirror was entitled to a degree of latitude in respect of the way it chose to present its legitimate story. 54. As to the publication of photographs in particular, Lord Hoffman observed that the fact that the pictures were taken without Ms Campbell's consent did not amount to a wrongful invasion of privacy. Moreover, the pictures did not reveal a situation of humiliation or severe embarrassment (as in Peck v. the United Kingdom, no. 44647/98, ECHR 2003I) and had not been taken by intrusion into a private place. There was nothing demeaning or embarrassing about the photographs. They added nothing to what was said in the text and carried the message that the Mirror's story was true. Accordingly, the decision to publish the pictures was within the margin of editorial judgment to which the Mirror was entitled. Although the trial judge found that the publication was likely to affect her therapy, this had neither been pleaded before nor fully explored by the trial judge. 55. The appeal was allowed, the High Court award was restored. Ms Campbell's costs (of the appeals to the Court of Appeal and to the House of Lords) were awarded against the applicant, the amount to “be certified by the Clerk of Parliaments, if not agreed between the parties ...”. C. The proceedings concerning legal costs 56. Ms Campbell's solicitors served three bills of costs on the applicant in the total sum of GBP 1,086, 295.47: GBP 377,070.07 for the High Court; GBP 114,755.40 for the Court of Appeal; and GBP 594,470.00 for the House of Lords. The latter figure comprised “base costs” of GBP 288,468, success fees of GBP 279,981.35 as well as GBP 26,020.65 disbursements. In the High Court and Court of Appeal, Ms Campbell's solicitors and counsel had acted under an ordinary retainer. But the appeal to the House of Lords was conducted pursuant to a Conditional Fee Agreement (“CFA”) which provided that, if the appeal succeeded, solicitors and counsel should be entitled to base costs as well as success fees amounting to 95% and 100% of their base costs, respectively. 1. Campbell v. MGN Limited [2005] UKHL 61 57. On 21 February 2005 the applicant appealed to the House of Lords seeking a ruling that it should not be liable to pay the success fees as, in the circumstances, such a liability was so disproportionate as to infringe their right to freedom of expression under Article 10 of the Convention. The applicant did not seek thereby a declaration of incompatibility but argued that domestic law regulating the recoverability of success fees should be read so as to safeguard its rights under Article 10. On 26 May 2005 this appeal was heard by the House of Lords. 58. On 2 August 2005 Ms Campbell's solicitors accepted the applicant's offers to pay GBP 290,000 (High Court costs) and GBP 95,000 (Court of Appeal costs), both amounts being exclusive of interest. 59. On 20 October 2005 the appeal was unanimously dismissed. The House of Lords found that the existing CFA regime with recoverable success fees was compatible with the Convention, but they expressed some reservations about the impact of disproportionate costs. 60. Lord Hoffmann observed that the deliberate policy of the Access to Justice Act 1999 (“the 1999 Act”) was to impose the cost of all CFA litigation upon unsuccessful defendants as a class. Losing defendants were to be required to contribute to the funds which would enable lawyers to take on other cases, which might not be successful, but which would provide access to justice for people who could not otherwise have afforded to sue. Therefore, the policy shifted the burden of funding from the State to unsuccessful defendants, which was a rational social and economic policy. 61. While he was concerned about the indirect effect of the threat of a heavy costs liability on the newspapers' decisions to publish information which ought to be published but which carried a risk of legal action, he considered that a newspaper's right could be restricted to protect the right of litigants under Article 6 to access to a court. 62. The applicant maintained that recoverable success fees were disproportionate on the basis of two flawed arguments. The first was that the success fee was necessarily disproportionate as it was more than (and up to twice as much as) the amount which, under the ordinary assessment rules, would be considered reasonable and proportionate. This was a flawed point as it confused two different concepts of proportionality. The CPR on costs were concerned with whether expenditure on litigation was proportionate to the amount at stake, the interests of the parties, complexity of the issues and so forth. However, Article 10 was concerned with whether a rule, which required unsuccessful defendants, not only to pay the reasonable and proportionate costs of their adversary in the litigation, but also to contribute to the funding of other litigation through the payment of success fees, was a proportionate measure, having regard to the effect on Article 10 rights. The applicant did not “really deny that in principle it is open to the legislature to choose to fund access to justice in this way.” 63. The second argument of the applicant was to the effect that it was unnecessary to give Ms Campbell access to a court because she could have afforded to fund her own costs. However, it was desirable to have a general rule to enable the scheme to work in a practical and effective way and that concentration on the individual case and the particularities of Ms Campbell's circumstances would undermine that scheme. It was for this reason that the Court in James and Others v the United Kingdom (21 February 1986, Series A no. 98) considered that Parliament was entitled to pursue a social policy of allowing long leaseholders of low-rated houses to acquire their freeholds at concessionary rates, notwithstanding that the scheme also applied to some rich tenants who needed no such assistance. The success fee should not be disallowed simply on the ground that the applicant's liability would be inconsistent with its rights under Article 10. Thus, notwithstanding the need to examine the balance on the facts of the individual case, Lord Hoffman considered that the impracticality of requiring a means test and the small number of individuals who could be said to have sufficient resources to provide them with access to legal services entitled Parliament to lay down a general rule that CFAs were open to everyone. Success fees, as such, could not be disallowed simply on the ground that the present applicant's liability would be inconsistent with its rights under Article 10: the scheme was a choice open to the legislature and there was no need for any exclusion of cases such as the present one from the scope of CFAs or to disallow success fees because the existing scheme was compatible. 64. However, Lord Hoffman did not wish to leave the case without commenting on other problems which defamation litigation under CFAs was currently causing and which had given rise to concern that freedom of expression might be seriously inhibited. The judgment of Eady J in Turcu v News Group Newspapers Ltd ([2005] EWHC 799) highlighted the significant temptation for media defendants to settle cases early for purely commercial reasons, and without regard to the true merits of any pleaded defence. This 'chilling effect' or 'ransom factor' inherent in the CFA system was a situation which could not have arisen in the past and was very much a modern development. 65. Lord Hoffman considered that the “blackmailing effect” of such litigation arose from two factors: (a) the use of CFAs by impecunious claimants who did not take out insurance to protect themselves from having to pay the winning party's costs if they lost; and (b) the conduct of the case by the claimant's solicitors in a way which not only ran up substantial costs but required the defendants to do so as well. Referring to a recent case where this was particularly evident (King v Telegraph Group Ltd [Practice Note] [2005] 1 WLR 2282), he continued: “Faced with a free-spending claimant's solicitor and being at risk not only as to liability but also as to twice the claimant's costs, the defendant is faced with an arms race which makes it particularly unfair for the claimant afterwards to justify his conduct of the litigation on the ground that the defendant's own costs were equally high” 66. Lord Hoffman endorsed the solution offered by the Court of Appeal in the King case (a “cost-capping” order at an early stage of the action). However, that was only a palliative as it did not deal with the problem of a newspaper risking substantial and irrecoverable costs. Smaller publishers might not be able to afford to take a stand and neither capping costs at an early stage nor assessing them later dealt with the threat of having to pay the claimant's costs at a level which was, by definition, up to twice the amount which would be reasonable and proportionate. While the DCA Consultation Paper (paragraph 101 below) discussed the problem, no legislative intervention had been proposed. 67. Lord Hoffman distinguished between personal injury litigation and defamation proceedings. Personal injury litigation comprised a large number of small claims and the liability insurers were able to pass these costs on to their road user customers with their own solvency not being threatened and the liability insurers had considerable negotiating strength to dispute assessments of costs and to hold up the cash flow of the claimants' solicitors so that both sides therefore had good reasons for seeking a compromise. On the other hand, in defamation cases the reasons for seeking a compromise were much weaker: there was a small number of claims and payment of relatively large sums of costs; some publishers might be strong enough to absorb or insure against this but it had a serious effect upon their financial position; and publishers did not have the same negotiating strength as the liability insurers because there were few assessments to be contested and disputing them involved considerable additional costs. 68. While the objective of enabling people of modest means to protect their reputations and privacy from powerful publishers was a good one, Lord Hoffman considered that it might be that a legislative solution would be needed for the scheme to comply with Article 10 of the Convention. 69. Lord Hope agreed with Lord Hoffmann. 70. He underlined the protection to the losing party contained in the CPR and the Costs Practice Directions. Reasonableness and proportionality tests were applied separately to base costs and to the percentage uplift for success fees. However, the most relevant question for a court in assessing the reasonableness of the percentage uplift was “the risk that the client might or might not be successful” (paragraph 11.8(l)(a) of the Costs Practice Directions) and that “in evenly balanced cases a success fee of 100 per cent might well be thought not to be unreasonable”. 71. There remained the question of proportionality. Other than providing that the proportionality of base costs and success fees were to be separately assessed, the Costs Practice Directions did not identify any factors that might be relevant. However, it would be wrong to conclude that this was an empty exercise as it was the “ultimate controlling factor” to ensure access to the court by a claimant to argue that her right to privacy under Article 8 was properly balanced against the losing party's rights to freedom of speech under Article 10. While the losing party would pay the success fee, any reduction in the percentage increase would have to borne by the successful party under the CFA: the interests of both sides had to be weighed up in deciding whether the amount was proportionate. 72. Lord Carswell agreed with the opinions of Lord Hoffmann and Lord Hope. While “there are many who regard the imbalance in the system adopted in England and Wales as most unjust”, the regimen of CFAs and recoverable success fees was “legislative policy which the courts must accept”. As to whether recoverable success fees, which undoubtedly constituted a “chill factor”, were compatible with Article 10 and a proportionate way of dealing with the issue of the funding of such litigation, it was not really in dispute that the legislature could in principle adopt this method of funding access to justice. 73. The present case turned on whether it was still proportionate when the claimant was wealthy and not in need of the support of a CFA. While it was rough justice, the requirement on solicitors to means test clients before concluding a CFA was unworkable. With some regret, the conclusion was clear. While Lord Carswell was “far from convinced about the wisdom or justice of the CFA system” as it was then constituted, “it had to be accepted as legislative policy”. It had not been shown to be incompatible with the Convention and the objections advanced by the applicant could not be sustained. 74. Lord Nicholls agreed with the preceding opinions. Baroness Hale also agreed with Lord Hoffman. It was, for her, a separate question whether a legislative solution might be needed to comply with Article 10: this was a complex issue involving a delicate balance between competing rights upon which she preferred to express no opinion. 75. From the date of rejection of this second appeal, the applicant was liable to pay 8% interest on the costs payable. 76. On 28 November 2005 an order for the costs of the second appeal to the House of Lords was made against the applicant. Ms Campbell therefore served an additional bill of costs of GBP 255,535.60. The bill included a success fee of 95% (GBP 85,095.78) in respect of the solicitors' base costs, her counsel having not entered into a CFA for this appeal. 2. Review by the Judicial Taxing Officers of the costs of the second appeal to the House of Lords 77. The applicant then sought to challenge the proportionality of the costs and success fees claimed in respect of both appeals to the House of Lords. An assessment hearing was fixed for 8 March 2006 before the Judicial Taxing Officers of the House of Lords. 78. On 3 March 2006 the applicant agreed with Ms Campbell's solicitors to pay the sum of GBP 350,000 in respect of the costs claimed in relation to the first appeal, excluding interest and including the success fee applicable to the first appeal. The applicant considered it was unlikely to do better before the Taxing Officers, it wished to avoid accruing interest (8% per day) and further litigation on costs would lead to further costs and success fees. 79. The hearing on 8 March 2006 (before two Judicial Taxing Officers) therefore concerned the costs of the second appeal only, the Taxing Officers noting that the applicant had settled the costs of the first appeal, it “no doubt recognising the inevitability of the position”. A number of preliminary issues were decided by the Taxing Officers including the validity of the CFA, the applicable success fee rate and the proportionality of the base costs billed by Ms Campbell's representatives (and on which that success fee would be calculated). 80. By judgment dated 8 March 2006 the Judicial Taxing Officers found that, in these hard fought proceedings ultimately decided by a split decision of the House of Lords, there was “no doubt” that the success fees (95% and 100%) claimed in respect of the first appeal to the House of Lords were appropriate having regard to the first and second instance proceedings. Since the second appeal to the House of Lords was part and parcel of the first and was clearly contemplated by the parties when they entered into the CFA, the second appeal was covered by the CFA and thus the same success fee. The effect of this was, of course, that the applicant faced a greatly increased bill of costs: however, the applicant lost this issue in the second appeal to the House of Lords. A success fee of 95% for the second appeal to the House of Lords was therefore approved. Relying on Rules 44.4 and 44.5 of the CPR as well as paragraph 15.1 of the Costs Practice Directions as well as a necessity test, the Taxing Officers reduced the hourly rates chargeable by Ms Campbell's solicitors and counsel, thereby reducing the base costs and, consequently, the success fee payable by the applicant. 81. On 5 May 2006 the applicant appealed to the House of Lords arguing that the Taxing Officers judgment was incorrect in so far as those Officers considered that the success fee for the second appeal could not be varied. On 28 June 2006 the House of Lords refused leave to appeal. 82. On 5 July 2007 the applicant agreed to pay GBP 150,000 (inclusive of interest and assessment procedure costs) in settlement of Ms Campbell's costs of the second appeal. A. Breach of confidence/misuse of private information 1. The Human Rights Act 1998 (“the HRA”) 83. Section 2(1) of the HRA provides that a court or tribunal determining a question which has arisen in connection with a Convention right must take into account, inter alia, any judgment, decision, declaration or advisory opinion of the European Court of Human Rights. 84. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. A public authority includes a court (section 6(3)(a) of the HRA). 85. Section 12(4) provides that a court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to journalistic material, to (a) the extent to which the material has, or is about to, become available to the public, or it is, or would be, in the public interest for the material to be published as well as to (b) any relevant privacy code. 2. The Press Complaints Commission Code of Practice (“The PCC Code”) 86. The PCC Code provided, at the relevant time, as follows: “3. Privacy i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent. ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable. Note - Private places are public or private property where there is a reasonable expectation of privacy ... 1. The public interest includes: i) Detecting or exposing crime or a serious misdemeanour. ii) Protecting public health and safety. iii) Preventing the public from being misled by some statement or action of an individual or organisation. . . .” 3. Breach of Confidence and Article 8 of the Convention 87. Originally the tort of breach of confidence was characterised by reference to an obligation of confidence which arose whenever a person received information he knew or ought to have known was fairly and reasonably confidential. More recently, the tort developed through the case-law so as to extend to situations where information, properly to be regarded as private information, has been misused. In principle, such a claim arises where private information has been wrongfully published and it is now well-recognised that this form of the tort of breach of confidence encapsulates the values enshrined in both Articles 8 and 10 of the Convention. The guiding principle as to what comprises an individual's private information is whether the individual had a reasonable expectation of privacy as regards the information in issue. 88. Lord Woolf CJ held as follows, as regards the balancing of the interests protected by Articles 8 and 10, in his oft-cited judgment in the Court of Appeal in the case of A v B plc ([2003] QB 195): “4......under section 6 of the 1998 [Human Rights] Act, the court, as a public authority, is required not to act “in a way which is incompatible with a Convention right”. The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles. 5. The court is assisted in achieving this because the equitable origins of the action for breach of confidence mean that historically the remedy for breach of confidence will only be granted when it is equitable for this to happen. ... 6. The manner in which the two articles operate is entirely different. Article 8 operates so as to extend the areas in which an action for breach of confidence can provide protection for privacy. It requires a generous approach to the situations in which privacy is to be protected. Article 10 operates in the opposite direction. This is because it protects freedom of expression and to achieve this it is necessary to restrict the area in which remedies are available for breaches of confidence. There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other article to be taken into account. ... 11(iv) ... Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it has to be justified. ... (x) If there is an intrusion in a situation where a person can reasonably expect his privacy to be respected then that intrusion will be capable of giving rise to a liability in action for breach of confidence unless the intrusion can be justified. ... (xii) Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his or her actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest. The same is true in relation to other parts of the media. On the difficult issue of finding the right balance, useful guidance of a general nature is provided by the Council of Europe Resolution 1165 of 1998. (xiii) In drawing up a balance sheet between the respective interests of the parties courts should not act as censors or arbiters of taste. This is the task of others.” B. Costs, conditional fee arrangements (“CFA”) and success fees 89. A successful party to litigation may only recover costs if and to the extent that a Court so orders and such questions are to be determined in accordance with the Civil Procedure Rules 1988 (“CPR”). The CPR referred to below are applicable to proceedings before the House of Lords. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party (Rule 44.3(2) of the CPR). 90. Prior to 1995, the only means of funding litigation (apart from legal aid) was to agree an ordinary retainer with a lawyer. CFAs were introduced for a limited range of litigation by section 58 of the Courts and Legal Services Act 1990 (“the 1990 Act”). A CFA is an agreement between a client and a legal representative which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances (for example, if successful). Further secondary legislation was necessary to allow CFAs to be adopted. The Conditional Fee Agreements Order 1995 not only brought into force CFAs but it extended the range of proceedings for which CFAs could be concluded, that range being further extended to cover all litigation apart from criminal and family proceedings by the Conditional Fee Agreements Order 1998. This position was relatively unchanged by the Access to Justice Act (“the 1999 Act”). 91. A CFA, even as initially introduced, could make provision for the payment of a percentage uplift in fees (“success fees”). A success fee provided that the amount of any fees to which it applied (base costs) could be increased by a percentage in specified circumstances (for example, if successful). Section 58(4) of the 1990 Act provides that a success fee must, inter alia, state the percentage by which the amount of the fees is to be increased and the Conditional Fee Agreements Order 2000 specified the maximum percentage uplift to be 100%. 92. The 1999 Act then inserted section 58A into the 1990 Act. This provided that an order for costs made by a court could include the success fees payable under a CFA, so that the base costs, as well as the success fees, could be recovered against an unsuccessful party. The 1999 Act also made ATE (after the event) Insurance premiums recoverable against a losing party. 93. The CPR regulate the making of costs orders and the assessment of such costs including success fees (Rule 43.2(1)(a) of the CPR). Rule 44.3(1)-(9) sets out the general rules which govern the court's discretion to make an order for costs against a party. Rule 44.3A of the CPR provides that, at the conclusion of the proceedings to which the CFA relates, the court may make a summary assessment or order a detailed assessment of all or part of the costs (including success fees). Rule 44.4(2) provides that, where the amount of costs is to be assessed on the standard basis, the court will only allow costs which are proportionate to the matters in issue and that it will resolve any doubt which it may have, as to whether costs were reasonably incurred or reasonable and proportionate in amount, in favour of the paying party. Rule 44.5 provides that the court must have regard to all circumstances in deciding whether costs, assessed on a standard basis, were proportionately and reasonably incurred or were proportionate and reasonable in amount. Such circumstances must include the conduct of all the parties, the amount or value of any money or property involved; the importance of the matter to all the parties; the particular complexity of the matter or the difficulty or novelty of the questions raised; the skill, effort, specialised knowledge and responsibility involved; the time spent on the case; and the place where and the circumstances in which work or any part of it was done. 94. Costs Practice Directions supplement the CPR. Paragraph 11.5 of the Direction provides that in deciding, on a standard basis of assessment, whether the costs are reasonable and proportionate, the court will consider the amount of any additional liability (including success fees) separately from the base costs. Paragraph 11.8 requires the Court to take into account, when deciding whether the percentage uplift by which the success fee is calculated is reasonable, all relevant factors and it provides examples of such factors: the circumstances in which the costs would be payable might or might not occur (including whether the case would win); the legal representative's liability for any disbursements; and any other methods of financing the costs available to the receiving party. Paragraph 11.9 provides as follows: “A percentage increase will not be reduced simply on the ground that, when added to the base costs which are reasonable and (where relevant) proportionate, the total appears disproportionate.” 95. A party to litigation who instructs lawyers pursuant to a CFA may, but is under no obligation to, take out ATE Insurance. 96. Paragraph 27 of the Practice Directions Applicable to Judicial Taxations in the House of Lords (adopted in March 2007) provides that notification is to be given to the opposing parties and to the Judicial Office as soon as practicable after a CFA has been entered into, and that the Taxing Officers decide questions of percentage uplift in accordance with the principles set out in the above-cited case of Designers' Guild Limited. 97. This case was the first assessment of costs for an appeal to the House of Lords involving CFAs. The appellant had been successful at first instance, had lost (unanimously) in the Court of Appeal and its appeal was allowed (unanimously) in the House of Lords. On 31 March 2003 the Taxing Officers held: “14. With regard to the solicitors' claim a success fee of 100% is sought. [Counsel for the Appellant] produced to us the opinion of Leading Counsel prior to the CFA being entered into which put the chances of success at no more than evens. That opinion was given against a background in which the appellant company had been successful at first instance and lost in the Court of Appeal. It is quite clear that the issues were finely balanced. It is generally accepted that if the chances of success are no better than 50% the success fee should be 100%. The thinking behind this is that if a solicitor were to take two identical cases with a 60% chance of success in each it is likely that one would be lost and the other won. Accordingly the success fee (of 100%) in the winning case would enable the solicitor to bear the loss of running the other case and losing. 15. There is an argument for saying that in any case which reached trial a success fee of 100% is easily justified because both sides presumably believed that they had an arguable and winnable case. In this case we have no doubt at all that the matter was finely balanced and that the appropriate success fee is therefore 100%”. 98. Eady J noted as follows: “6. The claimant ... seeks a large award of damages, including aggravated and exemplary damages, against the proprietors of The News of the World .... He is able to pursue his claim purely because [his legal representative] has been prepared to act on his behalf on the basis of a [CFA]. This means, of course, that significant costs can be run up for the defendant without any prospect of recovery if they are successful, since one of the matters on which [the legal representative] does apparently have instructions is that his client is without funds. On the other hand, if the defendant is unsuccessful it may be ordered to pay, quite apart from any damages, the costs of the claimant's solicitors including a substantial mark-up in respect of a success fee. The defendant's position is thus wholly unenviable. 7. Faced with these circumstances, there must be a significant temptation for media defendants to pay up something, to be rid of litigation for purely commercial reasons, and without regard to the true merits of any pleaded defence. This is the so-called “chilling effect” or “ransom factor” inherent in the conditional fee system, which was discussed by the Court of Appeal in [King v Telegraph Group Ltd [Practice Note] [2005] 1 WLR 2282]. This is a situation which could not have arisen in the past and is very much a modern development.” 99. This claimant was without financial means and had no ATE insurance. Brooke LJ noted the significant pre-action costs incurred by the claimant's solicitors which required, in turn, costs to be incurred by the defendant who also risked paying double the claimants' already significant costs. He continued: “What is in issue in this case, however, is the appropriateness of arrangements whereby a defendant publisher will be required to pay up to twice the reasonable and proportionate costs of the claimant if he loses or concedes liability, and will almost certainly have to bear his own costs (estimated in this case to be about £400,000) if he wins. The obvious unfairness of such a system is bound to have the chilling effect on a newspaper exercising its right to freedom of expression ... and to lead to the danger of self-imposed restraints on publication which he so much feared .... It is not for this court to thwart the wish of Parliament that litigants should be able to bring actions to vindicate their reputations under a CFA, and that they should not be obliged to obtain ATE cover before they do so. ... On the other hand, we are obliged to read and give effect to relevant primary and secondary legislation so far as possible in a way that is compatible with a publisher's Article 10 Convention rights .... In my judgment the only way to square the circle is to say that when making any costs capping order the court should prescribe a total amount of recoverable costs which will be inclusive, so far as a CFA-funded party is concerned, of any additional liability. It cannot be just to submit defendants in these cases, where their right to freedom of expression is at stake, to a costs regime where the costs they will have to pay if they lose are neither reasonable nor proportionate and they have no reasonable prospect of recovering their reasonable and proportionate costs if they win. If this means, ..., that it will not be open to a CFA-assisted claimant to receive the benefit of an advocate instructed at anything more than a modest fee or to receive the help of a litigation partner in a very expensive firm who is not willing to curtail his fees, then his/her fate will be no different from that of a conventional legally aided litigant in modern times. It is rare these days for such a litigant to be able to secure the services of leading counsel unless the size of the likely award of compensation justifies such an outlay, and defamation litigation does not open the door to awards on that scale today. Similarly, if the introduction of this novel cost-capping regime means that a claimant's lawyers may be reluctant to accept instructions on a CFA basis unless they assess the chances of success as significantly greater than evens (so that the size of the success fee will be to that extent reduced), this in my judgment will be a small price to pay in contrast to the price that is potentially to be paid if the present state of affairs is allowed to continue.” 100. In 2003 a Consultation Paper entitled “Simplifying CFAs” was completed by the Department of Constitutional Affairs (“DCA”, whose powers were transferred to the Ministry of Justice in May 2007). The use of CFAs in defamation proceedings emerged as a controversial issue during this consultation. Several national and regional media organisations took the opportunity to raise a number of concerns about the impact of the use of CFAs in defamation proceedings. Media organisations claimed that CFAs inhibited the right to freedom of expression and encouraged unmeritorious claims. Claimants' lawyers felt that the use of CFAs in defamation proceedings had greatly widened access to justice and placed claimants on an equal footing with their opponents. 101. In the 2004 Consultation Paper “Making Simple CFAs a reality” of the DCA, media organisations reiterated the view that CFAs needed to be controlled in defamation proceedings. They stressed that funding these cases by CFAs (particularly where the claimant had significant personal wealth) impinged on the media's right to freedom of expression because the success fee could effectively double a claimant lawyer's cost. This resulted in the “ransom” or “chilling effect” that forced the media to settle claims they might otherwise fight due to excessive costs. The media also expressed concerns there was no true ATE insurance market (because the very small number of cases did not ensure a competitive market), and about the failure of the costs judges to effectively control CFA costs in defamation proceedings. While the focus of the Consultation Paper had been defamation proceedings, the same problems applied in other publication cases. The 2004 Paper also noted that claimants' lawyers, on the other hand, believed that CFAs provided access to justice for all in an area of law where many would otherwise not be able to afford to seek redress. They also made the point that CFAs played an important role in discouraging irresponsible journalism. The sharp decline in the number of claims issued in this area, after the introduction of CFAs in defamation proceedings, indicated that lawyers were being more cautious when advising clients who were considering litigation. They believed that CFAs should not be banned or restricted in this area of law, but that success fees should be staged – 100% for cases going to trial and less for cases that settled early. The DCA concluded that legislation to restrict the use of success fees in this area (publication proceedings) was not planned. The DCA supported the initiative launched by the Civil Justice Council (“CJC”) to mediate a general agreement on success fees in this area of law and considered that the existing powers of the courts were sufficient to control costs. 102. The above-cited judgment in King and the 2004 consultation prompted media organisations and claimants' lawyer groups to try to reach an agreement on the way forward. Following the CFA round table hosted by the DCA in July 2004, both sides approached the CJC to mediate. 103. In April 2005 a previous Lord Chancellor spoke about CFAs and costs at a media society event. He called for proper control and proportionality in the costs-risks attached to publication litigation and urged claimant and media lawyers to try to find a solution through discussion. 104. In March 2006 the House of Commons Constitutional Affairs Select Committee considered the role of CFAs in defamation and privacy proceedings as part of its inquiry on the “Compensation Culture”. It felt that courts could address disproportionate costs through appropriate cost control measures such as cost-capping and that it might be appropriate for lawyers to re-assess risk (and therefore the amount of uplift) as the case progressed (staged success fees). No concrete action was taken. 105. From 2006 to 2007 the CJC hosted a number of forums including representatives from the media, legal profession and insurance. This mediation, having been suspended pending the second appeal in the present case to the House of Lords, concluded with the production of a model agreement (“the Theobalds Park Plus Agreement”) which set out a range of solutions including a range of staged success fees. 106. The Ministry of Justice agreed with the CJC's recommendations that the Theobalds Park Plus model agreement was workable and could help ensure that costs of litigation were proportionate and reasonable. The Ministry of Justice decided to consult on the issue. Through its Consultation Paper of August 2007 entitled “Conditional fee agreements in defamation proceedings: Success Fees and After the Event Insurance”, the Ministry of Justice sought views on the implementation of the CJC's recommendations in publication proceedings and, notably, on a range of fixed staged recoverable success fees and on the recoverability of ATE insurance premiums. A slightly revised scheme was published with responses to the consultation in July 2008. Some responses to the consultation supported in principle the introduction of fixed recoverable staged success fees and ATE insurance premiums; however, there was no consensus on the details of the scheme. The media in particular did not support the scheme and strongly opposed its implementation and called for additional measures to address disproportionate and unreasonable costs in CFA cases. The scheme was not implemented. 107. On 24 February 2009 the Ministry of Justice published further a Consultation Paper on “Controlling costs in defamation proceedings”. The high levels of legal costs in defamation and some other publication related proceedings had been the subject of criticism and debate in the courts and Parliament. “Excessive costs may force defendants to settle unmeritorious claims, which in turn threatens a more risk averse approach to reporting and some argue is a risk to freedom of expression”. While the Government had previously consulted on proposals for a scheme of staged recoverable success fees and after the event insurance (ATE) premiums in publication proceedings to reduce unreasonable and disproportionate costs, a number of media organisations suggested additional measures that they considered necessary if costs in this area were to be maintained at reasonable levels. The Consultation Paper therefore sought views on measures to better control costs notably through limiting recoverable hourly rates; costs-capping; and requiring the proportionality of total costs to be considered on costs assessments conducted by the court. 108. As regards the question (no 6) of whether the courts should apply the proportionality test to total costs not just base costs, the Consultation Paper noted that the Government considered that “a requirement to consider the proportionality of total costs would be a helpful tool in controlling costs in defamation proceedings”. They would request the CPR Committee to consider amendments to the CPR and to the related practice direction. 109. As to the scope of the proposals, the Consultation Paper assumed that as a minimum the provisions would be introduced for defamation disputes (libel and slander) because it was principally in these cases that the key problems were seen to arise. However, the Paper added that there were other causes of action (such as breach of privacy) where “it may be considered they should also apply”. 110. The Consultation Paper with the responses and proposals received was published on 24 September 2009. The CPR Committee, requested to consider a number of measures to control costs in publication proceedings, proposed draft rules concerning, inter alia, additional information and control of ATE insurance. The Civil Procedure (Amendment) Rules 2009 came into force on 1 October 2009. The Government preferred to leave other matters open pending the Jackson Review. 111. In late 2008 Jackson LJ was appointed to conduct a fundamental review of the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportionate cost. 112. In January 2010 the Jackson Review was published, running to almost 600 pages plus appendices. In relation to CFAs, it noted that England and Wales differed from all other jurisdictions in having success fees payable not by the lawyer's own client but by the losing party. The benefits of CFAs had been achieved at massive cost especially in cases which were fully contested. That cost was borne by tax payers, insurance premium payers and by those defendants who had the misfortune of being neither insured nor a large, well-resourced organisation. 113. While Jackson LJ concluded that CFAs were not objectionable in themselves, he considered that there were four flaws in allowing success fees to be recovered from the losing party: “4.7 The recoverability regime does not possess either of the two crucial features of the legal aid regime which it replaces. In my view these omissions are two of its flaws. The third flaw is that the burden placed upon opposing parties is simply too great. The fourth flaw is that it presents an opportunity for some lawyers to make excessive profits. The consequence of these four flaws is to generate disproportionate costs. (a) First flaw 4.8 Any person, whether rich or poor and whether human or corporate, is entitled to enter into a CFA and take out ATE insurance. All that such a person needs to do is to find willing solicitors and willing insurers. This gives rise to anomalies and unintended consequences on a grand scale. I will give three examples in the next three paragraphs. 4.9 The tree root claims. It is, in my view, absurd that insurance companies can bring claims against local authorities using CFAs ... thereby doubling the costs burden upon council tax payers. The insurance companies can well afford to fund such litigation themselves and should do so. 4.10 Commercial claims. It is also, in my view, absurd that one party to commercial litigation can become a “super-claimant”... and thereby transfer most of the costs burden to the other party. Two arguments have been pressed upon me by defenders of recoverability in such cases: first, that recoverability enables [small and medium enterprises (“SMEs”)] to take on larger companies; secondly that the opposing party can avoid the crushing costs burden by settling early. As to the first argument, the recoverability provisions are of universal application. They are just as likely to be used by a large company against an SME as vice versa. As to the second argument ... some business disputes are evenly balanced. It is perfectly reasonable for the companies on both sides to decide to fight. It is quite wrong for one or other party to be pressurised into settling by a gross imbalance in the costs liabilities of the parties. If party A has a CFA... and party B does not, party A may be litigating at virtually no costs risk, whereas party B may face liability for quadruple costs if it loses. 4.11 Consumer dispute. County court litigation sometimes involves disputes between suppliers of goods and customers or consumers. Where such litigation is above the level of the small claims track, it is not unknown for the supplier to have a CFA and for the individual on the other side not to have a CFA. It all depends upon the terms which each party manages to agree with its own solicitors. In some cases the recoverability regime will give the consumer a “free ride” against the supplier. In other cases it will have precisely the opposite effect. It is perfectly possible for the recoverability regime to give the supplier a free ride and to expose the consumer to a massively increased costs liability. 4.12 The first flaw in the recoverability regime is that it is unfocused. There is no eligibility test for entering into a CFA, provided that a willing solicitor can be found. (b) Second flaw 4.13 The second flaw is that the party with a CFA generally has no interest in the level of costs being incurred in his or her name. Whether the case is won or lost, the client will usually pay nothing. If the case is lost, the solicitors waive their costs and pay the disbursements, in so far as not covered by ATE insurance. If the case is won, the lawyers will recover whatever they can from the other side either (a) by detailed or summary assessment or (b) by negotiation based upon the likely outcome of such an assessment. 4.14 This circumstance means that the client exerts no control (or, in the case of a no win, low fee agreement, little control) over costs when they are being incurred. The entire burden falls upon the judge who assesses costs retrospectively at the end of the case, when it is too late to “control” what is spent. (c) Third flaw 4.15 The third flaw in the recoverability regime is that the costs burden placed upon opposing parties is excessive and sometimes amounts to a denial of justice. If one takes any large block of cases conducted on CFAs, the opposing parties will end up paying more than the total costs of both parties in every case, regardless of the outcome of any particular case. 4.16 If the opposing party contests a case to trial (possibly quite reasonably) and then loses, its costs liability becomes grossly disproportionate. Indeed the costs consequences of the recoverability rules can be so extreme as to drive opposing parties to settle at an early stage, despite having good prospects of a successful defence. This effect is sometimes described as “blackmail”, even though the claimant is using the recoverability rules in a perfectly lawful way. (d) Fourth flaw 4.17 If claimant solicitors and counsel are successful in only picking “winners”, they will substantially enlarge their earnings... As the Senior Costs Judge explained... it is not possible for costs judges effectively to control success fees retrospectively. 4.18 Of course, not all lawyers are good at picking winners and some suffer losses on that account. Nevertheless, one repeated criticism of the recoverability regime which I have heard throughout the Costs Review, is that some claimant lawyers “cherry pick”. In other words they generally conduct winning cases on CFAs, they reject or drop at an early stage less promising cases and thus generate extremely healthy profits. Obviously the financial records of individual solicitors firms and barristers are confidential. Moreover, even if one such set of accounts were made public, that would tell us nothing about all the others. Nevertheless, the one point that can be made about the CFA regime is that it presents the opportunity to cherry pick. If lawyers succumb to that temptation, they will greatly increase their own earnings and they will do so in a manner which is entirely lawful. 4.19 Having worked in the legal profession for 37 years, I have a high regard for my fellow lawyers, both solicitors and counsel. The fact remains, however, that lawyers are human. As Professor Adrian Zuckerman has forcefully pointed out both during the Woolf Inquiry and during the present Costs Review, work tends to follow the most remunerative path. In my view, it is a flaw of the recoverability regime that it presents an opportunity to lawyers substantially to increase their earnings by cherry picking. This is a feature which tends to demean the profession in the eyes of the public.” 114. Specifically in relation to defamation and related claims, Jackson LJ considered that the present system was “the most bizarre and expensive system that it is possible to devise” for the following three reasons: “(i) Defendants pay a heavy price in order to ensure (a) that claimants within the CFA regime are protected against adverse costs liability and (b) that defendants can still recover costs if they win. (ii) Despite paying out large ATE insurance premiums in cases which they lose, the defendants' costs recovery in cases which they win may be only partial. This is because the defendants' costs recovery will be subject to the policy limits agreed by claimants in those cases. (iii) The present regime of recoverable ATE insurance premiums is indiscriminating. A wealthy celebrity suing a hard pressed regional newspaper publisher is fully entitled to take out ATE insurance, effectively at the expense of the defendant. The present regime provides protection against adverse costs, but it is in no way targeted upon those claimants who need such protection.” 115. As to defamation and related proceedings, Jackson LJ noted that a principal concern that had been expressed in relation to the costs of defamation proceedings and privacy cases was the widespread use of CFAs with ATE insurance, which could impose a disproportionate costs burden on defendants. He had recommended, for all civil litigation, a return to CFAs whose success fees and ATE premiums were not recoverable from the losing party (the pre-1999 Act position): those arrangements had not suffered from the above flaws but opened up access to justice for many individuals who formerly had no such access. If that recommendation were to be adopted, Jackson LJ considered that it should go a substantial distance to ensuring that unsuccessful defendants in such proceedings were not faced with a disproportionate costs liability. However, such a measure could also reduce access to justice for claimants of slender means. To overcome this latter potential problem, he recommended complementary measures for defamation and related proceedings including increasing the general level of damages in defamation and breach of privacy proceedings by 10% and introducing a regime of qualified one way costs shifting, under which the amount of costs that an unsuccessful claimant may be ordered to pay was a reasonable amount, reflective of the means of the parties and their conduct in the proceedings. 116. In its introduction, the Report noted: “Throughout our inquiry we have been mindful of the over-arching concerns about the costs of mounting and defending libel actions, and the 'chilling effect' this may have on press freedom. The evidence we have heard leaves us in no doubt that there are problems which urgently need to be addressed in order to enable defamation litigation costs to be controlled more effectively. We find the suggestion that the problem confronting defendants, including media defendants, who wish to control their costs can be solved by settling cases more promptly to be an extraordinary one. If a defendant is in the right, he should not be forced into a settlement which entails him sacrificing justice on the grounds of cost. All the evidence which we have received points to the fact that the vast majority of cases brought under a Conditional Fee Agreement (CFA) are won. We therefore see no justification for lawyers to continue to demand 100% success fees which are chargeable to the losing party. We recommend that the recovery of success fees from the losing party should be limited to no more than 10%, leaving the balance to be agreed between solicitor and client. We further recommend that the Government should make After the Event Insurance premiums irrecoverable.” 117. As regards, in particular, costs in defamation litigation, it commented: “263. We are aware that machinery exists for defendants to protect their position as to costs by making a payment into court. It does not appear to us that this machinery effectively protects a defendant, who genuinely attempts to settle a claim at an early stage, against a determined and deep-pocketed litigant. This is another issue which needs to be addressed by the Ministry of Justice. ... 292. Although some have suggested that CFAs should be means-tested, in practice, given the high costs involved, this would be likely to result in access to justice being limited to the extremely poor and the super rich. The complexities involved also do not lend themselves to a simple or proportionate solution. We therefore do not support the introduction of means-testing CFAs. ... 294. In the matter of success fees, the argument is made that they need to be high to compensate for the risks run by lawyers .... This view is not, however, supported by the data available on the outcomes of cases of this kind. This data suggests that CFA-funded parties win the vast majority of their cases. ... 295. This high success rate is no doubt in part the fruit of careful selection. Indeed common sense and the economic incentives would point to the inevitability of cherry-picking. ... 307. All the evidence we have heard leads us to conclude that costs in CFA cases are too high. We also believe that CFA cases are rarely lost, thereby undermining the reasons for the introduction of the present scheme. However it is vital to the maintenance of press standards that access to justice for those who have been defamed is preserved. We do not agree with the Ministry of Justice that the maximum level of success fees should be capped at 10%, nor do we believe that success fees should become wholly irrecoverable from the losing party. However we would support the recoverability of such fees from the losing party being limited to 10% of costs leaving the balance to be agreed between solicitor and client. This would address the key issue and seems to us to provide a reasonable balance, protecting access to justice, adequately compensating solicitors for the risks taken, giving claimants and their lawyers, in particular, a strong incentive to control costs and ensuring that costs to a losing party are proportionate. ... 309. ... Just as the press must be accountable for what it writes, lawyers must be accountable for the way in which cases are run, and that includes costs. The current costs system, especially the operation of CFAs, offers little incentive for either lawyers or their clients to control costs, rather the contrary. It also leads to claims being settled where they lack merit. We hope that the combined effect of our recommendations, the Ministry of Justice consultations and the conclusions of Lord Justice Jackson, will provide the impetus for a fairer and more balanced approach to costs in publication proceedings.” 118. In January 2010 the Ministry of Justice launched a further public consultation with the above-noted Paper. It considered only the option of reducing the maximum uplift in defamation cases to 10% pending consideration of the other recommendations of the Jackson Review (the reference here to defamation including other publication cases). The executive summary of the Consultation Paper reads as follows: “The Government has for some time been concerned about the impact of high legal costs in defamation proceedings, particularly the impact of 100% success fees, which can double the costs to unsuccessful defendants in cases funded under conditional fee agreements (CFAs). CFAs have increased access to justice for claimants in making it more possible to bring cases. However, the experience over the past decade suggests that - in defamation proceedings in particular - the balance has swung too far in favour of the interests of claimants, and against the interests of defendants. The current arrangements appear to permit lawyers acting under a CFA to charge a success fee that is out of proportion to the risks involved. Aside from the cost burden this places on the opposing side, this could encourage weaker and more speculative claims to be pursued. The Government does not believe that the present maximum success fee in defamation proceedings is justifiable in the public interest. This is particularly the case because the evidence shows that many more defamation claims win than would substantiate such a generous success fee. This view is supported by Sir Rupert Jackson's report ... This consultation paper seeks views on a proposal to reduce the maximum success fee which lawyers can currently charge from 100% to 10% of the base costs. This is an interim measure for dealing with disproportionate costs while the Government considers Sir Rupert's wider proposals which seek to radically change the existing arrangements for all cases where CFAs are used. The proposal in this consultation paper would help reduce the costs for media defendants further and limit the potential harmful effect very high legal costs appear to have on the publication decisions of the media and others. This proposed change is intended to complement changes already introduced on 1 October 2009 in respect of defamation proceedings which were designed to control the costs of individual cases.” 119. The Ministry of Justice Consultation Paper of 3 March 2010 included the responses and its conclusions. It concluded as follows: “2. The Government has had particular concerns about the high costs in defamation cases. Defamation is a discrete area where we have already taken a number of steps to help control costs. Defamation proceedings are now part of a mandatory costs budgeting pilot, with Judges scrutinising costs as cases progress. 3. Lord Justice Jackson in his report ... recommends the abolition of recoverability of success fees and after the event (ATE) insurance premiums across civil litigation. Sir Rupert's report is substantial with recommendations that are far reaching with potentially widespread impact on many areas. However, it sets out a clear case for CFA reform. Even those respondents who did not support our proposal of reducing defamation success fees to 10% agree that the status quo cannot be permitted to continue. The main flaw identified by Sir Rupert of the current regime is the costs burden placed upon the opposing side. He also points out that the CFA regime was working satisfactorily before recoverability of success fees and ATE was introduced – an assertion that is made by a large number of respondents to the consultation. 4. Previous attempts to control the success fees have proved unfruitful. For example during 2007 the Department published a consultation paper, Conditional fee agreements in defamation proceedings: Success Fees and After the Event Insurance, on a scheme of fixed recoverable staged success fees and ATE insurance premiums. However, there was no consensus on the details of the scheme and it could not be implemented. No new evidence was provided to Sir Rupert against his recommendation on abolishing recoverability of success fees and ATE. 5. We carefully considered all the responses. More than half (53%) of those who responded agreed with our proposal to reduce the defamation success fees to 10%. The Government also considered the report from the Culture Media and Sport Committee on press freedom libel and privacy published on 25 February 2010. Although the Committee did not agree with our proposal it recommends that the recoverability of success fees should be capped to 10%. 6. The Government is actively assessing the implications of Sir Rupert's proposals and will also consider the Committee's report and recommendations including those on costs. However, in the meantime we are minded to implement the proposal to reduce the maximum success fee in defamation cases to 10% immediately as an interim measure. 7. We have therefore today laid the Conditional Fee Agreements (Amendment) Order before Parliament with a view to having the maximum success fee of Controlling Costs in Defamation Proceedings Summary of responses 10% in defamation cases in force as soon as possible subject to Parliamentary approval. 8. In light of the comments received, the Order has been amended to make clear that the new requirements will only apply to CFAs entered into after the date on which the Order comes into force. Defamation proceedings for the purpose of the Order means publication proceedings (within the meaning of rule 44.12B of the [CPR]) which includes defamation, malicious falsehood or breach of confidence involving publication to the public at large.” 120. The Conditional Fee Agreements (Amendment) Order was therefore laid before Parliament. However, that proposal was not maintained during the run-up to the general election in May 2010. | 1 |
dev | 001-4798 | ENG | GRC | ADMISSIBILITY | 1,999 | KALLITSIS v. GREECE | 4 | Inadmissible | Marc Fischbach | The applicant is a Greek citizen born in 1921. He is an honorary vice-president of the State Audit Council (Ελεγκτικό Συνέδριο) and resides in Athens. The facts of the case as submitted by the parties may be summarised as follows. On 1 July 1984 the post of vice-president of the State Audit Court was declared vacant. At that time the applicant was the senior judge. The post remained vacant for three years and was filled by the applicant on 30 July 1987. On 28 November 1988 the applicant brought an action for pecuniary and non-pecuniary damages against the State before the First Instance Administrative Court of Athens. In particular, the applicant claimed that he should have been promoted soon after the post was declared vacant and that the delay of the Administration to promote him to the post of vice-president of the State Audit Court caused him pecuniary damage and raised suspicions as to his abilities. On 6 October 1989 the Court granted the applicant’s claim insofar as it concerned non-pecuniary damage. The Court dismissed the remainder of the applicant’s action on the ground that he had no enforceable claim to the vacant post. On 24 November and 29 December 1989 respectively the applicant and the State appealed against this decision. On 17 May 1990 the Athens Administrative Court of Appeal rejected the applicant’s appeal and annulled the decision of the First Instance Administrative Court. The Court of Appeal referred in particular to the discretionary powers by which the competent administrative authorities organised their activity. On 15 July 1990 the applicant appealed to the Council of State. On 23 January 1995 the First Chamber of the Council of State composed of five judges decided to refer the case to a Chamber composed of seven judges. On 27 November 1995 the First Chamber of the Council of State composed of seven judges decided to refer the case to the Plenary because of the important issues it raised. On 17 October 1997 the Council of State sitting in Plenary rejected the applicant’s appeal. In particular the Council of State held that it was beyond the competence of the Court of Appeal to decide whether the decision to promote the applicant should be backdated. Therefore the Court of Appeal was right in rejecting the applicant’s appeal. The applicant obtained a copy of that decision in January 1998. | 0 |
dev | 001-82447 | ENG | AZE | CHAMBER | 2,007 | CASE OF AKIMOVA v. AZERBAIJAN | 4 | Violation of P1-1 | Christos Rozakis | 6. The applicant was born in 1950 and lives in Baku. 7. By an order of the Narimanov District Executive Authority (“NDEA”) of 2 June 1993, the applicant was issued, under the state housing policy, an occupancy voucher (yaşayış orderi) to a three-room apartment in a state-owned residential building in Baku. The applicant did not move into her new apartment at that time, because the construction of the building had not been completely finished and the tenants had to undertake the repair works in their respective apartments at their own expense. 8. In 1997, pursuant to an oral agreement, the applicant allowed R., an acquaintance of hers, to use the apartment temporarily, free of charge. Under the arrangement reached by the parties, R. was to use the apartment in exchange for certain repair works that he would perform using the materials provided by the applicant. In addition, R. agreed to vacate the apartment whenever the applicant made such a demand. 9. Some unspecified time later, in breach of the existing oral agreement, R. allowed his relative H. and his family (hereinafter to be collectively referred to as “H.”) to move into and live in the apartment. H. were internally displaced persons (“IDP”) from Agdam, a region under control of Armenian military forces following the Armenian-Azerbaijani conflict over Nagorno-Karabakh. 10. When the applicant found out that her apartment was occupied by people unknown to her, she requested that they vacate it. However, H. refused to do so, stating that they had no other place to live. The applicant filed a lawsuit, requesting the court to evict H. from the apartment. 11. On 29 March 2000 the Nizami District Court granted the applicant's request. The court found that, prior to moving into the disputed apartment, H. had been living in the Barda Region and in the Khatai District of Baku where they had been registered as IDPs. They did not dispute the fact that they had settled in the apartment in 1997. The court further found that the applicant was the lawful tenant of the apartment and, as such, had a right to demand H. to vacate it. The court ordered that H. be evicted. H. appealed. 12. On 30 September 2002 the Court of Appeal quashed the district court's judgment. The court held that NDEA's order to issue an occupancy voucher to a partly constructed building had been in breach of the requirements of the domestic law. The court further held that the applicant had not concluded a social tenancy agreement concerning the apartment and, therefore, she could not have a valid claim to it. The court therefore quashed the first-instance court's order to evict H. from the apartment. 13. The applicant filed an appeal in cassation. On 13 December 2002 the Supreme Court reversed the Court of Appeal's judgment and partially upheld the applicant's request. The Supreme Court found that the Court of Appeal erred in judging on the validity of the applicant's occupancy voucher. It held that the applicant's tenancy rights were undisputed and that the proceedings only concerned H.'s right to remain in the applicant's apartment. The Supreme Court quashed the Court of Appeal's decision in this part. 14. The Supreme Court further ruled that H. should vacate the applicant's apartment. However, taking into account the fact that H. could not return to their permanent place of residence in Agdam and, in the meantime, had no other place in which to reside, the Court held that the execution of its decision should be postponed until they could return to Agdam. 15. Thereafter, based on the applicant's additional cassation appeal, the proceedings were reopened and on 27 January 2005 the Plenum of the Supreme Court quashed the Supreme Court's decision of 13 December 2002. The Plenum noted that, having found errors in the Court of Appeal's judgment, the Supreme Court had no competence under civil procedure law to deliver a new judgment on the merits and, instead, was obliged to quash the Court of Appeal's judgment and refer the case for re-examination by the Court of Appeal. Accordingly, the Plenum found that, although the conclusions reached by the Supreme Court were essentially correct, it had breached the procedural rules by delivering a new judgment on the merits. The Plenum remitted the case to the Court of Appeal. 16. On 7 April 2005 the Court of Appeal delivered a judgment identical to the Supreme Court's decision of 13 December 2002. It ruled that H. should vacate the applicant's apartment. It further held as follows: “... the claim of V.B. Akimova must be upheld; however, having regard to the fact that the defendants are internally displaced persons from the Agdam Region and do not have another place in which to reside, the execution of the judgment shall be postponed until the Agdam Region is liberated from occupation.” 17. At present, Agdam remains under the control of Armenian forces and the Nagorno-Karabakh conflict remains unresolved. At the time of the latest communication with the parties, H. was still living in the applicant's apartment. 18. The Housing Code provides that Azerbaijani citizens are entitled to obtain a right of use of apartments owned by the State or other public bodies, under the terms of a tenancy agreement (Articles 10 and 28). 19. A decision on granting an apartment is to be implemented by way of issuing the citizen with an occupancy voucher (yaşayış sahəsi orderi) from the local executive authority (Article 48). The voucher serves as the sole legal basis for taking possession of the apartment designated therein (Article 48) and for concluding a tenancy agreement (yaşayış sahəsini icarə müqaviləsi) between the tenant and the housing maintenance authority (Article 51). 20. The right of use of apartments is granted for an indefinite term (Article 10). The tenant can terminate the tenancy agreement at any moment, with the consent of his or her family members (Article 87). The landlord (the housing maintenance authority) can terminate the agreement only on the grounds provided for by law and on the basis of a court decision (Articles 88-89). If the agreement is terminated because the house is no longer fit for living in, the tenant and family must be provided with a substitute apartment with full amenities (Articles 90 and 96). Tenants or members of their family can be evicted without provision of substitute accommodation only if they “systematically destroy or damage the apartment”, “use it for purposes other than residence” or “systematically breach the [generally accepted rules of conduct], thus making cohabitation with others impossible” (Article 97). 21. Individuals residing, pursuant to a tenancy agreement, in apartments owned by the State and other public bodies have a right to transfer these apartments into their private ownership (Article 1). Such privatisation is voluntary and free of charge (Article 2). The right to privatise a State-owned apartment free of charge may be exercised only once (Article 7). 22. Article 2 of the Law provides as follows: “Persons displaced from the places of their permanent residence in the territory of the Republic of Azerbaijan to other places within the territory of the country as a result of foreign military aggression, occupation of certain territories or continuous gunfire, shall be considered as internally displaced persons subject to the provisions of this Law.” 23. Article 5 of the Law provides as follows: “The relevant executive authority [the Cabinet of Ministers, State Committee on the Refugees' Affairs and local executive authorities, within the scope of their respective competence] shall deal with the housing of internally displaced persons. Residential, administrative and auxiliary buildings, as well as other buildings, shall be used for such housing purposes. Where there is no possibility to house internally displaced persons in such buildings or where the density of population in a specific settlement does not allow such a possibility, they shall be settled in camps specially set up for internally displaced persons. ... The internally displaced persons may be allowed to temporarily settle on their own only if the rights and lawful interests of other persons are not infringed. Otherwise, the relevant executive authority must ensure re-settlement of the internally displaced persons to other accommodation...” 24. Article 4 of the Regulations provides: “In order to prevent the eviction of the internally displaced persons from dwellings in which they settled during the period of 1992-1994, the legal force of the occupancy vouchers issued by the relevant authorities to individual citizens in respect of those dwellings shall be temporarily suspended...” 25. In cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals, the former must be provided with other suitable accommodation (Article 4). 26. The judge examining a civil case may, upon a petition by a party to the case, decide to postpone or suspend the execution of the judgment or change the manner of execution, due to the parties' property situation or other circumstances (Article 231). | 0 |
dev | 001-23318 | ENG | NLD | ADMISSIBILITY | 2,003 | SENTGES v. THE NETHERLANDS | 4 | Inadmissible | Gaukur Jörundsson | The applicant, Mr Nikky Sentges, is a Netherlands national, who was born in 1986 and lives in Maassluis. He is represented by his mother, Mrs M. Sentges, who exercises parental authority (ouderlijk gezag) over him. In the proceedings before the Court he is represented by Mr M.F. Vermaat, a lawyer practising in Hilversum. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant suffers from Duchenne Muscular Dystrophy (DMD), a disease characterised by progressive muscle degeneration, loss of the ability to walk and often the loss of lung or cardiac functions. There is currently no known cure for DMD. Most affected people survive into their twenties. The applicant is unable to stand, walk or lift his arms, and his manual and digital functions are virtually absent. He uses an electric wheelchair to move about, both outside the home and at school. He uses an adapted joystick to control the movement of the chair as he lacks the muscle strength required to operate the standard joystick. For every act he needs or wishes to perform, including eating and drinking, he is completely dependent on assistance from third persons. On 20 July 1999 the applicant’s parents requested their health insurance fund (ziekenfonds) to provide him with a “MANUS Manipulator”, a robotic arm specifically designed to be mounted on electric wheelchairs in order to give disabled people more autonomy in handling objects in their environment. This request was supported by a rehabilitation specialist (revalidatiearts) who informed the health insurance fund that when the applicant had tried out the robotic arm he had shown that he would be able to learn how to use it. Providing the applicant with the robotic arm would enable him to perform many acts unassisted, such as: – pouring drinks and drinking; – picking up various remote controls and using them; – operating audio and video players, for example inserting and removing audio and video cassettes; – switching a computer and printer on and off; – pressing lift buttons and door bells when visiting third persons; – shopping; – making telephone calls and sending faxes; – picking up items off the floor or out of cupboards; – picking up papers and/or books and turning pages; – scratching himself; and – playing games. Since the applicant was receiving the 24-hour assistance he required mainly from his parents, it was not possible to quantify in monetary terms the savings which would result from the use of the robotic arm. However, not long after being provided with the robotic arm, the applicant’s dependence on the constant presence of carers would be reduced by at least one to three hours a day. This would alleviate the task of the carers, who would thus be better able to continue fulfilling their task. In addition, the applicant would be able to continue living at home (for a longer period of time). The total cost of the robotic arm amounted to about 36,000 euros (EUR). On 10 August 1999 the health insurance fund rejected the request for the reason that the provision of a robotic arm was covered neither by the Health Insurance Act (Ziekenfondswet), the Exceptional Medical Expenses Act (Algemene Wet Bijzondere Ziektekosten) nor by any other social insurance scheme. The objection (bezwaar) which the applicant’s parents filed against this decision was rejected by the health insurance fund on 18 May 2000. The insurance fund held that since Article 15 of the Health Insurance (Treatment and Services) Decree (Verstrekkingenbesluit Ziekenfondsverzekering) stipulated that insured persons were entitled to those medical devices which had been designated by the Minister for Health, Welfare and Sport (Minister van Volksgezondheid, Welzijn en Sport; “the Minister”), it was not allowed to provide for, pay for or make a payment towards devices other than those mentioned in Article 2 of the Regulation on Medical Devices 1996 (Regeling hulpmiddelen 1996; “the Regulation”). A robotic arm was not listed in that Regulation. The appeal lodged by the applicant’s parents against this decision was upheld by the Regional Court (arrondissementsrechtbank) of Rotterdam on 12 December 2000. The Regional Court considered that the health insurance fund had given too narrow an interpretation to certain provisions of the Regulation. It therefore ordered the health insurance fund to come to a new decision on the request for the robotic arm. In view of this finding the Regional Court considered that it was not necessary to examine the arguments raised by the applicant’s parents relating to Article 8 of the Convention. The health insurance fund appealed against the judgment of the Regional Court to the Central Appeals Tribunal (Centrale Raad van Beroep). It maintained that the robotic arm was not a medical device which could be provided pursuant to the Regulation. In this connection it pointed to the fact that the Health Care Insurance Board (College voor zorgverzekeringen) had advised the Minister in September 2000 to include the robotic arm in the Regulation. However, the Minister had decided not to adopt this proposal for the time being. Obviously, if an insured person was already able to enforce a right to be provided with a robotic arm, neither the advice of the Health Care Insurance Board nor the decision of the Minister would have been necessary. The arguments presented on behalf of the applicant in the proceedings before the Central Appeals Tribunal included extensive reasoning relating to Article 8 of the Convention. On 29 January 2002 the Central Appeals Tribunal rejected the appeal. It found that the Regulation did not contain an entitlement for the applicant to be provided with a robotic arm. As to Article 8, the Central Appeals Tribunal held as follows: “The Tribunal is of the opinion that it has to be said that a direct and immediate link exists between [the applicant’s] private life and the measure demanded from [the health insurance fund], to wit the provision of a robotic arm. Taking into account the wide margin of appreciation which the State enjoys in these matters, it can nevertheless not be said that, when weighing the general interest, including the costs of health care, against the individual interest, the State could not reasonably have decided to exclude the robotic arm at issue from the package of treatment and services that persons are entitled to pursuant to the Health Insurance Act.” The above-mentioned report of the Health Care Insurance Board stated that between 150 and 400 persons a year might be eligible for the robotic arm if it were to be included in the health insurance fund package. If the lifespan of a robotic arm was set at five years, the yearly costs would amount to EUR 10,900 per arm. It was likely that the provision of a robotic arm would also entail savings, but the exact extent of these savings was difficult to estimate. Insurance under the Health Insurance Act is statutory: everyone who meets the criteria laid down in the legislation is automatically insured and consequently obliged to pay the statutory contribution. These criteria relate mainly to income; individuals whose income exceeds a certain amount are expected to take out private insurance. Children to whose maintenance an insured person contributes at least a particular amount per week are also insured. A person insured under the Health Insurance Act must register with a health insurance fund in order to obtain insurance entitlements. The nature of the care available to those covered by the Health Insurance Act is defined in the Act itself and in more detail in the Health Insurance (Treatment and Services) Decree and the associated ministerial regulations. In addition, all residents of the Netherlands are statutorily insured under the Exceptional Medical Expenses Act (Algemene Wet Bijzondere Ziektekosten) which provides cover for very severe financial burdens as a result of serious long-term illnesses or disorders. | 0 |
dev | 001-60451 | ENG | TUR | CHAMBER | 2,002 | CASE OF SEMSI ONEN v. TURKEY | 3 | Preliminary objection joined to merits and rejected (non-exhaustion of domestic remedies);No violation of Art. 2 in respect of killing of applicant's relatives;Violation of Art. 2 on account of lack of effective investigation;No violation of Art. 3;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 8;No violation of Art. 14 | null | 9. The applicant, Ms Şemsi Önen, is a Turkish citizen, born in 1968. At the relevant time, she lived in the village Karataş near Mazıdağı (Mardin) in south-east Turkey. The application was brought by the applicant on behalf of her deceased parents and brother, on her own behalf and on behalf of her ten suriving siblings, namely Mekiye, Ishan, Ercan, Mehmet Nuri, Medine, Sultan, Sevgi, Iskender, Melek and Hamdullah. It concerns the killing of their parents and brother Orhan, allegedly by armed members of the Balpınar village guards, and the investigation thereof. 10. Since the 1980s, a violent conflict has been conducted in the south-eastern region of Turkey between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Kurdish Workers' Party). According to the Government, one of the main terrorist activities of the PKK was the killing of people who have acted contrary to the cause of this organisation or who have misused property of the PKK. At the time of the events in issue, ten of the eleven provinces of south-east Turkey had been under emergency rule since 1987. 11. The facts of the case, in particular the circumstances of the killings and the efforts of the authorities to investigate the killings, are disputed. 12. As the village of Karataş, where the applicant and her family lived at the time of the events in issue, had refused the village guard system, tension had arisen between Karataş and its neighbouring village Balpınar. This refusal had also resulted in pressure being applied to the villagers by the gendarmes. 13. On or about 15 November 1992, four Balpınar village guards were killed in a clash with the PKK. On the same day, shortly after the clash, gendarmes and village guards attacked the village of Karataş. This attack lasted several hours. The following day, the Muhtar of Karataş complained to the Governor that his village was being subjected to pressure and violence from the gendarmes and village guards. No investigation of the attack took place. 14. Some weeks before 16 March 1993 the house of the Muhtar and the applicant's family house were both strafed by several rounds of bullets fired by Balpınar village guards. The Muhtar again complained to the Governor about the pressure exerted on his village by the Balpınar village guards and requested that steps be taken to put an end to it. 15. In the evening of 16 March 1993 the applicant's older brother, Orhan Önen, and her parents, Ibrahim and Mome Önen, were killed and the applicant suffered a wound to her foot as a result of a planned action by members of the Balpınar village guards to kill Orhan Önen. Before he was shot and killed, the applicant's father was able to pull the scarf from the head of one of the intruders and shouted that he recognised the gunmen as Ali Ertaş, head of the Balpınar village guards, and his nephew Orhan Ertaş, a former Balpınar village guard. The applicant's mother, who was seriously injured by a bullet, died on her way to hospital. 16. The Commander of the local Fosfat gendarme station, who had possibly been informed beforehand of the plan by the Balpınar village guards to kill Orhan Önen, seriously delayed the applicant's mother's access to medical treatment by refusing to provide a car to replace the defective minibus which was to transport her to a hospital and by unduly delaying the departure of this minibus for Mazıdağı. 17. The subsequent investigation of these killings was not only ineffective and inadequate in professional terms, but was in fact designed to cover up the involvement of the Balpınar village guards and to prevent the conviction of Ali and Orhan Ertaş. From the very beginning of the investigation, and throughout the entire subsequent proceedings, the authorities blamed the PKK for the killings and failed to keep the applicant informed of any steps taken in the investigation. 18. On 8 October 1992 PKK forces attacked Balpınar village guards on the slopes of the Kırmızıtepe hill close to the village of Balpınar. This clash lasted about twenty minutes. There were no casualties. To date, the perpetrators of this attack have not been found. 19. On 15 November 1992 PKK forces ambushed nine Balpınar village guards on a road near the village of Karataş. In the course of this clash, which lasted about fifteen minutes, four village guards were killed and four others wounded. An investigation into the clash was carried out. The Fosfat gendarme station commander, Salih Kaygusuz, took statements from the five surviving village guards during the course of the investigation. To date, the perpetrators of this attack have not been identified. 20. On 16 March 1993 at about 20.15 hours an armed PKK attack using rocket missiles and heavy weapons was carried out on a PTT radio link station in Mazıdağı-Kaletepe, at a distance of about one kilometre from Mazıdağı. The village guards present returned fire. The clash lasted about ten to fifteen minutes. There were no casualties. Shortly after the clash, gendarmes from the Mazıdağı Central gendarme station arrived at the scene. The next day, a land mine was found on the road leading to the PTT station. The initial investigation of this attack was carried out by Mazıdağı Central gendarme station under the responsibility of the public prosecutor at Mazıdağı. 21. Also in the evening of 16 March 1993 the killing of three Karataş villagers was reported to the public prosecutor in Mazıdağı. For reasons of security, the public prosecutor only arrived at the scene of the incident at 08.00 hours the next morning. He conducted an investigation, including attendance at the post mortem examination of the bodies of the victims carried out by a medical doctor. 22. All necessary steps were taken to investigate the killing of the applicant's parents and brother, including the collection of evidence. After having completed his preliminary investigation, the public prosecutor of Mazıdağı issued on 7 July 1993 a decision of lack of jurisdiction and the investigation was referred to the public prosecutor's office at the Diyarbakır State Security Court. This referral resulted in the institution of proceedings against Ali and Orhan Ertaş before the Diyarbakır State Security Court. On 6 May 1994, in the context of these proceedings and on the instructions of the Diyarbakır State Security Court, further statements were taken before a judge of the Mazıdağı Criminal First Instance Court from Ali Ertaş, Mahmut Denli and Mecit Kaya. No statements were taken from the applicant and her sister Mekiye, since they no longer resided in Karataş and their new address could not be established. 23. On 28 December 1994 the Diyarbakır State Security Court acquitted Ali and Orhan Ertaş for lack of evidence. After this decision the investigation nevertheless continued but the perpetrators of the killing of the applicant's parents and brother have not been found. 24. The Government submitted that it appeared from information obtained that the PKK had provided the applicant's brother Orhan with a taxi, which he had put to his own private use. He had thus made his family a target of the PKK, a terrorist organisation which was in all likelihood responsible for the killing of the applicant's parents and brother. 25. On 16 March 1993 an incident report was drawn up by the gendarmes of the Mazıdağı District gendarme station stating that at around 21.30 hours that day, a group of terrorists belonging to the outlawed PKK organisation entered the home of Ibrahim Önen and opened fire. Ibrahim and Orhan Önen were shot and killed. Mome and Şemsi Önen were injured and Mome Önen died on the way to hospital. The report also referred to nine empty Kalashnikov cartridges without further specifications. On the same date NCO Salih Kaygusuz of the Fosfat Gendarme Station drew a sketch map of the interior of the Önen family's two-room house. It indicated in one room the location of the bodies of Ibrahim and Mome Önen, two blood stains between the body of Ibrahim Önen and the front door and five empty cartridges. In the other room the location of the body of Orhan Önen and four empty cartridges was indicated. No blood stains were recorded in the room where the body of Orhan Önen was indicated. The sketch map only recorded what had been found inside the house. It did not contain any information about the immediate surroundings of the house. 26. According to a post mortem examination report dated 17 March 1993, due to security precautions, the team of experts only arrived on 17 March 1993 at about 08.00 hours in Karataş, acting on a report that three persons had been killed there on 16 March 1993 at 20.00 hours. This team consisted of the public prosecutor of Mazıdağı Yekta Çobanoğlu, the medical doctor Sedat İşçi of the Mazıdağı Health Centre, a clerk, an autopsy assistant and a driver. The report further indicated that Mome had died on the way to hospital and that her body had been brought back to the village. The bodies of Ibrahim, Mome and Orhan Önen had been identified by a relative, Mehmet Hadi Araç. The examination report contained information on bullet - entries and exits and concluded that the respective causes of death were haemorrhaging of the lungs, loss of blood and cessation of vital functions. Given the obvious nature of the cause of death, it was decided that there was no need to conduct an autopsy. 27. On 1 and 5 April 1993 statements were taken from the applicant and her sister Mekiye by the Fosfat gendarme station commander, Salih Kaygusuz, and by gendarme officer Cengiz Kesler of the Mazıdağı district gendarme station. On 4 April 1993 Salih Kaygusuz took statements from the Balpınar village guards Ali Ertaş, son of Kasım and born in 1953, and Mecit Kaya, son of Mehmet and born in 1960, in relation to the events of 16 March 1993. Ali Ertaş stated that he was the Head of the Balpınar village guards and that on 16 March 1993 he had been on patrol duty on the Kırmızıtepe hill to the west of Balpınar. He denied any involvement in the killing of the applicant's parents and brother and stated that he felt slandered. His account was supported by Mecit Kaya who confirmed that he had been on patrol on the Kırmızıtepe hill together with Ali Ertaş until the morning of 17 March 1993. Mecit Kaya further declared that neither the village of Balpınar nor Ali Ertaş had any involvement in the killings. On 5 April 1993 Mr Salih Kaygusuz took a statement from Orhan Ertaş, son of Şeyhmus and born in 1969, who stated that on 16 March 1993 he had not been in Balpınar. On that day he had been loading goods onto his lorry in the province of Mersin and had driven his lorry to Istanbul. He further declared that due to his work, he never stayed very long in Balpınar. 28. Between 7 April and 17 May 1993 a ballistics examination was carried out. According to a ballistics report of 29 April 1993 of the forensic laboratory in Diyarbakır, the nine empty 7.62 mm calibre Kalashnikov cartridges found at the scene of the killing had been fired from three different weapons with the same calibre, i.e. six from one weapon, two from another and one from a third weapon. In a report of 17 May 1993, transmitted to the Mazıdağı prosecutor, the forensic laboratory in Diyarbakır concluded that none of the nine cartridges found at the scene of the killings matched the five empty cartridges reportedly taken from the Kalashnikov rifle of Ali Ertaş and that, therefore, the nine cartridges had not been fired from Ali Ertaş' weapon. 29. On 7 July 1993 the Mazıdağı public prosecutor Yekta Çobanoğlu, decided that he lacked jurisdiction to deal with the case. The decision listed Ali and Orhan Ertaş as being suspected of the offence of “politically motivated murder” of the applicant's parents and brother. It noted that, following its investigation, the District gendarme command had concluded that unidentified members of the PKK terrorist organisation had committed the killings, but that, according to the respective accounts of the applicant and her sister Mekiye, their father had recognised the perpetrators as Ali and Orhan Ertaş. Concluding that the alleged offence fell within the scope of Law No. 2845, it was decided that the Mazıdağı prosecutor's office lacked jurisdiction and that the case-file should be transmitted to the prosecutor's office at the Diyarbakır State Security Court. 30. On 13 September 1993, following referral of the prosecution's case file to the prosecutor at the Diyarbakır State Security Court, the prosecutor at this court, Tanju Güvendiren, took certain additional measures with respect to the ballistics examination. He enquired as to why only five empty cartridge shells had been sent for examination, whereas six such cartridges taken from Kalashnikov weapons owned by six village guards had been required for a comparison. He further instructed the gendarmerie to provide him with a list of the Karataş village guards as well as the Kalashnikov delivery receipts of these village guards and to send the Kalashnikov delivered to Ali Ertaş and all other Kalashnikovs belonging to the village guards to the forensic laboratory in Diyarbakır for a ballistics examination. In the event of there being insufficient replacement rifles, he instructed that these rifles be discharged and the empty cartridges numbered in order to identify which cartridge was fired from which weapon and to send these cartridges to the forensic laboratory for a ballistics examination. On 19 October 1993 the Mazıdağı District gendarme command sent to the prosecutor's office at the Diyarbakır State Security Court sixty-five weapon and ammunition delivery receipts of the Balpınar village guards and sixty-five numbered empty cartridges. No information was provided as to the circumstances of the firing of the weapons. On 27 October 1994 the Regional Criminal Police Laboratory in Diyarbakır submitted to the State Security Court a ballistics examination report which concluded that none of the sixty-five empty 7.62 mm Kalashnikov cartridges matched the nine cartridges found at the place where the applicant's parents and brother had been shot. 31. On 6 January 1994 prosecutor Tanju Güvendiren charged Ali and Orhan Ertaş with politically motivated murder of the applicant's parents and brother Orhan, under Articles 31, 33 and 448 of the Turkish Penal Code and Article 13/2 of the Law No. 6136. On 21 January 1994 the State Security Court instructed the Mazıdağı Court of First Instance, inter alia, to take statements from Ali and Orhan Ertaş, Mecit Kaya and Mahmut Denli, and to take evidence from Şemsi and Mekiye Önen. It adjourned its further examination until 16 March 1994. On that date it noted that the results of its instructions had not yet arrived and that it appeared from the case-file that weapons seized from the suspects had been sent to the Diyarbakır Police Laboratory for a ballistics examination. Pending the implementation of its above-mentioned orders for the hearing of witnesses and a request for the preparation of a further forensic laboratory report, the State Security Court adjourned the proceedings several times, on the last occasion until 28 December 1994. 32. In the meantime, according to a statement dated 4 May 1994 and signed by the gendarmes Yusuf Kocer and Salih Günay and by the Muhtar of Karataş Muhittin Araç, the applicant and her sister Mekiye were living around Cezaevi in the Diyarbakır province, but their address could not be established. In another statement dated 4 May 1994 and signed by the same gendarmes and the Muhtar of Balpınar, Izettin Kaya, it was noted that the current whereabouts of Orhan Ertaş were unknown. On 6 May 1994, in the presence of the Mazıdağı public prosecutor Yekta Çobanoğlu, the judge at the Mazıdağı Court of First Instance, Ayhan İstikbal, took statements from Mahmut Denli, Mecit Kaya and Ali Ertaş. It was noted that Orhan Ertaş had not appeared. Ali Ertaş stated that Orhan Ertaş had left Balpınar some time ago, that he was unaware of Orhan's whereabouts and, in any event, Orhan had not been in the village for a long time. As regards the applicant and her sister Mekiye, it was noted that they had not appeared and that the response to their summons indicated that they were not in the village and were residing in the Cezaevi neighbourhood in Diyarbakır. On 29 June 1994 the State Security Court noted that no statements had been taken from the applicant and her sister Mekiye as their address could not be established. 33. On 28 December 1994 the State Security Court tried the case in the absence of the defendants as well as of the applicant and her sister. The prosecution submitted that the applicant and her sister had only heard their father state the names of the accused but that there was no other evidence supporting their account. The prosecution argued that, in these circumstances, the accused should be given the benefit of the doubt and acquitted. By judgment of 28 December 1994 the State Security Court unanimously acquitted Ali and Orhan Ertaş of the charges against them. 34. Since the facts of the case are disputed, particularly concerning the circumstances of the killings and the adequacy of the follow-up investigation, the Commission conducted an investigation with the assistance of the parties. The Commission obtained documentary evidence, including written statements. The oral evidence of the applicant and 12 witnesses was heard by three Delegates at a hearing in Ankara on 30 March and 1 and 2 April 1998. 35. As regards written evidence, the Commission had particular regard to the statements of both the applicant and his sister Mekiye Önen of 1 and 5 April 1993 (taken by the Fosfat gendarme station commander Salih Kaygusuz and by gendarme officer Cengiz Kesler of the Mazıdağı district gendarme station); a statement by the applicant of 9 June 1993 (taken by Mr Yekta Çobanoğlu, the public prosecutor of Mazıdağı); an undated statement taken by Mr Sedat Aslantaş of the Diyarbakır Branch of the Human Rights Association (submitted to the Commission on 18 October 1993); a statement by the applicant's sister of 6 July 1993 (taken by Yekta Çobanoğlu); statements by village guards Ali Ertaş and Mecit Kaya taken on 4 and 5 April 1993 (at Fosfat gendarme station by Salih Kaygusuz); a statement by Mahmut Denli (taken on 5 April 1993 by gendarme Cengiz Kesler at the Mazıdağı District gendarme station); a statement of 6 July 1993 of Ali Ertaş (taken by Yekta Çobanoğlu); statements taken on 6 May 1994 from Mahmut Denli, Mecit Kaya and Ali Ertaş by judge Ayhan İstikbal of the Mazıdağı Court of First Instance upon request of the State Security Court of Diyarbakır. The Commission also had regard to an incident report and a sketch map, both dated 16 March 1993; an ambulance record of 16 March 1993; a post mortem examination report dated 17 March 1993; correspondence of the Mazıdağı public prosecutor; forensic ballistics inquiries and examinations; Yekta Çobanoğlu's decision of lack of jurisdiction dated 7 July 1993 and a number of minutes of the proceedings before the State Security Court; as well as other documents. The latter included gendarme reports and statements related to the investigation of the attack on Balpınar village guards on 15 November 1992, according to which a group of nine Balpınar village guards travelling by tractor on the road from Balpınar to the Fosfat gendarme station were attacked by PKK forces on 15 November 1992 at around 16.00 hours. At the time of the attack, the village guards found themselves between the villages Arısu and Karataş. Four village guards were injured, amongst whom Ramazan Ertaş, son of Kasım and born in 1955. Four others were killed, amongst whom Nesrettin Ertaş, son of Şeyhmus and born in 1965, and Davut Ertaş, son of Kasım and born in 1944. Account was also taken of letters of various dates between 30 June 1995 and 25 March 1998, from the Commander of the Mazıdağı District gendarme station to the office of the public prosecutor in Mazıdağı in which he informed the public prosecutor that the identities of the PKK members who had killed the applicant's parents and brother had not yet been established. A number of these letters, including one sent on 25 March 1998, stated that the investigation of the matter was still ongoing. 36. The oral evidence included statements by the applicant herself, Mekiye Önen, Ercan Önen, Muhittin Araç, Tahir Önen, Mehmet Hadi Araç, Salih Kaygusuz, Mahmut Denli, Mecit Kaya, Yekta Çobanoğlu, Sedat İşçi, Cengiz Kesler and Tanju Güvendiren. 37. The verbatim record of the hearing held on 30 March 1998 contained the following passages of relevance to the Government's preliminary objection as to the authenticity of the application (see paragraph 71 below): “Mr RESS: Did you make two statements at the station, and did you sign them? Miss Şemsi ÖNEN: Yes. I went there a few times. They asked me questions. I answered them. They wrote them down. I put my fingerprint as I don't know how to write. But I don't know what they wrote. I answered the questions just as I'm doing here now. My brother was with me. I put my fingerprint to the statements. Mr. RESS: Since you cannot read, I will only show you your fingerprint, and you will say whether it's yours or not. A document is shown to the applicant. Miss Şemsi ÖNEN: Yes, it's mine. That's how I put my fingerprint.” 38. In relation to the oral evidence, the Commission was aware of the difficulties in assessing evidence obtained orally through interpreters: it therefore paid careful attention to the meaning and significance to be attributed to the statements made by the witnesses appearing before its Delegates. The Commission was aware that the cultural context of the applicant and witnesses rendered it inevitable that there would be a certain degree of imprecision with regard to dates and other details. However it did not consider that this by itself detracted from the credibility of the testimony. In a case where there were contradictory and conflicting factual accounts of events, the Commission was acutely aware of its own limitations as a first instance tribunal of fact. The problems of language were adverted to above; there was also an inevitable lack of detailed and direct familiarity with the conditions in the region. In addition, the Commission had no powers to take specific measures to compel witnesses to give oral or written evidence. In the present case, despite the Commission's specific request, the Government failed to submit certain relevant documents. The Commission was therefore faced with the difficult task of determining events on the basis of incomplete evidence. The Commission's findings can be summarised as follows. 39. The villages of Balpınar and Karataş were situated in an area which was subjected to significant PKK activity in the early 1990's. It was undisputed that, prior to the events at issue, village guards from Balpınar had been attacked on two occasions by PKK forces and that, on 16 March 1993, PKK forces attacked a nearby PTT radio link installation. The inhabitants of Karataş, Balpınar and about forty other villages belonged to the “Metina” clan. It appeared that, at the relevant time, all villages belonging to this clan, with the exception of the village of Karataş and one other village, had village guards and that pressure was exerted to join the village guard system. A number of witnesses stated that the refusal of Karataş to join the village guard system had resulted in tension between Karataş and Balpınar. Other witnesses denied such tension. The public prosecutor at Mazıdağı confirmed that he had heard rumours that the inhabitants of Karataş opposed the Turkish State and, therefore, the village guards were their enemies. The Balpınar village guards were not authorised to act on their own initiative. They received their orders from and had to report to the Commander of the nearby Fosfat gendarme station. 40. Although it could not make any definite findings on this point, the Commission did not consider it to be implausible that Karataş' refusal to join the village guard system during a period of significant PKK activity in the area, had resulted in tension between the village guards of Balpınar and the inhabitants of Karataş. 41. The Commission was satisfied from the evidence given by the applicant and her sister, that in the evening of 16 March 1993 after having introduced themselves as soldiers knowing that the Muhtar was absent from Karataş and wishing to conduct a house search, two armed and masked men entered their family home. One of the men immediately shot and killed their brother Orhan. In the course of their struggle with the intruders, the applicant's father was shot and killed by one of the intruders and the applicant's mother was seriously injured by a shot fired by the other intruder. There was no reason to doubt that both the applicant and her sister heard their father call out the names of the two perpetrators whom he had recognised as Ali and Orhan Ertaş from Balpınar. The killings in question were the result of a premeditated plan to kill the applicant's brother. As to the possible motive for the killing it could not be excluded that there were tensions between the inhabitants of Karataş and the Balpınar village guards at the relevant time which had already resulted in armed attacks on houses in Karataş. Nor could it be excluded that Orhan Önen may have been a particular target because of his suspected involvement in the PKK killing of village guards from Balpınar. On the other hand, the Government's contention that the PKK had a motive for killing Orhan Önen because they had provided him with a vehicle which he had used for his own benefit rather than for services required by the PKK had not only remained unsubstantiated but was, moreover, contradicted by substantial evidence submitted by the applicant. 42. As to the circumstances of the killing itself, the Commission found it established that the killers were aware that the Muhtar of Karataş was absent from the village and that the applicant and her sister heard their father call out the names of the perpetrators, identifying them as Ali and Orhan Ertaş. Moreover, the evidence of Mahmut Denli and Mecit Kaya that the Balpınar village guards, including Ali Ertaş, had been on guard duty throughout the night of 16 March 1993 was at least open to question. In addition, the suspicion of the involvement of Balpınar village guards was reinforced by the identification of Ali and Orhan Ertaş by the applicant and her sister at the Mazıdağı gendarme station. Nevertheless, while the evidence was sufficient to give rise to suspicion as to the identity of the killers, it had not been established to the required standard of proof beyond reasonable doubt that the applicant's brother, father and mother were killed by agents of the State. In this connection, the Commission noted that the applicant had given the Delegates a description of the two men: the one who shot her brother Orhan and her mother had been described as a person with long fair hair, hazel eyes and a fair complexion, whilst the man who shot their father was described as having a moustache and black eyes. Her sister, Mekiye, confirmed that the man who shot Orhan had hazel eyes but stated that she had not seen the second intruder. The applicant had further given evidence that, on 5 April 1993, when she subsequently attended the Mazıdağı gendarme station, she saw Ali and Orhan Ertaş and recognised them as the same two men. This was confirmed by Mekiye in that, on the same occasion, she had recognised Orhan Ertaş as one of the killers from his height, build, hazel eyes, nose and complexion. The Commission considered that this evidence should be treated with caution. In the circumstances of the sudden and traumatic events of that night, it was at least doubtful whether either the applicant or her sister would have had an opportunity to form a clear and accurate impression of the features of either man. In particular, Mekiye appeared only fleetingly to have seen her brother's killer, whose face had been masked with a scarf. The Commission noted that the description given by them of Orhan and Ali was contradicted by Muhittin Araç, who knew both men and who described Orhan as being lean with a dark complexion and black hair and Ali as being a more bulky man of the same height with a light complexion and chestnut brown hair. As to the evidence of the subsequent identification of these two men, the Commission found no reason to doubt that the applicant and her sister did see Ali and Orhan Ertaş at the Mazıdağı gendarme station on 5 April 1993. What was, however, more doubtful was whether the identification of the two men was entirely spontaneous or whether the applicant and her sister were made aware that the men were Ali and Orhan, whose names had been called out by their father. 43. Finally, it had not been established that Salih Kaygusuz, the Commander of the Fosfat gendarme station, had considerably delayed the provision of medical treatment to the applicant's injured mother or that the gendarme forces failed to offer her available assistance. In this connection, the Commission had regard to its findings as regards the time of the armed attack and the moment at which the applicant's mother received medical care in Mazıdağı. 44. From the evidence of Salih Kaygusuz it appeared that, after the minibus transporting the applicant's mother had left for Mazıdağı, he reported the incident in Karataş to his superiors at the District gendarme station in Mazıdağı and stated that he suspected that the PKK was responsible for the killings. He was told that, for reasons of security, the public prosecutor would only come to Karataş the next morning. He then ordered a first gendarme team to secure the area around Karataş. A second team, led by himself, joined the first team some time later. Thereupon, he and one gendarme team went to Karataş. They arrived sometime after midnight and found the bodies of the three victims inside the applicant's house. 45. Although the local gendarmes only arrived in Karataş at least three hours after the killings occurred, the Commission accepted that this delay had been caused by the fact that on the same evening an armed attack on a nearby radio link installation had taken place. However, once in Karataş, the gendarmes only secured the scene of the crime and, in the absence of any instructions, passively awaited the arrival of the competent investigation authorities, in the instant case the public prosecutor at Mazıdağı. 46. According to Salih Kaygusuz, the villagers present were unwilling to provide the first team of gendarmes with any information about the killings. After having secured the scene of the killings, he and the other gendarmes merely awaited the arrival of the prosecutor since they had not been ordered to take any investigative steps. 47. In the morning of 17 March 1993 an investigation team consisting of the public prosecutor of Mazıdağı, Yekta Çobanoğlu, and, amongst others, Dr. Sedat İşçi left Mazıdağı for Karataş. After the investigation team had arrived in Karataş and before attending the post mortem examination of the victims' bodies, the public prosecutor briefly inspected the scene of the killings and ordered Salih Kaygusuz to draw a sketch map of the scene of the killings and to collect the empty cartridges lying there. Without having been numbered and without having recorded the exact location of each cartridge, the nine empty cartridges found were put together in a bag and handed to the public prosecutor. No photographs of the scene of the killings were taken by or on behalf of the investigation team. 48. The information recorded on the sketch map of the scene of the killings appeared to be incomplete. In contrast to a remark in the post mortem body examination report and the testimony of Dr. Sedat İşçi, the sketch map did not indicate a large blood stain on the spot where the body of Orhan Önen had been found. Furthermore, although both Salih Kaygusuz, who drew the sketch map, and Yekta Çobanoğlu were aware that the body of the applicant's mother had been moved, this fact had not been recorded on the sketch map. Although the Commission accepted that, at the time this sketch map was drawn, the members of the investigation team may have been unaware of the fact that the body of the applicant's father had also been moved from the outside of the house, the subsequent investigation could not have been assisted by the fact that the scope of the sketch map was confined to the inside of the house and did not contain any information about the immediate surroundings. 49. The Commission noted that, according to the post mortem examination report, the applicant's brother, lying in bed, was hit by numerous bullets in his face, by one bullet in his chest and by another bullet in his knee. The Commission found this recorded observation difficult to reconcile with the fact that, according to the sketch map, only four empty cartridges were found in the room where Orhan Önen was shot and with the evidence that not a single bullet had been found in that room. Furthermore, although there was strong evidence suggesting that the applicant's father had been shot and killed outside the house, the sketch map only contained information on what had been found inside the house. Although this was denied by Salih Kaygusuz, the Commission could not exclude that more than the nine recorded empty cartridges were in fact found and collected, including empty cartridges found outside the house. 50. After having conducted the examination of the bodies and released the victims' remains for burial, the investigation team left Karataş. Although the public prosecutor was aware that both the applicant and her sister were present in Karataş during the visit of the investigation team, neither the public prosecutor nor any other official took any statement's from them or any of the other inhabitants of Karataş on that day. 51. As early as 17 March 1993 the public prosecutor suspected that the PKK was responsible for the killings and, in a telegram sent the same day, informed the office of the public prosecutor at the State Security Court in Diyarbakır accordingly. Although in his evidence to the Commission's Delegates, Yekta Çobanoğlu stressed that this had only been a provisional opinion, his respective requests dated 17 March 1993 to the Census Directorate in Mazıdağı to issue death certificates in respect of the applicant's parents and brother simply state that they “were murdered by fire-armed members of the outlawed PKK terrorist organisation” and, consequently, their deaths were officially recorded as having been caused by the PKK terrorist organisation. 52. It was only on 1 April 1993 that the applicant and her sister Mekiye gave a statement about the events of 16 March 1993 to the commander of the Fosfat gendarme station Salih Kaygusuz. The applicant stated that she had heard her father call out the names of the intruders and she further gave a description of the intruders' physical appearance. Mekiye stated that she had heard her father call out only one name and did not give any description of the intruders' physical features. According to Salih Kaygusuz, this was the first time that he heard the allegation that Ali and Orhan Ertaş had committed the killings. 53. In his testimony to the Delegates, Salih Kaygusuz had a firm recollection that he had also taken statements from Muhittin Araç, Tahir Önen and Mahmut Denli. In reply to the request of the Commission's Delegates to submit these statements, the Government stated by letter of 21 January 1999 that Salih Kaygusuz had not participated in the interrogation of these three persons. The Commission further noted that its case-file did not contain any statement given by any of these three persons at the Fosfat gendarme station. 54. The Commission further found it established that Yekta Çobanoğlu, from the outset, had a rather firm conviction that PKK forces had committed the killings. Although he stressed that this had only been a provisional opinion inspired by views expressed by the gendarmes and his own experience, the Commission found no support for the asserted provisional nature of this suspicion. In fact, it appeared from the contents of his written communications of 17 March 1993 that he had firm ideas about the identity of the perpetrators. This element, taken together with his failure to try to talk to the applicant and her sister on 17 March 1993, resulted in a loss of time in the initial phase of the investigation. 55. As regards the encounter on 5 April 1993 between the applicant and her sister and Ali and Orhan Ertaş in the Mazıdağı District gendarme station, the Commission found that it could not be excluded that this encounter was in fact the result of a coincidence since Yekta Çobanoğlu had not ordered a confrontation. It did not appear from the evidence that the applicant and her sister had been invited by the investigation authorities to identify the perpetrators either from a collection of photographs or at an identity parade. The Commission found that no photographs of Ali and Orhan Ertaş had ever been shown to the applicant and her sister and that at no point in time had a formal confrontation been ordered. The Commission further noted from the evidence submitted that, apart from the statement taken from Orhan Ertaş at the Fosfat gendarme station on 5 April 1993, hardly any attempts were made or seriously pursued to obtain any further evidence from him. Nor did it seem that any attempt had been made to verify his alibi by, for instance, checking his whereabouts on 16 and 17 March 1993 by seeking confirmation from those persons present when he was allegedly loading goods in Mersin or from those to whom he had delivered these goods. It did not appear from the statement he gave at the Fosfat gendarme station that he was in fact asked to give the names of persons who had seen him on 16 and 17 March 1993. As regards the alibi advanced by Ali Ertaş, the Commission noted that his presence on Kırmızıtepe hill at the time of the killings was in fact only supported by the statements of Mecit Kaya and Mahmut Denli, whereas the latter had stated to the Commission's Delegates that he had not in fact been in the presence of Ali Ertaş at the time of the killings, but had only seen him shortly afterwards. Given the evidence that there were, in total, 65 village guards in Balpınar who were organised in teams of 12-14 persons, the Commission found it remarkable that, apart from Mecit Kaya, no evidence was taken from the other village guards who were on duty in the same team as Ali Ertaş at the relevant time in order to verify the respective positions of each team member on Kırmızıtepe hill that evening. 56. After having received the case-file, Tanju Güvendiren, the public prosecutor at the State Security Court noted that the investigation had been incomplete. In order to complete the investigation, he issued a number of instructions to the Mazıdağı District gendarme station by letter of 13 September 1993 including that comparison cartridges be taken from the weapons held by the village guards from Karataş. On 19 October 1993 the Commander of the Mazıdağı District gendarme station transmitted 65 weapon delivery receipts and 65 empty cartridges taken from the Balpınar village guards to the office of the public prosecutor at the State Security Court. This letter contained no information as to when and in which manner these cartridges were obtained. Although Tanju Güvendiren considered that there was no concrete evidence in support of the accusations made against Ali and Orhan Ertaş and was convinced that the PKK was responsible for the killings, he nevertheless brought proceedings against Ali and Orhan Ertaş on charges of politically motivated murder and indicted them on 6 January 1994 before the State Security Court, which had jurisdiction to determine murder charges linked to terrorism. He did not find it necessary to take any further statements or to order the arrest or pre-trial detention of the accused. In his opinion, it was excluded that the security forces would cover up a crime committed by village guards. In the subsequent proceedings before it, the State Security Court in Diyarbakır requested, inter alia, that statements be taken from Ali and Orhan Ertaş, from the applicant and her sister Mekiye, and from Mecit Kaya and Mahmut Denli. They were all summoned to appear on 6 May 1994 before a judge of the Mazıdağı Court of First Instance in order to give statements, but only Ali Ertaş, Mecit Kaya and Mahmut Denli in fact did so. As the whereabouts of Orhan Ertaş, the applicant and her sister were not established, their summonses were returned to the State Security Court and, consequently, no further statements were taken from them. The Commission noted that, although the gendarmes and the State Security Court were informed that the applicant and her sister were residing in the Cezaevi neighbourhood in Diyarbakır, it did not appear that any attempts were made or ordered to locate them. Nor did it seem that any further attempts were made or ordered to find Orhan Ertaş. The Commission noted that the Muhtar of Karataş, Muhittin Araç, testified that he had been aware of the exact address of the applicant and her sister in Diyarbakır, but that he had never been asked to provide the local gendarmes with this address. He explained his signature on a document dated 4 May 1994 by stating that it had been normal practice in the area for gendarmes to require Muhtars to sign blank documents for future use. No further clarification on this point could be obtained from Salih Kaygusuz, as he had left the Fosfat gendarme station in August 1993. In these circumstances, it was impossible for the Commission to make any findings in this respect. What was clear, however, was that the State Security Court was informed that the applicant and her sister were residing at that time in the Cezaevi neighbourhood of Diyarbakır. In this connection, the Commission had also regard to the evidence of the applicant's brother that, since their departure from Karataş and to date, the Önen family had always lived at the same address in Diyarbakır. 57. The Commission accepted that the supplementary investigation measures ordered by the public prosecutor at the State Security Court, Tanju Güvendiren, in order to mend certain deficiencies in the preliminary investigation, were appropriate, although it was open to doubt whether, given the passage of time since the killings, these measures were as effective as they might have been in the initial phase of the proceedings. Moreover, he testified that he was convinced at the outset that the PKK was responsible for the killings, which might explain why he decided to indict Ali and Orhan Ertaş before the State Security Court, rather than referring the case to a court competent to try common crimes. This was supported by the fact that, apart from Ali Ertaş, none of the other vital witnesses gave evidence to the State Security Court. 58. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. 59. Under the Turkish Criminal Code (TPC) all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutor's offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 60. 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. 61. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court. 62. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 61 above) also applies to members of the security forces who come under the governor's authority. 63. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 59 above) or with the offender's superior. 64. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 65. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” 66. That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 67. Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 66 above), provides: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 68. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations). | 1 |
dev | 001-98550 | ENG | RUS | CHAMBER | 2,010 | CASE OF LARIN v. RUSSIA | 3 | Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1971 and lives in Slavyanovka village, Kaliningrad region. 7. On 6 April 2001 the Gusevskiy Town Court of the Kaliningrad Region convicted the applicant of theft, robbery and forgery and sentenced him to seven years and six months' imprisonment. This judgment was upheld by the Kaliningrad Regional Court on 5 June 2001. The courts found, inter alia, that the applicant had paid for a car, purchased from Mr O., with counterfeit United States dollars. The court further indicated that Mr O. might bring civil proceedings against the applicant. 8. In June 2001 Mr O. lodged a civil claim against the applicant, seeking to recover his car from the applicant. It was received by the Gusevskiy Town Court on 19 June 2001. 9. On 20 June 2001 Judge G. of the Gusevskiy Town Court forwarded a copy of the statement of claim to the administration of the detention centre where the applicant was being detained (remand prison IZ-39/1). In a cover letter, the judge instructed the administration to hand the statement of claim to the applicant and obtain his written observations in reply by 11 July 2001. 10. According to the Government, on 21 June 2001 the applicant was transferred to correctional colony OM-216/13 where he was to serve his sentence. That colony was situated in Slavyanovka village, Kaliningrad region. The documents sent by Judge G. to the applicant were forwarded to his new address in that colony. The colony received them on 13 July 2001. 11. On 11 July 2001, the Gusevskiy Town Court examined the civil claim in the applicant's absence. On the same day the Town Court, by a default judgment, ordered the applicant to return the car to Mr O. The court indicated, inter alia, that the defendant (the applicant) had been properly notified of the date of the hearing but had failed to appear. Mr O. was present and made oral submissions to the court. 12. The applicant alleged that he had been notified of the hearing only on 16 July 2001. The following day he had approached the Town Court seeking the reopening of the proceedings and reversal of the judgment on the ground that the hearing had taken place in his absence. The applicant had also requested legal aid and insisted on his personal presence at the hearing. On 19 July 2001 his letters were dispatched to the Town Court by the administration of the correctional colony. They were received by the court on 25 July 2001. 13. On 17 August 2001 the court set a date for hearing the applicant's request and informed the applicant thereof. The Government maintained that the notification had been received by the applicant on 28 August 2001. 14. On 31 August 2001 the applicant wrote a letter to the Town Court asking them to examine the case in his presence and provide him with a lawyer. That letter was dispatched to the court by the head of the correctional colony. His cover-letter was dated 4 September 2001; however, according to the postal stamp, the applicant's letter was actually posted on 7 September 2001. 15. On 6 September 2001 the hearing took place in the applicant's absence. Mr. O was present and made oral submissions. The applicant alleged that he had been unable to attend the hearing for want of a court's “conveyance request” (заявка на этапирование) ordering the correctional colony administration to escort him to the court. 16. By a decision of 6 September 2001 the Gusevskiy District Court refused to re-examine the case. The court found that the applicant had not presented any new evidence that might affect the court's findings of 11 July 2001. The applicant's argument that he had not been properly notified of the hearing and his request for legal aid were left open in the court's decision. The next day, that decision was sent to the applicant. 17. Following the Town Court's refusal to reopen the proceedings, the applicant appealed to the Regional Court, complaining about the first-instance court's decisions of 11 July and 6 September 2001. He insisted that his personal presence at the hearing of 11 July 2001 had been necessary to prove that the deal with Mr. O.'s car was legal and valid, and that the proceedings should therefore be reopened. He also asked the Regional Court to order his conveyance from the correctional colony in order to take part in the hearing. 18. On 9 October 2001 Judge G. informed the applicant of the date of the appeal hearing, by way of a simple notice. The judge indicated that the applicant's personal presence at the hearing was not mandatory, and that bringing him to the court hearing was “inopportune”. 19. On 10 October 2001 the Kaliningrad Regional Court examined the appeal in absentia and upheld the judgment of 11 July and the decision of 6 September 2001. The court indicated that, under Article 213-11, proceedings ending with a default judgment should only be reopened if two conditions were met: (a) the absent party had been unable, with good reason, to attend the hearing or to inform the court in a timely fashion thereof, and (b) the absent party produced evidence that might affect the conclusions of the default judgment. The court further indicated that the default judgment of 11 July 2001 had been fully based on the courts' findings in the criminal case against the applicant. Lastly, the Regional Court established that the applicant's submissions about the circumstances of the deal with the car would not have had any impact on the findings of the default judgment. In conclusion the court stated as follows: “The argument that [the applicant's] absence in court was excusable because he had been unable to inform the court in a timely fashion of the valid reasons for his absence cannot be accepted as a sole ground for quashing the judgment since the default judgment may only be quashed if both of the above-mentioned conditions have been met. Furthermore, [the applicant] does not explain why he was not able to inform the court that he was serving a prison sentence.” 20. As a consequence, the Regional Court dismissed the appeal and upheld the default judgment. 21. Parties to civil proceedings could appear before a court in person or act through a representative (Article 43 of the Code of Civil Procedure in force until 31 January 2003 (“the old CCP”). 22. Article 106 of the old CCP provided that a summons was to be served on the parties and their representatives in such a way that they would have enough time to appear at the hearing and prepare their case. Where necessary, the parties could be summoned by a telephone call or a telegram. Pursuant to Articles 108 and 109, court summonses were to be sent by post or by courier and served on the person who was a party to the case. The party was to sign the second copy of a summons which was to be returned to the court. If a summons could not be served on a party, it was to be served on an adult family member who lived with the party. If a party was absent, the person who delivered the summons was to note on the second copy of the summons where the party could be found (Article 109). 23. Article 144 required that civil cases be heard in a court session with mandatory notification of the case to all parties. Article 151 provided that court sessions started with the court secretary informing the judge of the parties who had received summons but had failed to appear. The secretary had to inform the judge of the reasons for their absence. Pursuant to Article 157, if a party to the case failed to appear and there was no evidence that the party had been duly summoned, the hearing was to be adjourned. 24. Article 213-1 provided that if a defendant was duly notified of the hearing but failed to appear, the court might proceed with the case, provided that the plaintiff did not object. Article 213-6 provided that a default judgment could be challenged either by lodging a request for the reopening of the case with the first-instance court, or by appealing directly to the court of appeal. Under Article 213-9, a decision of the first-instance court not to reopen the case was subject to an appeal as well. Under Article 213-11, the reopening of a case was possible if two conditions were met: (a) the absent party had been unable, with good reason, to attend the hearing or to inform the court in a timely fashion thereof, and (b) the absent party produced evidence which might have affected the outcome of the case. 25. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigation unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention the possibility for convicted persons to take part in civil proceedings, whether as plaintiffs or defendants. 26. The USSR Advocates Act (Law of 30 November 1979), together with the RSFSR Rules on Advocates (Law of 20 November 1980), in force until 1 July 2002, provided that free legal assistance in civil cases could be provided to certain categories of litigants and for certain categories of disputes such as labour disputes, disputes concerning disability pensions, work-related accidents, etc. (sections 11 and 22 respectively). Disputes involving prisoners similar to the one at the heart of the present case were not mentioned amongst them. However, the law stipulated that free legal assistance could be provided for litigants who had no means to pay for it, on the initiative of the advocate's office, the investigator or the court (section 11(3) of the USSR Advocates Act). If free legal assistance was granted by the court, the lawyers' fees had to be paid by the State. | 1 |
dev | 001-102336 | ENG | RUS | CHAMBER | 2,010 | CASE OF KUZMENKO v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 5. The applicant was born in 1975 and lives in the town of Orsk, Orenburg Region. 6. In the evening of 22 September 2001 police officers arrested the applicant's husband on suspicion of indecent behaviour in a public place and took him to a nearby police station situated in a dormitory building. The applicant accompanied him. According to the applicant, in response to her pleas for her husband's release, a police officer, Mr Sh., grabbed her hair and hit her head against a wall three times. Then he handcuffed her to a radiator in a corridor of the dormitory. She was released few hours later. 7. The Government disputed the applicant's version of events, arguing that the applicant, who was drunk, had followed the police officers and her husband to the station, demanding to be informed of the reasons for her husband's arrest and for him to be released. According to the Government, the applicant attempted to resist her husband's arrest, grabbing the officers' uniforms and using obscene language. On arrival at the station the applicant attempted to block the entrance door and kicked officer Sh. on the leg. After the police officers had locked the entrance door, the applicant broke a pane of glass in the door, unlocked it and entered the station. She accompanied her actions with threats of violence against the officers and said she would get them dismissed from the police force. Faced with violence and resistance on the applicant's part, police officer Sh. used physical force and handcuffed her. 8. In the afternoon of 23 September 2001 the applicant went to Orsk Town no. 2 Hospital complaining of headache, nausea, dizziness and vomiting. She was diagnosed with concussion and prescribed outpatient treatment. The attending doctor also noted that the applicant had bruises on the forehead, chest, shoulders and occipital region of the head. 9. Criminal proceedings were instituted against officer Sh. on a charge of abuse of position. The prosecutor's office accused him of having caused the applicant injuries in the form of concussion, tissue damage and bruising on the left side of the face and of exceeding the limits of his official powers by handcuffing the applicant to a radiator. 10. On 28 September 2001 the applicant was subjected to a forensic medical examination. Following the exam the expert issued a report which, in so far as relevant, read as follows: “[there are] a swelling of the soft tissues on the left side of the [applicant's] forehead accompanied by a bluish and yellow bruise measuring three centimetres in width and six centimetres in length ..., [and] three bruises measuring between seven centimetres in width and seven centimetres in length and two centimetres in width and two centimetres in length on the back surface in the lower third part of her right shoulder. There are similar bruises on the palmar surface of the right forearm (a bruise one centimetre long and one centimetre wide) and on the rear of the right forearm (two bruises: one centimetre wide and one centimetre long and three centimetres wide and three centimetres long); [there is a bruise], measuring four centimetres in width and four centimetres in length, on ... the left shoulder, [there are] numerous similar bruises on the back of [the applicant's] left wrist and left forearm ... measuring between three to three and four to five centimetres.” The expert concluded that the applicant had concussion and an injury and bruise on the face which had been caused recently by hard blunt objects and had caused minor damage to health. He listed numerous bruises on the applicant's arms and shoulders, assessing that they too were the result of blows from a firm blunt object and had been incurred at the same time as the head injury. Finally, the expert addressed the possibility that the applicant had sustained a chest injury; this was the preliminary diagnosis she received at the hospital. The expert observed no injuries on the chest, and found that there was no evidence in support of that preliminary diagnosis. 11. Following a second forensic medical examination of the applicant, on 23 January 2002, the expert's findings were similar as to the location of the injuries and their nature and also established that the injuries could have been caused in the circumstances described by the applicant. 12. In March 2002 the case was sent for trial to the Leninskiy District Court of Orsk. However, on 17 April 2002 the District Court returned the case to the prosecution with an order for certain procedural defects, which violated the defendant's rights, to be corrected. The trial court further stressed that a comprehensive expert medical examination of the applicant was needed “to settle certain inconsistencies in the first two expert reports”. 13. On 24 January 2003 a comprehensive expert medical examination authorised by the District Court confirmed that the applicant had had a craniocerebral injury comprising a bruise and an injury to the soft tissue of the left side of the forehead, an injury to the soft tissue of the occipital region and concussion, numerous bruises on the arms and an injury to the soft tissue on the left side of the chest resulting from the application, a number of times, of a hard blunt object with a small surface area. Noting that the injuries could have been caused in the circumstances described by the applicant, the experts went further and stated that the different location, in particular the fact that the bruises had been on the applicant's forehead and the occipital region, and the quantity of the injuries, ruled out self-infliction. 14. On 17 March 2003 the Leninskiy District Court acquitted Mr Sh. of all charges, finding that his actions had not been criminal. The District Court based its judgment on statements by the defendant, the applicant and her husband, four police officers, Mr B., Mr M., Mr T. and Mr S., five witnesses, Mr A., Ms G., Ms K., Ms B., and Ms I.., and an opinion given by a forensic medical expert, Mr P. Their statements were as follows: - the defendant confirmed that on 22 September 2001 he and his partner, Mr T., had arrested the applicant's husband. The applicant, who was drunk, approached and demanded that her husband be released. She used offensive language, grabbed the police officers by their clothes and did not respond to their warnings. After the officers had entered the police station, the applicant tried to prevent them from closing the entrance door and kicked the defendant on the leg. When the defendant succeeded in closing the door, the applicant broke a pane of glass in the door, unlocked it and entered the building. The defendant noted that he had had no choice but to handcuff the applicant to a radiator near the entrance door. However, she continued acting violently. She broke another pane of glass in the entrance door and used offensive language. The defendant insisted that he had not beaten the applicant up. He could not explain the cause of the applicant's injuries, noting that she had had no injuries before her husband's arrest and that she could have hurt herself. - the applicant confessed that, being under the influence of alcohol, she had tried to prevent her husband's arrest and had grabbed the police officers by their uniforms and had used offensive language. She further stated that after she had broken a pane of glass in the entrance door and gone into the station, the defendant had grabbed her by the hair and hit her head three times against a wall. He had then handcuffed her to a radiator. - the applicant's husband confirmed that his wife had accompanied him to the police station. At the station he had heard the sound of breaking glass, then his wife shouting, and then more breaking glass. He did not see how his wife had sustained the injuries. - the witnesses, Mr A. and Ms G., testified that they had seen the applicant and her husband during the evening of 22 September 2001, prior to the arrival of the police, and that they had not observed the alleged beatings by the police. - the police officers, Mr B. and Mr M., stated that they had arrived at the police station at about 10 p.m. on 22 September 2001. They saw the applicant handcuffed to a radiator in a corridor. She was acting aggressively and was drunk. There was broken glass around her on the floor. She did not have any visible injuries. The police officers noted that Mr Sh. explained to them that he had handcuffed the applicant to calm her down. After the applicant was released she again threatened the police officers, using offensive language. - the witnesses, Ms K. and Ms B., informed the District Court that on 22 September 2001, at about 10 p.m., they had gone along a corridor in the dormitory building. They noticed that the applicant was handcuffed to a radiator. She was drunk and aggressive and was using offensive language. The applicant did not make any requests or complaints. - the witness, Ms I., who worked as a concierge in the dormitory, stated that she spoke to the applicant during the evening of 22 September 2001 and that the applicant had confirmed that she had broken windows to draw attention to her situation. - the police officer, Mr T., corroborated the statements made by the defendant. - the police officer, Mr S., testified that the applicant had complained to him that the defendant had beaten her up. He saw a bruise on her arm, above the wrist, and an injury on her forehead. The applicant was sent for a medical examination. - the expert, Mr P., informed the District Court that on the instruction of a Leninskiy District assistant prosecutor he had performed a forensic medical examination of the applicant and had issued a report. He recorded that the applicant had concussion, tissue damage and a bruise on the face, a bruise on the right side of the forehead and bruises on the arms. The expert noted that his report was corroborated by the results of the compound forensic medical examination of the applicant. 15. Having examined the evidence, the District Court held that there was no evidence that the defendant had beaten the applicant up. As regards the fact that the defendant had handcuffed the applicant, the District Court held as follows: “The actions of the defendant, Mr Sh., were lawful and valid and were caused by unlawful actions of the victim, [the applicant], who had committed an offence. A special measure – handcuffs were lawfully applied to prevent an ongoing offence by [the applicant], who acted unpredictably, created a dangerous situation for police officers and other individuals who passed through the corridor of the building. [The applicant] could have caused various injuries to individuals by breaking the panes of glass [in the door]. The victim did not need medical assistance, nor did she ask for it. The victim did not have visible injuries which required medical assistance. When he had handcuffed and arrested the spouses [the applicant and her husband], the defendant, Mr Sh., reported to ... his chief, thus fully complying with legal obligations.” The applicant and the prosecution appealed. 16. On 22 April 2003 the Orenburg Regional Court upheld the District Court's findings. The judgment of the Regional Court, as far as relevant, read as follows: “As regards injuries caused to the victim. Mr Sh. emphatically stated that he had not beaten [the applicant] up. There are no eyewitnesses. The statements by the victim as to the cause of her injuries do not correspond to the findings of the forensic medical examinations. Thus, as it follows from an expert report..., [the applicant] had injuries in the form of concussion, an injury and bruising to the face, on the left side of the forehead. An expert, Mr P., who had performed the initial medical examination, was questioned at a hearing and stated that if it was confirmed that [the applicant] had hit her head it was possible that she had received those injuries, however, it was impossible to say precisely. According to the conclusions of the comprehensive forensic medical examination, [the applicant] had injuries in the form of a craniocerebral trauma (a bruise and injury to the soft tissues of the left side of the forehead, an injury to the soft tissues of the occipital region of the head, and concussion), numerous bruises on the arms, and an injury to the soft tissues of the left side of the chest. Having regard to the general picture of the bodily injuries, the experts concluded that it would not have been possible for the victim to inflict them on herself. However, in the present case the scope of the accusations only included injuries recorded on the forehead of the victim. [The applicant's] injuries on the occipital region of her head and an injury on the chest were not included in the accusations against Mr Sh. Taking this fact into account, the prosecution and the court cannot overstep the bounds of the indictment and cannot examine at the court hearing any additional questions which could lead to further charges. The court also finds that those injuries cannot be taken into consideration when deciding on the question whether the applicant could have caused those injuries to herself. The prosecution thus did not rebut Mr Sh.'s argument that [the applicant] could have herself caused the injury to the left side of the head which led to the concussion.” 17. On 27 July 2003 the applicant lodged an action against the Orsk Town police department and the Ministry of Finance, claiming compensation for non-pecuniary damage caused by the unlawful actions of Mr Sh. 18. On 5 December 2003 the Leninskiy District Court, Orsk, relying on the judgment of 17 March 2003 of the same court, dismissed the applicant's action. The District Court held that Mr Sh.'s guilt in having caused the injuries had not been proven. Referring to Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the District Court noted “the character” of the applicant's injuries and the fact that neither the applicant nor Mr Sh. had explained “the mechanism of the appearance of injuries” and it held that “the injuries could have been caused accidentally when lawful sanctions were being applied to the plaintiff”. The District Court considered that the actions resulting in those injuries could not amount to “torture”. 19. On 5 February 2004 the Orenburg Regional Court upheld the judgment of 5 December 2003, relying on the findings of the District Court made during the trial against Mr Sh. 20. The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) establishes that a criminal investigation can be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigative authorities' own initiative, where there are reasons to believe that a crime has been committed (Articles 146 and 147). A prosecutor is responsible for overall supervision of the investigation (Article 37). He/she can order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there are no grounds to initiate a criminal investigation, the prosecutor or investigator issues a reasoned decision to that effect, which has to be notified to the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction within a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. 21. Police officers are only entitled to use physical force, special means and firearms in the cases and within the procedure established by the Police Act; staff members of police facilities designated for temporary detention of suspects and accused persons may only use such force and special means in cases and within the procedure established by the Custody Act (section 12). 22. Section 12 of the Police Act provides that a police officer resorting to physical force, special means or a firearm, should warn an individual that force/special means/firearms are to be used against him. In cases when a delay in the use of force, special means or firearms may endanger the life and health of civilians or police officers or cause other serious damage, such a warning is not necessary. Police officers should ensure that damage caused by the use of force/special means/firearms is minimal and corresponds to the character and extent of the danger posed by unlawful conduct and the perpetrator, and the resistance offered by the perpetrator. Police officers should also ensure that individuals who have been injured as a result of the use of force/special means/firearms receive medical assistance. 23. Under section 13 of the Police Act police officers may use physical force, including combat methods, to prevent criminal and administrative offences, to arrest individuals who have committed such offences, to overcome resistance to lawful orders, or if non-violent methods do not ensure compliance with responsibilities entrusted to the police. 24. Sections 14 and 15 of the Police Act lay down an exhaustive list of cases when special means, including handcuffs, and firearms may be used. In particular, handcuffs may only be used to overcome resistance offered to a police officer, to arrest an individual caught when he is committing a criminal offence against life, health or property and if he is attempting to escape, and to bring arrestees to police stations, to transport and protect them if their behaviour allows the conclusion that they are liable to escape, cause damage to themselves or other individuals or offer resistance to police officers. | 1 |
dev | 001-127221 | ENG | UKR | CHAMBER | 2,013 | CASE OF BAKLANOV v. UKRAINE | 3 | Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection not necessary to examine (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 7. The applicant was born in 1985 and lives in Gorlivka in the Donetsk region. 8. On 7 May 2003 the applicant was found fit for mandatory military service and was drafted into the army. He was willing to perform his military service and had no psychiatric or psychological concerns. Nor had he previously experienced any mental disorders. 9. After a brief period in a training camp, the applicant was assigned to Military Unit А0246, subsequently renamed Т0120 (hereinafter referred to as MU1). According to the applicant, he was regularly subjected to bullying and ill-treatment by senior officers in that unit. One such incident allegedly took place in February 2004 (see paragraph 23 below). 10. On 23 February 2004 the applicant was transferred to Military Unit А0730, subsequently renamed Т0310 (hereinafter referred to as MU2). He immediately attracted the attention of the commanding officers and medical staff by what they perceived as inadequate behaviour. That is, he appeared very sensitive, was not willing to communicate with fellow servicemen and expressed thoughts that could be interpreted as indicating suicidal tendencies. As a result, on the day of his arrival, the applicant was placed in the medical station, where he was kept for ten days. According to the authorities, the purpose of that measure was to monitor the applicant’s behaviour to see whether it gave rise to doubts about his fitness for continuing with his military service. The military officials also referred to the necessity to isolate the applicant from other soldiers on account of his psychological condition. According to the applicant, who did not deny the above account of his mental state, the real purpose of his placement in the medical station was to allow time for some bruises which he had to fade. 11. The case file does not contain the applicant’s medical file for the period from 23 February to 2 March 2004. According to the Government, those documents were probably destroyed or lost during the reorganisation of the military unit in September 2004 (see paragraph 15 below). 12. On 2 March 2004 the applicant was taken to the psychiatric department of the hospital of Military Unit A4615 (hereinafter referred to as MU3) for an examination and treatment. 13. On 1 April 2004 a medical panel at MU3 examined the applicant with a view to establishing whether he was fit for further military service. It noted in its report that the applicant complained of irritability, mood swings and headaches, the intolerable nature of the army atmosphere, and being homesick. The panel further noted that he had initially been willing to serve in the army and had had no prior psychiatric problems. However, during military service his health had gradually deteriorated. The applicant had been characterised by his fellow servicemen as unsociable, slow, untidy, short-tempered and suicidal. During his conversation with the doctors he appeared sad and emotionally fragile, sometimes tearful. The panel diagnosed him with moderate neuroticism expressed over a protracted period of time following situational triggers. It stated that his illness was related to his military service. The panel reached the conclusion that the applicant was not fit for further military service in peacetime and partially fit for service in wartime. He was also found to require a carer. 14. On 19 April 2004 the applicant was discharged from the military hospital and from the army. 15. In September 2004, as part of the reorganisation of the Armed Forces of Ukraine, the control of MU2 was transferred from the Ministry of the Defence to the Ministry of Public Transport. 16. On 7 July 2005 the Donetsk Regional Psychiatric Expert Commission of the Public Health Ministry (“the Psychiatric Commission”) registered the applicant as “Category 2” disabled on account of his mental condition, finding that he had lost eighty per cent of his capacity to work. 17. The applicant was granted a disability pension in the amount of 310 Ukrainian hryvnias (UAH) per month (then the equivalent of about fifty euros). 18. On 21 February 2007 the Gorlivka Psychoneurological Hospital issued a note, at the applicant’s request, detailing his medication needs and their costs. It specified that he required, on a regular basis, antipsychotic drugs, antidepressants and nootropics amounting to UAH 580 per month, as well as some treatment which cost UAH 3,530 per year. 19. By decisions of 22 August 2007, 26 August 2008 and 7 September 2010, the Psychiatric Commission confirmed that the applicant was “Category 2” disabled on account of “an illness related to his performance of military service”. On the last-mentioned date it decided that his disability was permanent and that no future reassessments were required. 20. In February 2006 the applicant’s mother complained to the President of Ukraine, and apparently to some other authorities, that the applicant had been subjected to bullying and beatings during his military service at MU2 (she probably meant MU1 – see paragraph 22 below). 21. On 17 March 2006 the Military Prosecutor of the Dnipropetrovsk Garrison (hereafter referred to as “the Dnipropetrovsk Military Prosecutor”), to whom the aforementioned complaint had been forwarded, refused to institute criminal proceedings. He relied on the statements by the Chiefs of Staff of MU1 and MU2 and the squadron commanders in those two units, who denied that the applicant had been ill-treated or bullied, or that they had received any complaints from him in that regard. The prosecutor also questioned the chief of the medical station in MU2, who stated that the applicant had displayed “inadequate” behaviour, but had had no injuries and had not complained of any ill-treatment. After ten days of monitoring by the medical station’s doctors, it had been decided to transfer the applicant to MU3 for further examination, as that unit had a specialised psychiatric department in its hospital. Lastly, the prosecutor relied on the findings of the medical report of 1 April 2004, according to which the applicant had not raised any allegations of ill-treatment or bullying at that stage. Nor had his medical examination discovered any injuries. In sum, the prosecutor concluded that there was no case to answer. 22. On an unspecified date, the Southern Region Military Prosecutor quashed the aforementioned decision and ordered an additional investigation. 23. On 8 April 2006 the applicant gave a written statement to the Military Prosecutor of the Donetsk Garrison (near his place of residence) in respect of his alleged ill-treatment in the army. He submitted that from the autumn of 2003 he had been bullied by senior soldiers in MU1, who had extorted his military allowance and had used every possible pretext for beating him – such as allegedly inadequate cleaning or failure to accomplish a task. The applicant noted that there had been only one other junior soldier in the military unit, apart from himself, S. According to the applicant, they had often discussed their impressions of military service and had discussed the bullying incidents. The applicant admitted that he had not complained to his commanding officers, fearing that it would be considered ‘squealing’ and would trigger reprisals. Nor had he mentioned the matter to his parents, not wanting to upset them. The applicant stated that the last time he had been beaten up was by two officers, V. and another one whose name he did not know, in February 2004. On the following day he had not felt well and had sought medical assistance, explaining to the doctor what had happened. According to the applicant, the actual purpose of his placement in the medical station was to allow time for his bruises to fade. At the same time, he specified that he had not been ill-treated in MU2, where he was transferred shortly before his discharge from the army. 24. In response to a question about the delay of two years in raising the complaint of ill-treatment, the applicant submitted that he had been ashamed of his discharge from the army and that he had hoped to stay strong and to still be able to complete his military service. He stated that he had not realised how serious his condition was. The constant deterioration of his health had prompted him to complain to the prosecuting authorities. 25. As to the denial by the doctors of any injuries on the applicant at the material time, he contended that they had lied. 26. The applicant further noted in his statement to the prosecutor that his memory had seriously deteriorated. He could not remember the date of the beginning of his military service. Nor was he able to give details as to his alleged bullying prior to the last incident in February 2004. The applicant explained that he remembered clearly only the said incident, because it had been the last one and because he had been hospitalised thereafter. 27. On 28 February 2007 the applicant sent a letter to the Dnipropetrovsk Military Prosecutor, by registered post, requesting a copy of the decision refusing to open a criminal case into his alleged ill-treatment in the army (which appears to be that of 17 March 2006 – see paragraph 21 above). According to him, he received no reply. 28. On 21 March 2007 the applicant challenged the Dnipropetrovsk Military Prosecutor’s decision of 17 March 2006 before the Southern Region Military Prosecutor. He complained, in particular, that certain important witnesses had not been examined, namely S. and V. (see paragraph 23 above). 29. On 20 April 2007 the Southern Region Military Prosecutor informed the applicant by a letter that the contested decision had already been quashed in the meantime. The applicant confirmed in his submissions to the Court that he had received the letter. 30. On 4 June 2007 the Dnipropetrovsk Military Prosecutor again refused to institute criminal proceedings against officials of MU1 and MU2, having discerned no corpus delicti in their actions. In addition to the reasoning given in the decision of 17 March 2006, the prosecutor referred to the applicant’s statements of 8 April 2006 (see paragraph 23 above). Further, the investigation had established that S., whom the applicant had mentioned in his submissions, had only served at MU1 until 31 October 2003, after which he had been transferred to another unit. S. was questioned and refuted the applicant’s allegations, as did officer V., whom the applicant had accused of ill-treating him. The prosecutor also took note of the fact that the applicant had never complained during his medical examinations of any ill-treatment or bullying. Nor had those examinations revealed any injuries on him. 31. According to the Government, on 5 June 2007 the above-mentioned decision was sent to the applicant’s mother. According to the applicant and his mother, they became aware of the decision only from the Government’s observations on the case in the proceedings before the Court. 32. On 15 February 2011 the Dnipropetrovsk Military Prosecutor destroyed 205 investigation files which had been opened in connection with various complaints dating from 2006 and 2007, as the time-limits for their storage had expired. The applicant’s case was among them. 33. On an unspecified date in 2006 the applicant’s mother enquired with the Ministry of Defence as to whether the applicant could use its medical facilities free of charge, given that he had become disabled during his mandatory military service. 34. On 28 March 2006 the Armed Forces Deputy Chief of General Staff replied in the negative. He explained that while the legislation provided for such privileges as free use of Ministry of Defence medical establishments, the applicant was not eligible because “[his] disability did not result from a wound, a contusion, maiming, or a disease related to the discharge of military service duties, but was caused by a disease related to the performance of his military service.” 35. On 28 February 2007 the applicant lodged an administrative claim against MU2 with the Kalyninskyy District Court of Gorlivka (“the Kalyninskyy Court”), seeking compensation for damage caused by his disability, which he claimed had resulted from his ill-treatment in the army. He claimed a lump sum of UAH 9,249 in compensation for lost income, a monthly disability allowance of UAH 320, and an additional monthly allowance of UAH 874 for his medical expenses. 36. On 20 February 2008 the Kalyninskyy Court rejected the applicant’s claim, finding that he had already received all payments he was entitled to. 37. On 24 April 2008 the Donetsk Administrative Court of Appeal upheld that judgment. It noted that the applicant was receiving a disability pension and that he had already received an insurance payment due to him (UAH 6,800). 38. On 14 July 2011 the Higher Administrative Court upheld the lower courts’ decisions. 39. The relevant provisions of the Constitution read as follows: “The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as having the highest social value. ...” “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...” 40. According to section 11 of the Armed Forces Act 1991, the activities of the armed forces shall be based, in particular, on the principles of the rule of law, lawfulness, respect for humanity, and respect for the individual and his or her constitutional rights and freedoms. 41. In her Report 2004, the Parliament of Ukraine’s Commissioner for Human Rights dedicated a separate chapter to the issues of “respect for human rights in the armed forces of Ukraine and other military establishments”, in which she condemned the widespread phenomena of bullying and ill-treatment in the army. | 0 |
dev | 001-57775 | ENG | GBR | CHAMBER | 1,992 | CASE OF EDWARDS v. THE UNITED KINGDOM | 3 | No violation of Art. 6;Not necessary to examine Art. 13 | C. Russo;John Freeland | 6. On 9 November 1984 the applicant was convicted at Sheffield Crown Court, inter alia, of one count of robbery and two counts of burglary. The jury’s decision was by a majority verdict of ten to two. He received a sentence of imprisonment of ten years for the robbery, and two sentences of eight years each for the burglary offences. All three sentences were to be served concurrently. The evidence against the applicant consisted of detailed oral admissions that he had allegedly made to the police concerning his involvement in the three offences. According to the police he was questioned on three separate occasions and contemporaneous notes were taken of his statements. However, he had declined to sign them. His defence during the trial was to maintain that these statements had been concocted by the police. He protested his innocence pointing out that he had not denied his numerous misdeeds in the past. The only witnesses called by the defence during the trial were the two police officers who had interviewed him. 7. Leave to appeal against the sentence but not the conviction was granted by a single judge of the Court of Appeal (Criminal Division) on 5 February 1985. On 21 May 1985 the substantive appeal against sentence was dismissed by the full court. 8. The victim of the robbery (Miss Sizer) which took place on 14 April 1984 was a lady of 82 years of age who was awakened from her sleep to find a man standing over her. Before having her hands tied behind her back and being blindfolded she was able to take a quick glance at him. She remained tied up until she was freed the next morning. In a statement to the police she gave a description of the man which corresponded with the applicant and stated that she thought she would recognise him again. She was not called as a witness during the trial but her written statement was read to the jury. The two counts of burglary related to separate incidents which occurred on 19 April and 10 June 1984 also involving the home of an elderly woman. On the latter occasion the police arrested the applicant’s co-defendant in the vicinity. It was his statement to the police which led to the applicant’s arrest. 9. On 16 May 1985, the applicant petitioned the Secretary of State for the Home Department with complaints against police officers who had investigated his case and given evidence at his trial. An independent police investigation was ordered in the course of which certain facts came to the applicant’s attention (see paragraphs 11-13 below). On 3 December 1985, the applicant applied for leave to appeal against conviction out of time. The police report (the Carmichael report), dated 5 December 1985, was delivered to the Police Complaints Authority which directed it to the Director of Public Prosecutions. The report was requested by the applicant’s advisers but its disclosure was refused on the grounds of public interest immunity. In February 1986, the Director of Public Prosecutions decided that there was insufficient evidence to support criminal charges against the police officers, but recommended that disciplinary charges be brought against three police officers. At the disciplinary hearing, on 13 to 15 June 1988, the tribunal decided that there was no case to answer and dismissed the charges. 10. On 21 March 1986, the Secretary of State for the Home Department referred the applicant’s case to the Court of Appeal (Criminal Division) under section 17 (1)(a) of the Criminal Appeal Act 1968 ("the 1968 Act"; see paragraphs 19 and 20 below). The reference was heard on 18 July 1986 and judgment delivered on the same date. 11. The applicant submitted to the Court of Appeal that the verdict should be set aside as unsafe and unsatisfactory because of certain shortcomings in the prosecution case, in particular, that certain information had been withheld by the police. At the trial one of the police witnesses had stated under cross-examination that no fingerprints were found at the scene of the crime. In fact two fingerprints had been found which later turned out to be those of the next door neighbour who was a regular visitor to the house. The applicant had not been informed of this by the prosecution before his trial. It was argued by the applicant that the police officer had told lies and that his veracity as regards the admission statements was thus called into question. The Court of Appeal rejected this submission as follows: "We do not accept that interpretation of Detective Sergeant Hoyland’s evidence. We think quite plainly what he was indicating there and intended to indicate was that no fingerprints relating to either of the two alleged burglars were discovered at the scene: neither the fingerprint of Rose nor the fingerprint of Edwards, the present appellant. We do not think, had the matter been carried further, it would have been demonstrated that Hoyland was a person who to that extent could not be believed on his own." 12. A further shortcoming complained of by the applicant related to the fact that the police had shown two volumes of photographs of possible burglars (including a photograph of the applicant) to the elderly victim of the robbery who said that she had caught a fleeting glimpse of the burglar. Her statement, read to the jury, said that she thought she would be able to recognise her assailant. Yet she did not pick out the applicant from the photographs. This fact was not, however, mentioned by one of the police witnesses who had made a written statement which was read out to the jury and had not been indicated to the applicant before or during his trial. Counsel for the applicant submitted to the Court of Appeal that this omission cast such doubt on the evidence of the prosecution that it might have led the jury to believe that the confession statements had indeed been "manufactured" by the police as the applicant alleged. The Court of Appeal also rejected this argument: "The fact that Miss Sizer had a fleeting glimpse of her assailant, and the fact that such identification as she did make was largely directed to other matters of identification rather than his features, leads us to believe that the jury would not have been influenced to act other than they did if they had the full story of the photographs and of Police Constable Esdon’s activities with regard to that." 13. The Court of Appeal examined other impugned shortcomings which it did not consider to cast any doubt on the verdict. It was of the opinion that, even if these matters had been investigated, it would have made no difference to the outcome. 14. The court concluded as follows: "It is clear that there was some slipshod police work in the present case, no doubt because they took the view that here was a man who had admitted these crimes fully, and consequently there was very little need for them to indulge in a further verification of whether what he said was true. Although this is a matter which perhaps casts the police in a somewhat lazy or idle light, we do not think in the circumstances there was anything unsafe or unsatisfactory in the end about these convictions. Consequently, treating this matter as we have to according to section 17 of the Act, we think this appeal fails and must be dismissed." 15. Counsel for the applicant did not request the Court of Appeal to exercise its discretionary power to rehear evidence under section 23 of the 1968 Act (see paragraph 23 below) with a view, for example, to cross-examining the police officers who gave evidence at the applicant’s trial. He considered that there was little prospect of such a request being granted. Nor did he request the court to order the production of the Carmichael report (see paragraph 9 above). 16. The applicant took advice concerning the possibility of appealing to the House of Lords but was informed, in an opinion of counsel dated 8 September 1986, that there were no grounds on which an appeal could successfully be pursued before the House of Lords. He petitioned the Secretary of State for the Home Department on 3 June 1987 without success. He is currently serving a sentence of two years’ imprisonment following his conviction on 26 March 1992 at Sheffield Crown Court on three counts of burglary. 17. Under the Attorney General’s Guidelines issued in December 1981, the prosecution is obliged (subject to specified discretionary exceptions) to disclose to the defence "unused material", which includes all witness statements not enclosed in the bundle of statements served on the defence at the stage of committal of the case by the Magistrates’ Court to the Crown Court. The prosecution is also under a duty to inform the defence of any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial (R. v. Clarke [1930] 22 Criminal Appeal Reports 58). Consequently where evidence of a prosecution witness is given before the court stating that the witness would recognise the accused again, and the prosecution knows that when shown a photograph of the accused the witness in fact failed to identify him, it is required to inform the defence of that fact. For the purpose, among others, of ensuring compliance with this duty, the Court of Appeal has stated that all the statements which have been taken by the police should be put before counsel for the Crown, and that it should not be left to the police to decide which statements he is to receive (R. v. Fellowes, 12 July 1985). 18. A jury’s verdict may be either unanimous or by a majority. It must be unanimous unless the trial judge, in accordance with section 17 of the Juries Act 1974, has directed, after at least two hours of unsuccessful jury deliberations, that a majority verdict will be accepted. A majority verdict will be effective if, where there are not less than eleven jurors, ten of them agree on the verdict, or, where there are ten jurors, nine of them agree. If the jury do not agree on either a unanimous or majority verdict, they may, at the discretion of the trial judge, be discharged, but such a discharge does not amount to acquittal and the accused may be tried again by a second jury. In the event of a second jury disagreeing, it is common practice for the prosecution formally to offer no evidence. 19. Section 17(1)(a) of the 1968 Act provides as follows: "Where a person has been convicted on indictment, or been tried on indictment ... the Secretary of State may, if he thinks fit, at any time either: (a) refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court by that person; ..." 20. The scope of the Court of Appeal’s powers is set out in section 2 of the 1968 Act which provides: "(1) Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think: (a) that the conviction should be set aside on the unsafe or unsatisfactory; (b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or (c) that there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal. Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred. (2) In the case of an appeal against conviction the Court shall, if they allow the appeal, quash the conviction. (3) An order of the Court of Appeal quashing a conviction shall, except when under section 7 below the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal." Section 7 of the 1968 Act enabled the Court of Appeal to order a retrial only where the conviction was quashed by reason of evidence received or available to be received under section 23 of the Act. In relation to appeals subsequent to 31 July 1989, section 7 has been amended to confer on the Court of Appeal a broader basis to order a retrial. 21. Section 23 of the 1968 Act provides, inter alia, as follows: "(1) For purposes of this part of the Act, the Court of Appeal may, if they think it necessary or expedient in the interests of justice - (a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case; (b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and (c) ... (2) Without prejudice to subsection (1) above, where evidence is tendered to the Court of Appeal thereunder the Court shall, unless they are satisfied that the evidence, if received, would not afford ground for allowing the appeal, exercise their power of receiving it if - (a) it appears to them that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (b) they are satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it. (3) ..." It falls to the court to determine, if necessary, claims by the Crown that documents should not be disclosed on the grounds of public interest immunity (see, inter alia, R. v. Judith Ward, judgment of the Court of Appeal (Criminal Division) of 8 June 1992). 22. The approach to be adopted by the Court of Appeal when considering under section 2(1)(a) of the 1968 Act whether a trial verdict was unsafe or unsatisfactory was discussed by the Appellate Committee of the House of Lords in the context of a section 17 reference in Stafford v. Director of Public Prosecutions [1974] Appeal Cases 878. Viscount Dilhorne, with whom the other members of the Appellate Committee agreed, stated: "I do not suggest that in determining whether a verdict is unsafe or unsatisfactory, it is a wrong approach for the court to pose the question - ‘Might this new evidence have led to the jury returning a verdict of not guilty?’ If the court thinks that it would or might, the court will no doubt conclude that the verdict was unsafe or unsatisfactory ... It would, in my opinion, be wrong for the court to say: ‘In our view this evidence does not give rise to any reasonable doubt about the guilt of the accused. We do not ourselves consider that an unsafe or unsatisfactory verdict was returned but as the jury who heard the case might conceivably have taken a different view from ours, we quash the conviction’ for Parliament has, in terms, said that the court should only quash a conviction if, there being no error of law or material irregularity at the trial, ‘they think’ the verdict was unsafe or unsatisfactory. They have to decide and Parliament has not required them or given them power to quash a verdict if they think that a jury might conceivably reach a different conclusion from that to which they have come. If the court has no reasonable doubt about the verdict, it follows that the court does not think that the jury could have one; and, conversely, if the court says that a jury might in the light of the new evidence have a reasonable doubt, that means that the court has a reasonable doubt." 23. The Court of Appeal has held that the powers under section 23 of the 1968 Act extend to rehearing evidence which has already been given at the trial, if this is necessary or expedient in the interests of justice. The court has also held that it has a general power under section 23 (1) to admit further evidence, not restricted to the circumstances set out in section 23 (2) (R. v. Lattimore and others [1976] 62 Criminal Appeal Reports 53). However it is unusual for the Court of Appeal to exercise that power since it is reluctant to substitute its own findings of fact for those of the jury which has already seen and heard the relevant witness. In practice, the exercise of the power to receive evidence is thus mainly confined to fresh evidence which has arisen since the trial and which the jury did not have the benefit of hearing. No statistics are available on the frequency with which the power to rehear evidence is exercised. 24. In March 1991 the Secretary of State for the Home Department announced the appointment of a Royal Commission on Criminal Justice which is expected to consider, inter alia, the general application of the 1968 Act. | 0 |
dev | 001-99992 | ENG | SWE | CHAMBER | 2,010 | CASE OF N. v. SWEDEN | 3 | Violation of Art. 3 (in case of expulsion to Afghanistan) | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall | 6. The applicant was born in 1970 and lives in Fagersta. 7. On 13 August 2004 the applicant and her husband, X, arrived in Sweden and on 16 August 2004 they applied to the Migration Board (Migrationsverket) for asylum and residence permits. The applicant was interviewed on 4 October 2004 and 8 March 2005. She had no identity papers and could not prove her identity. She stated that she was born and grew up in Kabul, where her parents, one of her two brothers, an aunt and an uncle resided. Her other brother had left Afghanistan a long time ago. She also had an uncle in Mazar-e-Sharif. The applicant had attended school for twelve years in Kabul and had studied at the university. 8. The applicant and her spouse also submitted that they had been persecuted since 1996 because X had been a politically active member of the communist party, leading to his arrest on two occasions. Following his second release they had moved to Kabul, but they alleged that some fundamentalists had come looking for X there as well with the intention of killing him. The applicant submitted that she also had shown her political stance by acting as a teacher for women, which was not accepted by parts of the leading elite in Kabul. Therefore, they had fled the country. When they had left their home, they had stayed with her uncle in Mazar-e-Sharif and the latter had helped them finance their journey to Sweden by paying a smuggler 24,000 US Dollars. Lastly, X invoked his poor mental health, stating that he was suffering from anxiety, sleeplessness and aggressive behaviour. 9. On 29 March 2005 the Migration Board rejected the couple's application. It first noted that the security situation in Afghanistan varied between different parts of the country but that it was better in Kabul than in other parts of the country. The Board then considered that X had given vague information about his activities and had failed to demonstrate that he had held a prominent or leading position within the communist party. Hence, it questioned the claim that his life would be endangered because of his membership of that party. The Board therefore found that neither X nor the applicant had shown that they had been persecuted in Afghanistan or that they would risk persecution upon return. Thus, even having regard to X's poor mental health, the Board found that there were no grounds on which to grant them leave to remain in Sweden. 10. The applicant and her husband appealed against the decision to the then Aliens Appeal Board, which subsequently transmitted the case to the Migration Court (Migrationsdomstolen). The applicant maintained her claims and added that the threats against her and X stemmed from X's previous political activities and from her activities in educating women and that the authorities had not been able to protect them, not even in Kabul. The applicant further submitted that she had separated from X in June 2005, lived alone and intended to obtain a divorce although X opposed it. Due to this, she had been criticised by some of X's friends, been called a “bad woman” and some other Afghans had spread untrue rumours about her. By separating from X, she had broken with Afghan traditions which meant that she risked serious persecution if forced to return to her home country. In this respect, she pointed out that she would not be able to obtain a divorce in Afghanistan and that by trying to obtain a divorce in Sweden she had dishonoured both her own and X's family. Consequently, her own family had disowned her and she would risk reprisals from X's family. It would also be impossible for her to find work and, since she and X had no children, she would be a social outcast. She further mentioned that the punishment for adultery in Afghanistan was stoning. Lastly, she stated that she suffered from psychological problems and was in need of treatment in Sweden. 11. The Migration Board contested the appeal and submitted, inter alia, that X had stated that his father had held a higher position than him in the party but that he had not been threatened. It further claimed that, having regard to X's poor mental health, it should be possible for the applicant to obtain a divorce. Moreover, it appeared that X would agree to a divorce. Lastly, it did not question that the applicant's family was dissatisfied with her decision to separate from her husband but it had not been shown that they had disowned her. 12. On 19 March 2007, after holding an oral hearing, the Migration Court rejected the appeal. It first considered that it had not been shown that X, on account of his previous political activities, would be of interest to any resistance groups in Afghanistan. It then observed that quite some time had passed since the applicant had taught women in her home country. Moreover, the court noted that the previous Taliban ban on education for women had been replaced by affirmative action for women and that the constitution stated that the State should actively support women's education. Therefore, the court found that the applicant had not demonstrated that she had a well-founded fear of persecution because of her previous work as a women's teacher. As concerned the applicant's personal life, the court observed that she had not formally divorced X although they had separated. In its view, nothing had appeared in the case which showed that the applicant faced a concrete and individual risk of persecution for having broken with Afghan traditions. It further noted that the applicant had stated that she had not had an extramarital affair, for which reason there was no risk that she would be convicted of adultery and sentenced to death. In this respect, the court considered that the applicant had not shown that the alleged rumours about her had come to the knowledge of the Afghan authorities. Turning to her claim that she would lack a social network in Afghanistan, the court found that the applicant had not demonstrated that her family in Afghanistan had rejected her and, hence, she had a social network there. It further took into account that she was well-educated and thus concluded that she had failed to show that she would face a real risk of being persecuted or subjected to inhuman or degrading treatment or punishment. Therefore, and since the court did not find that any of the other reasons submitted by the applicant were sufficient to grant her exceptional leave to remain, the appeal was rejected. 13. The minority of the court wanted to grant the applicant leave to remain in Sweden on the ground that, since she did not have any children and had separated from her husband, she had shown that she would risk degrading treatment upon return to her home country. 14. The applicant appealed against the judgment to the Migration Court of Appeal (Migrationsöverdomstolen) which, on 4 September 2007, refused leave to appeal. This decision was final and the applicant's deportation order thus became enforceable. 15. On 27 October 2007 invoking new circumstances, the applicant lodged an application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board. 16. On 28 January 2008 the applicant lodged a new application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board. 17. In February 2008 the applicant petitioned the District Court (tingsrätten) of Västmanland for a divorce from X. The latter informed the District Court on 17 July 2008 that he opposed a divorce. The applicant submitted that she had separated from her husband in 2005 and only seen him once since then. Moreover, she intended to invoke the divorce as one of the grounds to stop her deportation. 18. In a decision of 19 November 2008, the court dismissed her petition on the ground that it was not competent to dissolve her marriage since she did not have a legal right to reside in Sweden. 19. In the meantime, on 17 October 2008, the applicant requested the Migration Board to re-evaluate her case and stop her deportation. As grounds for her request, she claimed that the situation in Kabul had worsened considerably since the Migration Board's previous decision. She further alleged that she now had a well-founded fear of persecution upon return to Afghanistan since she had started a relationship with a Swedish man. Thus, she had committed adultery and risked the death penalty in Afghanistan. She had not been in touch with her family since the summer of 2005. 20. She also submitted a letter from the UNHCR Regional Office for the Baltic and Nordic Countries, dated 2 October 2008, which stated, inter alia, the following: “UNHCR's views on the protection needs of Afghan female asylum-seekers are fully set forth in the UNHCR's Eligibility Guidelines for Assessing the International Protection needs of Afghan Asylumseekers. ... In the context of Afghanistan, UNHCR would like to draw to your attention to the fact that an assessment of a refugee claim of an Afghan female asylum-seeker, should take into account the specifically vulnerable situation in which Afghan women are found, including pressure from within families, communities, and by the public to conform [to] behaviour in accordance with particular codes of behaviour. In this regard, a separation and/or divorce effected in the country of asylum, may indicate adoption of a Westernised way of life and be perceived as, or actually transgressing, prevailing social mores and thereby indicates a heightened risk of sur place persecution linked to the grounds of religion and/or political opinion under the scope of Article 1 A (2) of the 1951 Refugee Convention. ... UNHCR notes that Afghan female asylum-seekers' reliance for relative social, cultural and economic freedom is exclusively dependent on the existence of male protection (husband, father, brother or extended family member) and that lack of such networks may seriously undermine a returnee's personal physical, economic and emotional security.” 21. On 24 October 2008 the Migration Board refused to reconsider the applicant's case as she had failed to invoke any new circumstances of importance. It considered that the applicant had only developed and clarified those grounds which had already been examined by it and the migration courts. The Board also found that there were no impediments to the enforcement of the deportation order. 22. The applicant appealed against the decision to the Migration Court, maintaining the grounds invoked before the Board and insisting that these were new circumstances of importance. On 4 December 2008 the court rejected the appeal, upholding the Board's decision and reasoning in full. 23. On 21 January 2009 the Migration Court of Appeal refused leave to Appeal and, on 17 February 2009, the case was transferred to the Police Authority to enforce the deportation order. 24. Finally, on 17 April 2009 the applicant lodged a third application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board. 25. On 28 April 2009 the applicant lodged the case with the Court and on 11 May 2009 the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice 26. In her observations of 4 November 2009 the applicant submitted that already before leaving Afghanistan, she had told her mother about her problems with her husband. In October 2005 the applicant had called home and told her mother that she and her husband had separated. The mother had become very upset and said that it was totally wrong and that the applicant should go back to her husband. She had then talked to her father who became furious and shouted that she brought dishonour to the family. The conversation had ended because the applicant ran out of money on her telephone card. The father had called her back the following day to try to persuade her to change her mind and talked about honour, shame and her disgracing the family. In the end he had shouted that she was go back to her husband or the family would not have anything more to do with her. She was no longer his daughter. After the conversation, the applicant had called her uncles in Kabul and Mazar-e Sharif to have their support but they had both repeated the words of her father. That had been the last conversation between the applicant and her relatives. 27. With the applicant's observations of 4 November 2009 she also enclosed a letter of 31 October 2009 “to whom it may concern” by a named Swedish man who confirmed having a relationship with the applicant. He stated, inter alia, that they had met for the first time in the autumn of 2007, that their relationship had started in February 2008 and that they had been living together in his apartment since April 2009. 28. In reply the Government observed on 15 January 2010 that the facts now presented by the applicant in her observations were never submitted to the Swedish authorities in spite of the fact that these could be considered relevant to her claim for asylum. Notably, regarding the claim that the applicant and the said Swedish man have been living together since April 2009, the Government noted that the applicant has still not changed her registered mail address in Fagersta although her new residence is apparently far away. 29. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. 30. Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act). 31. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act). 32. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act). 33. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist. 34. In so far as relevant, the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers of July 2009, which replaced the previous Guidelines from December 2007, set out the following: In view of the serious and widespread human rights violations and ongoing armed conflict in many parts of the country, UNHCR considers that a significant number of Afghan asylum seekers are in need of international protection. Applications by Afghan asylum-seekers should be determined on an individual basis, according to fair and efficient refugee status determination procedures, including the right of appeal. Favourable consideration should be given to the specific groups identified in these Guidelines, including, but not limited to (i) persons perceived as contravening Sharia law and members of minority religious groups; (ii) ethnic minority groups; (iii) persons associated with or perceived as supporting the Government, including civil society members; (iv) actual or perceived supporters of armed anti-Government groups; (v) journalists; (vi) persons associated with the People's Democratic Party of Afghanistan or other left-aligned political parties; (vii) women; (viii) children; and (ix) persons at risk of becoming victims of blood feuds. UNHCR further considers that an internal flight or relocation alternative (IFA/IRA) is not available within certain parts of Afghanistan due to a number of factors. If, however, the availability of an IFA/IRA must be assessed as a requirement in a national eligibility procedure, it should be examined carefully and on a case-by-case basis, in light of the requisite relevance and reasonableness analyses, taking into account the individual circumstance of the case, and bearing in mind the cautions in these Guidelines. Even in those exceptional cases where relocation to an accessible area might be considered as viable to eliminate the existing threat, such area can only be a reasonable alternative in cases where the claimant has strong family, social or tribal links in the area of displacement, permitting relocation without undue economic and social hardship. ... (g) Women Women are at particular risk of ill-treatment if perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system. Ill-treatment occurs in a variety of forms and may be inflicted by several actors, including family members. Such treatment includes domestic violence, excessive custodial sentences and degrading and inhuman treatment. While there is a limited number of women holding public office, women's rights continue to be curtailed, restricted and systematically violated. In April 2009, for instance, a Shiite Personal Status Law was passed by Parliament and signed by President Karzai. The law requires, inter alia, women to comply with their husbands' sexual requests, and to obtain permission to leave the home, except in emergencies. The code has yet to be implemented and is currently under review as a result of international pressure. Cases of physical violence perpetrated against women and girls in Afghanistan have increased by about 40% in the period from March 2007 to March 2008. Existing figures indicate that currently up to 80% of Afghan women are affected by domestic violence. Human rights organizations report an overall increase of cases of self-immolation and other forms of suicide. The phenomenon of female self-immolation is commonly linked to the pervasive societal discrimination against women. Survivors of sexual violence generally lack basic support mechanisms such as trauma counselling and medical treatment, as well as judicial capacity for forensics analysis. The social stigma attached to the reporting of gender-based violence in Afghanistan often prevents victims from seeking physical or psychological treatment. Afghan women, who have adopted a less culturally conservative lifestyle, such as those returning from exile in Iran or Europe, continue to be perceived as transgressing entrenched social and religious norms and may, as a result, be subjected to domestic violence and other forms of punishment ranging from isolation and stigmatization to honour crimes for those accused of bringing shame to their families, communities or tribes. Actual or perceived transgressions of the social behavioural code include not only social behaviour in the context of a family or a community, but also sexual orientation, the pursuit of a professional career, and mere disagreements as to the way family life is conducted. Unaccompanied women or women lacking a male “tutor” (mahram) continued to face limitations on conducting a normal social life. They include divorced women, unmarried women who are not virgins, and women whose engagements to be married have been broken. Unless they marry, which is very difficult given the social stigma associated with these women, social rejection and discrimination continue to be the norm. Many Afghan women are prevented from leaving the family compound without a burqa and a male companion, who has to be a husband or a close relative. Women without male support and protection generally lack the means of survival, given the social restrictions on women living alone, including the limitations on their freedom of movement. This is reflected in the absence of solutions available to the few women able to access domestic violence shelters. Unable to live independently, they face years of quasi-detention, prompting many to return to abusive family situations. The results of such “reconciliation” are generally not monitored and abuse or honour crimes committed upon return are often done with impunity. Forced and child marriages continue to be widely practiced in Afghanistan, and can occur in a variety of forms. Statistics show that nearly 60% of girls in Afghanistan are married before they reach 16 years old. Most marriages continued to be arranged by families. However, more coerced forms include 'sale' marriage, that is, girls sold for a fixed quantity of goods, cash or simply to settle a family debt; bad dadan, a tribal form of dispute-settling in which the offending family offers one girl for marriage into the wronged family, for instance to settle a blood debt; and badal, when two families exchange their daughters in an attempt to minimize marriage costs. Furthermore, women's rights activists face threats and intimidation, particularly if outspoken about women's rights, the role of Islam or the behaviour of commanders. In areas under the control of armed anti-Government groups, there are growing indications that women face systematic societal discrimination. For example, a significant number of female medical graduates is systematically refusing to work in rural areas, due to the fear of being targeted by insurgents. These developments affect women's access to health in a disproportionate way. Access to education for girls is also severely curtailed. According to the Ministry of Education and aid agencies over five million school-age children (three million of them girls) have been deprived of education as a consequence of conservative customs, poverty, lack of education facilities and a culture of gender discrimination. The deterioration of the security situation has also had a detrimental effect on education. Armed anti-Government groups have continued their systematic attacks on schools, teachers, pupils (particularly schoolgirls) and parents. According to the Afghan Ministry of Education (MoE), more than 600 primary, secondary and high schools closed due to such attacks. Up to 80% of schools are closed in the four southern provinces of Helmand, Kandahar, Zabul and Urozgan, with Helmand Province having only 54 schools, primarily for boys, functioning, compared to 223 schools open in 2002. Consequently, between 230,000 to 300,000 students have been deprived of an education in 12 provinces, according to MoE officials. Girls' schools are increasingly a target of attacks. Some 50% of security incidents at schools across the country were specifically directed against girls' schools despite the fact that they represent only 14.8% of the total number of primary, secondary and high schools in the country. Furthermore, female teachers are specifically targeted and higher bounties are offered for killing them. In November 2008, in a widely reported attack in Kandahar, 12 students and four teachers, all female, were sprayed with acid and suffered severe injuries. Given the pervasive societal discrimination and the widespread sexual and gender based violence, Afghan women and girls, particularly those living in areas affected by the armed conflict or under the de facto control of armed anti-Government groups, may be at risk of persecution depending on their individual profile and circumstances. Failure to conform to conventional roles or transgression of social and religious norms may expose women and girls to violence, harassment or discrimination in Afghanistan. As such, women with particular profiles, including, but not limited to victims of domestic violence or other serious forms of violence, unaccompanied women or single heads of household, women with visible social or professional roles, such as journalists, human rights activists and community workers, may be at risk of persecution on the ground of membership of a particular social group. Where non-conformity with traditional roles is perceived as opposing traditional power structures, the risk of persecution may be linked to the ground of religion and/or political opinion. Furthermore, measures which restrict one's ability to earn a living so that survival is threatened, or severe limitations to accessing education or health services, may also amount to persecution. 35. The US State Department Human Rights Report on Afghanistan for 2008, published on 25 February 2009 stated, inter alia: Women The law criminalizes rape, which is punishable by death, but under Shari'a, which the country's laws draw from and cannot conflict, the criminalization did not extend to spousal rape. Under Shari'a, a rape case requires a woman to produce multiple witnesses to the incident, while the man need simply claim it was consensual sex, often leading to an adultery conviction of the victim. Adultery is defined in the Penal Code and designated a crime; premarital sex is not designated a crime, but local officials often considered it a "moral" offense. While the MOI reported 226 cases of rape during the year; however, the actual number of cases generally was believed to be much higher. Of the reported cases, 28 were charges of rape against females and 198 were of rape against males. The MOI reported 172 arrests in connection with rape cases. Statistics on convictions were unavailable. Rapes were difficult to document due to social stigma. Female victims faced stringent societal reprisal from being deemed unfit for marriage to being imprisoned. According to NGOs jail authorities frequently raped women imprisoned overnight in jail. The Afghan penal code criminalizes assault, and courts entered judgments against domestic abusers under this provision. According to NGO reports, hundreds of thousands of women continued to suffer abuse at the hands of their husbands, fathers, brothers, armed individuals, parallel legal systems, and institutions of state such as the police and justice system. Many elements of society tolerated and practiced violence against women. A Kabul women's shelter reported receiving 50 new cases of domestic violence victims a month from MOWA referrals. According to the shelter's report the weak economy and poor security contributed to the incidence of domestic violence. Authorities rarely prosecuted abusers and only occasionally investigated complaints of violent attacks, rape, or killings, or suicides of women. If cases came to court, the accused were often exonerated or punished lightly. The director of a women's shelter in Kabul noted domestic violence occurred in most homes but went largely unreported due to societal acceptance of the practice. Domestic violence usually consisted of beating women and children and, less often, burning women. During the year, the AIHRC initiated additional efforts to collect statistics on violence against women. There were at least 19 women's shelters across the country. The five shelters in Kabul were home to more than 100 women and girls. The Ministry of Women's Affairs (MOWA) and other agencies referred women to the centers, which were designed to give protection, accommodation, food, training, and healthcare to women escaping violence in the home or seeking legal support due to family feuds. According to the MOWA, as many as 20 women and girls were referred to the MOWA's legal department every day; however, space at the specialized shelters was limited. Women in need of shelter who could not find a place in the Kabul shelters often ended up in prison. The concept of women's shelters was not widely accepted in society, as many persons treated them with distrust and did not understand their utility. The director of one shelter stated she always referred to the location as a mediation centre, as "shelter" was considered a negative word. Policewomen trained to help victims of domestic violence complained they were instructed not to do outreach to victims but simply to wait for victims to show up at police stations. This significantly hindered their work, as reporting domestic violence was not socially accepted. UNAMA reported police leadership often did not provide female officers with equipment or vehicles necessary to do outside investigations. A Herat-based NGO, however, reported recently graduated women police officers there were active in crime investigation including investigating cases of domestic violence. During the year, a local NGO conducted four domestic violence trainings for 240 ANP officers in Kabul, including those working in ANP Family Response Units. The Family Response Units are staffed primarily by female police officers and address violence and crimes against women, children, and families. They offer mediation and resources to prevent future instances of domestic violence. Women continued to face pervasive human rights violations and remained largely uninformed about their rights under the law. Discrimination was more acute in rural areas and small villages. Women in urban areas continued to make strides toward greater access to public life, education, health care, and employment; however, the denial of educational opportunities during the continuing insurgency, as well as limited employment possibilities and the threat of violence, continued to impede the ability of many women to improve their situation. Societal discrimination against women persisted, including domestic abuse, rape, forced marriages, exchange of girls to settle disputes, kidnappings, and honour killings. In some rural areas, particularly in the south, women were forbidden to leave the home except in the company of a male relative ... According to a report released during the year by Womankind, 87% of women complained they were victims of violence, half of it sexual. According to the report, more than 60% of marriages were forced and, despite laws banning the practice, 57% of brides were under the legal marriage age of 16. The report stated many of these girls were offered as restitution for a crime or as debt settlement. Local officials occasionally imprisoned women at the request of family members for opposing the family's choice of a marriage partner or being charged with adultery or bigamy. Women also faced bigamy charges from husbands who had deserted them and then reappeared after the woman had remarried. Local officials imprisoned women in place of a family member who had committed a crime but could not be located. Some women resided in detention facilities because they had run away from home due to domestic violence or the prospect of forced marriage. Several girls between the ages of 17 and 21 remained detained in Pol-e-Charkhi prison having been captured after fleeing abusive forced marriages. The AIHRC documented a total of 76 honour killings throughout the year; however, the unreported number was believed to be much higher. In September, according to a local NGO, an 18 year-old woman in Kapisa Province was killed by her brother because she had run away from a forced marriage. Reportedly, after the woman ran away to a Kabul women's shelter the Governor of Kapisa intervened in the case, sheltered her, and forced the woman's mother to return her to Kapisa, resulting in her death. Women occasionally resorted to self-immolation when they felt there was no escape from their situations. During the year the AIHRC documented 72 cases of self-immolation, in contrast to 110 cases in 2007. Other organizations reported an overall increase during the past two years. According to the AIHRC, almost all the women had doused themselves with gasoline and set themselves alight. In Herat Province, during the first six months of the year, the Herat city hospital alone recorded 47 cases of self-immolation, of whom 40 died. There have also been reports of relatives setting women on fire to create the appearance of self-immolation ... There is no law specifically prohibiting sexual harassment. Women who reported cases of abuse or who sought legal redress for other matters reported pervasive discrimination within the judicial system. Local family and property law were not explicitly discriminatory toward women, but in parts of the country where courts were not functional or knowledge of the law was minimal, elders relied on Shari'a and tribal custom, which generally were discriminatory toward women. Most women reported limited access to justice in tribal shuras, where all presiding elders were men; women in some villages were not allowed any access for dispute resolution. Women's advocacy groups reported informal intervention from the government through letters to local courts encouraging interpretations of the law more favourable to women ... 36. The UK Home Office, Country of Origin Information Report on Afghanistan of 18 February 2009, states in paragraphs 23.27- 23.30 about divorce: Islamic Sharia and Constitution of the country have provided suitable rights for women and men, but practically and in some rules and practices of equality between men and women these rights are not ensured. Current legislation leaves women largely unprotected. A man can divorce his wife without due process. In the absence of officially enforced marriage and divorce registration women remain particularly open to abusive practices. A woman can remarry three months after divorce period (Edat). However, if challenged, she will have to provide witnesses to prove her divorce in court. The woman can initiate the divorce process if she has enough reasons to do so; accepted reasons among others include: her husband must be sick and it endangers her; her husband must fail to provide for the family; her husband must be absent for more than four years in the house or be sentenced for imprisonment of 10 years or more. In this case, the court will assign her mahr – divorce maintenance – and custody of girls until they reach their ninth birthday and boys until their seventh birthday.” (The Afghanistan Human Rights Commission report, December 2008). The Womankind report of February 2008 noted “Afghan civil law contains numerous provisions that protect women's human rights in the family, such as their right to divorce if they are being maltreated. While seldom enforced, existing law provides a basis from which to advocate for enforcement and education about women's human rights.” Further, “Women's choices regarding marriage and divorce remain circumscribed by custom and discriminatory laws...” (Freedom House, 2008) UNHCR's December 2007 paper concurred “Women remain deprived of basic civil rights, including in cases of divorce, custody and with regard to inheritance rights.” Womankind also recorded that “Stigma and shame surround divorced women...rendering them unmarriageable and subsequently, financially destitute. Polygamy is one of the few options available to divorced women, who have low social status but require a husband for financial dependence.” Also, “Women's economic dependence on male family members prevents them from seeking divorce or leaving abusive marriages.” An IRIN News article dated 16 July 2008 reported that “In Afghanistan sexual relations between a man and a woman outside marriage are considered a serious crime and offenders can face death penalty and/or a lengthy prison sentence, depending on their marital status and other circumstances...Every year hundreds of female sex workers are sent to prison for allegedly having 'unlawful sexual relationships', according to women's rights activists...” However, high food prices, drought, unemployment and lack of socio-economic opportunities are pushing some women and young girls in northern Afghanistan into commercial sex work, women's rights activists and several affected women told IRIN... 37. The Human Rights Watch, in its report “We Have the Promises of the World” of 6 December 2009, on women's rights in Afghanistan, details emblematic cases of ongoing rights violations in five areas: attacks on women in public life; violence against women; child and forced marriage; access to justice; and girls' access to secondary education. The summary set out, inter alia: Eight years after the fall of the Taliban, and the establishment of the Karzai government, Afghan women continue to be among the worst off in the world. Their situation is dismal in every area, including in health, education, employment, freedom from violence, equality before the law, and political participation ... The diminishing status of women's rights in Afghanistan came back into focus in March 2009 when the Shia Personal Status law, which was riddled with Taliban style misogyny, was passed by parliament and signed by President Hamid Karzai. The law regulates the personal affairs of Shia Muslims, including divorce, inheritance, and minimum age of marriage, but, as detailed below, severely restricts women's basic freedoms. ... the final outcome fell far short of expectations, apparently because President Karzai was intent on maintaining the electoral support of Shia fundamentalists. A month before the presidential election he issued by decree an amended version of the law which still includes articles that impose drastic restrictions upon Shia women, including the requirement that wives seek their husbands' permission before leaving home except for unspecified “reasonable legal reasons.” The law also gives child custody rights to fathers and grandfathers, not mothers or grandmothers, and allows a husband to cease maintenance to his wife if she does not meet her marital duties, including sexual duties. The furor over the Shia law highlighted the fragility of the gains made by Afghan women, human rights activists, and reform-minded politicians. The dominant political factions of Afghanistan remain ideologically hostile to many of the rights that many women have started to enjoy since the fall of the Taliban, such as freedom of movement, freedom to work, and the right to education. Many of the women interviewed for this report observed that the space for them to work as activists for change has diminished over the past few years, as the government has come to increasingly rely on conservative factions to maintain political control. Violence against Women: Violence against women in Afghanistan is endemic. A nationwide survey of 4,700 women, published in 2008, found that 87.2% had experienced at least one form of physical, sexual, or psychological violence or forced marriage in their lifetimes. The forms of violence include rape, physical violence, forced marriage, and “honour killings.” Too often the attitudes of those in government and the police reflect the misogynous views, rooted in cultural traditions - but increasingly rejected by younger generations of Afghans – that underlie some of the violence against women. As Dr. Soraya Sobhrang, Women's Protection and Development Commissioner of the Afghanistan Independent Human Rights Commission (AIHRC), told us, “Police and judges see violence against women as legitimate, so they do not prosecute cases.” In the vast majority of cases women will not seek help because of their fears of police abuse or corruption, or their fears of retaliation by perpetrators of violence. Low social status and social stigmas deter women from going against their families to pursue justice, particularly in cases of domestic abuse. For a woman even to approach the police or courts requires her to overcome the public opprobrium that often still attaches to women who leave their houses without a male guardian, let alone women who seek protection from public authorities. In a 2008 study by the Women and Children Legal Research Foundation (WCLRF), only 15% thought that a woman disabled by violence should seek police help. For those who do seek help, many encounter lack of concern, if not outright hostility or abuse. Rape is not a crime in the Afghan Penal Code. Under the code, rapists can only be charged with “forced” zina, or adultery, which sometimes results in women also being prosecuted for zina. In a major achievement for civil society groups and women's rights activists, the president issued the Elimination of Violence Against Women law, which makes rape a crime. At the time of writing the law is being considered by parliament ... Access to Justice: An underlying problem is women's access to justice. Police training involves little or no training in gender based violence or women's rights, particularly as training has been increasingly focused on counter-insurgency and security skills rather than crime prevention, crime solving and community policing. Deeply entrenched cultural prejudices prevent many women accessing the police or the courts because of the fear of being stigmatized a “bad woman.” Women face discrimination and prejudice in police stations and the courts from officials who often do not know the law but penalize women according to customary law, which places great emphasis on notions of female “honour” and chastity. The majority of women in jail are charged with extramarital sex (zina) or with “running away”- something that is not a crime in Afghan law or Sharia but often reflects a conservative cultural view that sees women as property of fathers or husbands. One widely welcomed policy response to this was the creation of female-staffed “Family Response Units” (FRUs) in police stations. But, as detailed in this report, there are serious problems with the implementation of FRUs, including insufficient numbers of women police officers and inadequate training, mentoring, and facilities... | 1 |
dev | 001-114253 | ENG | BGR | CHAMBER | 2,012 | CASE OF DIMOV AND OTHERS v. BULGARIA | 3 | Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage) | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Pavlina Panova;Zdravka Kalaydjieva | 6. The applicants were born in 1981, 1979 and 1959 respectively and live in Harmanli. 7. The first two applicants are the sons, and the third applicant is the widow, of Mr Todor Dimov Todorov (alias Chakara), who died on 10 or 11 December 2003 in the course of a police operation for his arrest. 8. Between 1973 and 2001 Mr Todorov, born in 1955, was convicted six times of various offences. In 1973 he was convicted of inflicting bodily harm of medium severity. In 1974 he was convicted of forming a group intending to engage in sabotage, of trying to cross the border illegally, of stealing public and private property and a motor vehicle, and of unlawfully possessing firearms and ammunition. In 1983 he was convicted of inflicting minor bodily injury on an official in connection with the performance of the latter’s duties. In the same year he was convicted of stealing fiftythree lambs. In 1990 he was convicted of trying unlawfully to export valuables. In 1998 he was convicted of stealing two lambs and unlawfully possessing firearms. 9. On 5 July 2001 Mr Todorov was convicted of systematically letting out his house for lewd acts, and sentenced to six months’ imprisonment. The conviction and sentence became final on 21 October 2003. 10. On an unspecified date in November 2003 the Harmanli police were notified of that latest conviction and sentence, and dispatched two officers to arrest Mr Todorov with a view to sending him to prison to serve the sentence. The officers went to his house in Harmanli, informed him that he was due to be imprisoned, and asked him to come with them. Mr Todorov, visibly calm, asked the officers to wait for a few minutes, so that he could prepare his luggage. The officers waited for about ten minutes outside the house. When they went in to arrest Mr Todorov, they saw that he had fled. After that they went back to the police station and reported the incident to the head of the Harmanli police and to the Harmanli District Prosecutor’s Office. 11. The account of the circumstances surrounding Mr Todorov’s death is based on the findings of the investigation carried out by the military prosecuting and investigating authorities (see paragraphs 3043 below). 12. In early December 2003 the Supreme Cassation Prosecutor’s Office ordered the police to carry out a series of operations for the arrest of individuals with final convictions and sentences. As a result, in the morning of 10 December 2003 the head of the Harmanli Regional Police Department assembled three groups of officers to arrest Mr Todorov. The first group had to check his house in Harmanli, the second had to check the sheep pen of an associate of his, and the third had to check Mr Todorov’s country house, situated near Harmanli. All three groups were armed with their service pistols. They were told that Mr Todorov might try to escape or put up armed resistance, and instructed to use their weapons only as provided for by law. 13. At about 7.15 a.m. the three groups set out to carry out their respective tasks. The first and the second group were unable to find Mr Todorov. The third group, which consisted of three officers, two of whom were in uniform (one wearing a bulletproof vest) and one in plain clothes, arrived near Mr Todorov’s country house at about 7.25 a.m. The house was surrounded by service buildings. All of those were erected on uneven terrain sloping steeply from the north-west to the south-east. The officers stopped their car in front of the gate, close to which they saw a big pile of used car tyres. They noticed that the gate was closed and started to whistle and shout. Several dogs in the yard started barking and Mr Todorov’s mother came out of one of the service buildings. One of the officers presented himself and told her that they were looking for her son. Then she opened the gate and held the dogs back. The officers moved towards the house, the one with the bulletproof vest walking in front, and went through another gate between several service buildings. At that point they spotted Mr Todorov on the steps outside the house, carrying an unidentified weapon. He also saw them, waved to them to go away and fired a shot, apparently in their direction. Two of the officers hid behind the service buildings and one behind some building materials scattered around the yard. He then ran back to the car and radioed the headquarters in Harmanli about the incident. At about 7.30 or 7.45 the head of the three officers ordered them to remain where they were and not to take further action. 14. Shortly after that the head of Harmanli Regional Police Department directed all police teams in the town towards Mr Todorov’s country house and requested assistance from the police in two neighbouring towns, Haskovo and Svilengrad. The Haskovo police dispatched an emergency response team consisting of six officers, and the Svilengrad police sent eight officers divided into two teams. The head of the Svilengrad police also went to the scene of the incident. 15. At about 9 a.m. the Harmanli police, some of whom had armed themselves with long barrel weapons, surrounded the house and cut off all access points, waiting for the emergency response team from Haskovo to arrive. It seems that Mr Todorov fired several shots at them, with one of the bullets hitting the mudguard of a police car. The police did not fire back. 16. Shortly after that the Haskovo team arrived and positioned themselves around the house. The head of the team informed the Minister of Internal Affairs of the situation. The Minister decided to dispatch the special antiterrorism squad and psychologists of the Ministry of Internal Affairs’ Psychology Institute. The Svilengrad police also arrived a few minutes later. Most of them took up position around the house. A fire engine also came to the scene. 17. The head of the Haskovo team decided to try to establish contact with Mr Todorov through relatives of his. At about 9.30 a.m. Mr Todorov’s sister was called in and asked to help the police. At the same time Mr Todorov’s elder son (the first applicant) also arrived. He offered to take his father a mobile phone so that he could communicate more easily with the police. The head of the Haskovo police team refused, apparently for fear that the first applicant might be taken hostage by Mr Todorov. Some time after that the two officers hiding behind the service buildings managed to get out of the yard with the help of Mr Todorov’s mother. 18. At about 11 a.m. Mr Todorov’s sister approached the house and brought her mother out. She spotted Mr Todorov, who waved at her. She understood the gesture to mean that he wished to talk to somebody on the phone, and asked the police to allow her to take a mobile phone or a megaphone to Mr Todorov. Her request was turned down with the explanation that the police were waiting for psychologists, who would try to establish contact with Mr Todorov, to arrive. 19. Shortly after that two psychologists of the Ministry of Internal Affairs’ Psychology Institute arrived. They started gathering information about Mr Todorov’s personal history, character and relations with his family, in order to decide whether his relatives might be able to exert a positive influence on him. The first applicant again asked for permission to take his father a mobile phone, but his request was turned down due to security concerns. 20. Shortly after that the special antiterrorism squad arrived. They gathered information about the internal structure of the house from Mr Todorov’s relatives, with a view to determining safe ways of approaching the house. 21. Around 11.30 a.m. the psychologists tried to make contact with Mr Todorov from a height situated at about one hundred metres from the house, using a megaphone. As communication from such a distance was difficult, at the suggestion of the first applicant they advanced to twentyfive or thirty metres from the house. They tried to persuade Mr Todorov to surrender. He requested to speak with his mother and his sister, but his request was denied. He then apparently said that if anyone was to get hurt, it would be him. As the psychologists believed that the first applicant would be able to exert a positive influence on Mr Todorov, they tried to continue the negotiations with his participation until 2.30 p.m. As Mr Todorov did not reply for about forty minutes, they gave up. According to the first applicant, the reason for the discontinuation of the negotiations was the fact that the megaphone’s battery had run out. 22. Around 3.30 p.m. the police decided to attack the house, because they believed that Mr Todorov had prepared a secret escape route and might try to flee. The head of the anti-terrorism squad split his men into two groups. The first, consisting of six officers, was to attack from the northwest, from high ground, and the second from the service buildings. The first group was moving in a column, with the first officer carrying a protective shield. They fired about thirty smoke bombs at the house, with a view to forcing Mr Todorov out of it. However, as the windows and the doors were covered with linoleum, cardboard and blankets, most of the smoke bombs failed to penetrate. Mr Todorov started firing at the first group, and this forced them to take cover in a ditch. The head of the squad ordered the second group to fire at the house to divert Mr Todorov’s attention and Mr Todorov fired back at them. The skirmish lasted for about an hour, after which both groups of officers retreated. At about 5 p.m. the Haskovo police, who were hiding behind the pile of tyres, were also ordered to retreat to a safe distance. 23. After that the police tried to resume the negotiations. A group of officers and the first applicant advanced to about ten or fifteen metres from the house and invited Mr Todorov to continue negotiating. He did not reply and the police gave the megaphone to the first applicant, who called upon his father to surrender. Again, there was no reply. At that point the police saw that as a result of the earlier attack a room on the first floor of the house had caught fire. The psychologists and the first applicant then retreated. The first applicant shouted towards the house “Father, please come out unarmed and surrender, so that this whole episode can be over”, but his supplication went unanswered. 24. At about 6 p.m. the head of the antiterrorism squad ordered his men to blow up holes in the walls of the house. They used stunt grenades. According to his later statements, this led to explosions and a short skirmish. According to the first applicant, after 5 p.m. Mr Todorov did not talk or shoot back at the police, or react to their attacks in any other way. 25. After that the head of the antiterrorist squad informed the Minister of Internal Affairs about the latest developments. The Minister called a halt to all actions pending the arrival of the Secretary General of the Ministry, general B.B., on the spot. In the meantime, police vehicles were placed on a height facing the house, so as to shed light on the scene with their headlights. 26. The Secretary General arrived at about 8.30 or 9 p.m. and took command of the operation. He ordered the police to blow a hole in the walls of the house. The police carried out the order. According to a later statement by the Secretary General, after the first explosion there was a second one, coming from the upper levels. As a result, the roof caught fire and quickly burned down. Apparently several unsuccessful attempts were then made to enter the house, but it is unclear in what exactly they consisted. Meanwhile, an individual who had worked on the house and who had heard about the incident on the radio came to the police and told them that Mr Todorov had warned him that the house was booby-trapped. 27. Around 10 p.m., on the orders of the Secretary General, a border police unit was called in to monitor the house and its surroundings with nightvision devices. The monitoring continued until the next morning. 28. Later, following a discussion with other senior officers, the Secretary General ordered the police to use a rocket propelled grenade launcher, in order to diffuse any possible booby traps and speed up the search of the house. The launcher was brought at about 1.30 a.m. on 11 December 2003, and given to the antiterrorism squad. Between 2 and 2.30 a.m. an officer of the squad fired fifteen rocket propelled grenades at the lower parts of the house and a room on the first floor, which made a big breach in the wall. It was decided to await daylight to attack. 29. Around 6 or 7 a.m. the police formed a thick cordon around the house. They started entering the house and checking the ground and the first floor. When they reached the attic floor, using a fireladder, they saw the legs of Mr Todorov’s charred body. The operation was then terminated, the house was sealed off, and the incident was reported to the military prosecuting authorities. 30. The same day, 11 December 2003, the Plovdiv Regional Military Prosecutor’s Office opened an investigation into the above events. An investigator carried out an inspection of the scene of the incident and took photographs. 31. The next day, 12 December 2003, a doctor from the forensic ward of the Haskovo hospital performed an autopsy on Mr Todorov’s body. He noted the following: “The body is split in two and the vertebral column is severed at the fifth or the sixth vertebra. The body is as a whole charred. The configuration of the skull is intact. The hair is missing. There are remains of charred soft tissue on the calvaria and the face. The lower jaw is broken at the level of the right ramus mandibulae, with broken fragments and teeth. The skull bones are crumbly, charred. The configuration of the brain is intact, as if it has been parched. The brain tissue is not damaged and there are no haematomas in the cranial cavity. The skin at the neck is charred. Part of it, near the trachea and right part of the neck, is missing, which allows one to see the charred underlying neck muscles. The upper third of the thorax is preserved, but the soft tissue is fully charred. The lungs and the heart are still connected to their holders; they have shrunk, they are parched and dry with charred surfaces and hard to cut. The surrounding tissue of the section has no visible structure. The liver, shrunk and charred, reduced in size and parched, lies beneath. The vertebral column is segmented at the level of the fifth or the sixth vertebra, and what remains of it, including the lumbar part, has charred vertebrae covered with remains of charred tissue. The remaining two thirds of the abdominal wall are missing. The pelvis, including the wings of the iliums, the ischium and the pubic bone, is broken into pieces. The symphysis is separated. Parts of the intestines, charred, and remains of fatty tissue were found inside the pelvic cavity. Limbs: the right arm is strongly flexed at the elbow joint; the bones in the joint are apart. The wrist is flexed and the fist is clenched. A safetyloop from a hand grenade was found on the third finger, between the first and the second phalanges. The skin and the muscles of the hand are charred. The palm and two thirds of the forearm of the left hand are missing, and the remains have an uneven edge and are strongly flexed at the elbow joint. The soft tissue is charred. The skin and the muscles on the entire surface of the right thigh are charred. The skin on the front surface of the knee and on the front surface of the upper two thirds of the shank is preserved. The soft tissue on the back surface of the shank is charred to the bone, and the back surface of the heel is burned. The foot is encased in a [militarytype] shoe. One can see the remains of trousers and of woollen socks. The skin and the muscles of the left leg and of the thigh are charred. The left shank has been affected in the same way as the right one, with a [militarytype] shoe and a charred sock on. There are greyish metal pellets driven into the tissue and the bones of the pelvis area. Two such pellets were taken out of the left ilium and given to the investigator. We made Xrays of the body in the autopsy room... On the images one can see ovalshaped foreign bodies with similar diameters driven into the tissue, mostly in the pelvis and the thorax. One can see a metal safetyloop attached to the third finger of the right hand. ...” 32. In the following months the authorities interviewed all officers who had taken part in the operation: thirtynine officers from the Harmanli Regional Police Department, six officers from the Haskovo Regional Directorate of Internal Affairs, sixteen officers from the Svilengrad Regional Police Department, thirtyone officers from the special antiterrorism squad, nineteen border police officers, three psychologists from the Ministry of Internal Affairs’ Psychology Institute, and the Secretary General of the Ministry of Internal Affairs. They also interviewed the applicants and other eyewitnesses, and commissioned a number of expert reports. 33. On 3 August 2004 the investigator in charge of the case proposed that the prosecuting authorities discontinue the investigation. On 3 September 2004 the Plovdiv Regional Military Prosecutor’s Office agreed to the proposal. It said that the investigation had categorically established that Mr Todorov’s death had been due to the explosion of a hand grenade which he had himself detonated close to his body. No officers were responsible for that. The actions of the police had fully complied with the applicable rules and had been the only actions possible under the circumstances, in view of the resistance put up by Mr Todorov and the fact that he had fired at them. 34. On 17 September 2004 the applicants sought judicial review of the discontinuance. 35. On 28 September 2004 the Plovdiv Military Court, sitting in private, set the discontinuance aside and referred the case back for additional investigation. It noted that the investigation had failed to establish the exact time of Mr Todorov’s death, which had prevented the prosecuting authorities from assessing fully the lawfulness of the actions of the police, including the use of explosives, smoke bombs and a grenade launcher. It went on to say that the prosecuting authorities had failed to analyse the evidence properly and give reasons why they believed that all actions of the police had been lawful. In particular, they had failed to give any reasons why they considered that the actions of the police after 9 or 9.30 p.m. on 10 December 2003, including the firing of fifteen rocket propelled grenades, had been warranted, especially in view of the fact that the evidence showed that after that time Mr Todorov had not resisted or fired at the police. Lastly, it could not be categorically concluded that Mr Todorov’s death had been caused by a hand grenade which he had had activated himself; a number of other explosive devices had been used by the police. 36. Accordingly, on 5 October 2004 the Plovdiv Regional Military Prosecutor’s Office sent the case back to the investigator, instructing him to (a) ask ballistics experts to identify all explosive devices which had been used, explain their mode of operation, and express their opinion on whether the smoke bombs fired at the house had been capable of creating a concentration of gases sufficient to cause the death of Mr Todorov; (b) seek the opinion of forensic and ballistics experts on the exact time of Mr Todorov’s death, on the origin of the metal fragments found in his body, and on whether the death had resulted from a hand grenade; (c) interview again the participants in the operation and ask them why it had been deemed necessary to use a grenade launcher and other explosive devices at a time when Mr Todorov had no longer been showing any signs of resistance; (d) establish whether boobytraps had indeed been planted in or around the house; and (e) identify the officers who had caused damage to the house and ascertain whether their actions had amounted to a criminal offence. It went on to note that Mr Todorov’s heirs had not been given an opportunity to acquaint themselves with the materials in the case file, which had been a serious breach of the rules of procedure. 37. The investigator asked several experts to draw up the reports requested by the prosecuting authorities. 38. In a report drawn up on 11 November 2004 an expert said that no devices which could be described as boobytraps had been found in Mr Todorov’s house or yard. Two fully operational defensive hand grenades had been found inside the house. 39. In their report, drawn up on 23 November 2004, the ballistics experts described the characteristics of the weapons and ammunition used during the operation or found on the spot (Kalashnikov assault rifle and ammunition for it, antitank rocket propelled grenades, teargas grenades, small wallblasting explosives, a defensive hand grenade), and said that the wall of the house had been demolished by the antitank rocket propelled grenades fired during the operation. They also said that from the materials in the case file it appeared that no teargas grenades had fallen inside the house, and that the concentration of any such gas in the room where Mr Todorov had been standing had not been high enough to kill him. 40. The combined forensic and ballistics expert report, drawn up by a forensic doctor, an army weapons specialist and an expert in automatic weapons, became ready on 2 December 2004. It said that the complete charring of Mr Todorov’s body prevented a medical determination of the time of his death. The explosive device which had killed him had been very close to his body at the moment of detonation, with the result that the body had suffered the impact of all components of the explosion: the detonation, the gases, parts of the explosive, soot, parts of the device’s casing and fragments of it. Mr Todorov’s body had been destroyed and had sustained deep burns, to the point of charring, and multiple wounds from the device’s casing and filling. The metal fragments found inside the body showed that the device was a hand grenade, of the type used in the Bulgarian army, consisting of a metal casing and, underneath it, plastic shells containing 200 to 400 pellets. All of those had impacted on Mr Todorov’s body. The mechanism of the grenade and the force needed to pull its lever were such as to prevent accidental detonation, including detonation resulting from the closeby detonation of another device, which meant that Mr Todorov had been fully conscious of his actions when activating the grenade. He had thus blown himself up, as could be seen from the safetypin loop found on the third finger of his right hand. However, it was probable that the charring of his body was due to a secondary fire in the room, and had occurred after his death. 41. On 4 January 2005 the Plovdiv Regional Military Prosecutor’s Office again decided to discontinue the investigation. It set out its findings of fact and the conclusions of the expert reports, and reasoned as follows: “... The initial steps taken by officers of the Harmanli Regional Police Department with a view to [Mr] Todorov’s localisation and arrest were lawful. When he used firearms against them, they duly reported that to their superiors. They, in turn, lawfully decided to use firearms as a means of last resort, in accordance with section 80(1)(1) and (1)(4) of the Ministry of Internal Affairs Act [1997]. As [Mr] Todorov refused to obey their order to surrender and continued to fire at them, it was lawful to bring in the antiterrorism squad. This was in line with section 157(1)(2) of the [Act] and based on a decision of the Minister of Internal Affairs. The police were confronted with an individual who had committed numerous criminal acts and had numerous convictions and who, during an operation for his arrest to enforce a sentence ..., put up armed resistance. This was established on the basis of the statements made by the officers and by [Mr] Todorov’s relatives. The fact that he fired upon the police is also confirmed by the bullet-hole in the left mudguard of [a police car] and the asbestos cement sheets placed outside the house. The steps taken by the officers of the [antiterrorism] squad after their arrival were also lawful. They were faced with an urgent special operation which required fast appraisal of the situation and decisionmaking. Their decisions were taken on the basis of the situation described above. After [Mr] Todorov failed to heed the advice of his relatives and the psychologists to turn himself in, it was lawful and in line with section 159(1)(1) of the [Act] and regulations 8(3), (5) and (7) to resort to the use of pyrotechnical devices and explosives. One of the walls of the ground floor of the house was blown up with a view to storming it and making a passage to the inside. However, in view of the explanations of [the individual who had worked on the house] about booby traps in various unknown locations in and around the house and the darkness, the attack was postponed. It was only at that point that a decision was taken to use antitank grenades, in line with regulation 8(3). The purpose was to diffuse any explosive devices and clear a passage for the storming party, which was supposed to attack in the morning. As a result of the firing of those grenades, part of the ground floor of the building was destroyed. When the goal had been achieved, the firing stopped. The attack began in the early morning of 11 December 2003 in order to protect the health and the lives of the police officers. Then they found the body of [Mr] Todorov. In this case, there was overt resistance by [Mr] Todorov and refusal to obey police orders. Also, before using weapons the police officers and the members of the antiterrorism squad considered the specific situation, the nature of [Mr Todorov’s] act and [his] personality. They took all necessary safety measures and discontinued the use of weapons immediately after achieving their goal – opening a breach for the storming party. The actions of the officers would be criminal only if they were socially dangerous, committed with mens rea, and punishable... The lack of any of those characteristics makes their actions not criminal. By Article 12a of the Criminal Code, it is not criminal to cause damage to a person who has committed an offence in order to effect his arrest and prevent him from committing further offences, if there is no other way to carry out the arrest and if the necessary and lawful measures are not exceeded. This equally fully applies to the house used by [Mr] Todorov as a shelter. Since there was no other way of entering it, it became necessary to demolish part of it. The available evidence shows that the actions of the police were not socially dangerous, but socially necessary, and, indeed, the only ones possible under the relevant provisions of the Ministry of Internal Affairs Act [1997] and the regulations. Therefore, there has been no criminal offence. All exculpating circumstances under Article 12a are in place. ... Moreover, under section 159(3) of the Ministry of Internal Affairs Act [1997], the identities of the members of the special antiterrorism squad are to be kept secret, which means that they cannot be held criminally liable. The investigation categorically and unequivocally found that [Mr] Todorov’s death was due to his blowing himself up with an offensive hand grenade which he detonated close to his body. No officers are responsible for that. No other offences committed by the officers in connection with the performance of their duties were established. ...” 42. On 25 January 2005 the applicants sought judicial review of the discontinuance. They argued that not enough evidence had been gathered on the time and the causes of Mr Todorov’s death, and that only experts in pathology would be able to give an informed opinion on those points. It was also hard to believe that Mr Todorov had blown himself up with a hand grenade. He was a righthander and the grenade safetyloop was found on a finger of his right hand, whereas it was highly unusual for someone to draw the safetyloop of a hand grenade with his strong hand and hold the grenade itself with his weak hand. The investigation had not done enough to elucidate that paradox, which was central to its conclusions. It was also incomprehensible how the experts, none of whom was a psychologist, were able to give an opinion about Mr Todorov’s state of mind before his death. No explanation was provided about the type of explosives used at 9 p.m. on 10 December 2003 to blow up the hole in the wall of the house. This seriously weakened the prosecutor’s conclusion that the metal pellets found in Mr Todorov’s body were from a hand grenade. After 5 p.m. on 10 December 2003 the police were not acting in selfdefence because Mr Todorov had not fired any shots at them after that time. They clearly overstepped the limits set by Article 12a of the Criminal Code and did not try to contact him or arrest him without using force after that time. The conclusion that a grenade launcher was needed to diffuse possible booby traps could not withstand scrutiny. No such traps were found, and it was absurd to believe that trained police officers could suppose that such traps had been laid around a house whose yard was used by Mr Todorov, his family and domestic animals. The police apparently only resorted to using a grenade launcher to speed up the operation. It was also telling that the names of the officers who ordered the use of a launcher were not mentioned in the prosecutor’s decision. Lastly, the applicants pointed out that this Court’s caselaw under Article 2 of the Convention required that there should be an effective official investigation when individuals have been killed as a result of the use of force by the police. 43. On 8 February 2005 the Plovdiv Military Court, sitting in private, decided to uphold the discontinuance in the following terms: “... After fully checking the materials in the case file, the court comes to the only possible conclusion, namely, that the decision to discontinue the proceedings was correct, wellfounded and lawful. The investigation was objective, all-inclusive and comprehensive. The investigating and the prosecuting authorities have taken all necessary steps to establish the truth. All circumstances surrounding the main fact – the cause of [Mr] Todorov’s death – have been examined. The authorities have not committed serious breaches of the rules of procedure. The remitting of the case for additional investigation was a major factor in that respect. The prosecutor’s conclusions are correct, wellfounded, not internally inconsistent, accurate and fully correspond to the evidence and the facts. To come to them, the prosecutor, along with an assessment of the available materials, has taken into account the constant caselaw of the Supreme Court of Cassation and academic studies of criminal law. The prosecutor’s conclusion that the proceedings should be discontinued corresponds to the totality of the evidence, which has been precisely analysed and assessed. The court finds that the prosecutor was right to conclude that the police were acting in a situation falling under Article 12a [of the Criminal Code]. They were aiming to arrest an individual who had committed an offence, and who had been convicted and sentenced by means of a final decision. He refused to obey their orders and put up fierce armed resistance. His actions consisted in an attack against the police that seriously endangered their lives. This leads to the incontestable and unequivocal conclusion that the police officers were acting in pursuance of their duties and that their actions were correct, lawful and adequate in a situation which was extreme, critical and gravely dangerous for their health and lives. The court fully shares the remaining conclusions of the prosecutor ... which it considers correct and accurate. On that basis, the court finds that the arguments raised in the application [for judicial review] are groundless and illfounded. Firstly, the arguments ... that the ‘prosecutor’s findings about the time of death are unconvincing and solely based on the conclusions of the medical expert’s report’ ... are groundless. If the [applicants’ lawyers] had bothered to acquaint themselves with [the] evidence ..., they would not have reached those conclusions. The prosecutor’s findings about the causes and the time of [Mr] Todorov’s death were based not only on the conclusions of the medical expert’s report and the complex ballistics and medical experts’ report, but also on the statements of all eyewitnesses. The lawyers should be aware that a fact, namely the time and the causes of death, can be established through all types of evidence allowed under the rules of criminal procedure, not solely expert reports. Since the experts’ conclusion, whose accuracy the court does not doubt, is supported by an abundance of other evidence, including eyewitness statements, the court finds this fact to be unequivocally established ... For that reason, the court finds that the time and the cause of [Mr] Todorov’s death have been unequivocally established, and that this has been accurately described in the prosecutor’s decision. The court therefore finds the [applicants’] arguments in that connection unfounded and not corresponding to the evidence in the case. For the same reasons, the court finds no force in the [applicants’] arguments relating to the lack of clarity of the prosecutor’s decision about the type of expert report to be ordered by the investigator. The court reiterates that if the [applicants’ lawyers] had read the complex medical and ballistics report, they would have understood this alleged lack of clarity ... The [applicants’] assertion relating to the ‘strong’ and the ‘weak’ hand of [Mr Todorov] is also groundless and lacking legal logic. The safetyloop from the detonator of a grenade, the specific dismemberment of the body in the middle (near the stomach and the groins), and the remains of a defensive grenade (pellets and fragments) in the body lead to the only possible conclusion that [Mr Todorov] blew himself up in the way described in detail by the prosecutor ... This unequivocally proves that the grenade was not thrown, as asserted by the [applicants], because if that were the case there would be no pieces of a detonated grenade on the body of [Mr] Todorov. The court finds whether [Mr] Todorov was right or lefthanded irrelevant and for this reason shall not engage in further discussion on that point. The complex medical and ballistics experts’ report gave a conclusion about [Mr] Todorov’s psychological state at the time of his ‘self-detonation’, which the court finds accurate and corresponding to the evidence analysed by the experts. It is necessary to note that the ‘psychological’ state of [Mr] Todorov has been analysed and assessed by the experts in the context of the grenade’s specificity as a type of weapon, the particularities of its construction and the manner in which it needs to be handled and detonated. On that basis, the court finds no force in the [applicants’] argument concerning the mandatory participation of a psychologist in the elucidation of the above fact. The [applicants’] assertion that there is no explanation about types of explosives used again shows that [their lawyers] have not acquainted themselves with all the evidence. The court finds it illfounded and unsupported by any arguments. The experts have given an accurate, clear and comprehensive description of the type and character of all types of explosives and munitions used [in the operation]. The court does not share the [applicants’] arguments ... concerning the alleged incorrectness of the prosecutor’s decision. The above considerations lead it to the conclusion that the police were acting in a situation which falls within the ambit of Article 12a of the Criminal Code ... It must also be observed that the [applicants’] arguments are onesided and analyse solely the lawfulness of the actions of the police without commenting on the lawfulness of the actions of [Mr] Todorov. Basing itself on the rules of objectivity and impartiality, and analysing the direct and circumstantial evidence in isolation and jointly, the court finds the [applicants’] arguments incorrect and illfounded. The court fully shares the [applicants’] assertion that, in view of the requirements of the [Convention] and the criteria developed by the European Court of Human Rights in its caselaw, there must be a thorough and comprehensive investigation whenever there has been an interference with a person’s right to life during a police operation. However, the court does not share the [applicants’] view that there has been no such investigation in the present case. On the contrary, in view of what has been said above, the court finds that the investigation was objective, comprehensive and full, that the authorities have taken all necessary steps to uncover the truth, and have taken their decisions freely and after assessment of relevant facts. The prosecutor’s conclusions are correct, accurate and wellfounded, and the court fully shares them. In view of above, the court ... finds that the decision to discontinue the proceedings ... has to be upheld as lawful and wellfounded.” 44. The case file contains no information on whether at the time of his death Mr Todorov had a valid title to the house or the plot of land on which it had been erected. It does not appear that he had applied for or obtained a building permit for the house. During the investigation is was established that on 15 June 2004 the Harmanli lands commission, in proceedings brought by the first applicant (Mr Todorov’s son) under the lands restitution laws, decided to restore the plot to the heirs of an ancestor of Mr Todorov. 45. The applicants presented a notary deed showing that on 19 May 2006 the first applicant bought from third parties a plot of land in the area where the house is situated. From certificates issued by the cadastre authorities it appears that this plot is the same on which the Mr Todorov’s house had been built. 46. The applicants also presented a certificate of 20 January 2007 in which the building control department of the municipality of Harmanli said that the house was a tolerable building within the meaning of the building control legislation. Under that legislation, tolerable buildings are those that have not been erected pursuant to a building permit but which nonetheless comply with the applicable zoning plans and building regulations, and have either been built before a certain date or been declared to the authorities within certain timelimits. Tolerable buildings are not subject to demolition. 47. Section 80 of the Ministry of Internal Affairs Act 1997, as in force at the material time, provided, in so far as relevant: “(1) The police may use firearms as a means of last resort: 1. in cases of armed attack or threat to use firearms; ... 3. in selfdefence [or the defence of others]; 4. after giving a warning, to arrest a person who has committed or is committing a publicly prosecutable offence, if he or she resists or tries to escape; ... (2) When using firearms the police are under a duty to protect, as far as possible, the life of the person against whom they use force, and not put in danger the life and the health of others.” 48. The wording of section 74(1)(1), (1)(3) and (2) of the Ministry of Internal Affairs Act 2006, currently in force, repeats verbatim that of section 80(1)(1), (1)(4) and (2) of the 1997 Act. 49. On 30 May 2012 Parliament enacted a bill amending section 74 of the 2006 Act; the amendment came into force on 1 July 2012. The words “as a means of last resort” in section 74(1) were changed to “only where absolutely necessary”, and the words “to protect, as far as possible” in section 74(2) were replaced by “do everything possible to protect”. A new subsection 5 was added to section 74, providing that “[t]he police shall discontinue the use of firearms immediately after attaining its lawful aim”, as well as a new subsection 6, providing that “[i]t shall be prohibited to use firearms to arrest or prevent the escape of a person who is about to commit or has committed a nonviolent offence if that person does not pose a danger to the life or health of another”. A new section 74a was added, providing that “[t]he planning and control of the use of physical force, auxiliary means and firearms by the police ... shall include [the taking of] measures to attain the lawful aim at minimal risk to the life and health of the citizens”. In the explanatory notes to the bill the Government had referred to, inter alia, the need to bring domestic law fully into line with the applicable international standards and the Court’s caselaw. 50. The special antiterrorism squad was a unit of the Ministry of Internal Affairs whose task was to, among other things, combat terrorism and prevent and uncover serious offences (section 156 of the 1997 Act). It could arrest or neutralise persons who had committed especially dangerous offences and who were putting up or likely to put up armed resistance (section 157(1)(2)). The squad’s intervention had to be authorised in writing by the Minister of Internal Affairs in each case (section 157(2)). Its mode of operation was governed by regulations issued by the Minister (section 157(3)). 51. Those regulations, which were apparently not published, were issued by the Minister on 27 May 2003. Under regulation 7, when carrying out a special operation the squad had to set up an appropriate organisational structure. However, the overall control of a given operation was to be ensured by the head of the authority which had requested the use of the squad or a person designated by him or her (regulation 26(1)). The squad’s plan of action in a given operation had to be included in the plan of the requesting authority (regulation 25). In its operations the squad could use, inter alia, firearms and grenade launchers (regulation 8(3)), pyrotechnical devices and explosives (regulation 8(5)) and chemical substances (regulation 8(7)). 52. By section 159(3) of the Ministry of Internal Affairs Act 1997, “in the performance of the squad’s tasks, the identity of its members [was] to be kept secret”. This rule currently features in section 91(3) of the Ministry of Internal Affairs Act 2006 and extends to all police officers who take part in armed police operations for the arrest of dangerous offenders who put up armed resistance. Regulation 150s of the regulations for the application of the 2006 Act repeats it with reference specifically to the members of the special antiterrorism squad. 53. Article 12a § 1 of the Criminal Code 1968, added in August 1997, provides that causing harm to a person while arresting him or her for an offence is not criminal where no other means of effecting the arrest exist and the force used is necessary and lawful. According to Article 12a § 2, the force used is not necessary when it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary. 54. Under Article 237 § 1 (1) of the Code of Criminal Procedure 1974, public prosecutors were to discontinue a preliminary investigation if they found that, inter alia, the acts alleged did not constitute an offence. Article 237 §§ 3 and 4, as in force at the material time, provided that the decision to discontinue a preliminary investigation was reviewable by a firstinstance court whose decision was final. 55. Section 1 of the State Responsibility for Damage Caused to Citizens Act 1988 (Закон за отговорността на държавата за вреди, причинени на граждани), in July 2006 renamed the State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди – “the 1988 Act”), provides that the State is liable for damage suffered by individuals (and since 1 January 2006 also legal persons) as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties. 56. The general rules of the law of tort are set out in sections 45 to 54 of the Obligations and Contracts Act 1951 (Закон за задълженията и договорите – “the 1951 Act”). Section 45(1) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another. Section 49 provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. Legal persons cannot incur liability under section 45(1), as they cannot act with mens rea. They may, however, be vicariously liable under section 49 for the tortious conduct of individuals employed by them (пост. № 7 от 30 декември 1959 г., ВС, Пленум). One of the prerequisites of the liability under sections 45 to 50 of the 1951 Act is wrongfulness of the impugned conduct (реш. № 567 от 24 ноември 1997 г. по гр. д. № 775/1996 г., ВС, петчленен състав). The Bulgarian courts have on occasion examined claims against the authorities under section 49 (see the domestic cases cited in First Sofia Commodities EOOD and Paragh v. Bulgaria (dec.), no. 14397/04, § 17, 25 January 2011). | 1 |
dev | 001-81783 | ENG | DEU | CHAMBER | 2,007 | CASE OF FREITAG v. GERMANY | 3 | Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award | Peer Lorenzen | 4. The applicant was born in 1954 and lives in Cologne in Germany. 5. The applicant is the manager of the M GmbH (the “M-Company”). He held registered shares of the V-Holding AG (the “target company”), an insurance company which was seated in Berlin. 6. On 1 and 2 December 1997, respectively, the shareholder's meetings approved the merging of the target company into the E-Versicherungsgruppe AG (the “acquiring company”), which was seated in Hamburg. The shareholders of the target company were to receive shares in the acquiring company. 7. On 25 February 1998 the merger of the two companies was announced pursuant to section 19, subsection 3 of the Law of Reorganisation (Umwandlungsgesetz, see relevant domestic law, below) in the Official Bulletin of the Municipality of Hamburg (Amtlicher Anzeiger der Stadt Hamburg). The applicant maintains that he was unaware of this publication. 8. Meanwhile, on 28 January 1998 a shareholder of the target company lodged a motion with the Berlin Regional Court (Landgericht) with the aim of being allocated an additional number of shares. Having been informed that he did not have such a claim under the applicable law, the shareholder withdrew his request on 15 July 1998. 9. On 5 March 1998 the M-Company, which was represented by counsel, lodged a motion against the acquiring company before the Hamburg Regional Court with the aim of obtaining compensation (bare Zuzahlung) for the alleged loss of value of the shares incurred by the merger pursuant to section 15 of the Law of Reorganisation. The company further requested the Regional Court to order the defendant party to submit the date of the most recent announcement of the merger in the public bulletin. Finally, the company requested the Hamburg court to transfer the case-file to the competent court in case it should lack jurisdiction. 10. On 12 March 1998 the Hamburg Regional Court informed both parties that, pursuant to section 306 § 1 of the Law of Reorganisation, the court at the seat of the target company, which was not Hamburg, appeared to be locally competent. The Regional Court invited both parties to submit their comments within four weeks. This letter was served on the M-Company on 20 March 1998. 11. By telefax of 21 March 1998 the plaintiff maintained that the Hamburg Regional Court should be regarded as having jurisdiction. In case the Regional Court should not follow this opinion, the plaintiff alternatively requested to transfer the case-file to the Berlin Regional Court. 12. The applicant's counsel further declared that he lodged all requests in the pending proceedings also on behalf of the applicant, as it was not clear whether the shares were owned by the M-Company or by the applicant personally. 13. On 9 April 1998 the acquiring company requested an extension of the time-limit until 27 April 1998 with regard to the upcoming Easter holidays. 14. On 14 April 1998 the Hamburg Regional Court, without having heard the applicant, granted the requested extension. The applicant's counsel was informed of this decision by court-letter dated 15 April 1998. 15. By letter dated 24 April 1998, which reached the Hamburg Regional Court on 27 April 1998, the acquiring company maintained that, according to the relevant provisions, the Berlin Regional Court as the court at the seat of the target company was locally competent. It further pointed out that the action had been lodged out of the statutory time-limit of two months following the final announcement of the merger in an official bulletin, which had expired on 27 April 1998. As the motion had been lodged with an incompetent court, it had not been properly lodged within that time-limit. 16. On 5 May 1998 the applicant replied that the acquiring company had been acting in bad faith as it was the only party to the proceedings which knew about the impending expiry of the time-limit and had purposefully delayed the proceedings. 17. By order of 5 June 1998 the Hamburg Regional Court transferred the case to the Berlin Regional Court, where it arrived on 1 July 1998. 18. On 2 September 1998 the Berlin Regional Court declared the actions lodged on behalf of the M-Company and of the applicant inadmissible for having been lodged outside the statutory time limit. That court noted that the registration of the two companies' merger had been announced on behalf of the Berlin Commercial Register on 12 February 1998 by publication in the Federal Bulletin and in a Berlin daily newspaper and on behalf of the Hamburg Commercial Register on 20 February 1998 in the Federal Bulletin and on 25 February 1998 in the Official Bulletin of the Municipality of Hamburg. It followed that the two month time-limit started to run on 25 February 1998. The Regional Court noted that the plaintiffs had filed their requests within the statutory time-limit with the Hamburg Regional Court. However, as that court had transferred the case to the competent Berlin Regional Court only after expiry of the time-limit, it had not been lodged in time. According to the Berlin Regional Court, Section 281 of the Code of Civil Procedure, which provided that a law-suit remained pending even if it was transferred from a court which lacked jurisdiction, did not apply to the proceedings aimed at determining a shareholder's compensation (aktienrechtliches Spruchstellenverfahren). 19. On 10 September 1998 the applicant lodged a complaint with the aim to declare his action admissible. Alternatively, he requested to be granted reinstitution into the proceedings (Wiedereinsetzung in den vorigen Stand) with respect to the time-limit. The applicant pointed out that he had not known at which date the merger had been announced in the official bulletin. Accordingly, he could not have known at which date the time-limit would expire. The Hamburg Regional Court had awaited the defending parties' submissions without referring the case to the Berlin Regional Court, as requested by the applicant. Under these circumstances, the applicant claimed that section 281 of the Code of Civil Procedure should be applicable by analogy to the effect that the lodging with the Hamburg Regional Court had to be regarded as sufficient in order to comply with the statutory time-limit. Alternatively, the applicant claimed that he should be granted a reinstitution into the proceedings with regard to the fact that the delays which had occurred before the Hamburg Regional Court before the case was transferred to the Berlin Regional Court were not imputable to him. Finally, the applicant maintained that the Berlin Regional Court had failed to publicly announce the request filed by the other shareholder on 28 January 1998 and to appoint a joint representative in order to safeguard the other external shareholders' rights. He further maintained that his complaint should be declared admissible as a follow-up request to the first request lodged in January 1998. 20. On 22 November 1999 the Berlin Court of Appeal (Kammergericht) rejected the applicant's complaint. It noted that the merger had been announced on 20 February 1998 in the Federal Bulletin and on 25 February 1998 in the Official Bulletin of the Municipality of Hamburg. Confirming the Regional Court's finding relating to the expiry of the statutory time-limit and to the applicability of section 281 of the Code of Civil Procedure, the Regional Court considered that only a strict application of sections 305 and 306 of the Law of Reorganisation guaranteed that the shareholders could have certain knowledge within a short period of time as to whether compensation would be paid. The Court of Appeal further considered that the request lodged by the other shareholder in January 1998 was inadmissible. Accordingly, this request did not allow to file a follow-up request within the time-limit of section 307 § 3. 21. The Court of Appeal expressed its doubts as to whether the rules on reinstitution into the proceedings were applicable to the present proceedings. In any event, the applicant had not been hindered to comply with the statutory time-limit through no fault of his own. Even though section 305 § 1 of the Law of Reorganisation contained a clear and unambiguous provision on jurisdiction, he had insisted that the Hamburg Regional Court had been competent. 22. On 2 August 2000 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant's constitutional complaint. According to that court, the applicant's complaint did not have fundamental constitutional significance. Neither was the acceptance of the complaint indicated in order to enforce the constitutional rights which the applicant claimed had been violated. While it could not be excluded that the Berlin Court of Appeal, when deciding on the applicant's request for reinstitution into the proceedings, failed in a constitutionally questionable way sufficiently to consider the conduct of the Hamburg Regional Court, the applicant – who had learned in time about the extension of the time-limit granted to the defendant on 14 April 1998 – had failed to apply for a reduction of that extended time-subsidiarity. The remainder of the complaint did not have any prospect of success, as the applicant's submissions did not disclose a violation of his rights under the Basic Law. This decision was served on the applicant on 14 August 2000. 23. The merging of shareholder companies was, at the relevant time, governed by the Law of Reorganisation (Umwandlungsgesetz), which provided as follows: According to section 15, a shareholder could request compensation (bare Zuzahlung) if the value of the shares he was allocated in the acquiring company did not equal the value of the shares he held in the target company. Section 19 provided that the merger of two companies had to be registered first in the commercial register at the seat of the target company and, subsequently, in the commercial register at the seat of the acquiring company. Each registration had to be announced by publication in the Federal Bulletin and in one further periodical. The second publication organ was chosen by the commercial court by December for the following year and made public by notifying, inter alia, the chamber of commerce. The merger had to be regarded as being publicly announced by the end of the day of the latest publication (see section 19 § 3). The provisions on procedure read as follows: Section 305 Time-limit “A motion for a court decision pursuant to section 15...has to be lodged within two months following the date on which the registration has been publicly announced pursuant to the provisions of this law.” Section 306 Competent court “(1) The competent court is the Regional Court at the seat of the company whose shareholder is entitled to lodge the motion.” Section 307 Court proceedings “(1) The proceedings are governed by the law on matters of non-contentious jurisdiction (freiwillige Gerichtsbarkeit)... (2) The motion has to be lodged against the acquiring company... (3) The Regional Court has to announce the motion in the Federal Bulletin (Bundesanzeiger) and, if the statutes of the respective company so provide, in other public bulletins. Other shareholders may lodge their own motions within two months following publication. This has to be pointed out in the publication. A request lodged after expiry of this time-limit is inadmissible...” Section 308 Joint representative “(1) The Regional Court has to appoint a representative in order to safeguard the rights of those external shareholders who did not lodge an own motion...” 24. In proceedings governed by the Code of Civil Procedure, an action complies with a time-limit even if it has been lodged with an incompetent court and is only later on transferred to the competent court (section 281 of the Code of Civil Procedure). 25. In separate proceedings the Federal Court of Justice (Bundesgerichtshof, case no. II ZB 26/04) ruled on 13 March 2006 that section 281 of the Code of Civil Procedure should also apply by analogy to proceedings aimed at determining a shareholder's compensation. This decision was based on considerations of legal certainty and the interest of an acceleration of the proceedings. The Federal Court of Justice further noted that a court was generally obliged rapidly to inform the parties about its own lack of jurisdiction and swiftly to process a request to transfer the case-file to the competent court. | 1 |
dev | 001-71247 | ENG | FIN | ADMISSIBILITY | 2,005 | PASSILA v. FINLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr. Esko Passila, is a Finnish national who was born in 1941 and lives in Lahti. On 5 January 2001 the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) of Lahti decided that as of December 1999 the Finnish social security legislation did not apply to the applicant as he was not considered to be permanently resident in Finland. The applicant appealed to the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden) which rejected the appeal on 12 October 2001. The decision of the Appellate Board was sent to the applicant’s address in Estonia, but allegedly the applicant never received it. He had allegedly requested the authorities to send the decision to his address in Finland. The applicant alleged that he became aware of the decision of the Appellate Board in February 2002 when the Social Insurance Institution asked him to return some wrongly paid social benefits. By that time the decision of the Appellate Board had already gained legal force and he was not able to appeal against it to the Insurance Court (vakuutusoikeus, försäkringsdomstolen). At that time he allegedly asked advice from the Appellate Board and the Insurance Court, without any helpful response. Under section 61 of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen 586/1996) an expired time-limit may be restored to a person who has a legal excuse or who for another strong reason was unable to observe a prescribed time-limit in lodging an appeal against a decision. Under section 62 of the said Act an application for the restoration of an expired time-limit shall be lodged with the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) within one year of the expiry of the original time-limit, at the latest. For a very strong reason the time-limit may be restored even after that period. In a decision of 16 November 2001 (no 2862) the Supreme Administrative Court decided to restore an expired time-limit for A in order to lodge an appeal to the Administrative Court against a decision of the Environmental Board in a case where the decision of the Environmental Board was not given to him as required by section 54, subsection 1 of the Environmental Protection Act (ympäristönsuojelulaki, miljöskyddslagen). | 0 |
dev | 001-5054 | ENG | FIN | ADMISSIBILITY | 2,000 | GONTJAROW v. FINLAND | 4 | Inadmissible | Georg Ress | The applicants is a Finnish national born in 1915. He resides in Lieto. He is represented before the Court by Mr Kai Kaituri, a lawyer in Paattinen. In 1991 the applicant signed certain employment contracts on behalf of a group of companies. In decisions of 14 October 1992 the relevant pension insurance company found that as the applicant’s companies had not been registered as legal persons the applicant himself had to be regarded as the employer. As a result the applicant was obliged to pay over FIM 114,000 (approximately the same in FF) in employer’s contributions. According to the attached notice of appeal, an appeal was to be signed by the appellant himself or any other author. If the appeal was not signed by the appellant, it should include a power-of-attorney and indicate the representative’s profession and address. The applicant contested the decisions of the pension insurance company in appeals to the Pension Board (eläkelautakunta, pensionsnämnden). The appeals were signed by the applicant himself but indicated Mr Kaituri as their author. The addresses of both were stated. In decisions of 17 October 1994 the Pension Board refused the applicant’s appeals. The decisions were dispatched to the applicant’s address by regular mail on 26 October 1994. The applicant allegedly received the decisions on 5 December 1994 and on 16 December 1994 he appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen). On 21 December 1995 the Insurance Court declined to examine the merits of the applicant’s appeals, considering that they had been lodged out of time. The Insurance Court noted that the appeals to the Pension Board had been signed by the applicant himself and that he had been “assisted” by Mr Kaituri. In his appeal to the Insurance Court the applicant had explained that the letters from the Pension Board had arrived in a post box which he did not empty every day, inter alia due to his disability. Having been invited to explain this point further, the applicant had stated to the Insurance Court that in November 1994 he had not been expecting any mail which would have required action. As for the Pension Board’s forthcoming decisions, he had expected to be notified thereof through his “representative” Mr Kaituri. The Insurance Court found that the applicant had not submitted sufficient evidence, inter alia of his allegation that he had received the Pension Board’s decisions only on 5 December 1994. The Insurance Court concluded therefore that the applicant should be deemed to have received them on 2 November 1994, in accordance with the presumption stated in the relevant notice of appeal. Consequently, the applicant’s further appeals should have been lodged at the latest on 2 December 1994. The applicant applied to the Supreme Court for restoration of the time-limit for appealing against the Pension Board’s decisions. He further sought to have the Insurance Court’s decision nullified (poistaa, undanröja) and applied for cost-free proceedings with Mr Kaituri as his representative. Mr Kaituri was indicated as the drafter of the application to have the time-limit restored. On 23 May 1996 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant’s request for cost-free proceedings, noting that under law a grant to this effect was not possible in matters before the Insurance Court. The Supreme Court found no grounds for nullifying the Insurance Court’s decision or reinstating the proceedings. | 0 |
dev | 001-101552 | ENG | BGR | CHAMBER | 2,010 | CASE OF ANGELOV AND OTHERS v. BULGARIA | 4 | Violation of Art. 6-1;Violation of Art. 13 | Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicants were born in 1971, 1962, 1966 and 1965 respectively. The second applicant is currently detained in Plovdiv Prison. The third applicant lives in Nicosia, Cyprus. The remaining applicants live in the village of Stryama in Bulgaria. 6. On 6 and 12 May 1992 the police in Rakovski opened two investigations into several thefts of sheep and goats. Between 13 and 19 May 1992 the applicants submitted written explanations admitting to having committed the thefts. 7. The proceedings remained dormant until January 2002 when a police investigator questioned several witnesses and commissioned two expert reports concerning the value of the stolen animals. Between 21 and 24 January 2002 the investigator brought charges against the four applicants. 8. On 15 March 2002 the first and third applicants were questioned before a judge. 9. In November 2003 the investigation was concluded and on 8 December 2003 the applicants were indicted for theft. On 1 June 2004 they entered into a plea agreement with the prosecution, accepting short suspended sentences. At a hearing held on the same day the Plovdiv District Court affirmed the agreement and discontinued the proceedings. Its decision was final. | 1 |
dev | 001-83992 | ENG | CHE | CHAMBER | 2,007 | CASE OF EMONET AND OTHERS v. SWITZERLAND | 2 | Preliminary objections dismissed (ratione materiae, non-exhaustion of domestic remedies);Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award (global) | Christos Rozakis | 8. The applicants were born in 1971, 1946 and 1948 respectively and live in Geneva. 9. In 1971 Mariannick Faucherre (the second applicant) and her husband had a daughter, Isabelle Chantal Emonet (the first applicant). The couple divorced in 1985 and the second applicant's former husband died in 1994. 10. Since 1986 Mariannick Faucherre has been living with Roland Emonet (the third applicant), who is divorced and has no children. The three applicants lived together between 1986 and 1992, when the first applicant left to live with the man she had married. The couple divorced in 1998. 11. In March 2000 a serious illness left the first applicant paraplegic. She kept her own home, but needed to be cared for by her mother and the third applicant, whom she regarded as her father. By agreement between the three applicants, it was therefore decided that the third applicant should adopt the first applicant so that they could become a real family in the eyes of the law. 12. On 14 December 2000 the third applicant filed an adoption request with the Canton of Geneva Court of Justice, enclosing two letters attesting to the other two applicants' agreement. 13. On 8 March 2001 the Court of Justice pronounced the adoption. 14. On 15 June 2001 the cantonal civil status authorities informed the second applicant that the adoption had the effect of terminating her legal parent-child relationship with the first applicant and that the latter would take on her adoptive father's surname, as she was henceforth his daughter. The first two applicants objected to the termination of the mother-daughter relationship between them and requested that it be restored. 15. In a letter of 23 July 2001 the cantonal civil status authorities announced that they were standing by their decision, which was based on Article 267 of the Swiss Civil Code (see “Relevant domestic and international law”, paragraph 20 below). Under the provisions of that Article previously existing parent-child relationships were severed on adoption, save in respect of the spouse of the adoptive parent. Mariannick Faucherre and Roland Emonet, however, were simply cohabiting. 16. On 3 September 2001 the President of the Geneva Department of Justice, Police and Transport formally rejected the request for restoration of the mother-daughter relationship. The applicants applied to the administrative court seeking to have that decision quashed and requesting a declaration that the adoption had not severed the mother-child relationship and that the adopted child could keep her name. On 17 December 2001 the applicants instituted parallel proceedings in the Court of Justice to have the adoption order set aside. The court suspended the proceedings pending the outcome of the present application. 17. On 25 June 2002 the administrative court partly allowed the application, setting aside the decisions of 23 July and 3 September 2001 in so far as they severed the mother-daughter relationship, and ordering the cantonal civil status authorities to restore that relationship. 18. On 2 September 2002 the Federal Office of Justice, having been informed of that decision, referred the matter to the Federal Court. 19. On 28 May 2003 the Federal Court allowed the appeal and invited the cantonal civil status authorities to record the adoption in the civil status register. In its judgment the Federal Court considered whether there was an omission in the Civil Code with regard to the adoption by a cohabitant of his or her partner's child. It pointed out that the adoption of the spouse's child, whether considered as a form of joint adoption or as adoption by a single person, created a legal parent-child relationship between the child and the adoptive parent without severing the existing relationship between the child and its parent. It also pointed out that adoption should be in the interest of the child, so that joint adoption should be the rule and adoption by a single person the exception. The Federal Court noted that adoption by a single person was not subject to any condition other than that of the child's welfare. It concluded that adoption could satisfy that condition only if the link between the partners was strong and lasting, which in principle excluded cohabiting partners, between whom relationships were less stable than between married couples. That was also the reasoning behind the adoption of section 3, paragraph 3, of the Federal Medically Assisted Procreation Act of 18 December 1998, which entered into force on 1 January 2001 and restricted sperm donation to married couples only. The Federal Court reiterated in this connection that the Federal Council had explicitly stated that the requirements in respect of sperm donation could not be less strict than those concerning joint adoption, a possibility which was open only to married couples, that a stable and lasting relationship between the parents was essential to the child's healthy development, and that common-law partnerships were generally less solid than marriages and, unlike marriage, did not guarantee durability and could therefore not be compared with marriage. The Federal Court thus held that Article 264 a) § 3 of the Civil Code could not be applied by analogy, and that there was no omission in the law that needed to be remedied. That court considered that the situation was that provided for in Article 264 b) § 1 of the Civil Code (see “Relevant domestic and international law”, paragraph 20 below). Concerning the Convention, the Federal Court considered that Article 8 did not embody the right to demand a form of adoption that was not provided for by law. Furthermore, the very essence of adoption being the forging of new family ties, prohibiting the accumulation of parent-child relationships was not at variance with Article 8. As to Article 12 of the Convention, the Federal Court repeated that it referred only to marriage and did not confer a right to adopt. The Federal Court also considered the complaint concerning the applicants' unwillingness to accept the legal consequences of the adoption, and found that they could bring proceedings to have the adoption annulled for lack of consent. The judgment was served on the applicants on 3 October 2003. 20. The relevant provisions of the Swiss Civil Code are as follows: “1. Spouses shall only adopt jointly; joint adoption shall not be open to other persons. 2. The spouses must have been married for five years or be at least 35 years of age. 3. A spouse may adopt the child of the other spouse if the spouses have been married for five years.” “1. An unmarried person may adopt a child alone if they are at least 35 years old. 2. ...” “I. Where there are no descendants, an adult or a person who has been declared incapable may be adopted: 1. if he or she suffers from a physical or mental disability requiring permanent care and the adoptive parents have provided such care for at least five years; 2. ... III. For the remainder, the provisions on the adoption of minors shall apply by analogy.” “1. The child shall acquire the legal status of a child of the adoptive parents. 2. The existing parent-child relationships shall be severed, save in respect of the spouse of the adoptive parent. 3. The child may be given a new forename upon adoption.” “1. If, for no lawful reason, consent has not been sought, the persons entitled to give consent may challenge the adoption in court, provided that this would not seriously prejudice the child's welfare. 2. This right does not, however, concern parents who have the possibility of appealing against the decision to the Federal Court.” 21. Section 122 of the Federal Court Act of 17 June 2005, which entered into force on 1 January 2007, provides for the possibility of having Federal Court judgments reviewed in the event that the Court finds a violation of the Convention. Section 122 - Violation of the European Convention on Human Rights “Revision of a Federal Court judgment for violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (ECHR) may be requested under the following conditions: a. when the European Court of Human Rights, in a final judgment, has found a violation of the ECHR or its protocols; b. compensation cannot remedy the effects of the violation; c. revision is necessary to remedy the effects of the violation.” 22. The relevant provisions of the European Convention of 24 April 1967 on the adoption of children, which entered into force in Switzerland on 1 April 1973, read as follows: “This Convention applies only to legal adoption of a child who, at the time when the adopter applies to adopt him, has not attained the age of 18, is not and has not been married, and is not deemed in law to have come of age.” “1. The law shall not permit a child to be adopted except by either two persons married to each other, whether they adopt simultaneously or successively, or by one person. 2. The law shall not permit a child to be again adopted save in one or more of the following circumstances: a. where the child is adopted by the spouse of the adopter; b. where the former adopter has died; c. where the former adoption has been annulled; d. where the former adoption has come to an end.” “1. Adoption confers on the adopter in respect of the adopted person the rights and obligations of every kind that a father or mother has in respect of a child born in lawful wedlock. Adoption confers on the adopted person in respect of the adopter the rights and obligations of every kind that a child born in lawful wedlock has in respect of his father or mother. 2. When the rights and obligations referred to in paragraph 1 of this article are created, any rights and obligations of the same kind existing between the adopted person and his father or mother or any other person or body shall cease to exist. Nevertheless, the law may provide that the spouse of the adopter retains his rights and obligations in respect of the adopted person if the latter is his legitimate, illegitimate or adopted child. In addition the law may preserve the obligation of the parents to maintain (in the sense of l'obligation d'entretenir and l'obligation alimentaire) or set up in life or provide a dowry for the adopted person if the adopter does not discharge any such obligation. 3. As a general rule, means shall be provided to enable the adopted person to acquire the surname of the adopter either in substitution for, or in addition to, his own. 4. If the parent of a child born in lawful wedlock has a right to the enjoyment of that child's property, the adopter's right to the enjoyment of the adopted person's property may, notwithstanding paragraph 1 of this article, be restricted by law. 5. In matters of succession, in so far as the law of succession gives a child born in lawful wedlock a right to share in the estate of his father or mother, an adopted child shall, for the like purposes, be treated as if he were a child of the adopter born in lawful wedlock.” 23. At its 77th meeting, held in May 2002, the European Committee on Legal Cooperation instructed the Committee of Experts on Family Law to examine the European Convention on the Adoption of Children. A working party on adoption was set up at the start of 2003 to draft a report making detailed proposals for a possible revision of that convention. In its final report (CJFA-GT1 (2004) 2) the working party concluded that a new (revised) convention on the adoption of children should be elaborated as soon as possible. 24. On 16 May 2006, the draft revised Convention of the Council of Europe on the Adoption of Children, as amended by the working party at its 4th meeting, from 5 to 7 April 2006, was published. The revised version is based on the information contained in the working party's final activity report. 25. The following are excerpts from the draft (revised) Convention and the corresponding explanatory report, as adopted by the working party at its 36th meeting, from 15 to 17 November 2006, and by the European Committee on Legal Cooperation at its 82nd meeting, from 26 February to 1 March 2007: Text of the draft Convention (revised): Preamble “... Considering that, although the institution of the adoption of children exists in the law of all member states of the Council of Europe, there are in those countries still differing views as to the principles which should govern adoption and differences in the procedure for effecting, and the legal consequences of, adoption; ...” Article 2 (Scope of the Convention) “1. This Convention applies to the adoption of a child who, at the time when the adopter applies to adopt him or her, has not attained the age of 18, is not and has not been married and has not reached majority. ...” Article 7 (conditions for adoption) “1. The law shall permit a child to be adopted: a. by two persons of different sex who i. are married to each other, or ii. where such an institution exists, have entered into a registered partnership together; b. by one person. 2. States are free to extend the scope of this Convention to same-sex couples who are married together or who have entered into a registered partnership. They are also free to extend the scope of this Convention to different-sex couples and same-sex couples who are living together in a stable relationship. ...” Article 11 (Effects of an adoption) “1. Upon adoption a child shall become a full member of the family of the adopter(s) and shall have in regard to the adopter(s) and his, her or their family the same rights and obligations as a child of the adopter(s) whose parentage is legally established. The adopter(s) shall have parental responsibility for the child. The adoption shall terminate the legal relationship between the child and his or her father, mother and family of origin. 2. Nevertheless, the spouse or registered partner of the adopter shall retain his or her rights and obligations in respect of the adopted child if the latter is his or her child, unless the law otherwise provides. 3. As regards the termination of the legal relationship between the child and his or her family of origin, States Parties may make exceptions in respect of matters such as the surname of the child and impediments to marriage or to entering into a registered partnership. 4. States Parties may make provision for other forms of adoption having more limited effects than those stated in the preceding paragraphs of this article. ...” Commentary on the Articles of the Convention. Article 7 (conditions for adoption) “... 48. States are also free to extend the scope of the convention to different- or same-sex couples who are living together in a stable relationship. It is up to the States Parties to specify the criteria for assessing the stability of such a relationship. 49. If a State Party has extended the scope of the convention its provisions have to be applied mutatis mutandis. ...” Article 11 (Effects of an adoption) “64. The revised convention mainly deals with “full” adoption (which is an adoption that severs all ties with the family of origin) without preventing those states that have “simple” adoption (which is an adoption that does not sever the relationship with the family of origin so that the adopted child is not entirely integrated into his or her adoptive family) from continuing to use this form of adoption. 65. The main object of this article is to ensure that an adopted child is treated from every standpoint like a child of the adopter and his or her family and that, in principle, all ties with the child's family of origin should be severed. ... 67. According to paragraph 2, the parent whose child is adopted by his or her spouse or registered partner retains his or her rights and obligations in respect of the child, unless the law otherwise provides. ....” | 1 |
dev | 001-60736 | ENG | SWE | CHAMBER | 2,002 | CASE OF SALOMONSSON v. SWEDEN | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award | Nicolas Bratza | 8. On 17 October 1994 the applicant, who was born in 1937 and had been on early retirement since 1989, applied for disability benefits under the Social Insurance Act (Lagen om allmän försäkring, 1962:381; hereinafter “the 1962 Act”). He claimed that he had extra costs following an operation on his intestines in September 1994 due to, inter alia, an increased consumption of fluids. 9. By a decision of 28 December 1994 the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Stockholm rejected the application, finding that the applicant’s costs were not such as to make him eligible for benefits. 10. The applicant later made a new application, which was rejected by the Office on 8 February 1995. 11. The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm. On 16 May 1995 the court rejected his appeal. The court did not hold an oral hearing nor did the applicant request one. 12. Following the applicant’s further appeal, the Administrative Court of Appeal (kammarrätten) in Stockholm, by a decision of 17 November 1995, refused him leave to appeal. 13. On 5 December 1995 the applicant made yet another application for disability benefits. On 3 April 1996 the application was rejected by the Office, which again found that the applicant’s costs did not attain the required level. The Office had at its disposal three medical certificates issued by different physicians. They expressed differing opinions on the applicant’s need of extra consumption of fluids, two of them considering that there was no such need and the third one stating that the applicant was recommended, from a surgical point of view, an increased consumption of, for instance, mineral water. 14. The applicant appealed to the County Administrative Court. In a decision of 23 July 1996 the court noted that the issue in the case was whether the applicant’s extra costs attained the level required for a disability allowance under the 1962 Act. Finding that the medical evidence in the case was inconclusive and did not provide the Court with a sufficient basis for a decision, the court ordered the National Social Insurance Board (Riksförsäkringsverket; hereinafter “the Board”) to submit observations in the case. The Board answered by a letter of 13 August 1996, in which it contested the applicant’s claims. The applicant made observations in reply. 15. On 16 October 1996 the County Administrative Court gave judgment in the applicant’s favour. Having reiterated that the medical evidence was inconclusive, the court also noted that the calculations of the applicant’s extra costs made by the Office and the applicant himself were very close on either side of the level required for entitlement to a disability allowance. In these circumstances, it gave the applicant the benefit of the doubt and granted him an allowance. An oral hearing was not requested by the applicant, nor did the court hold one of its own motion. 16. The Board appealed against the judgment to the Administrative Court of Appeal and submitted a medical certificate from a further physician, who stated that an increased consumption of fluids was necessary due to the applicant’s handicap but that there was no particular need for mineral water. On 2 April 1997 the appellate court granted the Board leave to appeal. 17. By a letter of 23 April 1997 the applicant requested the appellate court to hold an oral hearing in the case. He did not state any reasons for his request. On 15 May 1997 it was rejected by the court. After having restated section 9 of the Administrative Court Procedure Act (Förvaltningsprocess-lagen, 1971:291; hereinafter “the 1971 Act”; see further paragraph 25 below), the court gave the following reasons: “Having regard to the subject-matter at issue and the information that has come to hand in the case, [the court] finds that an oral hearing is unnecessary and rejects the request to that effect. [The applicant] is invited to state the further circumstances he wishes to invoke and submit his final written observations in the case within two weeks after having been notified of this decision. The case can be determined notwithstanding a failure to submit such written observations.” 18. The applicant reiterated his request for an oral hearing on 22 May 1997. He now stated that he wished to be heard in person about his working conditions and the costs of his consumption of fluids. Further, representatives of the Board should be heard about the applicable levels for entitlement to and calculation of disability allowances. 19. On 24 June 1997 the Administrative Court of Appeal rejected the applicant’s renewed request for an oral hearing and gave judgment in favour of the Board. Thus, it quashed the County Administrative Court’s judgment and confirmed the Office’s decision of 3 April 1996. Without giving any further reasons, it considered that the information in the case did not show that the applicant met the conditions for a disability allowance. 20. The applicant appealed to the Supreme Administrative Court (Regeringsrätten). He requested that the case be referred back to the Administrative Court of Appeal for re-examination or, alternatively, that the Supreme Administrative Court confirm the County Administrative Court’s judgment. He complained about the lack of an oral hearing in the Administrative Court of Appeal and also requested the Supreme Administrative Court to hold an oral hearing. 21. By a letter of 28 July 1997 the Supreme Administrative Court informed the applicant that it did not normally hold oral hearings and gave him the opportunity to complete his appeal in writing. 22. On 26 August 1997 the Supreme Administrative Court refused the applicant leave to appeal. 23. According to chapter 9, section 2 of the 1962 Act, a person who is ill or handicapped is entitled to disability benefits, provided that, before reaching the age of 65, he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses. The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation. It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses. According to the Board’s guidelines, the total cost of all extra needs due to the disability should come to at least 28.5% of a basic amount geared to the price index (basbelopp) in order to make the individual eligible for an allowance. In 1995, when the applicant made his second application to the Office, this corresponded to 10,175 Swedish kronor (SEK). 24. A decision by the Social Insurance Office under the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court. 25. The procedure in the administrative courts is governed by the provisions of the 1971 Act. Section 9 provides: “The proceedings are in writing. An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case. In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.” The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court. 26. According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535). 27. It was further stated, in respect of the third paragraph of section 9, that a party’s request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537). | 1 |
dev | 001-58129 | ENG | FRA | CHAMBER | 1,998 | CASE OF HIGGINS AND OTHERS v. FRANCE | 3 | Preliminary objection rejected (out of time);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings | null | 7. The case concerns a dispute over the succession to the estates of Mary-Ann Higgins, who died on 22 February 1961, and her husband Charles Brown-Petersen, who died on 13 March 1962. The applicants are entitled to a share in the estates of the deceased either by will or on intestacy and are all French citizens. Their names are: 8. In this complex succession dispute the applicants were parties to three sets of proceedings against a number of other people, including a Mr L., a notary in Papeete (French Polynesia). Those proceedings were: (ii) a third-party application to reopen proceedings in which the Papeete Court of Appeal had on 10 September 1964 refused an application to set aside Charles Brown-Petersen’s will of 19 December 1961; (iii) an application to have set aside as fraudulent a transfer of a property development known as the “Bloc Vaima” to the Brown Building Corporation (“BBC”) and for payment of rent and other income derived from that property since 1961. 9. In the last set of proceedings – the only one in issue – the Papeete Civil Court of First Instance found in favour of the applicants in a judgment of 16 December 1988. It ordered that the rent should be paid to a receiver and held that BBC had been formed for an illegal purpose. It held that the Higginses and the other applicants were in principle entitled to have the transfer set aside but deferred judgment on that point until the Court of Appeal had given its decision in the action for payment of a legacy. On 4 January 1989 BBC appealed against the judgment to the Papeete Court of Appeal (see paragraph 17 below). 10. While that appeal was pending, the applicants applied for transfer of the case to another court on grounds of bias. 11. In an application (no. T-89-15.690) registered on 1 June 1989, the applicants asked the Court of Cassation (Second Civil Division) to order transfer of the proceedings pending against BBC to a court other than the Papeete Court of Appeal. They also requested the Papeete Court of Appeal to defer judgment until the Court of Cassation had delivered its decision (see paragraph 17 below). Before making that application, the applicants had, on 25 May 1989, made an initial application (no. N-89-15.409) to the same division of the Court of Cassation for the proceedings in the action for payment of a legacy and those relating to the third-party application, both of which were pending in the Papeete Court of Appeal, to be transferred to another court on grounds of bias (see paragraph 8 above). 12. The application of 1 June 1989 read as follows: “There are currently pending before the Papeete Court of Appeal (i) proceedings for payment of ... legacies…; and (ii) a third-party application to reopen proceedings… In application no. 89-15.409 registered on 25 May 1989 at the registry of the Court of Cassation the applicants requested transfer of those two sets of proceedings from the Papeete Court of Appeal to another court. … … The Higginses and the other applicants brought an action ... against the Brown Building Corporation in which they sought a declaration that the transfer of the property concerned to the company ... was fraudulent… … … the case is to be considered on the merits by the Papeete Court of Appeal; the applicants request its transfer to another court. The applicants expressly refer to the grounds on which they relied in application no. 89-15.409. A transfer is justified for the same reasons in the proceedings against the Brown Building Corporation…” As regards the grounds for suspecting bias, the applicants made, inter alia, the following submissions in their application of 1 June 1989: “The Papeete Court of Appeal comprises only six members: the President, three other judges, a Principal State Counsel and an Assistant Principal State Counsel. The applicants are entitled to question whether objectively the court that is to rule in their various proceedings against the Bambridges, Mr L. and the Brown Building Corporation – a mere emanation of the Bambridges – is impartial. Firstly, Mr L. has held a prominent position in Papeete and enjoyed privileged, friendly relations with a number of the judicial officers of the Court of Appeal. Several judicial officers, including some from the Court of Appeal, have enjoyed special relations with the parties for a very long time, Mr J. and Mr A. were close friends of Phineas Bambridge (at the latter’s funeral his widow was supported by Mr A.). … It has to be noted, furthermore, that the atmosphere of tranquillity in which judicial business ought necessarily to be conducted has in fact been seriously disturbed by the sudden turn of events in the case and its repercussions. In particular, the Higginses and the other applicants, aware that their share in the estate was about to be squandered, applied for – and in several cases obtained from the court of first instance – orders for some of the assets of the estate to be delivered to a receiver. They also secured a like measure over Mr L.’s assets… He reacted very violently when the measure was ordered, publicly declaring it to be ‘an act of judicial terrorism’. The local judicial officers became divided and State Counsel at the Papeete Court of First Instance reflected the disarray in an application to have the case transferred that he made to the Criminal Division on 24 September 1987. In other words some judicial officers in Papeete, divided among themselves, whose actions have been publicly called into question and who have taken up a position on events closely connected with the proceedings, which are still pending, feel that, over and above their goodwill their impartiality may be objectively called into question and that the decisions they render may legitimately fall under suspicion… ... Taken as a whole, these factors cast unacceptable doubt on the impartiality of the judicial officers of the Court of Appeal and render it ‘questionable’ or suspect. The Court of Cassation will prefer to avoid any ambiguity or suspicion and to order that the case be removed from the Papeete Court of Appeal.” 13. On 22 March 1990 the Court of Cassation (Second Civil Division) held: “As to the applications dated 25 May and 1 June 1989 … for an order for transfer on grounds of bias to a court other than the Papeete Court of Appeal of the proceedings between them and (i) the Bambridges and another, (ii) Mr L. and (iii) the Brown Building Corporation property company; The Court … … Having considered the applications and the documents lodged with the Court of Cassation registry on 25 May and 1 June 1989 on behalf of the Higginses and the other applicants; … In their applications the Higginses and the other applicants seek transfer to another court of appeal on grounds of bias of the cases pending before the Papeete Court of Appeal to which they are parties, namely: (1) proceedings for payment of a legacy following an appeal against a judgment of the Papeete Civil Court of First Instance dated 19 March 1986; and (2) a third-party application to reopen proceedings with a view to securing an order setting aside a judgment of 10 September 1964 of the Papeete Court of Appeal; those applications are connected and must be joined. While it has not been shown that the members of the Papeete Court of Appeal have taken up a position on the outcome of the proceedings before them, it is apparent from the alleged facts and the documents produced that the Higginses and the other applicants may entertain doubts as to the impartiality of the court that is to try their cases; the cases should therefore be transferred to another court, whose decision will command respect and have the authority that court decisions must possess. FOR THESE REASONS, JOINS applications nos. N-89-15.409 and T-89-15.690; DECLARES the applications admissible; and ORDERS transfer of the following cases to the Paris Court of Appeal: (1) proceedings for the payment of a legacy…; (2) a third-party application for proceedings to be reopened…; the applications are connected and must be joined…” 14. In two judgments dated 16 July 1991 the Court of Cassation (First Civil Division) declared null and void the two judgments that the Papeete Court of Appeal had delivered meanwhile, on 29 June 1989, in the proceedings for payment of a legacy and on the application to reopen proceedings. The Court of Cassation’s two judgments were similarly worded. The one on the appeal against the Papeete Court of Appeal’s judgment in the action for payment of a legacy indicated: “In the impugned decision of 29 June 1989 the Papeete Court of Appeal gave judgment in an action for payment of a legacy, after holding that it was unnecessary to defer judgment until the Court of Cassation had ruled on an application for the case to be transferred on grounds of bias that had been lodged on 25 May 1989; in a judgment of 22 March 1990 the Court of Cassation granted that application and ordered that the case be transferred to the Paris Court of Appeal; it follows, since that transfer decision must be executed, that the Court of Appeal’s decision in the impugned judgment is null and void; it is therefore unnecessary to rule on the appeal against that judgment. FOR THESE REASONS HOLDS that it is unnecessary to rule on the appeal.” 15. On 2 July 1990, being of the view that the Court of Cassation had failed to mention the proceedings against BBC in its judgment of 22 March 1990 by mistake, the applicants made an application for rectification of a clerical error to the Second Civil Division of that court. 16. In a judgment of 23 October 1991 the Second Civil Division dismissed that application in the following terms: “In a judgment of 22 March 1990 the Second Civil Division of the Court of Cassation transferred to the Paris Court of Appeal, on grounds of bias, two sets of proceedings pending in the Papeete Court of Appeal between, on the one hand, the Higginses and the other applicants and, on the other hand, Mr L.; On 2 July 1990 the Higginses and the other applicants made an application to the Court of Cassation for rectification of the judgment of 22 March 1990; in support of their application they argued that that decision contained a clerical error, the Court of Cassation having ordered the joinder of two applications before it, registered under nos. N-89-15.409 and T-89-15.690, but having ordered transfer of only the first two cases, to which the first application related; But on the pretext of rectification, the purpose of the application is to secure a variation of the judgment’s clear provisions. For these reasons Dismisses the application; and Holds that it is unnecessary to rectify the judgment of 22 March 1990.” 17. Meanwhile, having held a hearing on 23 November 1989, the Papeete Court of Appeal ruled on 7 December 1989 that there were no grounds for deferring judgment pending a decision on the application lodged by the applicants on 1 June 1989 for transfer of the case on grounds of bias and reversed the judgment of 16 December 1988 in its entirety. Ruling afresh, it held that it had not been established that the instrument creating BBC was a nullity, and it consequently dismissed the application of the Higginses and the other applicants for an order setting aside the transfer to BBC. As to its refusal to defer judgment, it gave the following reasons: “The Higginses and the other applicants referred to a challenge but have not shown that one was made and do not even identify the judicial officer or officers concerned; accordingly, the application cannot be granted on that count. On the other hand, they have shown that on 1 June 1989 they filed an application for transfer on grounds of bias with the Court of Cassation’s registry. By Article 615 of the local Code of Civil Procedure, such applications do not in themselves have suspensive effect and it is for the court concerned to assess whether judgment should be deferred. Securing the appointment of a receiver in order to paralyse the usual appeals process is contrary to the rights of the defence and is therefore acceptable only in exceptional circumstances. In their application for a transfer, the Higginses and the other applicants confined themselves to making abstract and vague complaints and only referred in more concrete terms to three judicial officers, who are not (in the case of Mr D.) or are no longer (in the case of Mr A. and Mr J.) members of this Court of Appeal; in practice, execution of the impugned decision is to be levied only on rent from a plot of land, not on the title to that land; in the circumstances, the danger is not such as to make it necessary to defer judgment…” 18. Without waiting for the application for transfer on grounds of bias to be decided (see paragraphs 11–13 above), the applicants appealed to the Court of Cassation and lodged full pleadings on 20 July 1990. The case was allocated to the First Civil Division. 19. On 23 April 1991 – although the time-limit for filing pleadings had expired on 7 September 1990 (see paragraph 22 below) – the applicants lodged observations and submissions to the effect that it was unnecessary to decide the appeal, and produced in support the judgment delivered on 22 March 1990 by the Second Civil Division of the Court of Cassation and the application for rectification of a clerical error. Pointing out that the latter application was pending before the Second Civil Division, they argued before the First Civil Division: “If that application [for rectification of a clerical error] is allowed, the result will be that the Second Civil Division will be deemed to have granted on 22 March 1990 the applicant’s request for transfer of the case on grounds of bias. In those circumstances, the judgment delivered in this case by the Papeete Court of Appeal on 7 December 1989 will have to be considered null and void. That judgment was delivered after the applicants had lodged the application for transfer on grounds of bias and before that application was heard by the Second Civil Division. The judgment of the Second Civil Division can only have a declaratory effect and contain a finding that it was impossible for the Papeete Court of Appeal to hear the case. Accordingly, the judgment now impugned must be considered as having been deprived of any legal basis as a result of the judgment of 22 March 1990 (once rectified by the Second Civil Division), whereby removal of the case from the Papeete Court of Appeal was ordered. The First Civil Division will, in consequence, have to hold that the impugned judgment is null and void.” 20. On the same day the applicants’ lawyer sent a letter to the advocate-general dealing with the case to remind him of the history of the proceedings in the First and Second Civil Divisions of the Court of Cassation. He drew the advocate-general’s attention to the judgment of 22 March 1990 and the application for rectification of a clerical error pending in the Second Civil Division of the Court of Cassation and suggested he contact the advocates-general dealing with the other cases. 21. The First Civil Division held a hearing on 5 November 1991. In a judgment of 17 December 1991, after ruling on the two grounds of appeal alleging that the Court of Appeal had not given sufficient reasons, it dismissed the substantive appeal against the judgment of 7 December 1989 without referring to the judgment of 22 March 1990. 22. Two provisions of the New Code of Civil Procedure are relevant: “Appellants shall be barred from proceeding with their appeal unless, within five months of giving notice of appeal on points of law, they file at the Court of Cassation’s registry and serve on the respondent a pleading setting out the legal grounds on which they rely in their appeal against the impugned decision.” “The time-limits laid down in Articles 978 and 989 shall be extended: (a) by one month where the appellant lives ... in an overseas territory...” 23. Article 341 of the New Code of Civil Procedure provides: “A judge may be challenged on grounds of bias only for the reasons prescribed by law. ... Save for special provisions that shall apply in certain courts, a judge may be challenged if: (1) he or his spouse has a personal interest in the dispute; 2. he or his spouse is a creditor, debtor, heir presumptive or donee of one of the parties; (3) he or his spouse is related by blood or by marriage to one of the parties or his spouse up to and including the fourth degree; (4) there is or has been litigation between him or his spouse and one of the parties or his spouse; (5) he has previously dealt with the case as a judge or arbitrator or has advised one of the parties; (6) he or his spouse is responsible for administering the assets of one of the parties; (7) he or his spouse is the employer or employee of one of the parties or his spouse; (8) it is common knowledge that there is a friendship or hostility between him and one of the parties...” 24. The following rules in the New Code of Civil Procedure apply to transfers: “An application for a case to be transferred on grounds of bias shall be subject to the same conditions as regards admissibility and form as a challenge of a judge for bias.” “Where an application is justified, the case shall be transferred either to a differently composed bench of the same court or to another court of the same type. The decision shall be binding both on the parties and on the court to which the case is transferred. No appeal shall lie.” “Proceedings in the court from which an applicant seeks to have a case transferred shall not be stayed. However, the president of the court to which the application for the case to be transferred is made may, depending on the circumstances, direct the court suspected of bias to stay the proceedings pending a decision on the application.” 25. Article 462 of the New Code of Civil Procedure provides: “Clerical errors and omissions in a judgment, including a final judgment, may in all cases be rectified by the court that delivered it ... on the basis of the evidence in the file or, failing that, of what reason dictates. Proceedings for rectification may be brought by means of an application by one of the parties or by means of a joint application; the court may also act of its own motion. The court shall decide the application after hearing the parties or after having given them an opportunity to appear. The order for rectification of the error or omission shall be noted on the original and execution copies of the judgment. It shall be served in the same way as the judgment. Where a rectified decision has become final, the order for rectification may be challenged only by an appeal on points of law to the Court of Cassation.” | 1 |
dev | 001-61813 | ENG | ISL | CHAMBER | 2,004 | CASE OF HILDA HAFSTEINSDOTTIR v. ICELAND | 2 | Violation of Art. 5-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Gaukur Jörundsson;Nicolas Bratza | 9. The applicant was born in 1949 and lives in Reykjavík. 10. Her complaints under the Convention stem from her arrest and detention in police custody in Reykjavík on six occasions as described below. 11. The applicant was arrested and held on remand in police custody on six occasions on different dates between 31 January 1988 and 11 January 1992. Each time, she spent the night in a cell and was released in the morning. Further details about these events are given in the police reports compiled by the responsible police officers for the Reykjavík Police Commissioner and are set out below. (i) In the night of Sunday 31 January 1988 at 3.40 a.m., the applicant went to a local police station in a Reykjavík suburb accompanied by two taxi drivers. Although she only had ISK 100 in her possession, the taxi fare amounted to ISK 1.825. According to a police report (signed by Police Officer R.B.), the taxi drivers had stated that “they had been driving [the applicant] during the night, but since she had refused to pay they had driven her to the nearest police station.” The police report further stated that she was “obviously drunk and agitated” and that she was “very agitated, foul-mouthed and disruptive.” The applicant was then transferred to Reykjavík Police Headquarters where she was, on the decision of Assistant Police Inspector H.Ó., detained in custody until the next morning. A further police report of 31 January 1988 (signed by R.B.) relating to a police interrogation the next morning at 8.55 a.m. stated that the reasons for her “being summoned [had] been explained to her”, namely a “case ... concerning taxi fraud, intoxication, etc.” She had replied inter alia that she had intended to pay her fare to the driver in an amount of ISK 1.325 when returning home, but had refused to pay an invoice of ISK 500, which she would only pay after consultation with her lawyer. She expressed surprise over the fact that not only had she been subjected to a string of accusations by the police but also she had been held in detention without being given any reasons. She was released at 9.25 a.m. (ii) On Friday 18 May 1990 at 0.05 a.m., the applicant arrived at the Reykjavík police headquarters at Hverfisgata. A police report (signed by Assistant Police Inspector H.Ó.) entitled “Intoxication and detention”, described the applicant's condition as “Very obviously drunk” and gave “Drunken behaviour” as the reason for her arrest. The report included the following passage: “As far as she could make herself understood she had arrived by taxi and there was some dispute between her and the driver. The driver and the taxi were nowhere to be seen. [After the police inspector had] talked with Hilda for a while it became clear that the cause of the dispute no longer existed. She suddenly began to stride about in the corridors and the personnel lounge of the police station, confronting the police personnel present and exhibiting drunken behaviour. She would not calm down despite repeated requests and finally it became necessary to restrain her by placing her in police custody.” According to the Government, the police had repeatedly requested the applicant to desist and to leave the police station but, as these requests were ignored, she was placed in police custody as a last resort. Since the relevant hand-written card file was no longer available, the time of her release could not be confirmed. (iii) On Saturday 8 December 1990 at 10.15 p.m., the applicant went again to the Reykjavík police headquarters. A police report (signed by Police Officer M.M. and addressed to the Police Commissioner) entitled “Intoxication, arrest and detention in police custody” was drawn up on her arrival: “Hilda arrived at the police guardroom in a state of heavy intoxication. It was not clear what she wanted; to a large extent she was incoherent. She was abusive and threatened to assault the police officers present at the station. Police Officers nos. 41 and 89 brought her to the detention facility... where Inspector R.A. interviewed her. Hilda was given the opportunity to leave freely, which she flatly refused. When her overcoat was being removed from the cell, she lashed out at her surroundings with a leather belt without, however, hurting anybody...” The report described the applicant's condition as “very obviously drunk” and indicated “intoxication and aggressive behaviour” as the reasons for her arrest, which decision was taken by Inspector R.A. According to an entry in a more recent computerised police custody record, her detention lasted from 10.37 p.m. until 8.24 a.m. the next day. The reason for her detention was recorded as: “Alcoholic Beverages Act, drunkenness in a public place (section 21 [see paragraph 26 below])”. (iv) On Saturday 19 January 1991 at 0.15 a.m., the applicant went to the same police station. The relevant police report (signed by Police Officer M.M.), entitled “Intoxication, improper behaviour, and detention in police custody”, stated that her visit did not seem have any purpose and that she was very obviously drunk. Before she could be stopped, she had burst into the office of the inspector in charge and addressed him in derogatory terms as a “son of a bitch” and a “eunuch”. She was then arrested and held in police custody. The reason for her arrest according to the police report was that she had directed a stream of verbal abuse at the inspector. The decision had been taken by Inspector B.S. The relevant custody record indicated that the applicant had been held in detention from 0.18 a.m. until 10.38 a.m. the following morning. The reason for her detention was registered as: “policemen; violent behaviour towards policemen (106-107)”. The reference in brackets appears to be Articles 106 and 107 of the General Penal Code (see paragraphs 27 below). A police note dated 20 January 1991 suggests that the applicant was offered, but refused, a judicial settlement of the matter. (v) On Monday 24 June 1991 at 9.10 p.m. the applicant once again went to the police headquarters in Reykjavík. The police report concerning the incident (signed by Police Officer H.D.), stated that she was very obviously intoxicated and agitated and that she made a habit of visiting the police station when under the influence of alcohol. Moreover, she had made a lot of noise, including calling out the names of various police officers. Her noises and screams increased to the point of disturbing the peace required for the work of the station. The applicant grabbed a waste bin standing at the entrance to the police station and prepared herself to throw the bin at Police Inspector R.A. who was helping a man to wash blood off his face. The applicant slammed the bin onto the floor with a loud bang when the policeman raised his hand in order to protect himself. The applicant had been ordered many times to leave the station, but to no avail. Instead, without permission, she had entered a corridor at the station and reached the personnel lounge, while carrying a glass containing a liquor mixture. According to R.A., she had threatened Assistant Inspector K.G. and had become very agitated when kindly requested to stop screaming and to leave the station. When she refused to leave she was arrested and brought to the detention facility. The decision was taken by Inspector R.A. The police report stated the reason for her arrest as “state of intoxication etc.” According to the relevant custody record she was detained from approximately 9.20 p.m. until 7.34 a.m. the following morning. The reason for her detention was recorded as “Alcoholic Beverages Act, drunkenness in a public place (section 21).” (vi) On Saturday 11 January 1992 at 2.39 a.m., the police was called to the Hotel Saga in Reykjavík. According to the relevant police report (signed by Police Officer H.R.), when the police arrived the applicant had been restrained by the hotel staff. She was very obviously intoxicated and agitated. The applicant was arrested and taken into custody for “intoxication”. The decision was taken by Assistant Inspector K.G. According to the relevant custody record (dated 14 February 2001) the applicant was detained from 3.14 a.m. until 9.17 a.m. the following morning. The reason for her detention was registered as “Alcoholic Beverages Act, drunkenness in a public place (section 21).” 12. The Government further submitted various pieces of evidence described below. It included two police reports of 25 May 1991 and 12 June 1992 respectively, concerning refusals by the applicant to pay taxi fares. Another report, dated 5 November 1991, stated that she had been ordered to leave a police station while in an intoxicated state but had left the station after having damaged a toilet and insulted a police officer with offensive language. Later that night she had for no apparent reason disturbed the police by repeatedly telephoning the police assistance and emergency number. 13. On 13 October 1991 Chief Inspector J.J.H. complained to the Prosecutor General that the applicant had sent him gifts and harassed him repeatedly with phone calls both at work and at home. Once she had gone to his home and harassed his pregnant daughter. On 5 February 1992 the Prosecutor General replied that following an investigation by the State Criminal Investigation Police, further measures by the prosecution service were not deemed justified. 14. On 9 September 1993 the State Criminal Investigation Police informed the applicant and the Reykjavík Police Commissioner that no further measures would be taken with respect to the above complaint of 13 October 1991. 15. On 13 December 1991 counsel for the applicant, Mr Hilmar Ingimundarson, requested the Prosecutor General to order the State Criminal Investigation Police to investigate the applicant's complaints against various police officers, notably in relation to events on 8 December 1990 and 24 June 1991. Such an investigation had previously been refused by the State Criminal Investigation Police on 3 December 1991. On 5 February 1992 the Prosecutor General replied that the authority saw no reason to order an investigation. On 2 July 1992 a similar reply was given in relation to another complaint by the applicant concerning events on 18 May 1990. 16. On 15 July 1992 the applicant petitioned the Parliamentary Ombudsman asking for a statement of the reasons for the refusal of her requests for an investigation. On 4 August 1992 the Ombudsman concluded: "It is clear from the case file that you and the police differ considerably as to the manner in which the police officers dealt with you on the said dates and the events preceding these incidents. I do not find that a resolution of a dispute of this kind is within the purview of the Parliamentary Ombudsman and, consequently, conclude that there are no grounds for me to consider the matter raised in your petition any further." 17. By a letter to the applicant dated 14 September 1992, the Reykjavík police informed her that no further action would be taken regarding the matter, referring to six reports related to the incidents mentioned in paragraph 11 above. 18. On 11 March 1993 the applicant instituted civil proceedings against the State of Iceland claiming compensation for the damage which she had suffered as a result of having been unlawfully arrested and detained by the police as well as for harassment. 19. After a first set of proceedings the Supreme Court ordered the District Court in Reykjavík to re-examine the case with an oral hearing. 20. By a judgment of 11 April 1995 the District Court found that the applicant's claim was time-barred pursuant to the six-month time limit laid down in Article 157 of the Code of Criminal Procedure. 21. On an appeal by the applicant the Supreme Court overturned the District Court's finding by judgment of 10 October 1996. After an examination of the merits it nevertheless found for the State, giving the following reasons: “...The judgment under appeal refers to six events which occurred during the period from 31 January 1988 to [11 January 1992]. According to the police reports, on each occasion the [applicant] was arrested and detained on remand because she was intoxicated and agitated and could not be calmed down. The police reports relate how she acted disruptively at the police station, being verbally abusive or behaving in a drunken manner, and that she was placed in a detention cell in order to restrain her. From these descriptions, which have not been refuted, it is clear that the police had good cause and sufficient reason to commit the applicant to a detention cell for a short period of time, cf. the main rule in Article 34 of the Code on Criminal Procedure, no. 74/1974 then in force, and Articles 2 and 3 of the Reykjavík Police Ordinance, no. 625/1987; and the respondent's view that no other remedy was available in the circumstances must be upheld. Consequently, the [applicant's] claim for compensation lacks legal basis and, for that reason alone, the respondent must be released from her claim. ...” 22. The applicant submitted a medical certificate dated 13 December 1996, which included the following: “...For two years I, the undersigned, have acted as the [applicant's] general practitioner. During this period, nothing has occurred which would indicate that she has had alcohol related problems. Nor do the reports from her previous doctors give any reason to believe that she has had such problems. ...” 23. Article 34 of the Code of Criminal Procedure, as in force at the material time (1974:74), read: “Police officers shall be vigilant in their work and be clearly aware of the responsibility it entails. Their role is to uphold the law and order, to assist the public, as appropriate, to take measures against unlawful conduct and to work towards detecting criminal offences that are committed and to provide every assistance to official investigators. ....” 24. Articles 2 and 3 of the Reykjavík Police Ordinance (no. 625/1987) provided: Article 2 “'Public place' in this Ordinance means streets and places intended for use by the public. The provisions on public places apply also, if appropriate, to other places open to the public - stores, restaurants, parking places, bus shelters, museums, etc.” Article 3 “Breaches of the peace, fights, disorderly conduct or other behaviour that disturb the peace in public places shall be prohibited, and the public shall not assemble in groups in public places if doing so interferes with traffic or causes inconvenience to passers-by. In public places, no one may harass others or indulge in unseemly behaviour.” The above provisions had a statutory basis in Act No. 1 of 3 January 1890, section 2 of which stipulated: “A police ordinance shall contain provisions on such matters as may be required in the circumstances obtaining in each place: (a) On order and good behaviour on the streets, roads and places to which the public has access, on all measures that are necessary in order to facilitate or prevent obstruction to traffic, on all matters that may cause danger, on the preservation and protection of public property, on public order in restaurants and places of entertainment accessible to the general public or public gatherings such as tournaments. ...” Section 5 provided that a breach of police ordinances adopted under the Act was punishable by a fine. 25. Article 61 of the Code of Criminal Procedure contains the following provisions regarding arrest: “The police shall make an arrest if ordered by a judge. The police may also make arrests without a judicial warrant: 1. if they observe a person committing a punishable act, provided the act is subject to public indictment; 2. if a person is suspected of having committed an offence and does not provide police with information as to his name and address, or if he is a vagrant; 3. if the arrest of a suspected person is deemed necessary for the protection of others; 4. if an arrest is deemed necessary for preventing a suspected person from destroying evidence, leaving the police district or otherwise obstructing an investigation and it is not thought advisable to wait for a judicial warrant; 5. if a person has escaped from custody or evaded lawfully ordered supervision; 6. if a person has, unless he was prevented from so doing, failed to act upon a police summons to provide a statement in a criminal case, or 7. if a person loses control in a public place or causes public outrage, or does not have permission to remain in Iceland. In each case a police officer shall assess the need for immediate arrest, for example on account of the danger of concealment of evidence, escape of an offender, continuation of criminal conduct, etc.” 26. At the relevant time, the Alcoholic Beverages Act 1969 (later replaced by Act 15/1998) included in its Sections 21 and 33 provisions to the effect that any person causing disorder, danger or disgrace in a public place in breach of the Act or a regulation issued under it was punishable by payment of “fines, punitive custody or imprisonment for up to 6 years”. 27. Assault and threatening behaviour committed against a public servant in the performance of his or her official duties constituted a criminal offence under Articles 106 and 107 of the 1940 General Penal Code. 28. The Government submitted extracts from three instructions applicable to the case: (1) Announcement by the Reykjavík Police Commissioner No. 1/1975 on Rules for Police Officers and Wardens Concerning Treatment of Arrested Persons, Accommodation of Detainees, etc (hereinafter referred to as “the 1975 Rules”); (2) General Rules of the Reykjavík Police Commissioner of 1 July 1988 on Detention and the Treatment of Arrested Persons (hereinafter referred to as the “1988 Rules”) , and (3) General instructions of the Reykjavík Police Commissioner on Arrest, an excerpt from an information booklet for police personnel, issued on 1 April 1991. 29. The 1975 Rules provided that in carrying out an arrest no more force should be applied than necessary (Article 1). An arrested person who was in a state of unconsciousness or similar condition should be taken to hospital (Article 2). A police officer who had carried out an arrest had to draw up a detailed report which should indicate the state of intoxication and the reasons for arrest (Article 3). The 1975 Rules further contained provisions on notification of relatives under the age of 20 and, if appropriate, the households of persons arrested for being intoxicated (Article 4). An arrested person under the age of 16 should in principle not be detained in a closed cell but should be kept in an open room under the care of the police until brought home or fetched by a relative (Article 5). Article 6 provided: “The inspector shall decide whether an intoxicated person who has been arrested shall be detained or whether any other measures shall be taken.” Article 11 read: “The inspector shall decide when a person shall be released from detention. If a person has been detained for some reason other than intoxication, he shall not be released except with the approval of a judge or the investigating officer in charge of his case.” The 1975 Rules further contained provisions (Articles 8 to 10 and 12 to 14) relating to such matters as hygiene and safety, limitations on the number of persons per cell, the frequency of cell patrols (at intervals not exceeding 20 minutes). 30. Provisions largely similar to those described above were included in the 1988 Rules, which replaced the 1975 Rules on 1 July 1988. For instance, under Chapter B, section 1, decisions on detention should be taken by or under the supervision of a police inspector, and the inspector was to decide when a person detained on account of intoxication was to be released. Unlike the 1975 Rules, however, the 1988 Rules stated in Chapter A the criteria on which the police should base its decision to place a person in detention: A.1. That the condition of the person in question is such as to be a danger to himself or to others, or that another dangerous situation may arise if he is allowed to remain free, or if the person may cause damage to property. Also if a person, as a result of the use of alcohol or other intoxicating substances, causes public outrage or disorder or significant disturbance or inconvenience, provided the situation is highly likely to persist if he remains free. The 1988 Rules also specified in what circumstances detention would not be justified: A.4. In cases involving intoxication only, when measures other than detention can be taken, for example taking a person home. According to the Government, when a person was committed to a detention cell on the basis of Section A.1, the police would decide on the time of release by assessing when the condition warranting detention had ceased. Generally in police practice that meant that detention would last for the relatively short period it took for the inebriating effects of alcohol to wear off, or for a person in a highly agitated state of mind to calm down, thereby reducing the likelihood of a continuation of the conduct that gave rise to the measure. The Government added that the police were chiefly involved with intoxicated persons late in the evening and at weekends, for example due to drinking lasting the entire day. It was common in such cases for the intoxicated person, after having fallen asleep in the cell, to be released in the morning when the immediate effects of his or her drinking had worn off. 31. The General Instructions on Arrest of 1 April 1991 set out, inter alia, the duty of discretion and diligence to be observed by the police as well as the obligation to use no more force than necessary in making an arrest. 32. Compensation from the State for unlawful detention was available under Article 151 of the 1974 Code of Civil Procedure, subject to the time-limits set out in Article 157: Article 151 “By way of judgment, an award of compensation may be made with respect to arrest, personal search, a medical examination or any other measure involving interference with liberty, other than detention on remand and imprisonment under Articles 152 and 153, as well as with respect to house search and seizure: 1. if the conditions provided for by law for the taking of such measures were not fulfilled; 2. if the circumstances did not provide a sufficient reason for taking the measures in question, or if they were taken in an unnecessarily dangerous, harmful or offensive manner.” Article 157 “The right to compensation shall lapse on the expiry of six months after the date on which the person concerned became aware of a decision to discontinue the investigation or not to prosecute, was acquitted, or was released from punitive custody or imprisonment. If a criminal case has been subject to appeal to the Supreme Court, the period shall be counted from the date of the Supreme Court's judgment.” According to the Government, there were no instances of any compensation proceedings having been brought by a person on account of his or her having been detained on grounds of being drunk and disorderly in a public place. 33. With effect from 1 July 1992 a new Code of Criminal Procedure (Act No. 19/1991) replaced the 1974 Code. By virtue of Article 98, subparagraph (e), the police could arrest a person who lost control in a public place, or caused public outrage or a danger of public disturbance. Subsequently, the provisions on arrests in the interests of public peace and order (i.e. arrests that did not directly relate to a criminal investigation) were removed from the Code of Criminal Procedure and incorporated in the new Police Act (No. 90/1997), which entered into force on 1 July 1997. The new provisions reproduced former Article 34 of the 1974 Code of Criminal Procedure and codified some of the rules previously found in customary police powers and police instructions, notably the limited powers conferred on the police (by a so-called general mandate) to take such measures as are necessary to maintain law and order and the rule of proportionality applying to the use of force. Sections 14 to 16 contain the following provisions: Section 14 - Use of force Persons who exercise police powers may use force in the course of their duties. At no time, however, may they use force to any greater extent than necessary on each given occasion. Section 15 Measures taken in the interests of public peace and quiet, public order, etc. 1. The police may intervene in the conduct of citizens in order to maintain public peace and quiet and public order or to prevent an imminent disturbance in order to protect the safety of individuals or the public or to avert or put a stop to criminal offences. 2. For this purpose, the police may, among other things, take over the control of traffic, prohibit persons from remaining in particular places (e.g. by cordoning the areas off or restricting movement through them), seize dangerous items, order people to move away, or remove them, order an end or a change to actions or an activity, enter privately-owned areas and order the removal of persons from such places. 3. If a person disobeys police instructions under paragraph 2, the police may take the necessary measures at the person's expense to prevent his disobedience causing damage or injury or constituting a hazard to the public. 4. The police may require any person to give his name, ID number and address, and to present an identification document to substantiate the information given. 5. The police may concern themselves with matters which by law come under other authorities if it is considered necessary to stop or prevent a serious disturbance of public peace and quiet and public order and it is not possible to contact the relevant authority or it is impossible for it to take measures, or if such measures are ineffective or it is foreseeable that they would be taken too late. The appropriate authority shall be informed of the police's actions as soon as possible. Section 16 - Power to make arrests 1. A person exercising police powers may arrest a person and take him to a police station or other place where the police have facilities: a. for the purpose of maintaining law and order, for example if the person loses control or causes public outrage in a public place or a danger of public disturbance, b. if he does not hold a permit to remain in the country. 2. The police shall explain to the person the reason why he is being taken to the police facility. No person may be held for longer than is necessary. | 1 |
dev | 001-70583 | ENG | RUS | CHAMBER | 2,005 | CASE OF FEDOROV AND FEDOROVA v. RUSSIA | 3 | Violation of Art. 6-1;No violation of P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 7. The applicants were born in 1961 and 1962 respectively and live in the village of Kormilovka, Omsk Region. 8. The applicants, a married couple, used to live in Kargasok of the Tomsk Region where they worked as veterinarians. The first applicant held the position of Head Veterinarian of the Kargasok District. 9. On 26 September 1996 criminal proceedings for fraud were instituted against the first applicant and an obligation not to leave the place of his residence without permission was imposed on him as a preventive measure. On 22 October 1996 by an order of the investigator the first applicant was suspended from his employment. 10. In February 1998 criminal proceedings for fraud were instituted against the second applicant and an obligation not to leave the place of her residence without permission was imposed on her as a preventive measure. 11. The criminal proceedings against both applicants were joined on 17 August 1998. The applicants were accused of submitting false reports on business trips in order to obtain cash from the veterinary practice where the first applicant worked unlawfully. 12. On 17 July 2000 the applicants asked for the obligation not to leave their place of residence without permission to be cancelled. It appears that the application was not considered. 13. Over the course of six years the criminal case was several times remitted by the courts for additional investigation: in May 1997 and on 5 February 1998, 21 September 1999, 31 May 2000 and 31 October 2000. 14. In 2001 the applicants' minor son was invited to attend an interview for a place at the Omsk State Agrarian University. The applicants submitted that he did not attend the interview since neither of them was allowed to accompany him in the journey to Omsk. On an unspecified date the acting prosecutor of the Kargasok District provided the second applicant with the following letter: “[The letter] is given to Ms Bevia Andreyevna Fedorova ... in order to confirm that on 10-11 July 2001 she was summoned to the Prosecutor's Office of the Kargasok District, as a result of which she could not leave for Omsk together with her son and be present at ... the interview on 12 July. [The letter] is to be presented to the examination panel of the Institute of Veterinary Medicine at the Omsk State Agrarian University.” The applicants' son, having passed general entry exams, was later admitted to the University. 15. On 13 August 2002 the Parabelskiy District Court of the Tomsk Region acquitted the applicants and cancelled the obligation not to leave their place of residence without permission. On appeal, on 16 December 2002 the Tomsk Regional Court quashed the judgment and remitted the case for a fresh examination by a different composition of judges. 16. On 8 May 2003 the Parabelskiy District Court of the Tomsk Region terminated the criminal proceedings against the applicants for lack of indication that a crime had been committed. The ruling was quashed on appeal on 30 June 2003 by the Tomsk Regional Court, which remitted the case for a fresh examination to the Molchanovskiy District Court of the Tomsk Region. 17. The Molchanovskiy District Court convicted the first applicant of misappropriation of property held in trust and sentenced him to one year's imprisonment on 31 December 2003. He was not required to serve the sentence on account of the statutory time-bar. The second applicant was fully acquitted. The court also lifted the obligation not to leave the place of residence without permission in respect of both applicants, although it had already been cancelled by the Parabelskiy District Court of the Tomsk Region on 13 August 2002. 18. On appeal, on 15 April 2004 the Tomsk Regional Court reversed the judgment in the part relating to the conviction of the first applicant and remitted the case for a fresh examination. The court decided not to apply any measures of restraint in respect of the applicant. 19. The case was subsequently transmitted to the Sovetskiy District Court of the Tomsk Region. On 28 February 2005 the Sovetskiy District Court of the Tomsk Region convicted the first applicant of misappropriation of property held in trust and sentenced him conditionally to one year's imprisonment. The court, however, released the applicant from the punishment because of the expiry of the statutory time-limit. 20. On 25 April 2005 the Tomsk Regional Court reversed the judgment on appeal. It held that the first instance court should not have first convicted the applicant of the offence and then released him from the punishment, but should have terminated the criminal proceedings. Accordingly, the appeal court discontinued the criminal proceedings against the applicant on account of expiry of the statutory time-limit. “When there are sufficient grounds for believing that an accused person may evade an inquiry, preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity, or in order to secure the execution of a sentence, the inquirer, investigator, prosecutor or court may apply one of the following measures of restraint in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or taking into custody. [...]” “In exceptional instances, a preventive measure may be applied to a suspect who has not been charged. In such a case, charges must be brought against the suspect within ten days after a preventive measure is applied. If no charges are brought within the period specified, the preventive measure shall be cancelled.” “When the need for application of a preventive measure is being considered and the type of measure chosen... the circumstances to be taken into account shall include... the gravity of the charges brought and the personality of the suspect or the accused, occupation, age, health, family status and other circumstances.” “A preventive measure shall be applied under an order made by an inquirer, an investigator, or a prosecutor, or a reasoned decision given by a court, which shall specify the offence of which the person is suspected or accused and the grounds for application of the preventive measure. The person concerned shall be informed of the order or decision and at the same time the person shall be provided with explanations concerning the procedure for appealing against the preventive measure applied. A copy of the order or the decision on the application of the preventive measure shall be immediately handed to the person concerned.” “A written undertaking not to leave a specified place consists in obtaining from the suspect or the accused an obligation not to leave the place of residence or of temporary stay without the permission of a person conducting an inquiry, an investigator, a prosecutor, or a court. In the event of breach by the suspect or the accused of the written undertaking given by him, a stricter preventive measure may be applied about which he should be informed when the obligation is withdrawn.” “A written undertaking not to leave a specified place consists in obtaining from the suspect or the accused an obligation: (1) not to leave the place of residence or of temporary stay without the permission of a person conducting an inquiry, an investigator, a prosecutor or a court; (2) to appear before a person conducting an inquiry, an investigator, a prosecutor or a court at appointed terms; (3) not to impede the criminal proceedings in any other way.” | 1 |
dev | 001-82238 | ENG | TUR | CHAMBER | 2,007 | CASE OF TEREN AKSAKAL v. TURKEY | 2 | Preliminary objection (ratione temporis) allowed (substantive aspect, art. 2 and 3);Preliminary objection (ratione temporis) dismissed (positive obligations, art. 2 and 3);Preliminary objection dismissed (six month period);Violation of Art. 2 and 3 (procedural aspect);Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - financial award;Costs and expenses partial award | Antonella Mularoni;Elisabet Fura;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze | 5. The applicant was born in 1940 and lives in Istanbul. She is the widow of Mr Cengiz Aksakal (“C.A.”), who died on 12 November 1980. 6. On 12 September 1980 martial law was declared in Turkey following military intervention by the army. 7. On 18 October 1980 C.A., who was a teacher in the village of Veliköy, in the province of Artvin, surrendered to the police during a military operation and was taken into custody. He was suspected of belonging to the illegal organisation Dev-Yol (Revolutionary Way). He spent the first three days in custody at the headquarters of the gendarmerie in Veliköy and the following five at the headquarters of the gendarmerie of the district of Şavşat. C.A., who was in good health at the time of his detention in both locations, was not questioned. 8. On 26 October 1980 he was transferred to Artvin, where he was interrogated in a sports hall until the following 2 November. On that date, he was imprisoned in the martial law detention facility (sıkıyönetim gözetim evi). 9. After having been taken ill on 3 November 1980, C.A. was admitted to hospital in a pre-comatose state. On 5 November 1980, he was transferred by ambulance to Trabzon Hospital where he died on 12 November. 10. According to the autopsy report drawn up on 13 November 1980, the following marks were found on the body of the deceased: “Abrasions measuring 3 x 3 cm, going from the outside towards the inside of the eighth and ninth ribs, the scabs of which were coming off; on the right wrist and on the inside of the wrist, a purple mark in the form of two parallel bracelets 1.5 cm wide and on the mark, two wounds, the scabs of which were coming off; on the left wrist, the same mark, 1.5 cm wide; on the left side of the penis, a wound without a scab; on the left foot, a wound with a scab measuring 2 x 1 cm, with, underneath, a bruise measuring 3 x 3 cm; four wounds with scabs under the left knee, a wound with a scab measuring 5 x 1 cm inside the left tibia ...; bruising on the top and lateral surface of the right foot.” 11. Since the cause of death could not be established on the basis of this information, a conventional autopsy was performed. An examination of the skull and ribcage revealed “ecchymosis measuring 3 x 4 cm at the back, a large haematoma inside the cervical cavity; an infection of the lungs ...” A post-mortem examination was deemed necessary. 12. In her complaint lodged with the public prosecutor on 28 January 1981, the applicant stated: “Two soldiers, accompanied by the village schoolmaster came to our house on the day before the religious holiday. They took my husband away saying that the lieutenant wanted to talk to him. He was held at the village gendarmerie for approximately four days. During that time, I was able to visit him and he was well. He was then transferred to the gendarmerie in the district of Şavşat; I was no longer able to visit him. I was told that he remained there for six days and was then taken to Artvin .... When they returned his body to me, I noticed abrasions and signs of injuries. His tongue was as big as that of an animal, three of his teeth were broken, ... there were marks of torture all over his body. Before being arrested, he had been in good health.” 13. According to the administrative investigation report (idari tahkikat raporu) of 15 February 1981 signed by three officers, during the course of a military operation on 18 October 1980 C.A. had been arrested after having obeyed an order to surrender. On the same date he had been placed in custody at the Veliköy gendarmerie, where he remained for three days. He spent the following five days at the gendarmerie of the district of Şavşat. During this period no sign of any health problem was recorded. On 26 October 1980 C.A. was transferred to the police headquarters at Artvin where he was questioned. After having been held at the police headquarters for seven days, he was transferred, on 2 November 1980, to the surveillance facility (Gözetim evi) attached to the martial law command. According to the records of that establishment, no sign of illness had been noted upon his arrival. On the following day, at his request, he was transferred to Artvin Hospital. The head physician at that hospital stated that he had asked C.A. if he had been hit on the head or on the body; C.A. allegedly replied that he had not. According to the report drawn up by the hospital, meningitis and pneumonia were diagnosed. Two days later, the patient was transferred to Trabzon Hospital where he died on 12 November. The report concluded that this was a “natural death” (ecel). 14. On 15 June 1981 three police officers, S.A., İ.Ü. and H.Ö., were questioned as suspects by the martial law prosecutor. They were the police officers who had taken C.A.’s statement on 21 October 1980 in a room at the sports hall. The police officers stated that they had not subjected C.A. to any mistreatment and had not found any evidence against him during questioning. H.Ö. stated that on 26 October 1980, when the report was being drawn up in the presence of C.A., the latter was groaning. When the police officer asked what the matter was, the applicant replied that he had caught a chill and that he had pains in his chest. The three police officers stated that they had brought C.A. to the gendarmerie on 26 October 1980, that on the same day he was to have been placed in the military prison at Artvin, but was detained in custody by the gendarmerie until the following 1 November, notwithstanding the orders of the martial law commander. 15. On 11 November 1981, at the request of the Şavşat public prosecutor’s office, the body of C.A. was exhumed in order to examine the deceased’s skull. According to the report dated 21 September 1982 drawn up by the forensic institute, the skull showed no sign of trauma, apart from separation at the right temporo-occipital suture. 16. According to the report of 3 December 1982 issued by the Istanbul forensic institute upon completion of the post-mortem examination of samples of tissue taken from C.A.’s body, the latter had died of pneumonia with spinal haemorrhaging (subaraknoidal kanama) having lasted seven days, and showed no signs of traumatic injury. 17. In an indictment dated 19 April 1983 drawn up by the military prosecutor at the martial law command, the three police officers (see paragraph 14 above) on duty at the material time at Artvin police station were accused of having caused the death of C.A. after torturing him. The prosecutor stated that the accused had interrogated C.A. in a sports hall instead of in the customary location and that they had concealed their names at the foot of his statement, in breach of the relevant regulations. He also referred to the statements of several witnesses who had seen C.A. on the premises of Artvin police station, once attached to the wall, his arms outstretched, and another time in a deplorable condition, paralysed and unable to speak. 18. The applicant joined the criminal proceedings brought before Erzurum Military Court No. 2 attached to the martial law command (“the military court”). 19. On 31 August 1983, a gendarme, F.I., examined as a witness before the Military Court, stated that he had “maybe seen” C.A.’s interrogation but had not participated in it. He stated that he had not noticed any ill treatment during the interrogation, which had been conducted on the top floor of gendarmerie premises or in the sports hall. He stressed that as commander of the gendarmerie centre (jandarma merkez komutanı), his role was limited to appointing the interrogation team guards. 20. The report of 17 February 1984, unanimously adopted by the plenary meeting of the forensic institute, reads: “On 3 November 1980, while in police custody, C.A. was taken to Artvin Hospital in a comatose state. First aid was administered on the basis of the diagnosis of meningitis and pneumonia. On the following 5 November, he was transferred to Trabzon Hospital in a comatose state, with hemiplegia on the left-hand side. He died on 12 November 1980. The ecchymoses noted at the autopsy revealed that violence and assault had been involved and that the party concerned had died of an intracranial haemorrhage. As regards the clinical presentation, a pre-existing underlying condition was noted which prepared the ground for the haemorrhage which was triggered by the trauma. Since a causal link has been established between the cranial trauma and the death, Articles 451 or 452 § 2 of the [Turkish] Criminal Code are applicable in the instant case.” 21. The accused denied the charges against them throughout the proceedings. They declared that they had never had any contact with C.A. save at the start of the interrogation. Certain witnesses who had initially testified against the accused subsequently retracted their statements. 22. In a judgment of 15 May 1984, the accused were each sentenced to three years and four months’ imprisonment under Articles 243 and 452 § 2 of the Criminal Code. 23. The accused, the applicant and the martial law commander appealed on points of law. 24. In a judgment delivered on 28 December 1984, the Military Court of Cassation quashed the first-instance judgment on the ground that the degree of responsibility of the other persons, notably officers and members of the National Intelligence Organisation (Millî İstihbarat Teşkilatı, hereafter “the MİT”) having taken part in the interrogation of C.A., had not been established and that the defence witnesses had not been heard. 25. After having conducted a more thorough investigation and having examined further witnesses, in a new judgment of 4 March 1986 the first-instance court acquitted the three police officers on grounds of insufficient evidence. 26. The applicant again appealed on points of law. 27. By a judgment of 15 October 1986, the Military Court of Cassation again overturned the judgment at first instance. In its judgment it stated that the records of the Veliköy command contained no entry concerning C.A. and that there was therefore no accurate information on the dates of his arrival or transfer or the identity of the officers in charge of his case. It added that, furthermore, the case file contained no details of the place and conditions of the initial interrogation conducted on 21 October 1980, or the actual conditions of the interrogation of 26 October. It pointed out that even though the accused had stated that the deceased was not “a significant suspect” the fact that agents of the MIT had participated in his interrogation suggested the opposite. In the opinion of the court, the treatment subsequently inflicted on the party concerned confirmed this argument. The Court of Cassation concluded that given that C.A. had been interrogated and tortured during his detention on the gendarmerie premises and up until 2 November by the accused and other persons whose functions had not been ascertained, the omissions in the investigation had to be remedied and, in particular, the gendarmes, the members of the MIT and any other persons present at the material time and place should be questioned. 28. On 28 January 1987 Turkey’s recognition of the right of individual petition became effective. 29. The case file was returned to the Military Court, which, after having re-examined it in the light of numerous new witness statements, confirmed its decision of 16 August 1988 acquitting the accused. It concluded that the act of torture had been committed between 26 October and 2 November 1980 by persons other than the accused. It gave notice (ihbar) that a new investigation was to be opened by the Artvin public prosecutor’s office. That decision became final on 21 December 1988. 30. The investigation and correspondence between the military courts and the Artvin public prosecutor’s office continued. However, a gendarme, M.C., examined as a witness on 3 April 1990 before the Akyazı Criminal Court, following a request for judicial assistance, stated that he had taken leave on 12 October 1980 for a period of one year. 31. By an indictment of 21 June 1990, the prosecutor at the Artvin Assize Court (“the Assize Court”) charged two new accused, F.I. and M.C., gendarmes at the Artvin gendarmerie, who had been examined as witnesses before the military courts (see paragraphs 19 and 30 above) with the acts of torture having caused the death of C.A. 32. The applicant sought to intervene in the proceedings before the Assize Court. 33. Monthly hearings were conducted before this court. Ten or so witnesses were questioned, some following a request for judicial assistance. Some hearings were postponed as a result of problems in ensuring the appearance of witnesses who for the most part had been co-detainees of the deceased and present on the premises on which he had been subjected to the torture. All the witnesses stated that they had seen C.A. being tortured and some stated that they had seen the accused at the scene of the crime. 34. At the hearing of 8 October 1990 the applicant stated, inter alia, that her husband had been unrecognisable when she saw him at Trabzon Hospital. She filed a complaint against the first doctor who had examined him in Artvin and who had drawn up a certificate, which, according to her, was untruthful, concealing C.A.’s condition. 35. By a decision of 30 January 1991 the Assize Court sentenced both of the accused to four years and two months’ imprisonment under Articles 243 § 2 and 452 § 2 of the Criminal Code. They were also banned from public office for the same period. 36. On an appeal by the accused, the Court of Cassation overturned that decision in a judgment of 10 July 1991 on grounds of shortcomings in the investigation. An inconsistency between the leave dates of the accused needed to be resolved and verification was required that the dates on which the witnesses and C.A. had been detained actually did coincide. 37. After having remedied the shortcomings highlighted by the Court of Cassation, the Assize Court decided, on 16 September 1992, to acquit both of the accused on grounds of insufficient evidence. 38. The applicant appealed on points of law against that decision. 39. By a judgment of 6 July 1993, the Court of Cassation overturned the decision on the ground that under Article 253 of the [Turkish] Code of Criminal Procedure, the accused, who were officers at the material time, could not be tried without authorisation from the Ministry of Justice. 40. By a decision of 19 January 1994, the Assize Court suspended the proceedings for the same reason. 41. The authorisation in question having been granted by the Ministry of Justice on 24 November 1994, a new indictment was issued on the following 7 December in respect of the same two accused, this time by the Public Prosecutor at the Ardahan Assize Court. 42. During these proceedings, around twenty hearings were held. As they had done previously, the accused denied any responsibility in the death of C.A., stating that they had never taken part in his interrogation. F.I stated that on the day in question he had been involved in operations in the Şavşat and Ardanuç mountains, and M.C. stated that he had been on leave. The same witnesses (see paragraph 33 above) were examined again, some following a request for judicial assistance, and repeated the statements made at the start of the proceedings. 43. On 30 December 1997 the Ardahan Assize Court delivered its judgment, referring in particular to the testimony of the co-detainees who had been present at Artvin police station at the same time as C.A. Four of these witnesses stated that they had seen C.A. naked, attached to the radiator, wet and trembling, with injuries to his hands and wrists. Two of them stated that officer F.I. had threatened them, pointing at C.A. and saying “Look at what has happened to him; if you don’t sign, the same thing will happen to you.” A detainee who had been in the neighbouring cell stated that he had heard C.A. moaning constantly, that in the evenings they would take him away for questioning naked, and that officers M.C. and F.I. and three men in civilian clothing would beat him in the middle of the room as a lesson to the others. Another witness stated that he had seen F.I. and others beat C.A. with truncheons while he was lying on the ground in a pool of water, all the while continuing to spray him with water. He stated that he had heard the sound of a magneto (a magneto-electric machine) and the delirious voice of C.A. uttering the names of his children, unable to walk, his body covered in wounds. These eyewitnesses stated that they had generally had their eyes covered but that sometimes the blindfold had come off, or they had recognized the officers’ voices. Four other detainee witnesses stated that they had seen that the applicant had been tortured, but did not know who had done it. The court considered that the testimony of the co-detainees was only partially credible given their status as detainees and the fact that they would normally have had their eyes covered. In the reasons for the judgment, the court observed that the leave records relating to M.C. kept by the gendarmerie command had been falsified and declared that his statements were not credible. As for F.I., the court pointed out an inconsistency between his statement of 31 August 1983 (see paragraph 19 above) and his subsequent statements. According to the court, the accused were indirectly responsible for the death of C.A. It added that “a team of three civilians” had also taken part in the interrogations, but gave no details of the identity, function or action of these three individuals. It concluded that it had not been definitively established that the accused had themselves tortured the deceased but that they had acted as accomplices to the illegal act by issuing orders (talimat vermek), by procuring the premises (yer tedarik etmek) and by failing to intervene [to prevent the illegal act] (göz yummak). It found that the accused, together with civilians, had participated in the interrogation of C.A. and that the latter had died as a result of his pre-existing condition (önceki hastalığı) and as a result of the torture inflicted by one or more of these civilians whose identity could not be established. The court sentenced M.C. and F.I. to two years and one month’s imprisonment under Articles 243 and 452 § 2 of the Criminal Code. The court accepted two mitigating circumstances to reduce the sentences: the personality of the accused as evidenced by the case file (dosyadaki kişilikleri) and the fact that they were mere accomplices (fer’î fail) rather than the main perpetrators of the crime. 44. The accused officers and the applicant appealed on points of law. 45. By a judgment of 22 December 1998, the Court of Cassation upheld the judgment of the Assize Court. 46. On 28 January 1999 the Court of Cassation rejected an application for “rectification of the judgment” (karar düzeltme) lodged by the convicted officers. 47. On 6 April 1999 the officers applied to the Assize Court for renewal of the judgment (yargılamanın yenilenmesi), an exceptional review procedure. The result of this application, accepted by the Assize Court for consideration on the basis of various written testimonies submitted by civilians and military personnel and a letter from the General Gendarmerie command, was that execution of the sentences was suspended. 48. At the request of the accused, the Assize Court gave a decision on 12 January 2001 referring a matter concerning the discriminatory nature of a provision governing the content of an amnesty law to the Constitutional Court. 49. By a decision of 18 July 2001, the Constitutional Court declared that the provision in question was by no means unconstitutional. 50. By a judgment of 23 October 2002, after having heard new defence witnesses, notably six officers, the Ardahan Assize Court dismissed the application lodged by the two officers on the ground that the new evidence was not such as to create a favourable situation for the convicted officers. It lifted the stay of execution of their sentences. 51. The officers finally referred their case to the Minister of Justice for the latter to lodge an appeal with the Court of Cassation (Yazılı emir ile bozma) against their conviction. Having accepted their application, on 8 January 2003 the Minister of Justice ordered the Principal Public Prosecutor at the Court of Cassation to lodge an appeal in the interests of the law on the ground that the evidence had not been properly assessed by the Assize Court. 52. By a judgment of 30 January 2003, the Court of Cassation dismissed the officers’ application. 53. The officers continued to serve in the army throughout the proceedings until their retirement. Their sentences have not been executed to date. 54. The relevant parts of the above-mentioned provisions of the Criminal Code in force at the material time read as follows: “... any public servant who tortures an accused or employs cruel, inhuman or degrading treatment to make him confess to a crime shall be liable to a maximum term of five years’ imprisonment plus a permanent or temporary ban on holding public office. ...” ”Should death occur as a result of assault or violence inflicted with no intent to kill, the perpetrator shall, in the cases listed in Article 448 ... be liable to a minimum term of eight years’ imprisonment ... Where death results from circumstances which had existed prior ... to the offence and were unknown to the offender or from chance circumstances that the offender could not foresee, he shall, in the cases listed in Article 448, be liable to a minimum term of five years’ imprisonment ...” 55. Article 152 of the Turkish Constitution provides that where a claim of unconstitutionality is referred to a court by one of the parties to the proceedings, and where that court considers that the question should be referred to the Constitutional Court, that referral shall suspend the proceedings before it for a period of five months. If the Constitutional Court fails to reach a decision within that period, the court shall deliver its judgment under the existing legal provisions. However, if the Constitutional Court gives a ruling before the lower court has given its final decision, the lower court is obliged to comply with it. | 1 |
dev | 001-93948 | ENG | ITA | CHAMBER | 2,009 | CASE OF GIULIANI AND GAGGIO v. ITALY | 3 | No violations of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);No violation of Art. 38;Non-pecuniary damage - award | Giovanni Bonello;Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Vladimiro Zagrebelsky | 7. The applicants were born in 1938, 1944 and 1972 respectively and live in Genoa and Milan. 8. On 19, 20 and 21 July 2001 the G8 summit was held in Genoa. Numerous “anti-globalisation” demonstrations were staged in the city and substantial security measures were put in place by the Italian authorities. Under Law no. 349 of 8 June 2000, the prefect of Genoa was authorised to deploy armed forces personnel. In addition, the part of the city where the G8 were meeting (the historic centre) was designated as a “red zone” and cordoned off by means of a metal fence. As a result, only residents and persons working in the area were allowed access. Access to the port was blocked and the airport was closed. The red zone was contained within a yellow zone, which in turn was surrounded by a white (normal) zone. 9. With regard to the written orders issued by the officer in charge of the lawenforcement agencies, who was responsible for maintaining and restoring public order, the Government submitted to the Court service orders dated 14, 17 and 19 July 2001. Each of these orders began with the sentence: “The present order amends and supplements service order no. 2143/R of 12 July concerning law enforcement and security at the G8 summit to be held in Genoa from 20 to 22 July, as follows.” The order of 12 July was not submitted. 10. The service order of 19 July 2001 is the one issued the day before the events. It sums up the priorities of the law-enforcement agencies as follows: establishing a line of defence within the “red zone”, with the task of repelling rapidly any attempt to break through; establishing a line of defence within the “yellow zone” to deal with any incidents, taking account of the position of the demonstrators in various locations and of actions perpetrated by more extremist elements; finally, putting in place publicorder measures on the streets concerned by the demonstrations, in view of the risk of violence encouraged by the presence of crowds of people. 11. The parties agreed as to the fact that the service order of 19 July 2001 amended the plans hitherto established regarding the deployment of the available means and resources to enable the lawenforcement agencies to counter effectively any attempt to enter the red zone by participants in the demonstration by the Tute bianche (“White overalls”) which had been announced and authorised for the following day. Referring to testimonies given during the criminal proceedings instituted against twenty-five demonstrators (see “the trial of the twenty-five” below), the applicants stated that the service order of 19 July gave the detachment of carabinieri concerned a “roving brief”, whereas it had previously been supposed to remain in one location. As regards the manner in which these instructions were circulated, the Government stated that the orders issued and received by the officers on the ground were communicated orally. The applicants, meanwhile, referred to the evidence given to the public prosecutor and also in the context of the “trial of the twenty-five”, in particular by Mr Lauro (see paragraph 56 below). 12. The parties agreed that a radio communication system had been put in place, with an operations control room located in the questura (police headquarters), which was in radio contact with the officers on the ground. The carabinieri and police officers could not communicate directly amongst themselves by radio; they could only contact the control room. 13. The judgment given in the “trial of the twenty-five” (see below), which was added to the case file, makes clear that there had been some tensions before the G8 summit began. Hence, on 16 July, a bomb had been sent to the carabinieri. On 17 July a van containing an explosive device had been found near the Carlini stadium, where accommodation was to be provided for the persons taking part in the large demonstration on 20 July (the Tute bianche march). On 18 July law-enforcement officers went to the stadium to carry out checks. Approximately 500 demonstrators were there. The search lasted for about an hour and was conducted in the presence of journalists. The demonstrators showed their “personal protective equipment” in the form of Plexiglas shields and clothing designed to absorb the impact of possible clashes with the law-enforcement agencies. 14. The same judgment noted that on the morning of 20 July groups of particularly aggressive demonstrators, wearing balaclavas and masks (the “Black Bloc”) had sparked numerous incidents and clashes with lawenforcement officers. At around 1.30 p.m. the Tute bianche march was ready to set off from the Carlini stadium. This was a demonstration involving several organisations: representatives of the “No Global” movement and of community centres, and young communists from the Rifondazione comunista party. While they believed in non-violent protest (civil disobedience), they had announced a strategic objective, namely to try to penetrate the red zone. For that reason the Genoa police chief (questore) had decided on 19 July 2001 to prohibit the Tute bianche procession from entering the red zone or the zone adjacent to it, and had deployed lawenforcement officers to halt the procession at Piazza Verdi. Consequently, the demonstrators were able to march from the Carlini stadium and all the way along Via Tolemaide to Piazza Verdi, that is to say, well beyond the junction of Via Tolemaide and Corso Torino, where the events dealt with below took place. At around 1.30 p.m. the procession set off and headed slowly westwards. As they proceeded, the demonstrators appeared calm and in good spirits, at least until they saw columns of smoke coming from the direction of Via Canevari and a burnt-out car on Via Montevideo, at which point some tension set in. There were signs of earlier disorder in the area around Via Tolemaide. The procession was headed by a contact group made up of politicians and a group of journalists carrying video recorders and cameras. The procession slowed down and made a number of stops. Further down, around Via Tolemaide, there were incidents involving persons wearing masks and balaclavas and law-enforcement officers. The procession reached the railway tunnel at the junction with Corso Torino. Suddenly, tear gas was fired on the demonstrators by carabinieri under the command of Mr Mondelli. 15. Mondelli, commander of the Alpha company of carabinieri, had informed his headquarters that his radio could only receive messages and that he did not have a guide to Genoa who knew the streets well. He was on Piazza Tommaseo with 200 carabinieri who were equipped with the new Tonfa truncheons, shields, new CS gas grenades and guns for firing them, as well as flame-resistant suits and fire-fighting equipment. At 2.29 p.m. the communications centre ordered Mondelli to go quickly to Piazza Giusti, as the Tute bianche procession was on its way down Corso Gastaldi. Mondelli agreed. Although there were three possible routes to his destination, he chose the route which put the company at risk of crossing the path of the Tute bianche, taking them along Via Invrea to the intersection with Corso Torino. A few minutes before 3 p.m. the carabinieri, finding themselves in the path of the demonstrators, attacked the Tute bianche, first using tear gas, then advancing and using their truncheons. The procession was pushed back towards the east (to the junction with Via Casaregis). The attack lasted for about two minutes. It had not been ordered either by the carabinieri control room or by the person authorised to do so. The carabinieri pushed the demonstrators back to the junction with Via Invrea. Once there, the demonstrators split up: some headed towards the seafront, while others sought refuge in Via Invrea and then in the area around Piazza Alimonda. Some demonstrators retaliated, finding hard objects such as glass bottles or rubbish bins and starting to throw them at the law-enforcement officers. Armoured vehicles belonging to the carabinieri drove up Via Casaregis and Via Invrea at high speed, knocking down the barriers erected by the demonstrators using containers, and forcing the demonstrators at the scene to leave. At 3.22"52' p.m. the control room ordered Mondelli to move away and allow the Tute bianche to pass. Once the attack was over, the carabinieri withdrew to Via Casaregis and then Via Invrea, to the north, before heading west along Via Tolemaide. 16. Some of the demonstrators retaliated with violence and engaged in clashes with the law-enforcement agencies. At around 3.40 p.m. a group of demonstrators attacked an armoured carabinieri van and subsequently set it alight. 17. At approximately 5 p.m. the presence of a group of demonstrators who appeared very aggressive was observed by, among others, the Sicilia battalion consisting of around fifty carabinieri stationed close to Piazza Alimonda. 18. Police officer Lauro ordered the carabinieri in question to charge the demonstrators. The carabinieri charged on foot, followed by two Defender jeeps. 19. Shortly afterwards, however, the demonstrators succeeded in pushing back the attack by the law-enforcement agencies. The carabinieri withdrew in disorderly fashion near Piazza Alimonda, leaving the two Defender jeeps which were bringing up the rear unprotected (the public prosecutor, in his request to have the proceedings discontinued, described this as “ripiegamento disordinato che lascia scoperti i due defender che si trovano alle spalle del reparto”). Pictures taken from a helicopter show the demonstrators running along Via Caffa at 5.23 p.m. in pursuit of the lawenforcement officers. 20. The two jeeps in question were blocking each other on Piazza Alimonda. When one of the jeeps eventually managed to move out the other, owing to an error by the driver, remained stuck on Piazza Alimonda, its exit blocked by an overturned waste container. 21. A group of demonstrators armed with stones, sticks and iron bars approached the jeep. The two side windows at the rear and the rear window of the jeep were smashed. The demonstrators shouted insults and threats at the jeep's occupants and threw stones at the vehicle. 22. There were three carabinieri in the vehicle: Mario Placanica, Filippo Cavataio and Dario Raffone. 23. One of them, Mario Placanica (“M.P.”), was a twenty-year-old carabiniere trained in the use of grenades. Suffering from the effects of the tear-gas grenades he had thrown during earlier clashes, he had been given permission by Captain Cappello (commander of the ECHO contingent within the CCIR – contingente di contenzione e intervento risolutivo) to get into the jeep in order to get away from the scene of the earlier clash. Crouched down in the back of the jeep, injured and panicking, defending himself on one side with a riot shield (according to the statement of a demonstrator named Predonzani) and shouting at the demonstrators to leave “or he would kill them”, M.P. drew his Beretta 9 mm pistol, pointed it in the direction of the smashed rear window of the vehicle and, after some tens of seconds, fired two shots. 24. The first shot struck Carlo Giuliani in the face, under the left eye, seriously injuring him. At the time he was no more than a few metres from the back of the jeep and had just picked up an empty fire extinguisher. Carlo Giuliani fell to the ground near the left-side rear wheel of the vehicle. 25. Shortly afterwards the driver, Filippo Cavataio (“F.C.”), managed to restart the engine and, in an attempt to move the vehicle away, reversed, driving over Carlo Giuliani's body. He then engaged first gear and again drove over the body as he left the square. The jeep then drove towards Piazza Tommaseo. 26. After “a few metres”, carabinieri Sergeant-Major Amatori got into the jeep and took over at the wheel, “as the driver was in a state of shock”. Another carabiniere named Rando also got in. 27. After the jeep had driven away a demonstrator, J.M., went over to Carlo Giuliani and observed that he was losing a large amount of blood, which was spurting from a wound near his left eye. J.M. noted that “Carlo Giuliani's pulse was very rapid and weak”. A few moments later, when several police officers and carabinieri arrived, J.M. moved away. 28. Police forces stationed on the other side of Piazza Alimonda intervened and dispersed the demonstrators (according to the statement of Captain Cappello). They were joined by some carabinieri. 29. At 5.27"25' p.m. a police officer present at the scene called the control room to request an ambulance. A doctor who arrived at the scene subsequently pronounced Carlo Giuliani dead. 30. The moments leading up to the death of Carlo Giuliani were reconstructed as follows in the Interior Ministry memorandum added to the file by the Government: “At 6 a.m. the sector received the service order and three detachments took up positions close to the questura. After a few hours the contingent was dissolved; two detachments remained. Towards the end of the morning the contingent was sent to Piazza Tommaseo, arriving after the clashes with demonstrators had ended. Police officer Lauro took over command of the contingent. The men were stationed on Via Rimassa, near the King gardens, and had a variety of objects thrown at them. From 3 p.m. onwards the contingent, following the demonstrators, went along Via Ivrea and arrived on Piazza Alimonda, where the situation was relatively calm; as a result, the contingent was reorganised. There were about fifty carabinieri present. The two Defender jeeps used to liaise between the contingents were at the scene. Officer Lauro and Captain Cappello decided to deploy the contingent on Via Caffa, in the direction of Via Tolemaide, in order to deal with a group of demonstrators who had built a barricade using waste containers. The carabinieri were subjected to a barrage of stones and bottles. Fearing that other demonstrators coming from Via Odessa would join in, the carabinieri retreated on foot, leaving the two jeeps which were at the rear of the contingent exposed. In the momentary confusion the drivers of the two jeeps attempted to withdraw as quickly as possible by reversing towards Piazza Tommaseo. In trying to turn around, the two jeeps got in each other's way; the jeep driven by Filippo Cavataio (F.C.) was unable to complete the manoeuvre and found its way forward blocked by a waste container. A few moments later demonstrators coming from Via Tolemaide and Via Odessa reached the jeep.” 31. Relying, inter alia, on evidence given by law-enforcement officers during the “trial of the twenty-five”, the applicants described the circumstances surrounding the death of Carlo Giuliani as follows: “The procession of Tute bianche (“White overalls”) demonstrators arrived in Via Tolemaide at around 2.50 p.m. At 2.53 p.m. the law-enforcement agencies (the company of carabinieri from the Lombardia battalion) attacked them. The demonstrators were attacked eight times, with nineteen armoured vehicles, fire engines, tear gas and truncheons being used. The last attack took place at 5.15 p.m. In the meantime the ECHO company – which had assisted the Lombardia battalion during some of the attacks – had taken up position at the intersection of Piazza Alimonda and Via Caffa, under the orders of police officer Lauro. Two Defender jeeps joined them. The carabinieri were able to take off their gas masks, eat and rest. At the same time the police took up positions on Via Caffa, under the orders of police officer Fiorillo. With the situation calm, Captain Cappello ordered M.P. and D.R. to board one of the two jeeps. He thought it wise to allow the two carabinieri to board, as they were mentally exhausted ('a terra') and were no longer physically fit for duty. Cappello also considered that M.P. should stop firing tear gas and took away his teargas gun and the pouch containing the tear-gas grenades. At 5.20 p.m. the ECHO company, comprising about one hundred men at that point, following an order from police officer Lauro, donned their gas masks and riot shields again and set off on foot along Via Caffa towards Via Tolemaide. A decision was taken in the presence of Lieutenant-Colonel Truglio to attack the procession. The two jeeps followed the detachment. Several waste containers were being used as a barrier by the demonstrators. The ECHO company began to withdraw along Via Caffa, towards Piazza Alimonda, accompanied by the two jeeps travelling in reverse. About seventy demonstrators followed the carabinieri. When it arrived on Piazza Alimonda, the jeep in which M.P. was travelling found its path blocked by a waste container. Demonstrators threw stones at the vehicle, and then a fire extinguisher, which fell to the ground. Carlo Giuliani moved towards an extinguisher which was lying on the ground. At that point one of the carabinieri in the jeep already had a pistol in his hand and was ready to fire. Carlo Giuliani took hold of the extinguisher and raised it up. It was 5.27 p.m. In the same instant he was struck by the fatal bullet.” 32. With regard to the pistol, the applicants referred to the photographs in the investigation file, and stressed that it was being held horizontally and pointing downwards. 33. The Interior Ministry asserted that it was impossible to indicate the exact number of carabinieri and police officers at the scene at the moment of Carlo Giuliani's death; there had been approximately fifty carabinieri, some 150 metres from the jeep. In addition, 200 metres away, near Piazza Tommaseo, there had been a group of police officers (reparto mobile della polizia di stato). 34. The applicants, for their part, referred to the statements made by Lieutenant-Colonel Truglio (see below), who said that he had been ten metres or so from Piazza Alimonda and thirty to forty metres away from the jeep. The carabinieri (around a hundred of them) had been some tens of metres from the jeep. The police officers had been at the end of Via Caffa, towards Piazza Tommaseo. The applicants further submitted that the photographs in the investigation file clearly showed some carabinieri a few metres from the jeep in question. 35. A film submitted by the applicants based on images in the investigation file shows several individuals and law-enforcement officers approaching the body of the victim. A bloodstained stone which does not appear at the beginning of the sequence of images can be seen at the end, close to the victim's head. In addition, a police officer (Mr Lauro) near to Carlo Giuliani's body is shown pointing at a demonstrator and shouting “Sei stato tu, sei stato tu” (“It was you! It was you!”), after which lawenforcement officers are seen chasing after the demonstrator, to no avail. 36. Captain Cappello, who gave evidence at the “trial of the twentyfive” (hearing of 20 September 2005), stated that a young woman had approached Carlo Giuliani's body and lifted up the balaclava he was wearing. A starshaped wound was visible on the victim's forehead. The young woman said that Carlo Giuliani was dead and that, in her view, he had not been killed by a stone. About two minutes after she had said this, police officer Lauro had begun to “give vent to his feelings”, as Captain Cappello put it; this was later shown on television. 37. The Genoa province mobile police unit (3rd division – offences against the person) arrived on the scene at around 6 p.m. The report written by Ms Bucci, a police officer with the Genoa mobile police unit, stated that, at around 6 p.m., she had gone to Piazza Alimonda with two other police officers after information had been received from the control room that a young man had died. She had found the victim's body covered with a sheet. She had done what she could to seal off the area (by closing Piazza Alimonda to the public) in order to allow forensic officers to take down details. The victim's face had been bare, as his balaclava was behind his head. Evidence had been taken from police officers Fiorillo and Martino (see paragraphs 41-42 below). 38. A spent cartridge was found a few metres from Carlo Giuliani's body. No bullet was found. A fire extinguisher, a bloodstained stone, some money, a craft knife, a mobile phone, a lighter and a set of keys were found beside the body and were seized by the police. It also emerges from the file that the public prosecutor's office entrusted thirty-six investigative measures to the police. 39. The jeep, after it left Piazza Alimonda, and also the weapon and equipment belonging to M.P., remained in the hands of the carabinieri and were subsequently seized under a court order. A spent cartridge was found inside the jeep. 40. On the orders of the public prosecutor's office, the body was taken to Galliera hospital. It was identified by means of matching fingerprints in the database of the judicial authorities. 41. At 9.30 p.m. police officer Fiorillo, who had been in charge of the group of police officers in Via Caffa, gave evidence in the office of the Genoa mobile police unit. He said that he had seen a contingent of carabinieri on Piazza Alimonda being swept along (“travolto”) by a large number of demonstrators who were trying to attack the police officers. The two Defender jeeps were cut off in the middle of the group of demonstrators; they were surrounded and seriously damaged. Immediately afterwards, the two jeeps managed to drive away. A man wearing a balaclava was lying on the ground. A fire extinguisher was nearby. 42. At 8.50 p.m., in the office of the Genoa mobile police unit, police officer Martino stated that he had gone to Piazza Alimonda with his group of officers on the orders of officer Fiorillo, and had seen the body of Carlo Giuliani on the ground, bleeding profusely from the head. Nearby was a fire extinguisher. When the ambulance arrived, a doctor had tried to resuscitate Carlo Giuliani, before pronouncing him dead and awaiting the arrival of the judicial officer. 43. On 21 July 2001 Captain Cappello, who had been in charge of the ECHO company, recounted the events of the previous day and gave the names of the carabinieri who had been in the jeep in question, which had been surrounded by a large group of demonstrators armed with iron bars, stones and planks of wood. He stated that, once the jeep had managed to drive away, the police officers on the other side of the square had intervened and dispersed the demonstrators, thereby revealing the body of a person wearing a balaclava lying on the ground. Captain Cappello said that he had heard no shots, probably because of his radio earpiece, his helmet and his gas mask, which reduced his hearing. 44. On 28 July 2001 officer Mirante drafted an official memorandum which echoed the statements made by Captain Cappello concerning the events on Piazza Alimonda. 45. On the evening of 20 July 2001 two of the three carabinieri in the jeep at the time of the events were placed under investigation on suspicion of intentional homicide and gave evidence to the Genoa public prosecutor's office at the headquarters of the Genoa carabinieri. 46. M.P. was an auxiliary carabiniere assigned to Battalion no. 12 (Sicilia), and one of the members of the ECHO company constituted for the purpose of the G8 summit. Together with four other companies from different regions of Italy, the company formed part of the CCIR, under the orders of Lieutenant-Colonel Truglio. The ECHO company was under the orders of Captain Cappello and his deputies Mirante and Zappia, and was directed and coordinated by Mr Lauro, an officer (vice questore) of the Rome police. There was also a parachute battalion and units designated as G2 and G3. Each of the five companies was divided into four detachments of fifty men. The overall commander of the companies was Colonel Leso; LieutenantColonel Truglio was deputy commander in charge of coordination. 47. M.P., who was born on 13 August 1980 and began serving as a carabiniere on 16 September 2000, was trained in the use of grenades and deployed to fire tear gas. He stated that during the public-order operation he had been supposed to move around on foot with his detachment. Having fired several tear-gas grenades, he had felt a burning in his eyes and face and had asked Captain Cappello for permission to get into the jeep being driven by F.C. Shortly afterwards, another carabiniere (Dario Raffone), who was injured, had joined them. 48. M.P. said that he had been very frightened, because of everything he had seen being thrown that day, and was particularly afraid that the demonstrators would throw Molotov cocktails. He went on to explain that he had grown more afraid after being injured in the leg by a metal object and in the head by a stone. He said that he had become aware that the jeep was under attack because of the stones being thrown and had thought that “hundreds of demonstrators were surrounding the jeep”, although he added that “at the time [he] fired the shots, no one was in sight”. He said he had been “in a panic”. M.P. described the moment when he had fired, saying that at some point he had realised that his hand was gripping his pistol. He had thrust the hand carrying the weapon through the rear window and, after about a minute, had fired two shots. M.P. did not give any details as to when he had removed the safety catch from his pistol. He maintained that he had not noticed Carlo Giuliani behind the jeep either before or after firing. 49. The driver, F.C., who was born on 3 September 1977, had been serving as a carabiniere for twenty-two months. He stated that he had been in an alleyway near Piazza Alimonda and had attempted to reverse towards the square, as the detachment was being pushed back by the demonstrators. However, he had found his path blocked by a waste container which he was unable to remove as his engine had stalled. He said that he had been concentrating his efforts on how to move the jeep out, while his colleagues inside the vehicle were shouting. As a result, he had not heard the shots from M.P.'s pistol. Finally he stated: “I did not notice anyone on the ground because I was wearing a mask, which partly blocked my view ... and also because it is hard to see properly out the side of the vehicle. I reversed and felt no resistance; actually, I felt the left wheel jolt and thought it must be a pile of rubbish, since the waste container had been turned over. The only thought in my head was how to get out of that awful situation.” 50. D.R., who was born on 25 January 1982 and had been performing military service since 16 March 2001 (carabiniere di leva), stated that he had been struck in the face and back by stones thrown by demonstrators, and had started to bleed. He had tried to protect himself by covering his face, while M.P., for his part, tried to shield him with his body. At that point, he could no longer see anything, but he could hear the shouting and the sound of blows and objects entering the jeep. He heard M.P. shouting at their attackers to stop and go away, and immediately afterwards heard two shots. 51. On 11 September 2001 M.P., on being questioned by the public prosecutor, confirmed his statement of 20 July 2001, adding that he had shouted to the demonstrators: “Leave or I'll kill you”. 52. Sergeant-Major Amatori, who was in the other jeep which was stuck momentarily on Piazza Alimonda, said that he had observed that the jeep in which M.P. was travelling had its path blocked by a waste container and was surrounded by a large number of demonstrators, “certainly more than twenty of them”. The demonstrators were throwing objects at the jeep. He saw in particular that one protestor had already thrown a fire extinguisher at the rear window. The sergeant-major said that he had heard shots and seen Carlo Giuliani fall down. He had also seen the jeep drive twice over Carlo Giuliani's body. Once the jeep had succeeded in leaving Piazza Alimonda, he went over to it and saw that F.C., the driver, had got out of the jeep and, visibly shaken, was asking for help. The sergeant-major took over the driving seat and, observing that M.P. had a pistol in his hand, ordered him to replace the safety catch. He said that he had immediately thought that this was the weapon that had just fired the two shots, but had said nothing to M.P., since the latter was injured and his head was bleeding. The driver (F.C.) told him that he had heard shots while he was manoeuvring the jeep. The sergeant-major was not offered any explanation as to the circumstances surrounding the decision to shoot and did not ask any questions on the subject. 53. Carabiniere Rando said that he had gone over to the jeep on foot. He had seen that M.P.'s pistol was drawn and had asked M.P. if he had fired. M.P. said that he had, without specifying whether he had fired into the air or in the direction of one of the demonstrators. Mr Rando said that M.P. kept saying: “They wanted to kill me, I don't want to die”. 54. On 11 September 2001 the public prosecutor heard evidence from Captain Cappello, who had been in command of the company of carabinieri to which M.P. was assigned during the G8 summit, under the orders of Lieutenant-Colonel Truglio. Captain Cappello stated that he had given M.P. permission to get into the jeep and had taken his tear-gas gun as M.P. was experiencing difficulties. He stated subsequently (at the “trial of the twentyfive”, hearing of 20 September 2005) that M.P. had been physically unfit to continue on account of his mental state and nervous tension. Captain Cappello had then moved with his men – about fifty in number – to the corner of Piazza Alimonda and Via Caffa. Cappello stated that he was requested by police officer Lauro to proceed up Via Caffa in the direction of Via Tolemaide to assist the men engaged there in trying to push back the demonstrators. He said he had been puzzled by the request, given the number of men with him and their state of tiredness. Nevertheless, Cappello and his men had taken up positions on Via Caffa. The carabinieri were forced back by the demonstrators coming from Via Tolemaide; they initially withdrew in an orderly manner, and then in disorderly fashion. Cappello stated that he had not realised that, when the carabinieri withdrew, they were being followed by two Defender jeeps, as there had been no “operational reason” for the vehicles to be there. He further stated that the demonstrators had dispersed only when the mobile police units stationed on the other side of Piazza Alimonda had intervened, and that only then had he observed a man wearing a balaclava lying on the ground, apparently seriously injured. Finally, Captain Cappello said that some of his men had been wearing helmets equipped with video cameras, which would help to shed light on the sequence of events, and that the video recordings had been handed over to Colonel Leso, who was in charge of the CCIR. 55. Lieutenant-Colonel Truglio stated that he had stopped some tens of metres from Piazza Alimonda and thirty to forty metres from the jeep, and had seen the jeep drive over a body lying on the ground. 56. On 21 December 2001 Mr Lauro gave evidence to the public prosecutor. He stated that on 20 July 2001 he had reported at 6 a.m. to the location where he was due to commence duty in charge of two hundred men. Two hours later, as no one had turned up, he made inquiries of the questura and was told that the service orders had been changed. Mr Lauro later stated (during the “trial of the twenty-five”, hearing of 26 April 2005) that he had been informed on 19 July that no march was authorised for the following day. On 20 July he had been unaware that an authorised march was due to take place. He was requested to go to near the fairground and join a contingent of a hundred carabinieri in order to patrol the area. Lauro was not able to make contact with the contingent and its captain – Captain Cappello – until 12.30 p.m. He went to Piazza Tommaseo, where clashes were taking place with demonstrators. At 3.30 p.m., in a moment of calm, Lieutenant-Colonel Truglio and the two jeeps joined the contingent. Lunch was eaten. The contingent was involved in clashes on Corso Torino between 4 p.m. and 4.45 p.m. It then arrived at Piazza Tommaseo and Piazza Alimonda. Lieutenant-Colonel Truglio and the two jeeps came back. The contingent was reorganised. Lauro stated that he had observed a group of demonstrators at the end of Via Caffa who had formed a barrier using wheeled waste containers and were advancing towards the lawenforcement officers. He said that he had asked Captain Cappello whether his men were in a position to deal with the situation and that Cappello had replied in the affirmative. Lauro and the contingent therefore took up positions close to Via Caffa. He heard an order to withdraw and took part in the disorderly withdrawal of the contingent. 57. Some demonstrators present at the time of the events also gave statements. Some of them said they had been very close to the jeep and had themselves thrown stones and had struck the jeep with sticks and other objects. One demonstrator said that M.P. had cried: “Bastards, I'm going to kill the lot of you”. Another had observed that M.P., inside the jeep, had taken out his pistol; the demonstrator had then shouted to his friends to be careful and had moved away. Another demonstrator said that M.P. was protecting himself on one side with a riot shield (see paragraph 23 above). 58. Some individuals who witnessed the events from the windows of their homes said they had seen a demonstrator pick up a fire extinguisher and raise it up. They had heard two shots and had seen the demonstrator fall to the ground. 59. During the investigation the public prosecutor's office ordered the lawenforcement agencies to hand over any audiovisual material which might help in reconstructing the events that had taken place on Piazza Alimonda. During the public-order operation photographs had been taken and video recordings made by film crews, helicopter cameras and miniature video cameras in the helmets of some of the law-enforcement officers. Pictures taken by private individuals were also available. 60. Within twenty-four hours an autopsy was ordered by the public prosecutor's office to establish the cause of death. On 21 July 2001 at 12.10 p.m. notice of the autopsy – specifying that the injured party could appoint an expert and a lawyer – was served on the first applicant. At 3.15 p.m. Mr Canale and Mr Salvi, the experts appointed by the public prosecutor's office, were officially sworn in and work commenced on the autopsy. The applicants did not send any representative or expert of their own. The mandate issued to the experts read as follows: “The experts must indicate the cause of Carlo Giuliani's death and state whether the determining factors in that regard included external factors such as toxic chemical substances. If death was caused by one or more shots from a firearm, the experts should indicate the number of shots fired, the point of impact, the route taken by the bullet or bullets in the body, the position of the victim relative to the person who fired the shots and, if possible, the distance from which the shots were fired and whether there was a lethal struggle before the fatal wounding.” 61. When the autopsy was completed, the body was released to Carlo Giuliani's relatives, who wished to have it cremated. In view of the complexity of the issues, the experts requested the public prosecutor's office to give them sixty days to prepare their report. The public prosecutor's office granted the request. 62. On 23 July 2001 the public prosecutor's office authorised the cremation of Carlo Giuliani's body in accordance with the family's wishes. 63. The expert report was submitted on 6 November 2001. The experts noted that Carlo had been struck below the left eye by a bullet which had passed through the skull and exited through the rear of the skull on the left. The bullet's trajectory had been as follows: it had been fired from a distance exceeding 50 cm and had travelled from front to back, from right to left and in a downward direction. Carlo Giuliani had been 1.65 m tall. The person firing the shot had been facing the victim and slightly to his right. According to the experts, the bullet injury to the head was so severe that it would have resulted in death within a few minutes. The jeep being driven over the body had resulted only in minor injuries of no significance to the organs in the thorax and the abdomen. 64. After leaving Piazza Alimonda the three carabinieri who had been in the jeep went to the casualty department of Galliera hospital in Genoa. M.P. complained of diffuse bruising in his right leg and an injury to the skull with open wounds; against the advice of the doctors, who wished to admit him, M.P. signed a discharge and left the hospital at around 9.30 p.m. He had an injury to the skull which, he said, had been caused by a blow to the head with a hard object while he had been in the jeep. According to the doctors, M.P.'s condition was not life-threatening. 65. D.R. presented with bruising and abrasions to the nose and the right cheekbone and bruises on the left shoulder and left foot. F.C. had a posttraumatic psychological disorder expected to be cured within fifteen days. 66. The forensic medical reports drawn up to establish the exact nature of the injuries and their connection with the attack on the jeep's occupants concluded that the injuries sustained by D.R. and M.P. had not been lifethreatening. The report found that M.P.'s head injuries could have been caused by a stone thrown at him, whereas it was not possible to determine the origin of his other injuries. As to D.R., the injury to his face could have been caused by a stone being thrown at him, and his shoulder injury by a blow from a wooden plank. 67. On 4 September 2001 the public prosecutor's office instructed Mr Cantarella to establish whether the two spent cartridges found at the scene (one in the jeep and the other a few metres from Carlo Giuliani's body) had been fired from the same weapon, and in particular from M.P.'s weapon. In his report of 5 December 2001, the expert concluded that there was a 90% probability that the cartridge found in the jeep had come from M.P.'s Beretta pistol, whereas there was only a 10% probability that the cartridge found close to Carlo Giuliani's body had been fired from the same pistol. This expert examination was carried out unilaterally under Article 392 of the Code of Criminal Procedure, that is to say, without the injured party having an opportunity to participate. 68. The public prosecutor's office appointed a second expert, police inspector Biagio Manetto. The latter, in a report submitted on 15 January 2002, concluded that there was a 60% probability that the spent cartridge found near the victim's body had come from M.P.'s weapon. He concluded that both the cartridges had been fired from M.P.'s pistol. As to the distance between M.P. and Carlo Giuliani at the moment of impact, he estimated it at between 110 cm and 140 cm. The expert examination was conducted unilaterally. 69. On 12 February 2002 the public prosecutor's office instructed a panel of experts, made up of Nello Balossino, Pietro Benedetti, Paolo Romanini and Carlo Torre, “after examining the video and photographic material and the detailed maps in the file, the items seized and the expert reports already carried out, to reconstruct, if only in virtual form, the actions of M.P. and Carlo Giuliani in the moments immediately before and after the bullet struck the victim's body. In particular, [the experts were instructed] to ascertain the distance between M.P. and Carlo Giuliani, their respective angles of view and M.P.'s field of vision inside the jeep at the moment the shots were fired”. It appears from the file that Mr Romanini had published an editorial article in September 2001 in a specialist review (TAC Armi), in which he had expressed the view that M.P. had acted in selfdefence. The experts were given permission to consult all the documents, audiovisual material and expert reports held by the public prosecutor's office. Representatives and experts appointed by the applicants attended the expert examinations. According to the minutes, the applicants were represented by Mr Vinci, who said he did not wish to make an application for the immediate production of evidence (incidente probatorio). 70. An on-site inspection was conducted on 20 April 2002. On that occasion, traces of the impact of the second pistol shot were found on the wall of a building on Piazza Alimonda, at a height of about five metres. 71. On 10 June 2002 the expert report (entitled: “Study of the dynamic of events leading to the death of Carlo Giuliani based on analysis of the images”) was submitted to the public prosecutor's office. The report was aimed at determining the position of the two persons concerned and the distance between them when the shot was fired, in order to establish the angle of view. The experts stated at the outset that the fact that they had not had access to Carlo Giuliani's body (because it had been cremated) had been a major obstacle which had prevented them from producing an exhaustive report, as they had been unable to re-examine parts of the body and search for micro-traces. 72. First of all, on the basis of the “little material available” the experts attempted to establish what the impact of the bullet had been on Carlo Giuliani's body. According to the experts, the injuries to the skull were very serious and had resulted in death “within a short space of time”. They further found that the bullet had not exited whole from Carlo Giuliani's head; the scan performed before the autopsy showed an opaque piece of metal which looked like a fragment of bullet casing. As to the entry wound on the face, its appearance did not permit an unequivocal interpretation; its irregular shape was explained chiefly by the type of tissue in that part of the body. However, one possible explanation was that the bullet had not struck Carlo Giuliani directly, but had encountered an intermediate object which could have distorted it and slowed it down before it reached the victim's body. That hypothesis tallied with the small dimensions of the exit wound and the fact that the bullet had fragmented inside Carlo Giuliani's skull. 73. On the basis of this hypothesis, the experts then searched for traces and reported finding a small fragment of lead, probably from the bullet. As it had come off Carlo Giuliani's balaclava when the latter was being handled, it was impossible to ascertain whether the fragment had come from the front, side or back of the balaclava. That said, the experts observed traces of a substance which was not part of the bullet as such, but came from material used in the construction industry. In addition, micro-fragments of lead were found on the front and back of the balaclava, apparently confirming the hypothesis that the bullet had lost part of its casing at the moment of impact. As to the nature of the “intermediate object”, the experts stated that it had not been possible to establish what it might have been, but ruled out the possibility that it was the fire extinguisher which Carlo Giuliani had been holding in his outstretched hand. 74. Finally, as to the distance from which the shot had been fired, the experts estimated it at no less than 50-100 cm. 75. In order to reconstruct the events based on the “hypothesis of a collision with an object”, the experts then had some test shots fired and conducted video and computer simulations. Their conclusions were as follows: if the bullet had struck another object, they could not establish its trajectory, which would undoubtedly have been altered as a result. On the basis of video footage showing a stone disintegrating in the air and of the shot that could be heard on the soundtrack, the experts concluded that the stone had shattered immediately after the shot had been fired. On the basis of a computer simulation, the experts concluded that the bullet fired upwards by M.P. had struck Carlo Giuliani after colliding with the stone in question, which had been thrown at the jeep by another demonstrator. The experts estimated the distance between Carlo Giuliani and the jeep at approximately 1.75 metres when the shot was fired and judged that, at that precise moment, M.P. had been able to see Carlo Giuliani. 76. The applicants submitted a statement made to their lawyer by J.M., one of the demonstrators, on 19 February 2002. J.M. stated in particular that Carlo Giuliani had still been alive after the jeep had driven over his body and that he, J.M., had drawn officers' attention to the injured man, shouting out something like “Doctor, hospital...”. When the law-enforcement officers arrived, J.M. had left. The applicants subsequently submitted a statement made by a carabiniere (V.M.), who reported a widespread practice among lawenforcement officers consisting in altering bullets of the kind used by M.P. in order to make them more likely to expand and hence break up. 77. Lastly, the applicants submitted two expert reports drawn up by experts they themselves had appointed. According to one of the experts, Mr Gentile, the bullet had already been in fragments when it struck the victim's body. The fact that it had fragmented could be explained by a defect in the bullet or by its having been manipulated to make it more likely to break up. Mr Gentile considered that this occurred in a limited number of cases; accordingly, it was a less likely hypothesis than the one put forward by the prosecuting authorities' experts (namely that the bullet had struck an object during its trajectory). The other experts instructed by the applicants to reconstruct the events ruled out the possibility that “the stone” had shattered after colliding with the bullet fired by M.P.; in their view it had shattered against the jeep. According to the experts, in order to reconstruct the events on the basis of the audiovisual material, and especially of the photographs, it was necessary to establish the exact position of the photographer, and in particular his or her angle of vision, taking into account also the type of equipment used (focal length, type of camera body or video camera). In addition, it was necessary to establish the timing of the images and how they fitted in with the sound. The experts also challenged the method used by the prosecution authorities' experts, who had based their analysis on “video and computer simulations” and had not analysed the available images rigorously and in depth. Similar criticisms were made of the method used to perform the test shooting, which, in the view of the applicants' experts, was not reliable. 78. The applicants' experts concluded that Carlo Giuliani had been about three metres away from the jeep when the shot was fired and that, while it was undeniable that the fatal bullet had been in fragments when it struck Carlo Giuliani, the possibility of its having collided with the stone which could be seen in the picture in question should be ruled out, in particular because a stone would have distorted the bullet in a different way and left different marks on Carlo Giuliani's body. Moreover, M.P. had not fired in an upward direction. 79. The public prosecutor noted first of all that far-reaching changes had been made to the organisation of the public-order operation on the night of 19 July 2001, and took the view that this partly explained the problems that had arisen on 20 July. However, he did not detail the changes or the problems that had resulted. On the basis of the evidence in the file, the public prosecutor reconstructed the events leading up to the death of Carlo Giuliani. As to the decision to position men in Via Caffa in order to block the path of the demonstrators in Via Tolemaide, the public prosecutor noted that Mr Lauro's version of events was at variance in some respects with that of Captain Cappello: whereas Mr Lauro spoke of a decision taken by mutual agreement, Captain Cappello maintained that the men had taken up position on the basis of a unilateral decision by Mr Lauro, in spite of the potential risks involved (on account of the small size of the detachment and the fact that the men were tired). 80. The public prosecutor then examined the expert reports and noted that the different experts agreed in particular on the fact that two shots had been fired from M.P.'s pistol, the first of which had fatally wounded Carlo Giuliani; that the bullet in question had not fragmented merely as a result of striking Carlo Giuliani's body; and that the photograph of Carlo Giuliani holding the fire extinguisher had been taken when he was approximately three metres away from the jeep. However, the experts differed on the following points in particular: (a) according to the experts appointed by the public prosecutor's office, Carlo Giuliani had been 1.75 metres away from the jeep at the moment he was wounded (approximately three metres away according to the Giuliani family's experts); (b) the relative timing of the image of the stone and the sound of the gunshot (according to the Giuliani family's experts, the shot had been fired before the stone could be seen, contrary to the view of the prosecution authorities' experts). 81. Given that the parties agreed that the bullet had fragmented before striking the victim's body, the public prosecutor concluded that they also agreed as to the causes of the bullet's fragmentation, and that the applicants subscribed to the “theory of the bullet having been deflected by a solid object”. The relevant parts of the request for the proceedings to be discontinued read as follows: “The points on which there is no substantial disagreement are outlined below: ... Before striking Giuliani, the bullet encountered an object in its path which caused it to fragment partially. The footnote reads as follows. On page 13 of the expert report of 10 June 2002 the expert, Mr Torre, states: 'In short, all the available evidence points to the fact that the bullet, before striking the face of Carlo Giuliani, made contact with a hard object (intermediate target) capable of slowing down its trajectory significantly and damaging its casing, making it likely to break up, and of leaving traces on the lead core.' The Giuliani family's expert, Mr Gentile, for his part, stated as follows on page 2 of the expert report which he submitted on 9 August 2002: 'We cannot but share the assessment of Professor Torre that a bullet of that calibre, which conformed to NATO standards, would not (the negative was added by Mr Gentile by hand on 5 October 2002 during the confrontation between the experts) have fragmented as the sole result of the final impact with the victim.” Other possible explanations for the fragmentation of the bullet advanced by the applicants – such as the manipulation of the bullet in order to make it more likely to fragment, or a manufacturing defect – were considered by the applicants themselves as “much less likely”. Given the lower degree of probability, these hypotheses could not – according to the public prosecutor – be regarded as valid explanations. 82. Before moving on to legal considerations, the public prosecutor observed that the investigation had been lengthy, owing in particular to delays with some of the expert reports, the “superficial nature” of the autopsy report and the errors made by one of the experts, Mr Cantarella. The public prosecutor then observed that the investigation had been completed and that all the relevant issues had been addressed in detail. In conclusion, he said that the hypothesis of the bullet having been fired upwards and deflected by a stone thrown into the air was “the most convincing”. However, the public prosecutor considered that there was insufficient evidence in the file to determine whether M.P. had fired the shots with the sole intention of dispersing the demonstrators or had knowingly run the risk of injuring or killing one or more of them. Three possibilities had been considered, and “the matter would never be resolved with certainty”: – the first possibility was that the shots had been designed to intimidate the demonstrators and that it was therefore a case of causing death by negligence; – the second possibility was that M.P. had fired the shots in order to put a stop to the attack and had accepted the risk of killing someone; that would mean that it was a case of intentional homicide; – the third possibility was that M.P. had aimed at Carlo Giuliani; this would also be intentional homicide. In the view of the public prosecutor, the evidence in the file was sufficient to rule out the third possibility. 83. The public prosecutor further considered that the bullet's having collided with the stone was not capable of severing the causal link between M.P.'s actions and Carlo Giuliani's death. That link remained; the question was whether M.P. had acted in self-defence. 84. In the public prosecutor's view, it had been proven that the physical integrity of the jeep's occupants had been under threat and that M.P. had been “responding” in the face of danger. That said, M.P.'s response had to be examined in terms of both its necessity and its proportionality, “the latter aspect being the more delicate”. As to whether M.P. had had any other option and could have been expected to act differently, the public prosecutor replied in the negative, giving the following reasons: “... the jeep was surrounded by demonstrators and the physical aggression against the occupants was patent and virulent...”. M.P. had been justified in perceiving his life to be in danger. The pistol had been an instrument capable of putting a stop to the attack, and M.P. could not be criticised for the choice of the equipment issued to him. From a legal viewpoint, M.P. could not be expected to refrain from using his firearm and submit to an attack liable to endanger his physical integrity. 85. In the light of these considerations, the public prosecutor requested that the proceedings be discontinued. 86. On 10 December 2002 the applicants lodged an objection against the request for the proceedings to be discontinued. Referring to the fact that the prosecution authorities themselves had acknowledged that the investigation had been flawed and raised doubts which had not been resolved with certainty, they argued that adversarial proceedings were essential in order to arrive at the truth. 87. As to M.P., the applicants disputed the theory that the bullet had been deflected by a stone. In their view, it was impossible to argue simultaneously that M.P. had fired into the air and that he had acted in selfdefence, particularly since M.P. had said he could not see Carlo Giuliani when he had fired the shot. The applicants further observed that the theory that the bullet had been deflected by an object had been put forward one year after the events by an expert appointed by the public prosecutor's office, and was based on pure supposition not backed up by objective evidence. The applicants' expert had stated that a collision with a stone would have distorted the bullet in a different manner. In addition, the applicants referred to the statement reporting the practice of modifying bullets in order to make them more likely to expand and hence to fragment. 88. With regard to F.C., the applicants observed that the file showed that Carlo Giuliani had still been alive after the jeep had driven over his body. In that connection they pointed out that the autopsy report, which found that no appreciable injuries had been caused by the jeep driving over the body, had been described as superficial by the public prosecutor. 89. In the light of these considerations, and having criticised the decision to entrust a number of investigative measures to the carabinieri, the applicants demanded that a trial be held in order to establish responsibility for Carlo Giuliani's death. 90. In the alternative, the applicants requested that further investigative measures be undertaken, in particular: (a) that an expert report be prepared aimed at establishing the causes and the time of Carlo Giuliani's death, in order to ascertain in particular whether he had still been alive when the jeep drove over his body, and afterwards; (b) that evidence be heard from the chief of police, Mr De Gennaro, and from carabiniere Zappia, to establish what instructions had been given regarding the wearing of weapons on the thigh; (c) that the person who had thrown the stone in question be identified and traced; (d) that further evidence be heard from the demonstrators who had come forward; (e) that evidence be heard from the carabiniere V.M., who had reported the practice of cutting the tips of bullets in order to increase their impact; (f) that an expert examination be carried out on the spent cartridges and on the weapons of all the police and carabinieri on Piazza Alimonda at the time of the events. 91. The hearing before the investigating judge took place on 17 April 2003. The verbatim record of the hearing shows that the applicants maintained their argument that the bullet had not broken up after colliding with the stone. They ruled out the possibility that the bullet had been deflected and submitted that it had struck the victim's body directly. Mr Vinci, the applicants' representative at the hearing, stated with regard to the theory that the bullet might have been modified in order to make it more effective, in line with the practice reported by one witness: “Obviously, we do not have any proof; it is a case of evidence adduced in order to advance different hypotheses. Naturally we cannot assert, nor do we wish to, that M.P. did that.” 92. The public prosecutor who attended the hearing said he had the impression that “certain points which [he had] believed to be the subject of mutual agreement were in fact not; on the contrary, there were divergences of opinion”. He pointed out that the applicants' expert, Mr Gentile, had been in agreement as to the fact that the bullet had been damaged before striking Carlo Giuliani, and had acknowledged that one of the possible causes of the damage was a collision with some object or an intrinsic defect in the bullet, and that the second hypothesis was less likely than the first. 93. By an order lodged with the registry on 5 May 2003, the Genoa investigating judge discontinued the proceedings. 94. In seeking to reconstruct the events the judge referred to an anonymous account posted on an anarchist website (www.anarchy99.net), which the judge considered to be credible given that it concurred with the audiovisual material and with the witness statements. “[I]t is particularly interesting to study the description, which is included in the file, posted by an anonymous participant in the demonstrations on an Internet site with possible links to French anarchists (www.anarchy99.net). This provides a detailed and clearly accurate account, as testified by the details emerging from the videos and photographs and from the testimonies in the file, and can therefore be used as a basis for a precise reconstruction of the events as regards both the movements of the demonstrators at the location where Carlo Giuliani died and the assessment of the number and conduct of the demonstrators and the law-enforcement agencies in the moments leading up to the young man's death.” The website in question described the situation on Piazza Alimonda and a charge by demonstrators against the carabinieri. The charge was led by demonstrators throwing anything that came to hand, followed by others carrying containers, rubbish bins, etc. for use as mobile barricades. The atmosphere on the square was described as “frenetic”. The following passage was reproduced in the judge's decision: “... I really don't think that many of us on that march went as far as the centre of the area where the clashes were taking place, where Corso Gastaldi narrows and becomes Via Tolemaide... There were thousands of people in the area close to the clashes who were resting, watching or getting some air after having tear gas fired at them. I kept on going towards Via Tolemaide. There were still a lot of people and I could see the first signs of clashes... There really were lots of people carrying equipment or parts of equipment in the style of the Tute bianche... I carried on further. There were still a lot of people. There were hundreds of people in the front lines of rioters ... Not long after I joined the front lines, the demonstrators began a major counter-attack ... Hundreds of people started to advance towards the cops. Gradually, more and more missiles were being thrown at the police lines. Stones were starting to rain down. More and more were hitting them ... They were getting them right in their faces and they could all see that behind the hundreds of people attacking them there were another one or two thousand further up the street who were starting to follow the front lines, coming thicker and faster, heading straight for them. People were shouting “Avanti! Avanti!”. Then the police ranks began to break up ... Everyone charged, shouting and throwing anything they could find ... People grabbed all the missiles lying on the ground. Every twenty metres, the things thrown at the cops were picked up and reused straight away. The stone throwers were now moving forward strongly and quickly. A little way behind, dozens of people were running along carrying bins, containers, railings, etc., so that they were moving the barricade while charging forward in a series of short bursts. The atmosphere was frenetic. The level of violence was really high. Tear gas was being fired frantically from the back of what was left of the police lines. That slowed us down. The vehicles managed to find a way out. The cops started to re-form their lines. I think we pushed them back about 200 metres. It must have taken them a long time to gain that much ground, and we made them lose it again in ten minutes. People started to gather ammunition for a fresh attack (picking up and making piles of missiles and parts for mobile barricades, forming large groups behind the front lines...). The cops had just taken a hammering and were destabilised, on the defensive. That must have been why they sent thirty or forty cops down the small side street, to the left of the front lines of demonstrators. They must have thought that the front lines would be afraid of a charge from the side that would cut them off from the rest of the demo (and which would have been followed immediately by a head-on charge) and were going to withdraw slightly to ease the pressure on the police in the Via Tolemaide. Or maybe they were trying to deter us from spreading out into the little streets on the left and widening the circle of the clashes. I don't know why they did it but, in any case, it wasn't a good idea because there were a lot of overexcited people arriving to support the front lines and fill the space gained during the charge of demonstrators, and the few dozen cops were very quickly charged by at least sixty or seventy people. The cops withdrew to a small street at right angles. The charge continued. The more they pulled back, the more we charged. We followed them into the street at right angles and caught up with them where the street runs into a small square with a church. The cops were still retreating under the hail of missiles. Quite a few demonstrators had iron bars or axe handles. There were more of us than them and they were trying to avoid contact. The cops entered a street off the square to re-form their lines. When they withdrew, they left two small carabinieri jeeps twenty to thirty metres behind them. The situation was violent and confused, things were happening quickly, so I'll be careful what I say. The two jeeps tried to reverse but, for some reason I don't understand, the second one at least wasn't able to. It then found itself cut off from the rest of the police and in direct contact with the demonstrators, who started to throw stones at it and to hit it with bars and wooden handles. The back window of the jeep was smashed, I don't know how it happened but it was missing. I was about ten metres from the jeep, slightly higher than it (it was to my left) because I was on the steps of the little church. That's when I heard the first shot, quite loud, sharp and close by. I instinctively bent down, thinking that it was a gunshot. I looked straight ahead at the police ranks at the entrance to the side street to see what was happening, whether they had fired the shot and if they were charging. They were about thirty metres away, there was gas, I couldn't see much. I think there was another shot. I turned round, still bent, and went back down two or three steps, went a few paces and crouched down for cover behind something or other. I raised myself up slightly. Straight in front of me, still about ten metres away I'd say, was the back of the carabinieri jeep with its back window smashed in. I could see some movement inside. I lowered myself again and almost immediately got up again slightly. I think (but I can't be certain, it's all a bit confused) that I saw, through the smashed rear window, fairly clearly, two cops wearing helmets, bent over or crouching, holding on to each other. I saw the outline of a hand, at chest height, and extending from it, a glinting black shape. I realised at once that it could only be a hand weapon and that it had been the source of the shots. I thought they had fired into the air in order to extricate themselves. The cops (I think there were two of them) seemed nervous and had turned round slightly to look through the broken window for any demonstrators approaching. I couldn't see what was happening on the ground. Then I looked behind me to see what was going on, whether the demonstrators were going forward or retreating. When I looked in front of me again, the carabinieri jeep had gone. I got up and moved forward. There were very few people in front of me. I had the feeling that it was much quieter for a few seconds. Then there were some shouts. I thought to myself that there was a problem and that something serious had happened. I saw a few people running and stopping about six or seven metres to my left. I went over. There were four or five people in a circle. I walked round them. I saw someone on the ground. A tear-gas grenade had rolled over to near the group of people. I kicked it back towards the cops, who were not moving and were still thirty metres or so away ... His feet were close to mine. I remember his white t-shirt and his black balaclava, which was sticky and glistening with blood. I saw a pool of blood spreading out from his head. I noticed blood spurting out of his left eye. I realised it was a bullet that had done that and that the shots hadn't been fired into the air. I took a few steps backwards holding my head. When I turned round I saw two or three journalists with videos and cameras taking close-ups of the guy on the ground. The cops started to come over slowly. A group of six or seven cops moved away from their ranks and, staying behind three or four riot shields, they walked straight up to us, quite slowly and calmly it seemed to me. Two youths began to lift up the guy on the ground. I moved closer to help them but another demonstrator came up saying that the guy was seriously injured and shouldn't be moved. The two youths put him down again. Actually, no one thought he was dead. The little group of six or seven cops had moved closer. They were perhaps ten metres away from us. We moved back and the line of cops following the leading group at a distance began to charge, so we cleared off altogether. We didn't know what to do because we thought the guy on the ground was badly hurt, but not dead. We didn't check his heart or his pulse. If we'd realised he was already dead, obviously we'd never have left his body to the cops; we would have taken it to Via Tolemaide and found an ambulance there (I dread to think what effect that would have had on the hundreds and hundreds of people there.) Anyway, the cops charged and the square emptied, the last of the demonstrators caught up with the rest and said that a guy had been shot and might be dead. People started shouting angrily. The cops, after clearing the square, started off down the side street along which people had started to head back towards Via Tolemaide. When they saw the cops coming, the people hurled themselves at them, shouting “Assassini” and forced them back on to the little square. Opposite me was the street where people were charging towards the square and, on my right, the street leading to Via Tolemaide. At the end of that street I noticed a light armoured vehicle which was heading up Via Tolemaide at speed, sweeping aside all obstacles. I hope there was no one in its way because the vehicle was driving straight through at full throttle. I bumped into one of the journalists who had been there when the demonstrator died. He spoke French and said to me and another French guy who was hanging around that we shouldn't get our hopes up, because the guy was dead. He said he was dashing off to send the pictures. I went back to Via Tolemaide by a side street, further up from the one where I had seen the armoured vehicle pass by. The news was starting to get round in the front lines of the demonstrators and people were attacking the cops frantically. I started to head back slowly in the opposite direction. The bad news was spreading through the demonstrators. Then I sped up and kept shouting out in several languages, while I walked quickly along, that someone had been killed by a bullet to the head. I told the news to the SO of the LCR. Then I walked back up the lines of demonstrators for a while announcing it ... The rioters in the front lines were very angry at the news, whereas most of the demonstrators were sickened and left. End of account. An anarchist somewhere in France, late July 2001.” 95. According to the judge, the description by the anonymous demonstrator tallied completely with the content of the statements made in relation to the notification of the offence and with the conclusions of the investigation, which had been launched immediately and according to which “at around 5 p.m., a group of demonstrators gathered in Via Caffa at the junction with Via Tolemaide, erecting barricades using rubbish bins, supermarket trolleys and anything they could find in the vicinity. From behind this barricade, the group began throwing large numbers of stones and hard objects at a contingent of carabinieri who, having been stationed originally on Piazza Alimonda at the corner of Via Caffa, had begun to move forward in a bid to stop the demonstrators, whose numbers had increased in the meantime following the arrival of other demonstrators coming from Via Tolemaide.” 96. The judge pieced together the subsequent events as follows: “That was why two Defender jeeps, one of them driven by carabinieri officer Cavataio and with officers Raffone and Placanica on board, had arrived as reinforcements for the contingent that was blocked. Wholly unexpectedly, the demonstrators had launched an extremely violent charge which forced the contingent of carabinieri to withdraw into the relative safety of Via Caffa. Consequently, the two jeeps reversed as far as Piazza Alimonda. Whereas one of them managed from there to move off in the direction of Piazza Tommaseo, the other, driven by officer Cavataio, in trying to turn round, ran into a rubbish bin with its front bumper and was unable to reverse immediately. In an instant the vehicle was surrounded by large numbers of demonstrators who formed a circle round it, attacking it and hitting it with anything that came to hand (pipes, poles from road signs, planks, etc.) while the demonstrators next to and further away from the vehicle continued their barrage of stones. The extensive footage filmed at the scene shows the violence of the attack on the contingent of carabinieri. In particular, the film made by Luna Rossa Cinematografica clearly shows that the attack on the jeep hemmed in at the corner of Piazza Alimonda was extremely violent, with demonstrators hurling themselves at the vehicle and smashing the windows with stones, iron bars and sticks. The film extracts and photographs taken during the events and assembled in the album of the mobile unit, which contains thirty-four images indicating the precise sequence of events, show the foot patrol of carabinieri on the part of Via Caffa which links Piazza Alimonda and Via Tolemaide, confronted by large numbers of demonstrators brandishing iron bars and sticks and throwing stones from behind a barricade erected at the junction with Via Tolemaide. Behind the barrier, on photograph 1, we can see Carlo Giuliani himself throwing a stone at the carabinieri. Photographs 3 to 7 show the demonstrators advancing on the contingent of carabinieri followed by the jeep. The demonstrators are armed with iron bars and sticks and with numerous stones which they are throwing at the carabinieri, as shown clearly by photograph 4. The next pictures show the withdrawal of the contingent, preceded by the jeeps travelling in reverse, “followed” by very large numbers of demonstrators (including, on photograph 10, Massimiliano Monai, running along clutching a beam), with the demonstrators already on Via Caffa having been joined in the meantime by numerous others coming from Via Tolemaide. The foot patrol manages to cross the square running, withdrawing in the direction of Piazza Tommaseo, still pursued by the demonstrators. The jeeps try to do a rapid U-turn but the demonstrators move over to them and launch an attack, as clearly shown by photographs 13 and 14. One of the vehicles succeeds in completing the manoeuvre and leaving the square; the other, trying to turn round, runs into a waste container at the front and is unable to extricate itself, in particular, as we shall see, because its engine stalls several times. While some demonstrators continue to throw stones even at the foot patrol, which has moved away, and against the parting jeep, the vehicle driven by officer Cavataio, with officers Raffone and Placanica now on board, is immediately encircled by demonstrators who hurl themselves at it, smashing the windows and hitting the occupants repeatedly with stones and iron bars through the windows. The ferocity with which the demonstrators attack the vehicle, as shown by the video and photographic material in the file, is striking: the vehicle is coming under a barrage of stones some of which, as we shall see, hit the carabinieri in the face and head. Massimiliano Monai can be seen clearly, still armed with the long wooden beam, which he thrusts in through the right-side window, inflicting on Dario Raffone, among other injuries, 'bruises and grazing in the area of the right shoulder blade' which, according to the findings of the forensic expert report ordered by the public prosecutor's office, are compatible with a blow struck in precisely that manner (photographs 16 to 22). Photograph 18 shows the foot of one of the carabinieri in the jeep protruding through the shattered rear window, repelling a fire extinguisher thrown at the inside of the vehicle. This could be the object that caused 'severe bruising to the right leg with diffuse swelling throughout the leg' reported by officer Placanica, who mentioned during questioning that he had also been hit in the leg by an 'extremely heavy metal object'. While objects continue to be thrown at the Defender jeep and its assailants are still crowding around the vehicle, one of the carabinieri inside the vehicle takes a gun in his right hand; this is clearly visible in photographs 18, 19, 20, 21 and 22, which show a hand on the inside clutching a pistol at the level of the upper edge of the line formed on the photograph by the shape of the spare wheel on the back door; while the attack is continuing, a young man bends down and picks up a fire extinguisher which he raises in the direction of the back window of the jeep as if to throw it. Two shots are fired in quick succession from the inside of the vehicle. The young man with the fire extinguisher falls and his body rolls on the ground, coming to a stop against the left rear wheel of the vehicle; the extinguisher has rolled next to the wheel, in front of the body. A few moments later the Defender jeep manages to reverse, driving over the body of the young man with its left rear wheel and then touching it again as it moves forward and turns into Via Caffa in the direction of Piazza Tommaseo, stopping almost immediately on the corner of a side street. The inanimate body of a young man with a balaclava on his head, later identified as Carlo Giuliani, remains lying in the roadway.” 97. With regard to F.C., the judge took the view that the evidence in the file excluded any criminal responsibility on his part, given that Carlo Giuliani's death had certainly been caused within minutes by the pistol shot and that the jeep's driving over his body had caused only bruising. In addition, F.C. had not been able to see Carlo Giuliani, owing to the confused situation around the jeep. This ruled out any responsibility for homicide on the part of the driver. 98. As to M.P., the judge noted that the evidence in the file showed that the first bullet had struck and killed Carlo Giuliani. It was an encased 9 mm parabellum bullet, and therefore very powerful. In the judge's opinion this fact, together with the low resistance of the body tissue through which the bullet had travelled, supported the hypothesis advanced by the prosecution authorities' experts to the effect that the bullet had struck an object before hitting Carlo Giuliani. The intermediate object could have been one of the numerous stones which had been thrown at the jeep by demonstrators. This appeared to be borne out by the video footage showing a stone disintegrating in the air at the same time that a shot was heard. 99. As to the initial trajectory of the bullet (“l'originaria direzione del colpo”), the investigating judge noted that the ballistic expert examination had been unable to establish it. However, she took the view that, assuming that the jeep was 1.96 m high and that the stone visible on the film had been at a height of around 1.9 m when the picture was taken, it made sense to consider that the shot had been fired upwards, in line with the conclusions of the experts appointed by the public prosecutor's office. 100. The judge considered that the first possibility advanced by the public prosecutor – namely, that M.P. had fired with the sole aim of intimidating the demonstrators – should be ruled out; M.P. had sought to counter the attack. There was not sufficient evidence, either, to establish that M.P. had been able to see Carlo Giuliani at the moment of firing the shot and therefore had taken aim at him. According to the judge, the most likely hypothesis was that M.P. had fired the shot knowing that there was a risk that someone would be killed; it was therefore a case of intentional homicide. However, two elements which excluded criminal responsibility were present in the case. The first was the legitimate use of weapons, as set forth in Article 53 of the Criminal Code (“a State agent who uses or orders the use of weapons or any other means of physical force in the exercise of his or her official duties shall not be liable to punishment where he or she is obliged to do so in order to repel an act of violence or thwart an attempt to resist official authority”); the second element was self-defence. 101. The first issue to be determined was whether the use of a weapon had been necessary. The detailed reconstruction of the events suggested that M.P. had been in a situation of extreme violence designed to disturb public order and targeting the carabinieri, whose physical integrity had been directly threatened. In the judge's view, the danger had stemmed from the number of demonstrators and the overall methods of action (“modalità complessive dell'azione”) which made the acts of violence against M.P. and the other two carabinieri liable to endanger their physical integrity. In conclusion, the use of a firearm had been justified and the likelihood had been that its use would not cause serious harm, given that M.P. had “certainly fired upwards” and that the bullet had struck Carlo Giuliani only because its trajectory had been altered in a way that could not have been foreseen. The relevant passage of the decision reads as follows: “The death of Carlo Giuliani from a bullet fired by a carabiniere who, in the course of a demonstration, made use of his weapon, requires above all that we establish whether Placanica's conduct was justified under Article 53 of the Criminal Code, which provides that 'a State agent who uses or orders the use of weapons or any other means of physical force in the exercise of his or her official duties shall not be liable to punishment where he or she is obliged to do so in order to repel an act of violence or thwart an attempt to resist official authority'. This is not the same as self-defence, but confers wider powers whereby the legitimacy of the response is not dependent on its proportionality to the threat, provided it does not exceed the bounds of 'necessity'; should this be the case, Article 55 of the Criminal Code, which makes unintentional excess punishable, is applicable, it being understood that even for State agents the use of a weapon is an extreme measure and that the least harmful option must therefore always be chosen. But where the use of a weapon is considered legitimate, provided the proportionality principle has been complied with, the State agent concerned cannot be held responsible for the fact that something more serious occurs unintentionally, in so far as the foreseeability of such an event is intrinsically linked to the risk inherent in the use of a firearm issued to a State agent, and that risk could be eliminated only by his refraining from using the firearm, the use of which is authorised by law (see case-law acknowledging the legitimate use by carabinieri of their weapons: as the officers had aimed at the tyres of a car in order to stop it escaping, they could not be held responsible under Article 55 of the Criminal Code for the unintentional killing of the vehicle's occupants – Court of Cassation, 22 September 2000, Brancatelli). The use of weapons or any other form of physical force (consisting therefore in physical violence against the person) is not punishable: – where the act is committed in the performance of an official duty and stems from the need for the perpetrator to repel an act of violence or thwart an attempt to resist official authority; – where it is specifically authorised by statute; – in a general sense, and hence without the need to rely on a specific statute, responsibility for the act is excluded where it stems from the need to repel violence or thwart an attempt to resist official authority, whether or not the violence or resistance amounts to one of the offences contemplated in Articles 336 et seq. of the Criminal Code. However, Article 53 provides for an exception to the provisions of Articles 51 and 52, which applies also to State agents and provides justification for the State agent's conduct even where he is not responding to the threat of an unjust offence against him. This specific exception also applies in the event of an obligation to perform a duty linked to his functions. This provision, then, supplements Articles 51 and 52 of the Criminal Code by laying down autonomous rules governing the use of weapons and eliminating any uncertainty as to the conditions required by law in order for the State agent or individual not to be subject to punishment. As already stated, the justification is broader than that of self-defence, and is more frequently applied in cases involving resistance than in cases of direct violence against the State agent; however, there is no doubt that the distinction between the two legal scenarios, precisely if the perpetrator of the offence is a State agent, can become difficult to define. There can be no doubt, following the painstakingly conducted reconstruction of events, that Placanica, who was under orders to enforce public order, could quite legitimately make use of his weapon once the preconditions of the need to repel violence or thwart an attempt to resist official authority were met. Equally, there is no doubt that the situation with which Placanica found himself confronted was one of extreme violence designed to disturb public order and oppose the lawenforcement officers themselves, whose safety was directly threatened. In the instant case, it was not a question of a need to repel an act of violence on the basis of a generic concept encompassing failure to comply with authority, but of a need to ward off the real threat of an unjust act of aggression directly targeting Placanica and the persons who were with him. It is certain that, owing to the number of demonstrators and the very nature of the violent action being taken against Placanica and the crew of the Land Rover in which he was travelling, he faced the threat of serious physical injury, as clearly demonstrated by the injuries reported by Placanica and officer Raffone, since they were struck in the head and the face with large stones and elsewhere on their bodies by blows administered by planks of wood, beams and sticks which were thrust violently through the broken windows of the jeep. The situation, then, was one of grave danger; this is established beyond dispute not just by the video and photographic evidence in the file, but also by the statements of those who participated in the attack. We need only recall the description of the moments in question by the anonymous anarchist and the words of some of those directly involved in attacking the jeep: '... I tried to escape down a side street and found myself, with about 400 people, in the bit of street leading to Piazza Alimonda, where I hoped the situation would be calmer and I'd be able to catch my breath ... almost as soon as we entered the side street we found ourselves facing fifty or so carabinieri who, seeing me running towards them, took fright and fled after spraying us using small tear-gas canisters. We kept running, the carabinieri in front and us behind, until we reached Piazza Alimonda. That was where the two carabinieri jeeps drove between us and them, stopping us and allowing the officers to run off. Of the two jeeps that arrived, one quickly took up position with the cordon of police and carabinieri stationed in the part of Via Caffa close to Piazza Alimonda; the other, for some reason I couldn't understand, drove, with its back window smashed in, into a rubbish bin which became wedged between the jeep and the wall. At that point I was beside the jeep; I could see several demonstrators crowding around the vehicle, needing to get four hours of fear and frustration out of their systems ... I was watching what was happening around the jeep and realised that the carabiniere sitting inside was brandishing his pistol. I heard him shout “Pigs, bastards, I'll kill the lot of you!”. I turned round and called out that he had a gun, trying to warn the others of the danger. At that moment Carlo Giuliani, whom I didn't know at the time, was near me and looking down at the ground. As I ran towards the street where I wanted to go, I heard shots. I turned round and saw the body of a young man on the ground, the others who had been next to the vehicle stopped and moved away ... I think that several seconds went by between the moment when I saw the pistol and when I heard the shots, during which the carabiniere kept shouting “I'll kill the lot of you!”. I would add that, before shooting at the man I later knew to be Carlo Giuliani, the carabiniere had pointed the weapon at other people, in particular at the young man wearing a scarf and a black helmet who, realising like me that there was a gun, ran away out of the line of fire'. Later on, during the same interview, he changed his story, saying that 'we were trying to get to a place where some people said there was no one; in Via Caffa, in fact, there were forty carabinieri, it was strange, they seemed to be lost ... It must have been fifty metres to Piazza Alimonda; there were forty of them, between 400 and 500 of us. Almost as soon as they saw us they sprayed us with tear gas, firing in threes into the air ... At that moment they fled, we were fifteen or twenty metres away ... I didn't throw any stones or hit the jeep ... I fired a pebble from about fifty metres ... I might have kicked the jeep a few times, but to say that I picked up something, a piece of iron, and hit the jeep, I didn't do that ... I might have thrown a stone, I don't know, in any case without intending to hurt anyone, more than anything I was afraid ... You know, if someone came at me pointing a gun, I could imagine that I'd pick up the fire extinguisher to get the weapon off him, for instance, I can understand it, I can imagine ... I didn't go there with the intention of attacking a jeep ... I don't think I stayed around the jeep for more than fifteen or twenty seconds, just long enough to see this carabiniere on the side who then turned, yes, before this photo, he turned, I was looking in the direction of this young guy with the purple scarf who spoke English. While I was looking I took off my scarf and started calling out that we should run, and fifteen seconds after the photo was taken I heard the shots ... Fifteen or so people ran with me, the others stayed around ... The jeep collided front-on with a rubbish bin, with a window already smashed in and this person stretched out inside with his arm holding up the shield against the side window – as we're looking at the jeep, it's the left window – and with the gun in his hand ... I'm telling you that we saw the jeep and probably, I say probably because I can't remember what went through my head at that moment, I can't remember. Today, I say 'I was running away', in my state of mind at that moment, probably – also because all the others were there – I thought there were far fewer people, I saw the enemy in the jeep, in the carabinieri jeep, and I may have thrown two stones at it ... If I'd wanted to hurt someone, I would have used the wooden beams I found, sticks, a sledgehammer, whatever, and I'd have gone behind to hit the jeep where the carabiniere was at the window, like the guy who tried to throw a stone at his face, and I didn't do that ... If I'd been planning, since I arrived in the street at one o'clock, to hurt someone, in this case one of the law-enforcement officers, I'd have had a very good opportunity, I'd have had a fantastic opportunity to hurt someone, and I didn't ...'. (Interview of Predonzani by the public prosecutor dated 6 September 2001). In order to understand what really happened on Piazza Alimonda, it is also useful to study the statements made by Massimiliano Monai, who reported to the public prosecutor's office of his own accord on 30 August 2001, and stated as follows: '... During the clashes, during the chaos, when they were charging us again, at one point we were close to Carlo Giuliani, anyway I was near Ottavio Barbieri ... I was trying to do something, to retreat backwards or go forwards, but I couldn't go anywhere: they were in front of us. Behind, there was a crowd of people throwing stones. At that point, something was happening, we were all there with a few people I don't know, some of them had balaclavas, some were like me, others had headscarves, we saw the carabinieri retreating ... I saw some people throwing small stones at the carabinieri. The carabinieri were running back; there was one group moving forward and a group trying to surround them; we pulled back, throwing stones ... The carabinieri were running back and people were throwing stones at them ... Well, they definitely got closer to us, we were running away ... At that moment the carabinieri left, we stopped and these two jeeps arrived at top speed, I don't know why. Anyway, they drove towards us, so obviously we ran off; of the two jeeps, one reversed from the church and managed to get away, the other did a U-turn and got stuck. We all threw ourselves on it, as you can see; there, twenty metres away, I saw this wooden beam, I picked it up and hit the jeep three times, but not the window, because it was already smashed when I arrived. I hit the arriving jeep three times, then I took the stick, the window was already broken and the carabiniere was there looking at me ... The one who didn't shoot, the one who saw me with the beam ... I didn't see anything, not even the gun, nothing, then, leaving the stick and turning round, I heard someone say 'Come on, we might be able to save him, come on' and 'Murderers, murderers, they've killed him'. I hit the van three times, I pulled back, there were two carabinieri, the one who hadn't fired who was looking at me, I swiped at him with the beam, I don't even know if I got him, I might have hit him in the side. He ducked down to take cover, I stopped, I let go of the beam; in the meantime, people carried on throwing stones. He fired and I was still there, when I threw the beam, I didn't run away ... When I threw myself against him, that's when the guy fired ... It was they who attacked us with the Land Rovers, that's different. The security forces were retreating on foot and we were running, we were practically nose to nose, they went back as far as possible, we stopped and the two jeeps came towards us. Then they reversed and the jeep stopped, next we had the ten seconds of madness, with all the people who were there. I wouldn't have killed anyone, I'm not a criminal ... With all the stones that were being thrown, I didn't hear the shots being fired ... Someone shouted 'Bastards, go away!” for about ten seconds...' When asked how many people had been close to the jeep, he replied 'Lots'. The photographs in the file provide ample evidence of the violence described by the demonstrators themselves. Photographs 16 to 20 clearly show a fire extinguisher which, having been thrown at the smashed rear window of the jeep, hits Placanica's right foot. The latter is clearly leaning over the spare wheel in an attempt to prevent the fire extinguisher from reaching the inside of the jeep. This is the same fire extinguisher which, a few seconds later, Carlo Giuliani picks up off the ground, raising it above his head in order to throw it once more at the inside of the jeep, as someone, possibly even Giuliani himself, had tried to do moments earlier, according to the statement made to the police on 23 July 2001 by Ernesta Neri, manager of the Q8 petrol station in Via Tolemaide. Ms Neri stated that, shortly after 4 p.m., she had observed from her home a young man wearing a dark balaclava, a white t-shirt and dark trousers, leaving the petrol station with a fire extinguisher whose contents he emptied, and then turning down Via Caffa. She later recognised the portable extinguisher found next to the body of Carlo Giuliani as being the same one. The violence of the attack by large numbers of demonstrators, the constant barrage of stones to which the vehicle was subjected and which caused physical harm to its passengers, as noted by the forensic medical reports, the aggression towards the passengers by the demonstrators, who continued to surround the vehicle at very close quarters while thrusting hard objects inside, and the consequent persistence of a dangerous situation, undeniably amounted to a real and unjust threat to the personal integrity of Placanica and his colleagues, one which certainly called for a defensive reaction that was bound to culminate in his using the only means at his disposal: his weapon. Giuliani's action was not an isolated act of aggression, as suggested by the family's lawyers, but simply one phase in a violent attack on the jeep by the large numbers of persons who had surrounded it and were trying to turn it over and, probably, to open the door, as stated by some of those present at the time of the events, at the risk of causing direct and more serious injuries to the vehicle's occupants. On the basis of the hypothesis, now proven, that the shot fired by Placanica was fired upwards, there can be no doubt that the latter's conduct, which resulted in the death of Carlo Giuliani, is covered by the provisions of Article 53 of the Criminal Code, as the carabiniere fired two shots directly upwards, after numerous unsuccessful warnings to end the violence, and one of the objects thrown deflected the bullet, as the result of a wholly unforeseeable event, causing the death of Carlo Giuliani. All the evidence produced by the investigation, which was undoubtedly conducted thoroughly, therefore enables us to rule out with certainty the possibility that Placanica deliberately aimed his shots at Carlo Giuliani. However, even had that proved to be the case, there can be no doubt that the carabiniere, who was authorised to use firearms, with the risks inherent in the use of such instruments, found himself facing a genuine threat to his life or physical integrity and those of his colleagues, a threat which had already materialised in the form of actions threatening officers' physical integrity and which were becoming more and more violent. Hence, he could legitimately have aimed his weapon at the attackers in order to prevent them from continuing their actions, and even sought to inflict limited injury (for instance, by firing shots designed not to hit any vital organs), since it was not a case of passive resistance, nor had the assailant taken a hostage as a human shield – the only cases in which legal commentators and the case-law are united in excluding the legitimate use of a weapon directly against the aggressor. On the basis of the above considerations we can therefore conclude that Placanica's action was justified under Article 53 of the Criminal Code, particularly since the use of his weapon, which was absolutely essential, was adapted in order to present the minimum danger possible, given that the shots were certainly fired upwards and that it was only as the result of an unforeseeable change in trajectory that one of them struck Carlo Giuliani.” 102. The judge next considered it necessary to determine whether M.P. had acted in self-defence, given that this was a “more stringent” test for excluding responsibility. In that connection that judge took the view that M.P. had rightly perceived a threat to his physical integrity and that of his colleagues, and that the threat had persisted on account of the violence of the context. In the judge's opinion, in assessing whether M.P.'s response had been necessary and proportionate, Carlo Giuliani's situation and action (lifting up an empty fire extinguisher) could not be viewed in isolation. On the contrary, his action had to be considered as one phase in a violent attack on the jeep by a crowd of demonstrators. The attack had not been perpetrated by Carlo Giuliani acting on his own, but by a crowd of assailants. Hence, M.P.'s response had to be viewed in relation to the latter in order to be assessed in its proper “context”. In view of the number of assailants, the means used, the sustained nature of the violence, the injuries to the carabinieri in the jeep and the vehicle's difficulty in leaving the square due to engine trouble, M.P.'s response could be said to have been necessary. Furthermore, it had been appropriate given the level of violence. In that connection the judge said that there was no doubt that, had M.P. not taken out his weapon and fired two shots, the attack would have continued. She further stated that if the fire extinguisher – which M.P. had already kicked away once – had landed in the jeep, it would have caused serious injury to the occupants. The judge said that M.P. had had only one means of countering the attack: his firearm. She took the view in that connection that M.P. had made proportionate use of the weapon since, before shooting, he had shouted to the demonstrators to leave in an attempt to put a stop to their behaviour; he had then fired upwards. The judge concluded that M.P. had acted in self-defence. She added that the fact that M.P. could see Carlo Giuliani – as asserted by the prosecution authorities' experts and by the applicants – and that he had taken the risk of killing someone did nothing to alter that conclusion, given that M.P.'s action had been prompted by the need to defend the physical integrity of the jeep's occupants and had been proportionate to the importance of what was being defended and the means available to him in order to defend it. 103. The decision to discontinue the proceedings read as follows: “Placanica's conduct has to be assessed also in the light of the persistence of the most restrictive conditions laid down by Article 52 of the Criminal Code in order to ascertain whether, with regard to the factual circumstances and the response to them, it is possible also to invoke the elements needed to satisfy the more stringent conditions for claiming self-defence. The factual circumstances and the context in which Placanica had to act have been described at length. There can be no doubt that in such a situation, comparable to the situation in the nearby Corso Torino which had led shortly beforehand to an armoured vehicle being set on fire after a Molotov cocktail was thrown inside it, Placanica was under the firm impression that there was a threat to his safety and that of his colleagues, a threat which had already materialised in the form of injuries (as revealed by the documents in the file and the injuries reported by the jeep's occupants), and that the danger continued despite his having issued repeated warnings while displaying his weapon. One has only to observe the numerous photographs showing the jeep still surrounded by demonstrators smashing in the windows with sticks and iron bars which they are thrusting inside the vehicle with the clear aim not just of damaging the vehicle by way of protest, but of hurting the crew, and throwing a huge number of stones at the vehicle, most of which reached the inside and hit the occupants, in order to gain some idea of the very real violence being unleashed and the subsequent injury which could have been caused to the vehicle's occupants. It is not possible either to support the hypothesis, put forward by the injured party's lawyers during the hearing, that Placanica's head injuries could have been caused by his having knocked against the internal levers of the flashing light on top of the jeep rather than by the demonstrators' actions. Quite apart from the objective fact that numerous bloodstained stones were found inside the jeep, the lever of the flashing light on the roof is covered in plastic and inserted in a ball-and-socket joint covered with a protective cap which is used to direct the light. The very fact that the lever is connected to a ball-and-socket joint means that the whole structure lacks the necessary rigidity to cause injuries to passengers' heads, still less injuries with abrasions of the kind reported by Placanica. Coming back to the actual situation, there can be no doubt that the response was necessary in view of all the surrounding circumstances and in particular the number of assailants, the means they were using to attack individuals, the length of time for which the violence continued despite repeated warnings from the carabinieri, the injuries already sustained by the latter and, lastly, the difficulty of leaving the scene given that the jeep's engine had stalled (a move that was not required but was nevertheless attempted). It follows that even if we assess whether the defensive reaction was commensurate with the attack being perpetrated in terms of the substantial equivalence of the interests under threat, our conclusion cannot but be positive, as the attack on the carabinieri jeep took the form of actions which were not only dangerous, but in themselves amounted to a violation of the rights and, in particular, the physical integrity of the vehicle's occupants. Furthermore, it is beyond dispute, in the light of the factual circumstances, that had Placanica not drawn his weapon, threatening the demonstrators and then firing the two shots, the attack would have continued and would have had further, undoubtedly more serious, consequences; similarly, if the fire extinguisher which Placanica had already kicked away once had landed inside the jeep and hit the already injured carabinieri, it would have caused very serious injury, or worse. The presence of real danger and of an unjust attack was therefore borne out not just by the level of risk but by the fact that the attack was already in progress, and it must next be ascertained whether the requirement of proportionality was met, in terms also of the means available to the person under attack and the manner in which those means were deployed. As to whether the means of defence were proportionate to the attack, the Court of Cassation has specified on a number of occasions that, for the purposes of determining whether an individual acted in self-defence, the decision as to proportionality, which must be taken by reference to the means available to the person under attack and the interests being protected, cannot be qualitative and is by its nature relative. It is invariably a question of balancing the interests of the assailant and those of the person under attack who, in defending himself, is not in a position, in the specific situation, to make a precise assessment of the real danger and the effects of his response, with the result that the principle of proportionality is not infringed even if the harm to the assailant would be slightly in excess of the threatened harm to the person being attacked. (In the case in question, with regard to the plea that was accepted, the accused had defended himself using a shotgun, the only instrument to hand at that moment, in order to counter the unexpected attack which the victim, armed with an iron bar approximately one metre in length, had previously unleashed on the accused's father and then on the accused himself, inflicting various injuries. Court of Cassation, First Section, judgment no. 08204 of 13 April 1987 – Catane). The Court of Cassation further found that, as regards the notion of self-defence, the expressions 'need to defend' and 'provided that the defensive response is proportionate to the attack', contained in Article 52 of the Criminal Code, should be taken to mean that the response must be, in the circumstances, the only one possible in the sense that it could not be replaced by another, less damaging response equally capable of protecting the right under attack (whether of the person in question or another person) (Court of Cassation, First Section, judgment no. 02554 of 1 December 1995 – M.P. and Vellino). These principles, on which the established case-law and most legal commentators are in agreement, when applied to the factual circumstances surrounding the tragic death of Carlo Giuliani, also enable us to conclude that the requirement of proportionality between the means of attack available to the assailants and the means available to the persons under attack was met. This conclusion is justified in view of the fact that the concept of proportionality must make reference not just to the competing interests at stake, as already mentioned, but also to the means used to defend them. Mario Placanica had only one means of dealing with the violence against him and the attack on his physical integrity, not to say his life, and that of his colleagues: his weapon. In this respect also the factual findings suggest that in using that means of defence, he adapted it in order to cause the minimum harm to his assailants while attempting to deter them from taking action and make them desist. The Court of Cassation has even stated that, 'for the purposes of determining whether the individual acted in self-defence, an assessment must be made of the proportionality between the defensive means available to the person under attack and the means actually deployed – where only one means is available but it can be used in a varying and calibrated manner – in order to compare the different deployment options available and the option actually chosen in the light of the method of attack or its foreseeable consequences. Such a situation is in every respect identical to a situation in which a comparison has to be made between a variety of means available and the means actually deployed. That is why the use of a firearm as a means of defence should be confined, where the attack is aimed at causing maximum harm to the person's physical integrity, to displaying the weapon and one's resolve to make use of it, while firing only into the air and on the ground, or in the direction of the assailant but taking care not to hit him or, at most, to hit him only in parts of the body not containing vital organs, and hence with the sole aim of deterring or wounding, but not of causing death' or, to put it another way, 'with the sole aim of offering resistance or damaging the assailant's physical integrity' (Cass. 20 September 1982 – Tosani). Notwithstanding the fact that numerous photographs show the jeep surrounded by demonstrators, with Placanica's arm sticking out and brandishing the weapon, and the fact that the statements in the file made by the person under investigation and also by the assailants themselves testify to the carabiniere's repeated warnings to the demonstrators to disperse, the same photographic material clearly shows that these attempts to deter the assailants had no effect on the demonstrators, who continued to display extreme violence, eventually prompting Placanica to make use of his weapon, his only available means of countering the violence. What is more, Placanica's conduct appears to have complied fully with the proportionality requirement as regards the manner in which he deployed the means at his disposal bearing in mind that, had he wished to be sure of injuring one or other of his assailants, he could have pointed the weapon at the side windows outside which numerous demonstrators had gathered, whereas the complex technical findings show that the shots were certainly fired upwards; only as the result of a tragic turn of events did the first shot cause the death of the young Mr Giuliani. Consequently, whether Placanica had a partial view of Giuliani, as the injured party's lawyers maintain (a hypothesis also entertained by the prosecution authorities' experts), or whether, as seems more likely, he really did not see him and fired from the highest point which his position would allow, possibly accepting the risk that the shot might hit somebody, his action appears justified on grounds of self-defence, given that the intentional element of what occurred, whether it was planned or simply anticipated, was undoubtedly determined by the need to defend rights that were being unjustly violated, and that the defensive response remained within the bounds of proportionality, in terms of both the value of the interests at stake and the means available to protect them.” 104. The requests for additional investigation made by counsel for the applicants were rejected by the judge in their entirety for the reasons set out below. 105. As to the request concerning the forensic medical report on the causes of Carlo Giuliani's death, seeking in particular to ascertain whether the latter had still been alive when the jeep drove over him and, accordingly, whether the investigative methods used had been scientifically sound: “It has already been stated that there is no evidence in the file capable of raising doubts as to whether the checks were carried out thoroughly and the investigative methods used by the experts were sound; accordingly, the additional checks requested are unnecessary. It is further observed that the injured parties were offered the opportunity of participating in the autopsy on the young man's body with their own experts, and hence of satisfying themselves that the investigative methods used were correct, but chose not to avail themselves of that possibility or to carry out their own examination of the young man's remains. On the contrary, the body was cremated scarcely three days after his death, thereby rendering any subsequent examination impossible, even assuming that it would have served any purpose (which was not the case).” 106. As to the request for police chief De Gennaro and carabinieri second lieutenant Zappia to be examined on the subject of the directives issued with a view to maintaining public order, and the lawfulness of the use of “thigh holsters” of the kind from which M.P. had drawn the weapon that fired the fatal shot: “This examination too seems wholly inappropriate in terms of investigating the tragic events leading to the death of Carlo Giuliani, given that the directives issued with a view to the maintenance of public order cannot but be of a general nature and certainly do not encompass instructions governing unforeseeable situations involving direct attacks on officers of the kind to which officer Placanica was responding. The latter's conduct, as stated on several occasions, was justified both on the basis of legitimate use of a weapon and the more stringent conditions for claiming selfdefence. As to the request to investigate the lawfulness of the use of “thigh holsters” and the detailed arrangements governing their use by carabinieri, it is not clear what this information would add to the investigation, as the manner in which Placanica was wearing the pistol is of no relevance given that, in the situation described, he could legitimately make use of the weapon irrespective of where he was wearing it or where he drew it from.” 107. Regarding the request to trace the person who threw the stone that may have deflected the bullet, with a view to obtaining evidence from him or her concerning the trajectory of the stone: “This is impossible to verify in practice, even were it to be considered necessary, as it is unrealistic to imagine that a demonstrator would follow the trajectory of a stone after throwing it in order to make sure that it had reached its target; the demonstrators were more concerned with finding new hard objects to throw at the law-enforcement officers. In addition, even allowing for the possibility of such evidence being taken from an unknown demonstrator who, paradoxically and unintentionally, caused the death of a fellow demonstrator, it would be impossible to identify the person concerned and his or her statements would in any event be irrelevant in relation to the existing technical findings.” 108. Regarding the request for further examination of the demonstrator M. Monai concerning the conduct of the carabinieri inside the Defender jeep, the number of demonstrators around the vehicle and the person inside the jeep who actually seized the weapon, in the light of the statements made by Monai during an earlier interview; also regarding further examination of E. Predonzani concerning the same circumstances, Carlo Giuliani's position before he was struck by the fatal bullet and the number of the jeep's windows that were broken: “Any further examination would serve no purpose whatsoever, given the statements made by Monai and Predonzani very shortly after the events – while those events were fresher in their minds than would be the case today – when they reported of their own accord to the public prosecutor's office in order to give evidence, to the best of their knowledge, concerning the events in which they had played a part and the tragic death of Carlo Giuliani. These statements contain extremely precise details which have been confirmed by the video footage and photographs in the file, with the result that they provide important confirmation of the findings of the technical investigations. The various statements made by Predonzani and, in particular, Monai, to the press and on television, on the other hand, have no legal value and it is not necessary in any case to shed further light on their content in view of the precise reconstruction conducted immediately after the events, which was confirmed by objective data such as photographs and film footage. It does not appear relevant either to establish how many of the jeep's windows were broken, as it is beyond dispute that some of the right-side windows and the rear window were smashed.” 109. Regarding the request for evidence to be taken from Marco D'Auria, supposedly to confirm that no Molotov cocktails were thrown on Piazza Alimonda, contrary to what was suggested by M.P., and to determine how far away D'Auria was when he took the photograph on which the prosecution authorities' experts based their findings in conducting the ballistics reconstruction: “This request does not appear capable, either, of making any contribution to the investigation, as the photograph taken by D'Auria was just one of the elements used to determine Giuliani's position when he was struck by the bullet. The distance between the victim and the jeep was calculated taking account of the presumed position of the persons shown in the photographs in relation to fixed elements such as street furniture and road signs, on the basis of which specific measurements were taken; this distance is confirmed by the statements of the persons who were next to Giuliani. The assertion made in the request for further investigation that Placanica suggested that Molotov cocktails had been thrown on Piazza Alimonda is inaccurate. Placanica never maintained that Molotov cocktails had been thrown on Piazza Alimonda – he simply stated that he had been afraid they might be.” 110. With regard to the request for evidence to be heard from SergeantMajor Primavera as to when the hatchback window of the jeep had been smashed: “There is no doubt that the window was not broken by Placanica's shot, as it is clear from the photos which show Placanica's hand brandishing the pistol in order to intimidate the demonstrators that it had already been broken – probably by a stone being thrown – well before Placanica fired the shot that killed Giuliani. The differing perception of one of the occupants of another jeep did not influence the reconstruction of the events, which were established in an indisputable and wholly objective manner.” 111. As to the request concerning access to the footage filmed on Piazza Alimonda by two carabinieri whose helmets were equipped with video cameras, “labelled and handed over to Colonel Leso”: “The material in question is already in the file, as made clear by the communication from the Genoa carabinieri dated 13 September 2001 which records the handing-over to the public prosecutor's office of seventeen video cassettes, fifteen of which contain footage shot in various locations around the city – including Via Caffa – using video cameras attached to the helmets of certain carabinieri; the other two video cassettes contain images taken from the army helicopter.” 112. With regard to the request for carabiniere V.M. to be examined on the reasons why the bullet had lost its casing: “The request from the injured party's lawyers is based on the unsolicited statements made by Mattioli in which he said that 'cutting the tips of bullets in order to make them fragment more easily [was] common practice' and that this automatically ruled out 'any intention to use firearms to intimidate. They [were] designed to kill on first impact'. While the existence of this practice as it emerges from Mattioli's statement is noted, it is not clear what purpose would be served if Mattioli were to be examined by the public prosecutor's office, given that we already have the findings of the ballistics expert reports based on objective examinations. Since the possibility raised by Mattioli can only be considered as a reference to an improper practice which is not widespread, it is hard to see for what reason and on the basis of what objective information officer Placanica should be thought to have engaged in it, given, moreover, that the other bullets found in the magazine of his pistol were perfectly normal.” 113. Regarding the request for forensic examination of the jeep in order to determine the cause of the damage to the top part of its upright, above the second 'i' of the word 'Carabinieri': “The inspection carried out to determine the origin of the damage caused to the hatchback, which was certainly caused by the large number of stones and hard objects thrown at the vehicle, has already been dealt with at length. There can be no doubt that the damage in question here came from the same source. The additional examination requested would not therefore serve to dispel the doubts of counsel for the requesting party concerning the collision of the bullet with a stone, as it is not reasonable to assume that a single stone could have been thrown at the vehicle and dented it in several places, given that large numbers of objects were thrown at the scene and at the vehicles of the law-enforcement agencies and caused not only personal injury but also visible damage to the bodywork of the jeep.” 114. As to the request concerning the panel's examination of the spent cartridges seized with a view to checking which weapon they were fired from, seeking to extend the examination to include the weapons of all the lawenforcement officers present on Piazza Alimonda at the moment when Carlo Giuliani was struck by the bullet: “This examination clearly serves no real purpose. It is beyond doubt, by Placanica's own admission and according to the findings of the expert reports, that the shot which killed Carlo Giuliani was indeed fired from Placanica's weapon. The investigations conducted at the time by the public prosecutor's office in order to establish whether other law-enforcement officers had used their firearms in or around Piazza Alimonda on 20 July 2001 produced a negative response, except as regards the shots fired in Via Tolemaide, at the junction with Via Armenia, by the carabiniere Massimiliano Errichiello in order to intimidate and disperse some demonstrators armed with bars, stones and pickaxes who had surrounded another armoured vehicle and were throwing stones at it.” 115. As to the criticism by the applicants' lawyers concerning the fact that numerous steps in the investigation had been delegated to the carabinieri and that a considerable amount of evidence had been taken in the presence of members of the carabinieri, the judge found as follows: “While such considerations may at first sight appear justified, they have no bearing on the events actually found to have occurred on Piazza Alimonda, resulting in the tragic death of young Giuliani, and whose dramatic unfolding has been reconstructed with the aid of the large volume of video footage and photographs in the file and the statements of the participants themselves. The wealth of these resources and details is such that no further attention can – or should – be devoted to other wholly irrelevant considerations.” 116. In the light of these findings, the investigating judge concluded that “it [had] been proven that the carabiniere M.P. [had] acted in circumstances justifying a decision not to prosecute and that there [were] no grounds for holding F.C. responsible in relation to the death of Carlo Giuliani”. The judge therefore issued a decision to discontinue the proceedings. 117. On 5 September 2001 a parliamentary commission of inquiry heard evidence from Mr Lauro, an officer of the Rome police, who had taken part in the public-order operation in Genoa. 118. Mr Lauro stated that the carabinieri had been equipped with throat microphones, enabling them to communicate very rapidly with one another. When asked to explain why the law-enforcement officers stationed quite near to the jeep (fifteen or twenty metres away) had not intervened, Mr Lauro replied that the men had been on duty since the morning and had been involved in several clashes during the day. He added that he had not noticed at the time of the events that there was a group of carabinieri and police officers who could have intervened. As to the function of the two jeeps, Mr Lauro explained that they had brought fresh supplies at around 4 p.m. and had left and then returned about an hour later to see if anyone had been injured. Mr Lauro also said that he had called an ambulance for Carlo Giuliani as no doctor had been present at the scene. 119. On 20 September 2001 a group of parliamentarians called on the government to explain why law-enforcement officers being deployed on public-order operations were equipped with live ammunition rather than rubber bullets. The parliamentarians advocated the use of the latter, arguing that they had been used successfully on many occasions in other countries. The government spokesman replied that the legislation made no provision for that option and that, moreover, it had not been proven that rubber bullets did not also entail very serious consequences for the victim. Finally, he said that the possibility of introducing non-lethal weapons was currently being examined. 120. On 13 March 2008 the Genoa District Court made public its judgment following the trial of twenty-five demonstrators on a number of charges (including criminal damage, theft, destroying property, looting and acts of violence against law-enforcement officers) in relation to the events of 20 July 2001. The Ministries of the Interior, Defence and Justice, and the government, had joined the proceedings as civil parties seeking damages. An appeal has been lodged against the judgment in question and the proceedings are pending. 121. This judgment helps shed light on the events of 20 July 2001 (see paragraphs 13-19 above). In the course of 144 hearings the Genoa District Court had the opportunity, inter alia, to hear evidence from large numbers of witnesses and to examine the abundant audiovisual material in detail. 122. In its conclusions the court held that the attack by carabinieri on the Tute bianche procession had been unlawful and arbitrary. 123. In reaching that conclusion, the court found it established that the Tute bianche demonstrators had not committed any significant acts of violence against the carabinieri who attacked them. The use of tear gas and the carabinieri advance towards Corso Torino had occurred without there being any real need to use force. The attack had been carried out against hundreds of persons who were doing no harm, and had not even been aimed at isolating and blocking off the few individuals engaged in throwing objects at the carabinieri, who were able to carry on undisturbed. Furthermore, no order to disperse had been given. 124. The District Court went on to find that the subsequent charge had also been unlawful and arbitrary. It had not been preceded by a warning to disperse, nor had it been ordered by the officer authorised to do so. It had been unnecessary: the footage showed that the demonstrators had been standing motionless behind Plexiglas shields and that no objects were being thrown by the participants in the march, apart from three objects fired from outside the crowd. In addition, the law-enforcement officers had had enough time (approximately one and a half minutes) to request instructions, but had not done so. Lastly, the march had been lawful and the demonstrators had not attacked the carabinieri. 125. The methods deployed had also been unlawful. The carabinieri had fired tear gas at chest height, a large number of demonstrators had sustained injuries caused by truncheons which did not conform to the regulations, and the armoured vehicles had knocked down the barricades and pursued members of the crowd on to the pavement with the clear intention of hurting them. 126. Accordingly, the District Court considered that the unlawful and arbitrary nature of the carabinieri's actions had justified the resistance shown by the demonstrators while tear gas was being used and during the charge on the procession. It had also justified the clashes which occurred in the side streets, Via Casaregis and Via Invrea, prior to 3.30 p.m., that is, prior to the point at which the carabinieri had acted on the order to stop and to allow the march to proceed. In conclusion, the court held that the accused's actions had been a “necessary response” to the arbitrary actions of the law-enforcement officers for the purposes of Article 4 of Legislative Decree no. 288 of 1944. 127. The court also forwarded the file to the public prosecutor's office on the ground that the statements by Mr Mondelli and two other lawenforcement officers to the effect that the attack had been necessary to counter the aggression shown by the demonstrators did not match the facts. 128. As to the demonstrators' conduct after 3.30 p.m., on the other hand, the District Court considered that it had no longer been justified by the actions of the law-enforcement officers, as the unlawful and arbitrary attack had come to an end. Consequently, although the demonstrators may have still felt a sense of abuse and injustice, their conduct at that stage had no longer been defensive but had been driven by a desire for revenge, making it unjustified and punishable. 129. With specific reference to the events on Piazza Alimonda, the Genoa District Court considered that the attack ordered by police officer Lauro against the group of demonstrators had been neither unlawful nor arbitrary. As a result, the ensuing violent reaction by the demonstrators, consisting in pursuing the carabinieri and attacking the jeep, could not be regarded as a defensive response to arbitrary conduct on the part of the lawenforcement agencies. 130. As to the conduct of the carabinieri in the jeep, the persons concerned might well have imagined that they were being subjected to an attempted lynching. The fact that the demonstrators in question – unlike the Black Bloc groups – did not have Molotov cocktails and had therefore not been in a position to set the vehicle on fire was a factor that could be appreciated with hindsight. The District Court found that the occupants of the jeep could not be blamed for not having followed that line of reasoning and having panicked. 131. In the District Court's view, Carlo Giuliani had been four metres from the jeep when he was shot and killed. In his statements, F.C. said that his gas mask had allowed him only a partial view. M.P. said that he did not understand why the vehicle he had boarded had not taken him to hospital but had followed the contingent. He had only been able to see what was happening inside the vehicle. When the shot was fired, he had been lying down with his feet pointing towards the rear door of the vehicle. He had pulled Raffone down on top of him and could not see his own hand; he was unable to say whether it had been inside or outside the jeep. In any event, he had fired upwards. The District Court judgment mentions that the expert Marco Salvi, who performed the autopsy on Carlo Giuliani's body, stated for his part that the trajectory of the fatal bullet indicated a direct shot (“la traiettoria rimandava ad uno sparo diretto”). As to the metal fragment lodged in the victim's body, Mr Salvi stated it had been very difficult to find. 132. Article 53 of the Criminal Code provides that “a State agent who uses or orders the use of weapons or any other means of physical force in the exercise of his or her official duties [shall not be liable to punishment] where he or she is obliged to do so in order to repel an act of violence or thwart an attempt to resist official authority. In any event, he or she shall not be liable where such action is taken to prevent criminal acts entailing massacre, shipwreck, flooding, aviation or railway disasters, intentional homicide, armed robbery and abduction... The law provides for other cases in which the use of weapons or any other means of physical force is authorised.” 133. Article 52 of the Criminal Code states that “[p]ersons who commit an offence when forced to do so by the need to defend their rights or the rights of others against the actual danger of an unjust attack [shall not be liable to punishment] provided that the defensive response is proportionate to the attack.” 134. Under Article 55 of the Criminal Code, in cases, inter alia, of selfdefence or legitimate use of weapons, where the person concerned has negligently (colposamente) overstepped the limits laid down by law or by the competent authority, or dictated by necessity, his or her conduct is punishable as unintentional conduct to the extent provided for by law. 135. Articles 18-24 of the Public Safety Code (Testo Unico) of 18 June 1931 govern public meetings and gatherings in public places. Where a meeting or gathering in a public place or which is open to the public is liable to endanger public order or safety, or where offences are committed, the meeting may be dissolved. Before such a meeting is dissolved, the participants are requested by the law-enforcement agencies to disperse. If the request is not complied with, the crowd is given three formal warnings to disperse. If these are not complied with or cannot be issued because of revolt or opposition, the police officers or carabinieri order the meeting or gathering to be broken up by force. The order is carried out by the police and the armed forces under the command of their respective senior officers. Refusal to comply with the order to disperse is punishable by a term of imprisonment of between one month and one year and by a fine of between 30 and 413 euros (EUR). 136. In February 2001 the Ministry of the Interior issued a directive to questori containing general provisions on the use of tear gas and truncheons (sfollagente). The use of this equipment must be ordered clearly and expressly by the head of the service after consultation with the questore. The personnel must be informed. 137. The relevant Articles of the Code of Criminal Procedure (“the CCP”) provide: “Applications to join the proceedings as a civil party shall be made from the preliminary hearing stage ...” “Injured parties shall exercise the rights and powers expressly afforded to them by law and may furthermore, at any stage of the proceedings, submit pleadings and, except in cassation proceedings, request the inclusion of evidence.” “Injured parties may appoint a statutory representative for the exercise of the rights and powers afforded to them ...” “Where the public prosecutor is conducting a technical investigation ... which calls for a specific competence, he or she may appoint and make use of the services of experts. The latter may not refuse to cooperate.” “1. Where the technical investigation ... concerns persons, objects or places which may be subject to change, the public prosecutor shall inform the person being investigated, the injured party and the lawyers without delay of the date, time and place ... and of the possibility of appointing experts. ... 3. Any lawyers or experts appointed shall have the right to attend the appointment of the experts, participate in the technical investigation and make observations.” “1. In the course of the preliminary investigation, the public prosecutor and the person being investigated [persona sottoposta alle indagini] may apply to the judge for the immediate production of evidence ... 2. The public prosecutor and the person being investigated may request the judge to order an expert examination, where this could entail suspension (of the trial) for at least 60 days if ordered during the trial.” “1. Injured parties may request the public prosecutor to apply for the immediate production of evidence [incidente probatorio]. 2. In the event that the public prosecutor fails to grant that request, he or she shall give reasons for the decision and notify the same to the injured party.” “1. Except in cases where an objection has been lodged against the request to discontinue the proceedings, if the judge grants the request for the proceedings to be discontinued he or she shall make an order to that effect and shall return the file to the public prosecutor. ... 2. If the judge refuses the request to discontinue the proceedings, he or she shall fix the date of the private hearing and shall inform the public prosecutor, the person under investigation and the injured party accordingly. The procedure shall be conducted in accordance with Article 127. The documents shall be deposited with the registry up to the day of the hearing, and copies of them may be made by counsel. 3. The judge shall inform the public prosecutor at the Court of Appeal of the hearing. 4. After the hearing, the judge may issue an order indicating to the public prosecutor the additional investigative measures he or she considers necessary and shall lay down a time-limit. 5. Where no additional investigative measures are required and the judge rejects the request to discontinue the proceedings, he or she shall request the public prosecutor to draw up the indictment within ten days... 6. An appeal against the decision to discontinue the proceedings shall lie to the Court of Cassation solely on grounds of nullity within the meaning of Article 127 § 5.” “1. When objecting to the request to discontinue the proceedings, the injured party shall request that the investigation be continued. The injured party shall indicate the purpose of further investigation and request the inclusion of evidence, failing which the objection shall be declared inadmissible. 2. Where the objection is declared inadmissible and the suspicions are unfounded, the judge shall issue an order discontinuing the proceedings and shall return the file to the public prosecutor. 3. In cases not covered by the second paragraph, the judge shall make a decision in accordance with Article 409 §§ 2, 3, 4 and 5. If there are several injured parties, notice shall be served only on the party that lodged the objection.” 138. Article 116 of the implementing provisions of the CCP pertaining to investigations into deaths that appear to have occurred as a result of a crime provides: “Where it is suspected that a person died as a result of a crime, the public prosecutor shall verify the cause of death and, should he or she consider it necessary, order an autopsy in accordance with the procedure laid down in Article 369 of the Code or by applying for the immediate production of evidence... ... The burial may not take place without an order from the public prosecutor.” 139. Article 79 of Presidential Decree no. 285 of 10 September 1990 stipulates that cremation must be authorised by the judicial authority where death occurred suddenly or in suspicious circumstances. 140. The relevant parts of these principles, which were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, provide as follows: “1. Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review. 2. Governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons. For the same purpose, it should also be possible for law enforcement officials to be equipped with self-defensive equipment such as shields, helmets, bullet-proof vests and bullet-proof means of transportation, in order to decrease the need to use weapons of any kind. ... 9. Law enforcement officials shall not use firearms against persons except in selfdefence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. 10. In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning 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. 11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that: (a) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted; (b) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm; (c) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk; (d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them; (e) Provide for warnings to be given, if appropriate, when firearms are to be discharged; (f) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty. ... 18. Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review. 19. Governments and law enforcement agencies shall ensure that all law enforcement officials are provided with training and are tested in accordance with appropriate proficiency standards in the use of force. Those law enforcement officials who are required to carry firearms should be authorized to do so only upon completion of special training in their use. 20. In the training of law enforcement officials, Governments and law enforcement agencies shall give special attention to issues of police ethics and human rights, especially in the investigative process, to alternatives to the use of force and firearms, including the peaceful settlement of conflicts, the understanding of crowd behaviour, and the methods of persuasion, negotiation and mediation, as well as to technical means, with a view to limiting the use of force and firearms. Law enforcement agencies should review their training programmes and operational procedures in the light of particular incidents. ...” 141. The relevant part of the CPT report on its visit to Italy in 2004, published on 17 April 2006, states: “14. As far back as 2001 the CPT began a dialogue with the Italian authorities concerning the events that took place in Naples (on 17 March 2001) and in Genoa (from 20 to 22 July 2001). The Italian authorities have continued to inform the Committee of the action taken in response to the allegations of ill-treatment made against the law-enforcement agencies. In that context the authorities furnished a list during the visit of the judicial and disciplinary proceedings in progress. The CPT wishes to be kept regularly informed of the progress of the abovementioned proceedings. In addition, it wishes to receive detailed information on the measures taken by the Italian authorities to prevent the recurrence of similar episodes in the future (relating, for instance, to the management of large-scale public-order operations, training of supervisory and operational personnel and monitoring and inspection systems). 15. In the report on its visit in 2000, the CPT recommended that measures be taken as regards the training of law-enforcement officers, with more particular reference to incorporating human rights principles in practical training – both initial and ongoing – concerning the management of high-risk situations such as the arrest and questioning of suspects. In their response, the Italian authorities simply gave general replies concerning the “human rights” component of the training provided to lawenforcement officers. The CPT wishes to receive more detailed – and updated – information on this subject...”. | 1 |
dev | 001-106433 | ENG | ROU | CHAMBER | 2,011 | CASE OF M. AND C. v. ROMANIA | 3 | Violation of Art. 3 (procedural aspect);Violation of Art. 8;No violation of Art. 8;No violation of Art. 14+6;Non-pecuniary damage - award | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 5. The applicants are mother and son. They were born in 1965 and 1994 respectively and live in Saint-Priest, France. 6. In a letter bearing the Bucharest Post Office’s stamp of 5 November 2004 and received by the Court on 17 November 2004, Ms M. complained, inter alia, of violations of her and her son’s rights under Articles 3 and 8 of the Convention in respect of criminal proceedings which ended by a final judgment of 18 March 2004. 7. By letter of 19 December 2005 the Court asked Ms M. to state clearly whether the complaint under Article 3 of the Convention was also raised on her behalf. 8. By letter of 1 March 2006 Ms M. confirmed the receipt of the Court’s letter of 19 December 2005 and, without referring to any particular articles of the Convention, stated that she complained only on her son’s behalf. 9. Ms M. and D.C. were married on 27 November 1991. A.C., the couple’s only child, was born on 7 August 1994. 10. On 16 December 1994, Ms M. filed for divorce from D.C., citing her husband’s volatile and violent nature as the chief ground for divorce. She also asked to be granted full custody of their son. By a judgment of 10 February 1995, the Bucharest District Court allowed the claims and granted Ms M. full custody of the second applicant. D.C. was obliged to pay monthly maintenance until the second applicant became an adult. 11. Following an application by D.C. for custody of the second applicant to be reconsidered and granted to him, on 21 January 1998 the Bucharest District Court dismissed the claim. The judgment was upheld on appeal, the Bucharest County Court holding on 18 September 1998 that the father had proved: “to have had and to still have a violent nature and an uncivilised attitude, provoking situations when visiting his child which are likely to negatively influence the child’s physical and psychological development.” 12. D.C. also applied to the courts for contact rights with the second applicant on the first and third weekends of each month from 10 a.m. on Saturday until 7 p.m. on Sunday, as well as for thirty days during his annual leave. The request was granted on 8 June 1998 by the Bucharest District Court, having in mind the best interests of the child and the fact that his mother “did not oppose the request”. Ms M. lodged an appeal, claiming that she had not been lawfully summoned and therefore that she had not had knowledge of the hearing. On an unspecified date, her appeal was dismissed for a procedural error; the judgment thus became final. 13. Ms M. contested the enforcement of this judgment, essentially relying on the existence of criminal complaints lodged by her against D.C., accusing him of having molested the child (see section B below). The Bucharest District Court dismissed her application on 29 September 2000. She appealed against this judgment, and on 7 May 2001 the proceedings were stayed until a final decision was given in the proceedings concerning the limitation of D.C.’s visiting rights (described below in section C). 14. On 25 March 2004, D.C. asked for the stay to be lifted. The appeal was dismissed on 26 April 2004, as the main objections to the enforcement formulated by Ms M. had been clarified within the concluded criminal and civil proceedings respectively (described below in sections B and C). 15. Ms M. appealed on points of law. The appeal was dismissed by the Bucharest Court of Appeal on 1 June 2005. The court held that her argument that the enforcement of the disputed judgment would affect the child’s fundamental rights was unfounded, relying mainly on the judgment of 18 March 2004 which had confirmed the prosecutor’s decision not to indict D.C.. 16. On 11 August 1998, at Ms M.’s request, the Child Protection Commission for the Third District, Bucharest decided that the second applicant should be temporarily placed in a state institution, “as it had been proved that the child’s development, security and moral integrity were being endangered by his biological father.” 17. The child was placed in Placement Centre no. 7, Third District, Bucharest. 18. The above-mentioned decision was amended on 8 June 1999, following a reassessment of the case file that the Commission made of its own motion. The Commission considered that the protection measures already undertaken ought to be maintained as, according to information provided by the police, the child had been sexually molested by his father, and consequently a criminal investigation was under way. Both parents were allowed to visit the child once a week, but neither of them had the right to take the child to their home from Placement Centre no. 1, to which he had been transferred. 19. On 27 October 1998, Ms M. lodged a complaint, requesting that the Bucharest Third District Child Protection Commission institute civil proceedings to have D.C. stripped of his parental rights. The request was rejected by the Commission on 25 November 1998, as “the necessary legal conditions for such proceedings to be instituted [had] not been fulfilled”. 20. On 21 September 1999 Ms M. asked the Commission to revoke the placement measure and to order the second applicant’s reintegration into his family. By a decision of 5 October 1999, the Commission allowed the request and ordered that the second applicant should henceforth reside with his mother. 21. On an unspecified date in 1999 Ms M. lodged a civil action, seeking to obtain an increase in the monthly maintenance paid by D.C., as both the second applicant’s needs and D.C.’s income had increased. Ms M. also requested that D.C.’s contact rights should be limited so that the second applicant would only spend time with his father in her presence. In support of her latter request, the first applicant alleged that “[his] father was a real danger to the health and physical integrity of the child”, that D.C.’s verbal and non-verbal behaviour was highly aggressive, and that she had already lodged a criminal complaint against D.C., accusing him of sexually molesting the second applicant. She asserted that due to D.C.’s general behaviour she had been forced to temporarily ask for the second applicant to be placed in a state institution, where he would be protected from any possible aggression from his father. 22. An opinion on the relationship between the second applicant and his father given by E.M., Head of the Social Services Department of the Third District’s municipal administration, was added to the case file. E.M. stated that she had known the child from the time when he had been temporarily placed in Placement Centre no. 1, as she had been the manager of the centre at the time. Her remarks are essentially focused on the positive and natural link between D.C. and his child, who: “has an explosion of joy when seeing his father [...]; after the mother’s visits to the centre, the child became irritable, disobedient, using reprehensible words in connection to his father [...] the audio tape attesting to the so-called sexual abuse is proof of answers being induced from the child, the mother having made a significant contribution regarding the child’s attitude towards his father. Only when [his] father appeared did the child forget whatever his mother had induced him to feel (due to the joy he felt when meeting his father), which is clear proof that D.C. had not attacked the child, not only sexually, but not even verbally or in any other way.” 23. On 1 June 2000 the Bucharest District Court allowed the request with respect to the child maintenance increase; the request for limitation of contact rights was dismissed, the court taking into account the fact that the prosecutor had decided on 3 March 2000 not to institute criminal proceedings against D.C. and to close the investigation (see paragraph 39, below). An appeal by Ms M. was dismissed on 11 December 2000 as timebarred. A further appeal on points of law was also dismissed on 27 April 2001 by the Bucharest Court of Appeal. 24. On 21 June 2001, D.C. reapplied for full custody of the second applicant. He stated that he had not been allowed to visit his son, and that even though the first applicant had lodged a criminal complaint against him, the prosecutor had issued a decision not to indict him for sexually abusing the child. At the same time, D.C. asserted that the first applicant was a member of the Jehovah’s Witnesses, and that therefore her influence on the child endangered his normal development. Ms M. replied that the prosecutor’s decision not to press charges against D.C. had been confirmed and a criminal investigation was still pending. The action was dismissed on 20 December 2001 by the Bucharest District Court. The court held that the reasons relied upon by D.C. with respect to the first applicant’s religion were not to be taken into consideration. It also considered that the reasons which substantiated the court’s previous decision to grant full custody to the first applicant had not changed in any way. The decision became final. 25. On 26 July 2002, D.C. lodged a request with the Bucharest Third District Child Protection Commission, asking it to order the urgent placement of the second applicant in a state institution. He alleged that he did not have any information regarding the current home of the applicants, as they had continually and frequently changed their place of residence, and consequently no information on the second applicant’s well-being was available to him. The request was denied on 17 September 2002, as it had not been proved that the second applicant was in any danger. 26. On 30 July 2002, by means of interlocutory proceedings, D.C. sought full custody of the second applicant, giving as a reason that “it is dangerous for the child to stay close to his mother, as even though she is a caring mother, she still has a bad influence on the minor’s later development”. He also cited the fact that in 1998 the first applicant had lodged a criminal complaint, accusing him of having molested the second applicant. D.C. alleged that ever since that time he had constantly been prevented from visiting his son, who in any case had radically changed his whole attitude towards him, refusing contact. 27. The request was dismissed as inadmissible on 30 October 2002, the Bucharest District Court holding that the parties’ obvious and serious conflicts could not be settled within such expeditious proceedings. The judgment became final on 13 December 2002, the Bucharest District Court ruling an appeal on points of law brought by D.C. inadmissible. 28. On 14 July 1998, Ms M. lodged a criminal complaint against D.C., alleging that “the child had related to her that on 4 July 1998, when visiting his father, the latter had attempted to commit acts of sexual perversion with him”. The second applicant was three years and eleven months old at the time. 29. A medical certificate issued on 6 July 1998 by the Institute of Forensic Medicine attested to the following: “... the anal mucous membrane reveals a bleeding longitudinal fissure of 1.5 by 0.1 cm. [...] The child, A.C., has a traumatic lesion in the anal area, which could have been produced in the circumstances of a sexual assault. Healing requires two to three days of medical care.” 30. No civil claims were lodged. 31. According to Ms M., a second criminal complaint was lodged on 10 August 1998 regarding similar sexual acts perpetrated between 2 and 9 August 1998, when the second applicant was visiting his father. However, a copy of this complaint was not submitted to the Court. 32. The first applicant, D.C. and other witnesses were heard. Two witnesses, B.G. and S.F., informed the authorities, inter alia, that they had been told by the second applicant that he had been sexually assaulted by his father. Moreover, they had witnessed D.C.’s violent behaviour towards Ms M. and had seen the minor undressing and touching other children in an inappropriate manner. However, another witness, C.A., stated that she had never heard the second applicant complaining of sexual assault. On 26 August 1998 a medical report was produced by the Institute of Forensic Medicine, attesting as follows: “A.C. has recent and old lesions in the anal area, which could be the result of the intromission of a solid object or a consequence of anal sexual contact. It is possible that the lesions occurred on 5-7 August 1998. Two to three days of medical care are required for healing.” 33. On 20 July 1998 the minor was subjected to a psychological examination, which concluded as follows: “... the results of the projective tests emphasise the possibility that A.C., aged three years and eleven months, could have been sexually abused.” 34. A forensic report concerning simulated behaviour was produced on 23 November 1998, both Ms M. and D.C. being subjected to a test and asked various questions. According to the conclusions of the report, indicators of dissimulation were detected when Ms M. answered the following relevant questions (three out of the total of ten asked): whether she had set up the sexual assault on the child; whether she had been taught by somebody else to frame someone for the sexual assault perpetrated on the child; whether she had obliged or urged somebody to introduce an object into her child’s anus. 35. At the same time, the conclusions of the report showed that D.C.’s attitude seemed to be sincere when he answered ten questions, the relevant ones being: whether he had had anal sexual intercourse with his child; whether he had molested the minor between 2 and 8 August 1998 or on 4 July 1998; and whether he had ever thought about having unusual sexual relations. 36. Upon a request from the police, a new medical report was produced on 22 March 1999 by the same Institute of Forensic Medicine, concluding as follows: “We reassert our opinion that the child, A.C., displayed a traumatic lesion in the anal region, which could have occurred in the circumstances of a sexual assault, for which he needed two to three days of medical care for healing. The lesion could have been one to two days old at the time of examination, which means that it could have been produced on 4 July 1998.” 37. On 8 June 1999, Bucharest Police Station no. 15, investigating the case, sent an official note to the Child Protection Department for the Third District, Bucharest, asking them to ensure the permanent safety of the child until the investigation was terminated, in so far as neither of the parents nor any other person was to be allowed to take the child from the Placement Centre, because: “... the evidence already adduced in the case shows that the child had been sexually abused.” 38. On 15 June 1999 the second applicant was heard by the police in the presence of his mother, a psychologist and a lawyer who had been automatically appointed. From the second applicant’s answers to the questions asked by the police, it emerged that: “He likes to live with his mother and with his father [...] and that his father had put a hose into his bottom.” 39. On 3 March 2000, the prosecutor decided not to indict D.C. for the crime proscribed by Article 200 §§ 2 and 3 of the Romanian Criminal Code (sexual intercourse with a person of the same sex). As there were indications of criminal acts of a sexual nature having been committed, the case was split in so far as a further investigation was to be undertaken with a view to identifying the perpetrator. 40. This decision, challenged by Ms M., was confirmed by the hierarchically superior Prosecutor’s Office on 22 May 2000. 41. The prosecutor held that some of the witness statements were hearsay, as most of the witnesses had stated what they had heard and found out from the second applicant himself, who was around four at the time, being therefore unable to accurately depict reality. 42. Considering that the forensic report had proved that Ms M.’s answers indicated distortions typical of dissimulation, whereas no such indicators had been revealed from the answers given by D.C., the recommended conclusion was to consider that the first applicant was dissimulating: “... due to the existing conflicts as regards the child’s custody and due to the applicant’s selfish affection for the child.” 43. Ms M. again contested this decision. A psychological report completed on 26 June 2000 and issued by M.M., a neuropsychiatrist, was submitted to the file by Ms M. It showed that the child: “... had a permanent state of anxiety in connection with his own body [...] phobia and feelings of culpability in connection with the human body were revealed [...] we conclude that the child had been subjected to long and intense stress, stress connected with physical handling of a sexual nature – possible repeated paternal sexual abuse [...] diagnosis: reactive state (sexually abused by the father).” 44. On 21 September 2000, the hierarchically superior prosecutor quashed the decision and proposed that further investigation of the case should be carried out with respect to acts under Article 200 §§ 2 and 3 of the Romanian Criminal Code, consequently remitting the file to the Bucharest Prosecutor’s Office. 45. The decision was taken having the following in mind: “... the medical report’s conclusions are corroborated by those of the psychological examinations of the child, who was shown to have exhibited behaviour typical of those who have been subjected to sexual abuse”; and that “... there is no indication of the existence of any other person than the father, D.C., who could have committed the impugned acts.” 46. After the remittal of the case, no other new evidence was produced or adduced to the file. On 16 July 2003, the prosecutor again decided not to press charges against D.C. in respect of the acts punishable by the Romanian Criminal Code under Article 200 §§ 2 and 3 and Article 201 (acts of sexual perversion). The decision was founded on the evidence already existing in the file (the medical certificate of 6 July 1998, the medical report of 26 August 1998, statements gathered in the case, the parties’ arguments and the forensic report on simulated behaviour). 47. On 9 September 2003 Ms M. contested this decision, mainly arguing that in spite of the indications given by the hierarchically superior prosecutor on 21 September 2000 that the investigation should continue, no new evidence had been produced in the two years that had since passed and therefore that the decision was unsubstantiated. 48. Her objection was sent from the hierarchically superior prosecutor to the Bucharest District Court. The Prosecutor’s Office raised a plea of inadmissibility of such an objection, as the Romanian Code of Criminal Procedure did not expressly provide for the possibility of parties contesting a prosecutor’s decision not to press charges before the courts. 49. The first applicant replied by submitting jurisprudential arguments, including a decision of the Romanian Constitutional Court issued on 2 December 1997 stating that not providing the parties with such an opportunity was unconstitutional. The first applicant also relied upon the adoption of a new Law (no. 281/2003) amending old regulations and providing the parties with the possibility of appealing against such decisions to the courts within one year of its entering into force (on 1 July 2003). 50. On 13 October 2003, the court dismissed Ms M.’s appeal. In its judgment, the court made reference to the decision of 16 April 2002 (see C below) and to the reasoning therein. At the same time, it held as follows: “Because no matter how many witnesses had been heard in the case it could not have been established for certain whether the truth lay with the applicant or with D.C., it was necessary to test the two with a polygraph. Following the test, it was established that the applicant was dissimulating, whereas D.C. proved to have been sincere when answering the questions asked.” 51. When referring to the second applicant’s statements given on 15 June 1999, the court considered that these were: “... a faithful reflection of the mother’s opinions on the matter, the child’s assertions being very structured, similar to those made by an adult, although the child was five years old at the time. The child tried to expose his mother’s thoughts as accurately as possible but, at the same time, he attempted to express his own feelings when he pointed out that he liked to live with his father as well.” 52. Consequently, the court held that the existing evidence could not be regarded as reliable enough to indict D.C. for the alleged crimes, in view of the conclusions of the lie-detector test (considered to be 98% accurate), of all of the reports and of the witnesses’ statements. 53. The court further emphasised the fact that the second applicant had asserted that his father “had only inserted a hose in his bottom and asked him not to tell his mother anything about it”, which would: “... constitute at the most a criminal act under Article 180 § 1 of the Criminal Code (hitting or other forms of violence), stating that a criminal case shall be initiated upon the complaint of the person injured.” 54. The court made no reference to the initiation on its own motion of a criminal investigation for criminal acts under Article 180 § 1 of the Criminal Code. 55. Ms M. appealed against this judgment. The Bucharest County Court dismissed the appeal and reiterated the reasoning of the lower court quoted above. It held on 18 March 2004 that no evidence in the file had proved that the second applicant had actually been a victim of sexual assault perpetrated by his father and therefore that there was no indication in the file to justify a prosecution being instituted against D.C. for criminal acts punishable under Article 200 §§ 2 and 3 and Article 201 of the Criminal Code. 56. On 2 May 2001 Ms M. lodged a civil action, seeking to confine D.C. to a contact programme of two visits a month and only in her presence. In support of her claims, she alleged that D.C. had abused his contact rights when, in July and August 1998, upon taking the child to his home, he had molested the child. She revealed that she had lodged a criminal complaint against D.C. in this regard, but that on 3 March 2000 the prosecutor had decided not to indict him. Also, a similar civil action had previously been lodged by her, but her claims had been dismissed on 1 June 2000, the courts’ reasoning relying exclusively on the prosecutor’s decision not to institute criminal proceedings against D.C. 57. D.C. asserted that ever since his former wife had left him he had had to struggle in the courts in order to be able to see his son, as she had done everything possible to keep him from having any contact with his son. In that respect, he had even had to lodge a criminal complaint against her, as she was not complying with the court order allowing him to see his son. Even though she had never been indicted, she had allegedly received an administrative sanction. After the incidents that had allegedly occurred in the summer of 1998, he had not been allowed to see his son, as the first applicant had continually moved home without informing him. 58. Mindful of the serious allegations submitted by the parties and what was at stake for the child, the court – at a preliminary stage – considered it necessary for both of the parents to be subjected to a polygraph test and also to undergo psychiatric examination. At the same time, the court found it appropriate to hear the second applicant, even though he was less than eight years old. All discussions with the child were audio taped, and, as is stated in the judgment of the Bucharest District Court given on 16 April 2002, “the transcriptions were to be included in the case file”. 59. Ms M.’s application was dismissed, the reasoning of the court being essentially the following. 60. Firstly, the court observed, on the basis of the parties’ past, which had been hostile and which had been partially played out in court, that Ms M.’s intention to limit D.C.’s contact rights had been constant over the years and had started long before the alleged incidents of July and August 1998. As had emerged from all the documents included in the case file, the first applicant had actually intended to completely prevent D.C. from having any contact with his son. The court found that this background showed that her present application had not come as a consequence of the alleged sexual assault, but rather as a predictable consequence of her consistent and strong determination to put an end to any kind of relationship between the second applicant and his father. The following had emerged: “... the applicant was constantly preoccupied with estranging the child from his father and the real reason for that was not the reason presented by Ms M. in the file, but, without doubt, one that had a religious subtext, as will be subsequently demonstrated.” 61. Relying on the testimonial evidence and the parties’ statements in the file (including the second applicant’s), the court held that the real reason for the parties’ divorce was in fact the exclusion of D.C. from the Jehovah’s Witnesses Congregation on 13 January 1995: “... the withdrawal of the defendant from the Jehovah’s Witnesses prompted the applicant to firstly leave him, and then, after having waited for a while for the “lost sheep to rejoin the flock”, to finally divorce.” In this context, “... it is irrelevant that the defendant had behaved violently towards the applicant – as the main and essential reason for the parties’ divorce was a religious one, namely the defendant’s withdrawal from the sect of the Jehovah’s Witnesses [...] the violent behaviour of the applicant playing a subsidiary role.” 62. The court further held that “it is notorious that the members of the Jehovah’s Witnesses sect marry only within the Congregation”, and if, after getting married, one of the members grows distant from the religion, and attempts to bring him back into the fold are unsuccessful, a divorce becomes even more necessary. Consequently, the court considered that Ms M. had sought to take the following into consideration: “... she has a duty to the child, but also to God, to protect the child from any influence that would jeopardise his soul and his spiritual growth, including influences from his father, if not from his father in the first place [...] [I]t emerges that it was imperative that the defendant should be prevented from having any contact with the child. Although simple and clear, [the achievement of] this desired goal seemed to be undermined by an insurmountable obstacle – the law, which allows the parent without custody to continue to have personal contact with the child [...] [T]he applicant, pragmatic, set herself a more modest goal, appreciated as legally possible – the limitation of the father’s visiting rights by a court judgment [issued] in the preliminary stage [of proceedings], followed by a second step, which was to attempt in any way or by any possible stratagem to completely forbid the defendant to enforce the judgment in respect of contact with the child.” The court further held as follows: “... based on the evidence produced in the file, it cannot be established with certainty whether the applicant has herself caused the injuries to the child attested in the medical reports, but such a possibility cannot be completely excluded.” In supporting such a hypothesis, the court considered as follows: “... it could be presumed that around 1 July 1998, when D.C. went to the applicant, [armed] with an enforceable judgment (of 8 June 1998), intending to see his child, the applicant, taken by surprise, desperate, decided to resort to this extreme solution, telling herself, in order to comfort her own conscience, that a good purpose (saving the soul of the child from “Satan’s claws”) justified the means (the committal of - at least - one criminal act – defamatory denunciation against the defendant).” A second hypothesis explaining the minor’s injuries was advanced by the court: “... it is quite possible that the attested injury could have been the consequence of acute constipation on the part of the minor, and that the applicant simply took advantage of the circumstances and lodged a request to deprive the defendant of his parental rights.” 63. In any case, the court seemed to favour the first hypothesis, relying on the chronology of the events which had allegedly occurred in the summer of 1998, as the first applicant had herself taken the initiative at that time to allow D.C. to take the second applicant to his home for a longer period of time than that established in the judgment regulating his contact rights (a few days). The first applicant’s explanation that she had acted in that way because she had previously been threatened with death by D.C. and because she had been advised by the police to comply with the court order allowing D.C. contact rights was considered insincere. 64. The court concluded that the first applicant’s initiative of giving the second applicant to his father was part of a bigger plan, arranging the set-up prepared for D.C. 65. The polygraph test and the psychiatric report regarding the parties, as well as the psychological evaluation of the second applicant’s answers to the court’s questions, were never pursued: “... after consultation, both the president of the court and the forensic expert reached the conclusion that the applicant could have been one of the few persons who could “defeat” even the polygraph.” 66. The president of the court consequently decided to try to make the applicant aware of her wrongdoing – in the event that the accusations against D.C. were, indeed, unfounded – and he therefore invited the first applicant and the second applicant to a meeting at the court. 67. Following the meeting held at an unspecified date in 2002, the applicant, through her lawyer, imposed “some unacceptable and unspeakable conditions” to be fulfilled when performing the polygraph test. As this means of evidence was not, as such, provided for in Romanian procedural legislation, the court “was forced” to conclude that the test could not be administered: “The court assesses these conditions as being a disguised and diplomatic refusal by the applicant to take the test, and such a refusal leads to the conclusion that it is highly possible that the applicant wrongly accused the defendant, D.C.” 68. As similar “unreasonable and impossible conditions” were formulated by the first applicant’s lawyer for the evaluation of the second applicant’s previous answers (for instance, the child was to be recorded throughout so that the first applicant could, if necessary, express a point of view), the court felt obliged to acknowledge that the first applicant was resistant to such a means of acquiring evidence, and the evaluation was never pursued. 69. However, the court had several separate discussions with the second applicant, who, when questioned, stated, inter alia, as follows: “... his father left the religious organisation before he was even born, because “Satan had grabbed him”, and that “... he did not play much with the neighbour’s children, as they were not “witnesses”, and therefore they were bad”. The court also held that: “The child asserted that he had been molested by his father, who had threatened to kill him if he revealed anything of the incident to his mother (recorded statement). [...] The child had indeed stated to the President of the court that he did not wish to see his father.” 70. The second applicant’s statements were not, however, taken into consideration by the court, as the court was convinced that all of them had in fact been induced by his mother, and did not reveal the child’s real thoughts and wishes: “... to any minor between the age of four and seven years, a parent or a teacher who is close to the child could easily inculcate any ideas...” Consequently, the court found: “... a child will immediately and without reserve accept that a situation has actually occurred as inculcated, even if he himself has no recollection of such a situation.” 71. Relying on all the evidence and the presumptions drawn from the first applicant’s refusal to allow new evidence (reports) to be collected, the court held as follows: “... the court knows that the applicant never actually wanted the defendant to be able to see the child, and to this end she went as far as to disobey a previous court order (the judgment of 8 June 1998). It only remains for the prosecutor to remove any doubt as to this matter (the criminal complaint lodged by the applicant), so that the applicant can then be brought before a court for resisting the enforcement of the judgment of 8 June 1998... [...] If a psychiatric report had ever been produced, the court would have found out whether the applicant was or was not suffering from a “split personality syndrome” [...] because the applicant leaves the impression of having a double personality, between the two parts of which there is no communication whatsoever...” [...] Therefore, it is the defendant who seems more entitled to ask that the mother should be deprived of her parental rights.” 72. Ms M. challenged the above-mentioned decision, essentially alleging that: the court had used and interpreted the second applicant’s allegations, although they had had never been transcribed or attached to the case file; and the court had reasoned with a logic that had nothing to do with the case itself, but rather had been based on the judge’s own apparent obsessions, and which, in any case, did not rely on the documentary evidence adduced (medical reports, psychological evaluations of the child), which was all in support of the truth – that the second applicant had been sexually abused by his father. Documents attesting to the first applicant’s sane state of mind had also been ignored, the court preferring to believe that the first applicant had been suffering from “psychological deviations of a mystical nature”. In summary, the court had obviously disapproved of the applicant and had “treated her like a criminal because she was a member of the Christian sect of Jehovah’s Witnesses”, which organisation was in fact formally recognised in Romanian law. 73. In its judgment given on 20 December 2002 the court made a fresh assessment of all the evidence and tried to strike a balance between the importance of respecting the presumption of innocence favouring D.C., and the necessity of protecting the child’s best interests. 74. In doing so, the court held that until the defendant was found guilty by a final decision, he had to be considered innocent, and therefore he could not be denied his right to have a personal relationship with his son. However, it also determined the following: “... the principle of the child’s best interests must be kept in mind, especially as long as the possibility still exists that the child was molested by his father, an experience which would undoubtedly mark him psychologically for the rest of his life.” 75. The court therefore considered that until the criminal proceedings were over, the second applicant would be better protected if his father was only allowed to see him every first and third Sunday of the month, between 10 a.m. and 4 p.m., at the office of the first applicant’s legal representative. The first applicant was not to be present during these visits. 76. Both the first applicant and D.C. appealed against the decision of 20 December 2002 on points of law. Ms M. criticised the assessment of evidence made by the court, as all documents and testimonial evidence had attested that it was necessary that the first applicant should be present when D.C. spent time with the second applicant. 77. D.C. contested the judgment, alleging that the solution envisaged by the court had placed him in a position in which it was impossible to establish a personal relationship with his son; that the court had also disregarded the presumption of innocence operating in his favour, particularly given that the prosecutor had decided on 29 July 2003 not to indict him; and that the court had misinterpreted the notion of “best interests of the child”, which implied, per se, the existence of a relationship between a child and his father. 78. On 4 December 2003 Ms M.’s legal representative adduced documentary evidence to the effect that the prosecutor’s decision not to charge D.C. had been contested before the courts and that a criminal trial was pending. 79. On 5 February 2004 the Court of Appeal dismissed the appeal on points of law formulated by the first applicant against the Bucharest District Court’s judgment. It allowed D.C.’s appeal, quashed the judgment given on appeal by the Bucharest District Court and dismissed Ms M.’s appeal against the first-instance court’s decision. In doing so, the court held as follows: “... it did not emerge from any evidence in the file that the father had an aggressive attitude towards the child. It has been shown with certainty that the conflict had ignited between the two parents and in the end it lead to their divorce. The mother’s bad faith was evident, having in mind the conclusions of the forensic report attesting to dissimulation on her part. According to the testimonial and expert evidence available in the file, the rare meetings between father and son had been normal and the child was happy every time he met his father. Moreover, the fact that the father was unable to see his son anymore following the child’s reunification with his mother as a result of the mother’s refusal to accept the enforcement of a final judgment allowing contact rights for the father cannot be ignored either. The applicable legal provisions provide for the right of the divorced parent who has not been entrusted custody of the child to preserve personal ties with the child.” [...] “... when dismissing the appeal on points of law, the court also had in mind the prosecutor’s decision of 29 July 2003 not to institute criminal proceedings against D.C. and the best interests of the child in respect of preserving personal ties with his father.” 80. On 5 July 1995, Ms M. lodged a criminal complaint against D.C., accusing him of having hit her, threatened to kill her and slandered her when coming out of a court hearing regarding his contact rights. The evidence produced in the file included two documents attesting that D.C. had already been fined for disturbing the public order at the child’s kindergarten and at their home. The Bucharest District Court held that D.C. had committed the unlawful acts alleged and sentenced him to six months’ imprisonment and fined him, penalties imposed by law. Under the civil head of the first applicant’s claim, D.C. was ordered to pay the appropriate pecuniary and non-pecuniary compensation to the first applicant. The decision was appealed against by D.C. The appeal was dismissed on 4 December 1998 by the Bucharest District Court. The court held that the sanctions imposed had been appropriate, as the victim had been shown to have been living in fear, the defendant’s aggressive behaviour forcing her to repeatedly change her and the second applicant’s domicile. 81. On 18 December 1996, Ms M.’s sister, R.C., lodged a criminal complaint against D.C., alleging that she had been hit and insulted by him. She submitted a medical certificate attesting to wounds and injuries requiring fourteen to fifteen days to heal. The court found D.C. guilty as charged, as he had “proved to be highly destructive and aggressive, behaving very violently”. D.C. was sentenced to one year of imprisonment and a criminal fine, both penalties being imposed by law. The victim was awarded pecuniary and non-pecuniary damage. An appeal by D.C. was allowed by the Bucharest District Court on 27 January 1999, which sentenced him to three months’ imprisonment and a criminal fine, penalties imposed by law. 82. Following a criminal complaint lodged by the Jehovah’s Witnesses Congregation on 12 March 1997, D.C. was convicted of criminal damage by the Bucharest District Court and ordered to pay both a criminal fine (amenda penală) and the civil damages claimed by the Congregation. The judgment became final after an appeal lodged by D.C. was dismissed on 18 July 1997. 83. The relevant provisions with respect to custody rights and family issues are to be found in R.R. v. Romania (I) (dec.), no. 1188/05, 12 February 2008. 84. Section 97 of the Romanian Family Code provides for the fundamental equality of spouses as regards parental rights and responsibilities and makes it clear that the interests of children are paramount. 85. The relevant provisions of the Romanian Criminal Code are worded as follows: “(1) Injuries or any other violent actions which cause physical pain are subject to imprisonment of between one and three months or a fine. [...] (3) A criminal case shall be initiated upon a complaint by the injured party. In the event that the unlawful act has been committed by a family member, the criminal case may be initiated upon the authorities’ own motion. (4) Reconciliation by the parties removes criminal responsibility.” “(1) Sexual intercourse between persons of the same sex, carried out in public or having as its consequence public scandal, is punishable by imprisonment of between one and five years. (2) Sexual intercourse by an adult with a juvenile of the same sex is punishable by imprisonment of between two and seven years and prohibition of certain rights. (3) Sexual intercourse with a person of the same sex who is incapable of defending him or herself or of expressing a wish, or which is performed through coercion, is punishable by imprisonment of between three and ten years and prohibition of certain rights.” “(1) Acts of sexual perversion committed in public shall be punishable by imprisonment under stringent conditions of from one to five years. (2) Acts of sexual perversion involving a person under the age of fifteen shall be punished by imprisonment under stringent conditions of from three to ten years and the prohibition of certain rights. (3) The same penalty shall also sanction acts of sexual perversion involving a person aged fifteen to eighteen if the act is committed by a guardian or curator or by a person charged with his or her supervision or care, by a physician, teacher or professor or educator in that role, or if the perpetrator has abused the victim’s confidence or authority or influence over him or her.” | 1 |
dev | 001-66756 | ENG | TUR | ADMISSIBILITY | 2,004 | SARIBEK v. TURKEY | 4 | Inadmissible | Christos Rozakis | The applicant, Bayram Nejdet Sarıbek, is a Turkish national who was born in 1954 and was serving his prison sentence at the Muğla prison at the time of the application. He was represented before the Court by Mr Güney Dinç, a lawyer practising in Izmir. The facts of the case, as submitted by the parties, may be summarised as follows. On 3 May 1995 the applicant was arrested and taken into custody on suspicion of theft of electronic materials from his place of work. On 5 May 1995 he was brought before the public prosecutor and the Yatağan Magistrates’ Court. The applicant denied the accusations against him. He was conditionally released. On 26 May 1995 the public prosecutor filed a bill of indictment against the applicant for theft and requested that he be convicted and sentenced under Article 491 §§ 1 and 3 of the Criminal Code. On 17 April 1996 the Yatağan Magistrates’ Court convicted the applicant of theft and sentenced him to three years and six months’ imprisonment. On 29 April 1997 the Court of Cassation upheld the judgment of the Yatağan Magistrates’ Court. On 17 June 1997 the applicant was arrested by the police and placed in prison to purge his sentence. On 21 May 1997 the judgment of the Court of Cassation was sent to the registry of the Yatağan Magistrates’ Court. On 2 June 1997 the applicant’s representative filed a petition with the Yatağan Magistrates’ Court and requested the re-opening of the proceedings and the suspension of the execution of the applicant’s sentence, pursuant to Articles 327 § 5 and 328 of the Criminal Code. In the aforementioned petition, the applicant’s representative stated, inter alia, the following: “The convict, Bayram Necdet Sarıbek, has been convicted on 17 April 1996 of theft... On 29 April 1997 the Court of Cassation upheld the judgment (merits no. 1997/1331, judgment no.1432)...” On 4 June 1997 Yatağan Magistrates’ Court dismissed the applicant’s objections, against which decision the applicant’s representative again objected. On 17 June 1997 the applicant was arrested by the police and placed in prison to purge his sentence. On 18 June 1997 the Yatağan Criminal Court of First Instance dismissed the objections of the applicant. The applicant asked the Minister of Justice to issue a written order dismissing the judgment of the Yatağan Criminal Court of First Instance. On 23 September 1997 the Minister of Justice informed the Muğla public prosecutor that the request of the applicant had been refused. On 1 December 1997 the wife of the applicant requested a copy of the judgment of the Court of Cassation. On 3 March 1998 the applicant’s representative before the European Court of Human Rights filed a petition with the Yatağan Magistrates’ Court and asked whether the judgment of the Court of Cassation had been notified to the applicant or his lawyer. On 6 March 1998 the Yatağan Magistrates Court informed the applicant’s representative that the judgment of 29 April 1997 had not been notified to the applicant or his lawyer. | 0 |
dev | 001-115417 | ENG | BGR | ADMISSIBILITY | 2,012 | ZAHARIEVA v. BULGARIA | 4 | Inadmissible | David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicant, Ms Teodora Dimitrova Zaharieva, is a Bulgarian national, who was born in 1965 and lives in Sofia. She was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. 3. In 1998 the applicant was diagnosed with breast cancer and underwent surgical removal of her right breast. In the following years she also underwent chemotherapy. 4. In November 2002 the applicant developed a tumour in her left breast, which was also removed, and underwent another course of chemotherapy. 5. This medical treatment was provided to the applicant free of charge by the public health system. 6. In November 2002 the applicant was prescribed a course of hormonal therapy which required the administration, once every twentyeight days, of a medicine whose active component was goserelin. 7. At the relevant time goserelin was on the list of medicines provided by the Ministry of Health free of charge. Between November 2002 and February 2004 the applicant received it regularly free of charge. 8. In March 2004 the applicant was informed that there was a problem with the supply of goserelin. Having received medical advice that interrupting the intake of the product for longer than a month could be dangerous for her health, the applicant had no choice but to purchase it from a pharmacy. She did so in March and April 2004. The price of goserelin for each dose was 480 Bulgarian levs (BGN). 9. Being unable to keep on paying for goserelin each month, in July 2004 the applicant, on the advice of her doctor, underwent an alternative treatment in the form of radiocastration, which resulted in the definitive cessation of her ovarian function. 10. After that the applicant was prescribed another medicine whose active substance was letrozole, to be taken daily for twentyfour months. Letrozole was also on the list of medicines provided free of charge by the Ministry of Health. However, the applicant did not receive the medicine free of charge and had to pay for it. Being unable to afford to pay for a full course of treatment with letrozole – the cost of one package containing forty pills was BGN 360 –, the applicant took it irregularly and in smaller doses than prescribed. 11. In March 2005 metastases in the applicant’s liver were discovered, and she underwent a third course of chemotherapy. 12. In May 2005 the applicant was not provided free of charge with docetaxel, another expensive medicine, although it was necessary for the chemotherapy and also featured on the list of medicines provided by the Ministry of Health free of charge. 13. The applicant repeatedly protested, in letters and complaints addressed to the Ministry of Health and other institutions, about the recurring problems with the supply of medicines for persons suffering from cancer. 14. It appears that in 2006 the applicant continued to experience irregular supplies of free medicines. 15. On 2 February 2005 the applicant brought a claim for damages against the Ministry of Health. She sought BGN 1,280 that she had paid for the medicines that should have been provided to her free of charge and BGN 50,000 in respect of the non-pecuniary damage resulting from the worsening of her health due to the Ministry’s failure to provide those medicines. The statement of claim did not clarify the legal provision on which the claim was based. 16. Between February and April 2005 the Sofia City Court returned the statement of claim to the applicant four times, pointing to various deficiencies in it. In particular, the applicant was requested to describe the specific actions and omissions which had given rise to the alleged damage and to provide more particulars about the damage that she had suffered. 17. The first hearing was held on 23 June 2005. The court dealt with a number of evidential requests by the parties, allowed an increase of the applicant’s claim in respect of nonpecuniary damage, and gave leave to the applicant to specify her claim in respect of pecuniary damage. It also ordered a medical expert report requested by counsel for the applicant, and adjourned the case until 15 December 2005. 18. On 28 June 2005 the applicant specified that she was claiming BGN 1,500 in respect of pecuniary damage and BGN 398,500 in respect of nonpecuniary damage. She also asked the court to bring forward the date of its next hearing. 19. On 15 July 2005 counsel for the Ministry requested the court to put additional questions to the expert. 20. On 19 September 2005 the court admitted the increase of the applicant’s claims, but said that in view of its case load and the amount of evidence that needed to be gathered the date of the next hearing could not be brought forward. 21. The expert filed her report on 9 December 2005. 22. At the hearing on 15 December 2005 the court admitted the report and heard the expert. It went on to admit a number of documents presented by the parties and to hear one witness called by the applicant. The case was adjourned until 9 February 2006. 23. On 18 January 2006 the applicant made written submissions clarifying that her claim was based on section 1 of the State Responsibility for Damage Act 1988 (“the 1988 Act” – see paragraph 40 below). 24. At the hearing on 9 February 2006 the parties made submissions on the evidence. The court also dealt with the applicant’s submissions of 18 January 2006 and instructed her to provide further clarifications. 25. Having received the applicant’s clarifications, on 23 April 2006 the court, sitting in private, noted that the applicant had based her claim on section 1 of the 1988 Act and that therefore its examination had to start afresh because the procedure applicable to claims under that Act, unlike the one applicable to claims under the general law of tort, required the participation of a public prosecutor. 26. At the next hearing, held on 25 May 2006, the examination of the case started afresh. The court took note of the applicant’s earlier submissions concerning the quantum of her claims, instructed the applicant to provide duly certified copies of certain documents that she wanted to adduce, and ordered a medical expert report. It also heard a witness called by the applicant, and adjourned the case until 20 October 2006 to allow further evidence to be gathered. 27. The expert report was ready on 19 May 2006. 28. The last hearing took place on 20 October 2006. 29. The Sofia City Court gave its judgment on 6 November 2006. It awarded the applicant BGN 1,500 in respect of pecuniary damage (the cost of the medicines that she had had to buy herself) and BGN 80,000 in respect of nonpecuniary damage. Applying section 10(2) of the 1988 Act, as worded at that time (see paragraph 44 below), the court ordered the applicant to pay BGN 12,740 (four per cent of BGN 318,500 – the rejected part of her claim in respect of nonpecuniary damage) in court fees. 30. Both parties appealed. The Ministry requested two additional expert reports. 31. On 14 March 2007 the Sofia Court of Appeal admitted certain documents enclosed by the parties with their appeals. It also partly acceded to the Ministry’s request and ordered an additional medical expert report. The report was filed on 24 April 2007. 32. The first hearing before the Sofia Court of Appeal took place on 7 May 2007. The court admitted the medical expert report and heard the experts. Counsel for the Ministry contested parts of the report and requested a fresh report. The court did not accede to that request, but ordered the experts to recheck some of their conclusions in the light of the objections raised by counsel for the Ministry. 33. The experts filed their amended report on 13 June 2007. The court held a hearing on 2 July 2007, at which it admitted the amended report and reheard the experts. It also dealt with some other evidential requests and heard the parties’ closing arguments. 34. The Sofia Court of Appeal gave its judgment on 1 August 2007. It increased the award of nonpecuniary damages to BGN 100,000, plus interest at the legal rate (see paragraph 42 below) running from 2 February 2005, and upheld the remainder of the lower court’s judgment. It noted that as a result of the increase of the quantum of the award, the applicant owed only BGN 11,940 (four per cent of BGN 298,500 – the rejected part of her claim in respect of nonpecuniary damage) in court fees in respect of the firstinstance proceedings. However, the court did not order the applicant to pay any fees in respect of the appellate proceedings. 35. The Sofia City Court and the Sofia Court of Appeal both concluded that the Ministry of Health was liable for the cost of the medicines that the applicant had been forced to buy on the open market and for the nonpecuniary damage suffered by the applicant as a result of the breakdown in the supply of those medicines. The courts found that the Ministry had, in breach of its duties under the applicable statutes and regulations, failed to organise certain public procurement tenders in a timely manner and had, moreover, bought insufficient quantities of certain medicinal products, which had not covered the needs of all cancer patients in Bulgaria. Also, the system of distribution of those products had not been organised efficiently. The courts found that those omissions had been in breach of section 1 of the 1988 Act (see paragraph 40 below), and had resulted in interruptions in the applicant’s treatment requiring recourse to radiocastration, which had had the effect of irreversibly terminating her ovarian function and had, moreover, exposed her to harmful radiation possibly causing tumours. The courts also found that as a result of the Ministry’s omissions the applicant’s chances of overcoming her illness had decreased, that she had suffered lasting feelings of pain and distress, and that she had been negatively affected for the rest of her life. The only difference between their conclusions was that in the view of the Sofia Court of Appeal the extent of the nonpecuniary damage suffered by the applicant was greater. 36. Both parties appealed on points of law. The Supreme Court of Cassation heard the appeals on 14 February 2008. 37. In a final judgment of 20 May 2008 (реш. № 211 от 20 май 2008 г. по гр. д. № 6087/2007 г., ВКС, V г. о.), the Supreme Court of Cassation fully upheld the Sofia Court of Appeal’s judgment. Relying on section 10(2) of the 1988 Act, as worded at that time (see paragraph 44 below), it ordered the applicant to pay BGN 11,940 (four percent of BGN 298,500) in court fees in respect of the cassation proceedings. It did not award any costs to the applicant. The court fully agreed with the Sofia Court of Appeal’s assessment of the failure of the responsible Ministry of Health officials to organise in time the procurement of the medicinal products required for treating the applicant. It also shared the court of appeal’s assessment of the extent of the damage suffered by the applicant. It noted that the court of appeal had omitted to order the applicant to pay fees in respect of the appellate proceedings, but went on to say that this was not an error that could be rectified in cassation proceedings. 38. On 10 and 11 June 2008 the applicant asked the Supreme Court of Cassation to vary its ruling in relation to court fees in the cassation proceedings and to award her costs in respect of those proceedings. In an additional judgment of 12 December 2008 (реш. № 1471 от 12 декември 2008 г. по гр. д. № 6087/2007 г., ВКС, V г. о.), the court, noting that the newly added section 9a(1) of the 1988 Act (see paragraph 45 below) had already taken effect when the applicant had made her request, decided to reduce the fee that the applicant had been ordered to pay in respect of the cassation proceedings from BGN 11,940 to BGN 5. The court turned down the applicant’s request for the award of costs, noting that she had not been legally represented in the cassation proceedings and had not proved that she had incurred any costs. 39. In August 2009 the applicant gave a press interview in which she said, inter alia, that her health had improved. 40. Section 1 of the Act originally called the State Responsibility for Damage Caused to Citizens Act 1988, renamed on 12 July 2006 the State and Municipalities Responsibility for Damage Act 1988 (“the 1988 Act”), provides that the State is liable for damage suffered by individuals (and since 1 January 2006 also legal persons) as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties. 41. Section 8(1) of the Act provides that those seeking redress for damage occasioned in circumstances falling within the scope of the Act have no claim under the general law of tort. The courts have said that the Act is a lex specialis and excludes the application of the general regime (реш. № 1370 от 16 декември 1992 г. по гр. д. № 1181/1992 г., ВС, ІV г. о.; реш. от 29 юли 2002 г. по гр. д. № 169/2002 г., СГС, ГК, ІVб о.). The Supreme Court of Cassation has said (реш. № 738 от 21 ноември 2006 г. по т. д. № 348/06 г., ВКС, I т. о.) that liability under section 1 of the Act is a special case of vicarious liability under section 49 of the Obligations and Contracts Act 1951, which provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. The Bulgarian courts have on occasion examined damages claims against the authorities under section 49 (see the domestic case cited in First Sofia Commodities EOOD and Paragh v. Bulgaria (dec.), no. 14397/04, § 17, 25 January 2011). 42. The legal rate of interest is set by the Council of Ministers (section 86(2) of the Obligations and Contracts Act 1951). In a decree of April 1994 (Постановление № 72 от 8 април 1994 г. за определяне на законната лихва по просрочени задължения в левове и във валута) the Council of Ministers decided that the legal rate of interest for overdue debts in Bulgarian levs would be the base interest rate fixed by the Bulgarian National Bank plus ten percentage points. The same position was maintained, with certain technical modifications, in a new decree that came into force on 1 July 2012 and superseded the 1994 one (Постановление № 100 от 29 май 2012 г. за определяне размера на законната лихва по просрочени задължения в левове и във валута). 43. The general rule in civil proceedings in Bulgaria is that the court fee is payable by the claimant upfront, upon submission of the claim (Article 55 of the Code of Civil Procedure 1952, superseded on 1 March 2008 by Article 73 § 3 of the Code of Civil Procedure 2007, and sections 14 of the State Fees Act 1951). The fee in respect of money claims is four per cent of the amount claimed (point 1 of Tariff No. 1 to the State Fees Act, superseded on 1 March 2008 by section 1 of the Tariff of fees collected by the courts under the Code of Civil Procedure). If the claim succeeds fully or partly, the defendant is ordered to reimburse the claimant’s costs, including court fees, in direct proportion to the successful part of the claim. 44. Under section 10(2) of the 1988 Act, as originally enacted, in proceedings under the Act, no court fees or costs were payable by the claimant upfront, upon submission of the claim. However, if the claim was eventually wholly or partly dismissed, the court was to order the claimant to pay “the court fees and costs due”. The courts construed that provision as meaning that the claimant should pay fees calculated pro rata the dismissed part of the claim. As a result, where a court held that a claim for damages against the State was wellfounded but excessive as to quantum, it ordered the defendant State authority to pay damages to the claimant and at the same time ordered the claimant to pay court fees to the State budget. Where the claimant indicated too high an amount in the statement of claim, the fee could exceed the sum awarded in damages, the overall financial award being in favour of the State despite the finding that the claimant had suffered damage that called for compensation under the Act (реш. № 1095 от 25 юли 2000 г. по гр. д. № 139/2000 г., ВКС, реш. № 805 от 1 август 2005 г. по гр. д. № 56/2004 г., ВКС). There was no provision for judicial discretion and considerations of equity played no role in fixing the fees’ amount; those fees were fixed by reference to the sums indicated in the statement of claim, even if in the course of the proceedings the claimant withdrew part of the claim (тълк. реш. № 3 от 22 април 2004 г. по тълк. гр. д. № 3/2004 г., ВКС, ОСГК, точка 12). 45. Following this Court’s judgment in the case of Stankov v. Bulgaria (no. 68490/01, 12 July 2007), which found that the setup outlined above had, on the facts of the case, resulted in a breach of Article 6 § 1 of the Convention (see a summary of the Court’s findings in paragraph 90 below), the Bulgarian Government laid before Parliament a bill for the amendment of the 1988 Act. Parliament enacted the bill on 17 April 2008 and the amending Act came into force on 30 May 2008. Section 10(2) was changed and now deals solely with costs. Court fees are presently governed by a newly added section 9a(1), which provides that the fee due in respect of cases under the Act is flat and is to be fixed in a tariff adopted by the Government. Under the Tariff of fees collected by the courts under the Code of Civil Procedure, as currently in force, the fee is BGN 10 in respect of firstinstance proceedings, BGN 5 in respect of appellate proceedings, and BGN 5 in respect of cassation proceedings. Unlike the previous arrangement, the fee is payable upfront (опр. № 12420 от 4 октомври 2011 г. по адм. д. № 12302/2011 г., ВАС, III о.). 46. Paragraph 9 of the transitional and concluding provisions of the amending Act provides that the new rule on court fees applies to proceedings which have not been concluded at the time when the new section 9a(1) came into force, and that the fee is charged at the close of the proceedings in each instance. 47. In its caselaw under that paragraph, the Supreme Court of Cassation in some cases held that the new rule on court fees applied not only in respect of fees charged by the cassation court after the rule had come into effect, but also in respect of fees charged by the lower courts before that, as long as the proceedings as a whole were pending at the time when the rule had come into effect (реш. № 974 от 7 ноември 2008 г. по гр. д. № 2980/2007 г., ВКС, I г. о.; опр. № 201 от 28 декември 2009 г. по гр. д. № 3270/2008 г., ВКС, I г. о.; реш. № 54 от 22 февруари 2010 г. по гр. д. № 5217/2007 г., ВКС, I г. о.). In one case the court went as far as to set aside a writ of execution issued in respect of a court fee charged before the new rule had come into force (опр. № 28 от 10 януари 2012 г. по ч. гр. д. № 700/2011 г., ВКС, IV г. о.). 48. However, in other cases the Supreme Court of Cassation held that, since it referred to the close of the proceedings “in each instance”, the new rule could not serve as a basis for reducing the fees charged by the lower courts before it had come into effect (реш. № 158 от 15 април 2009 г. по гр. д. № 6217/2007 г., ВКС, I г. о., реш. № 1410 от 24 април 2009 г. по гр. д. № 4946/2007 г., ВКС, I г. о.). In some cases the court held that the rule did not apply to the fees charged by the lower courts before it had come into effect because it did not have retrospective effect (опр. № 34 от 6 март 2009 г. по гр. д. № 4149/2007 г., ВКС, ІІІ г. о., опр. № 92 от 26 ноември 2008 г. по гр. д. № 4603/2008 г., ВКС, IV г. о.). 49. The text of the provision governing the “complaint about delays” – Article 217a of the Code of Civil Procedure 1952 – has, along with the provisions of the Code of Civil Procedure 2007 that superseded it in March 2008, been set out in paragraphs 43 and 4952 of the Court’s judgment in the case of Finger v. Bulgaria (no. 37346/05, 10 May 2011). 50. Under Article 257 of the Code of Administrative Procedure 2006, which came into force on 12 July 2006, a person may bring proceedings to enjoin an administrative authority to carry out an action that it has the duty to carry out under a legal provision. If the court allows the claim, it enjoins the authority to carry out the action and fixes a timelimit. 51. In late 2007 a cancer patient who had, due to a breakdown of supplies, not been provided with iodine131 for postoperative radiotherapy free of charge, as required under the applicable regulations, brought proceedings under Article 257 to enjoin the Minister of Health to make the product available to the hospital that was treating her. 52. On 28 December 2007 the Sofia City Administrative Court dismissed the claim. On an appeal by the patient, in a decision of 19 May 2008 (опр. № 5756 от 19 май 2008 г. по адм. д. № 2425/2008, ВАС, ІІІ о.) a threemember panel of the Supreme Administrative Court quashed the lower court’s decision, holding that the claim fell within its competence and that it should not have been examined by the lower court. 53. On 18 May 2009 a threemember panel of the Supreme Administrative Court dismissed the claim (реш. № 6428 от 18 май 2009 г. по адм. д. № 12746/2008 г., ВАС, VІ о.). On an appeal by the patient, in a judgment of 8 February 2010 (реш. № 1609 от 8 февруари 2010 г. по адм. д. № 9282/2009 г., ВАС, петчленен състав) a fivemember panel of the Supreme Administrative Court quashed the threemember panel’s judgment and remitted the case. 54. In a judgment of 6 July 2010 (реш. № 9411 от 6 юли 2010 г. по адм. д. № 2062/2010 г., ВАС, VІ о.) the threemember panel to which the case had been remitted allowed the claim and enjoined the Minister to complete within one month the relevant procurement procedures. Having reviewed in considerable detail the applicable constitutional and statutory provisions and regulations, and having examined the Minister’s actions in relation to the procurement of the relevant anticancer products, it found that the patient was entitled to receive iodine131 for her medical treatment and that the Minister was under a legal duty – which he had failed to discharge – to provide it to the hospitals which were treating her. It also noted that, in as much as the claimant was seeking redress in respect of the damage that she had already suffered as a result of the Minister’s omission, she could seek reparation by way of a claim under section 1 of the 1988 Act (see paragraph 40 above). 55. On an appeal by the Minister, in a final judgment of 8 January 2011 (реш. № 859 от 8 януари 2011 г. по адм. д. № 12090/2010 г., ВАС, петчленен състав) a fivemember panel of the Supreme Administrative Court upheld that judgment, fully agreeing with its reasoning. 56. Parallel to those proceedings, the patient also brought a claim for damages under section 1 of the 1988 Act (see paragraph 40 above), and in a judgment of 12 April 2010 (реш. № 885 от 12 април 2010 г. по адм. д. № 4149/2007 г., АССГ, ІІ о., 26 състав), the Sofia Administrative Court awarded her BGN 100,000 in nonpecuniary damages. On an appeal by the Minister of Health, on 11 January 2011 the Supreme Administrative Court upheld that judgment (реш. № 348 от 11 януари 2011 г. по адм. д. № 8399/2010 г., ВАС, ІІІ о.). | 0 |
dev | 001-73073 | ENG | DEU | ADMISSIBILITY | 2,006 | JOCKS v. GERMANY | 4 | Inadmissible | null | The applicant, Mr Klaus-Dieter Jöcks, is a German national who was born in 1944 and lives in Kiel. From 1978 to 1998 he worked as a judge at the Neumünster District Court (Amtsgericht). On 18 March 1999 the Kiel District Court issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had committed thirty-one criminal offences, including eleven counts of fraud, one count of instigation to falsification of official records, one count of bodily injury, one count of perversion of justice in connection with judicial bribery, one count of illegal arms trade and sixteen counts of having failed to pay contributions to the social security on behalf of a company’s employees. According to the preliminary investigations, the applicant was suspected of having been involved in a number of fraudulent real-estate transactions. He was further suspected of having, in his capacity as a District Court Judge, unlawfully released one of his suspected co-offenders from detention on remand. On 29 March 1999 the applicant was arrested and subsequently detained on remand. On 16 August 1999 the Kiel Public Prosecutor brought an indictment against the applicant, which had an overall length of more than 350 pages. The hearing before the Kiel Regional Court began on 18 November 1999 and ended on 23 November 2004. During that time, the trial took place on 345 days during which numerous witnesses were heard. On 21 May and 1 October 1999, 25 July 2000, 25 April and 10 September 2001 and 14 January 2002 the Kiel Regional Court upheld the arrest warrant and ordered the applicant’s continued detention on remand. On 2 August 1999, 1 October 1999, 19 October and 20 December 2000, 3 July and 25 October 2001 and 21 March 2002 the Schleswig-Holstein Court of Appeal (Oberlandesgericht) rejected the applicant’s complaints against the continuation of his detention on remand. On 2 August 1999, in a reasoned decision of a total length of thirty-five pages, the Court of Appeal found that the preliminary examination had confirmed a strong suspicion against the applicant. This assessment had been based on numerous witness statements, which were corroborated by numerous documents and further circumstantial evidence. The Court of Appeal considered that there was a risk of collusion (Verdunkelungsgefahr) within the meaning of section 112 of the Code of Criminal Procedure (Strafprozessordnung, see relevant domestic law below), on the ground that if the applicant was released, he might try to influence other accomplices or witnesses. This was corroborated by the strong suspicion that the applicant had, in the past, built up a smoke screen which was aimed at preventing possible controls by hiding the real facts. The applicant was suspected of having employed a front man (Strohmann) in order to disguise his own role in the real estate business. According to the results of the preliminary investigations, there was specific evidence that the applicant and his co-offenders had, in the past, intimidated both business partners and accomplices by use of threats and violence. There were further indications that the applicant had influenced witnesses before his arrest. On 1 October 1999 the Kiel Regional Court ordered the applicant’s continued detention. It found that the reasons to suspect him of the alleged crimes, as laid down in the arrest warrant, persisted. While the risk of collusion did not persist, as the evidence was sufficiently secured by the Public Prosecutor’s preliminary investigations, there was the danger of the applicant’s absconding. In case of his conviction, the applicant would have to face a severe prison sentence. Furthermore, he had been disallowed part of his income in disciplinary proceedings. In case of his conviction he would risk removal from office and the loss of his pension claims, which would mean the destruction of his social, professional and economical basis. As the applicant’s children were already grown up, his social bonds were not of such a weight as to prevent him from absconding. On the other hand, the applicant had declared that his wife possessed considerable property. Under these circumstances, there was no less intrusive measure possible to prevent the applicant from absconding than the further continuation of his detention on remand. Also on 1 October 1999, the Court of Appeal ordered the continuation of the detention on remand. Referring to its earlier decision of 2 August 1999, that court found that the risk of collusion persisted. It further found that the duration of the detention was justified by the exceptional extent of the investigations. On 19 October 2000 the Court of Appeal rejected the applicant’s fresh complaint against his continued detention. Referring to its decision of 2 August 1999 and examining the new arguments put forward by the applicant, it found that the grounds of suspicion against the applicant persisted. The Court of Appeal further maintained that the danger of collusion persisted, as the raising of evidence before the Regional Court had not yet considerably advanced. Furthermore, the danger of absconding persisted, as the applicant tried to evade the proceedings by rendering himself unfit to plead. In this respect, the Court of Appeal referred to the Public Prosecutors submissions of 16 October 2000, which read as follows: “In this respect the Chamber [of the Regional Court] has rightly pointed out that the accused, on 5 January 2000, had rendered himself unfit to plead and that he, on another occasion, refused to take his medication, which led to similar results. Furthermore, the Chamber could take into consideration that the accused’s and his lawyer’s behaviour did not give the impression that the accused was interested in a swift termination of the proceedings. This is confirmed by the fact that, during 62 days of hearings, the accused respectively his lawyer had lodged a total of 37 motions for bias against the court, which have so far all been rejected as being unfounded. It is therefore acceptable if the Chamber deduces that there is the concrete danger that the accused would try to render himself unfit to plead if he were released from the supervision of detention on remand...” The Court of Appeal followed these submissions. On 12 April 2001 the applicant submitted a medical attestation according to which it was indicated to discontinue treatment with antidepressant medicine, as his state of health had stabilised and requested, once again, to be released from detention. On 25 April 2001 the Regional Court rejected the applicant’s fresh request inter alia for the following reasons: “As the Chamber has just pointed out in its decision of 1 February 2001 on the applicant’s fifty-third motion for bias, the accused and his defendants pursue a procedural strategy which is primarily aimed at obstructing the proceedings. Accordingly, the Chamber continues to expect that the applicant, if released, would do everything to evade the proceedings. It is obvious that such cannot only be done by overdosing or refusing prescribed medication. Accordingly, the medical attestation ...was not fit to disprove the Chamber’s expectations. The danger that the accused would abscond from the proceedings had been further increased by the fact that the evidence presented so far has not yielded any facts in the applicant’s favour...” In his complaint, the applicant contested that he had put himself into a state of being unfit to plead and that there had not been any evidence in his favour. Furthermore, the Regional Court had failed sufficiently to expedite the proceedings. On 3 July 2001 the Court of Appeal rejected the applicant’s complaint. Referring to its former decisions and examining the new arguments put forward by the applicant, that court confirmed that a strong suspicion against the applicant persisted and that there remained the risk of the applicant’s absconding and of collusion. With regard to the conduct of the Regional Court, the Court of Appeal found as follows: “There is no indication that the Court of Appeal failed sufficiently to expedite the proceedings, as prescribed by Article 5 § 3 sentence 2 of the Convention. The latter provides that a detained person is entitled to trial within a reasonable time. As the Regional Court correctly pointed out, the proposed dates for hearings could not be used because either the accused or his counsel were unable to attend.” On 3 September 2001 the applicant lodged a further complaint against the arrest warrant, alleging, inter alia, that the Regional Court had failed sufficiently to expedite the proceedings. He complained, in particular, that two dates for hearings had been cancelled because of a judge’s holidays and a lay judge’s attendance of a funeral. On 10 September 2001 the Regional Court rejected the complaint, pointing out that the cancellation of the hearings had been justified and that the Chamber had offered alternative dates for hearings, which could not take place as the accused’s counsel had been unable to attend. On 25 October 2001 the Court of Appeal confirmed the Regional Court’s decision. On 7 January 2002 the applicant lodged a further request to quash the arrest warrant. Referring to the Court’s judgment in the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000XI), the applicant maintained that only compelling reasons could justify his detention on remand for a period of more than two years. According to the applicant’s allegations, the domestic courts had failed to conduct the proceedings with due diligence. The applicant maintained that there had never been a strong suspicion against him. Furthermore, there had never been facts confirming a risk of collusion. He further maintained that there had not been any danger of his absconding, as he entertained close contacts to his wife and to his two grown-up children. He pointed out that he had at no occasion attempted to evade. Finally, the applicant maintained that the Regional Court had failed to hold hearings at all available dates. In this respect, he pointed out that the chamber had heard another criminal case on seventeen days from 13 October 2000 to 2 January 2001. On 14 January 2002 the Kiel Regional Court rejected the applicant’s motion. It found, first, that there existed the risk that the applicant might attempt to make himself unfit to plead by abuse of medication. In this respect, the Regional Court stated that the applicant’s medical condition on 5 January 2000 had necessitated extensive medical treatment in order to restore his fitness to plead. A blood examination had revealed a toxic overdose of medication. The strong suspicion against the applicant had been confirmed by the evidence taken. With respect to the applicant’s complaint about an alleged lack of diligence, the Regional Court pointed out that, until 9 January 2002, it had held hearings on 145 days. The parallel proceedings had been conducted with a partially differing composition of the Chamber. The Regional Court further maintained that the applicant had delayed the taking of evidence. A large part of the length of the proceedings was imputable to the applicant’s own conduct. On 21 March 2002 the Schleswig-Holstein Court of Appeal rejected the applicant’s complaint. Referring to the Public Prosecutor’s comments in the complaint proceedings and to its previous decisions of 2 August 1999, 19 October and 20 December 2000, 3 July and 25 October 2001, the Court of Appeal confirmed that the strong suspicion that the applicant had committed the offences he was accused of persisted and that he was likely to tamper with evidence or abscond if released. With regard to the applicant’s complaint under Article 5 § 3 of the Convention, the Court of Appeal found that the domestic authorities had displayed special diligence given the complexity of the case. They had expedited the investigations following the applicant’s arrest in March 1999 and continuously held hearings in the applicant’s case since November 1999. The chamber had generally held hearings at two days per week. There was no indication that the Regional Court could have considerably expedited the proceedings. The Court of Appeal finally found the applicant’s continued detention to be proportionate, given both the conviction the applicant was likely to face and the general interest in the integrity of the judicial system. On 16 April 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for lack of prospect of success. On 18 December 2002 the further execution of the arrest warrant was suspended (Haftverschonung) and the applicant released. On 21 July 2002 the applicant, who was at that time detained on remand, wrote a letter to the journalist G. He alleged that a prosecution witness had stated during a public hearing that he had been induced by the Public Prosecutor’s Office to give false evidence against the applicant. In return, the Public Prosecutor’s Office had discontinued prosecution in two criminal proceedings directed against that witness. The applicant added that the Public Prosecutor’s actions had been unfair (“unlautere Mittel”). On the same day, the applicant wrote another letter to the journalist M. in which he repeated his allegations. He added that the Regional Court had refused to hear the respective witness on these allegations. On 29 July 2002 the Kiel Regional Court ordered under section 119 § 2 of the Code of Criminal Procedure in conjunction with rule 34 § 2, no. 3, of the Rules on the Execution of Detention on Remand (Untersuchungshaftvollzugsordnung, see relevant domestic law below) that the two letters should not be delivered, but returned to the applicant. It found that both letters contained allegations of prosecution of innocent persons and defamatory statements directed against the Public Prosecutor and – with respect to the second letter – also against the Chamber of the Regional Court. On 1 August 2002 the applicant lodged a complaint. He maintained, in particular, that his allegations had been true. On 22 August 2002 the Schleswig-Holstein Court of Appeal rejected the applicant’s complaint. It found that the content of the letters had been designed to jeopardise the purpose of detention on remand (section 119 § 3 of the Code of Criminal Procedure), as the applicant had accused the Public Prosecutor’s Office of having employed illegal means. The transmission of the letters was also apt to disturb the prison order, as it could set an example for other prisoners. The Court of Appeal further pointed out that it was not established that the applicant’s allegation had been true. The applicant was in a position to pursue his interests by the means provided to him in the criminal proceedings. On 24 October 2002 the Federal Constitutional Court refused to admit the applicant’s complaint. On 23 November 2004 the Kiel Regional Court sentenced the applicant to six years and nine months’ imprisonment. The admissibility of detention on remand is governed by the Code of Criminal Procedure (Strafprozessordnung), the relevant provisions of which read as follows: Section 112 “(1) Detention on remand may be ordered against the accused if he is strongly suspected of the offence and if there is a ground for arrest. It may not be ordered if it is disproportionate to the significance of the case or to the penalty ... likely to be imposed. (2) A ground for arrest shall exist if on the basis of certain facts: 1. it is established that the accused has fled or is hiding; 2. considering the circumstances of the individual case, there is a risk that the accused will evade the criminal proceedings (risk of flight); or 3. the accused’s conduct gives rise to the strong suspicion that he will a) destroy, alter, remove, suppress, or falsify evidence, b) improperly influence co-accused, witnesses, or experts, or c) cause others to do so, and if, therefore, the danger exists that establishment of the truth will be made more difficult (risk of collusion, Verdunkelungsgefahr). ...” Section 119 “... (3) Only such restrictions may be imposed on the arrested person as are required by the purpose of detention on remand or by the need for order in the prison. ...” Rule 34 § 1 of the Rules on the Execution of Detention on Remand (Untersuchungshaftvollzugsordnung) provides that a judge is entitled to stop a letter, if the delivery of that letter is suited to jeopardise the prison order. According to rule 34 § 2, no. 3, this can inter alia be the case if the delivery of the letter – in the knowledge of its content - would constitute an offence. | 0 |
dev | 001-22414 | ENG | GBR | ADMISSIBILITY | 2,002 | THE GYPSY COUNCIL and OTHERS v. THE UNITED KINGDOM | 3 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The applicants are: 1. The Gypsy Council for Education, Culture, Welfare and Civil Rights, an organisation affiliated to the International Romany Union, has its main office in Romford, Essex; 2. Friends, Families and Travellers, an organisation based in Brighton, Sussex; 3. Thomas O’Doherty, an Irish citizen born in 1937 and resident in York; 4. Terence Green, a British citizen born in 1966 and resident in Sutton, Surrey. The first and second applicants are organisations which represent the interests of the gypsy/romany community of which the third and fourth applicants are members. They are represented before the Court by The Community Law Partnership Solicitors, practising in Birmingham. The facts of the case, as submitted by the applicants, may be summarised as follows. The Horsmonden Horse Fair is a significant cultural and social event in the life of Romany Gypsy community in the United Kingdom. It has been held at the Horsmonden Village Green in Kent on the second Sunday in September annually for the last 50 years, at least. The applicants claim that there is good reason to think that the event has taken place for the last 300 years. The majority of those who attend the fair are gypsies. On 25 April 2000, the Parish Council that occupies the Village Green decided that the fair was to be henceforth cancelled. In July, pursuant to the Public Order Act 1986, as amended by the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), the Parish Council applied to the Chief Constable for the necessary steps to be taken. In a letter dated 7 August 2000, the Chief Constable applied to the Tunbridge Wells Borough Council (“the Borough Council”) under section 14A of the 1994 Act for a prohibition order to be made. He stated inter alia that he believed that a trespassory assembly of 20 or more people was likely to be held on the Village Green and: “Based on previous years’ experience, concerns of residents and intelligence, I reasonably believe that serious disruption to the life of the community will result because of : i. Incidents related to feuding groups of ‘travellers’ in 1997, 1998 and 1999, with an escalating level of policing required to prevent serious crime (200 officers in 1999). ii. The racing of horses on the highway. iii. The illegal and indiscriminate parking of cars throughout the village... iv. Concerns over public health due to poor hygiene, litter, discarded nappies and clearing up; v. Anti-social behaviour by visitors. vi. Closure of local public houses and shops for fear of theft. vii. Necessary road closures contributing to a negative financial impact in the area. viii. The threat that ‘travellers’ will defy the cancellation. ix. Fear expressed by residents... x. A background level of increased crime which occurs over the event weekend. xi. The normal social interactions between villagers being suspended as a consequence of the sheer volume of visiting ‘travellers’.” The Chief Constable concluded that this made it necessary to apply for the prohibition order so that effective policing could be carried out. At a council meeting on 14 August 2000, the Borough Council accepted the recommendation of the director of operational services that the Borough Council should seek the approval of the Secretary of State in the making of an order. The main reason that the Borough Council gave for issuing the Prohibition Order was that the fair “may result in serious disruption to the life of the community in the vicinity of the prohibited area.” On behalf of the Secretary of State, the Home Office Minister, with the recommendation of the senior officer of the Home Office’s public order section, gave consent to the application for the Prohibition Order. The Order was then issued on 4 September 2000 in accordance with section 14A of the Criminal Justice and Public Order Act 1994 prohibiting any “trespassory assembly” within a 5 mile radius of Horsmonden Village Green beginning at 18.00 hours on Thursday, 7 September 2000 and terminating at 06.00 hours on Monday, 11 September 2000. Notwithstanding the prohibition order, on 31 August 2000, the Kent police gave consent to the conduct of a limited parade on Sunday, 10 September 2000, in Horsmonden. In response to the prohibition order, the first applicant in this case, the Gypsy Council, issued proceedings in the High Court applying for judicial review on 5 September 2000. The applicant sought to quash the prohibition order, claiming that the Secretary of State and the Borough Council had made their decision to issue the order by considering both irrelevant factors and failing to consider factors that were in fact relevant. They alleged that there had been no evidence to support claims of risk to safety or disruption to the local community and no consideration given to alternative ways in which the fair might have been staged on the site. Among the relevant factors that the first applicant claimed the respondents failed to take into account were the applicants’ rights under Articles 8, 11, and 14 of the European Convention on Human Rights and the Framework Convention for the Protection of National Minorities. The case was heard on an expedited basis before Deputy Judge Pannick QC, who granted permission to apply for judicial review and heard the application on 7 September 2000. Having heard the parties, the Deputy Judge dismissed the application seeking to quash the prohibition order. He found that sufficient relevant information was before both the Borough Council and the Home Secretary to enable them to properly exercise their discretion in deciding whether to issue the order. The letter of the Chief Constable set out the concerns that serious disruption to the community would result. He stated that Borough Council were entitled to think that the need to avoid disruption to the local settled community should take priority. He considered that the fact that the Romany Gypsy Community could go to an alternative site some 20 miles away at Dartford, which was approved by the local authority and the police, served to limit the impact upon the Romany Gypsy community. He also found that there was no basis for the argument that the European Convention on Human Rights was not taken into account. He noted that Articles 8 and 11 of the Convention recognised that a balance had to be struck between the interests of the individual, in this case, the interests of the gypsy community and the interests of society generally, but found no reason on that basis to interfere on public law grounds with the assessment reached by the Council and Secretary of State in light of the advice from the Chief Constable. He rejected the first applicant’s request for leave to appeal. The first applicant was advised by counsel that no further remedies were available. Subsequently, on Sunday, 10 September 2000, a parade took place at Horsmonden, which was limited by the police to only 60 persons while measures taken by the police controlling entry to the village severely restricted the numbers of persons from the gypsy community wishing to watch the parade. An alternative fair apparently took place peacefully the same day at Dartford attended by an estimated 1000 gypsies. Section 14A of the Public Order Act 1986 as amended by the Criminal Justice and Public Order Act 1994 “(1) If at any time the chief office of police reasonably believes that an assembly is intended to be held in any district at a place on land to which the public has no right of access or only limited right of access and that the assembly-- (a) is likely to be held without the permission of the occupier of the land or to conduct itself in such a way as to exceed the limits of any permission of his or the limits of the public’s rights of access, and (b) may result– (i) in serious disruption to the life of the community, or (ii) where the land, or a building on monument on it, is of historical, architectural, archaeological or scientific importance, in significant damage to the land, building or monument, he may apply to the council for the district for an order prohibiting for a specified period the holding of all trespassory assemblies in the district or part of it, as specified. (2) On receiving such an application, a council may-- (a) in England and Wales, with the consent of the Secretary of State, make an order either in the terms of the application or with such modifications as may be approved by the Secretary of State... ... 9. In this section and sections 14B and 14C – ‘assembly’ means an assembly of 20 or more persons; ... ‘limited’, in relation to a right of access by the public to land, means that their use of it is restricted to use for a particular purpose (as in the case if a highway or road) or is subject to other restrictions; ‘occupier’ means– (a) in England and Wales, the person entitled to possession of the land by virtue of an estate or interest held by him; ...” | 0 |
dev | 001-60690 | ENG | GRC | CHAMBER | 2,002 | CASE OF AGGA v. GREECE (No. 2) | 3 | Violation of Art. 9;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient | Françoise Tulkens | 9. The applicant was born in 1932 and lives in Xanthi. 10. In 1990 one of the two Muslim religious leaders of Thrace, the Mufti of Xanthi, died. On 15 February 1990 the local Prefect (Νομάρχης) appointed the applicant to act as a deputy (τοποτηρητής). 11. In August 1990 the two independent Muslim Members of Parliament for Xanthi and Rodopi requested the State to organise elections for the post of Mufti of Xanthi. Having received no reply, the two independent MPs decided to organise themselves elections at the mosques on 17 August 1990 after the prayers. On that date the applicant was chosen to be the Mufti of Xanthi by those attending Friday prayers at the mosques. 12. On 24 December 1990 the President of the Republic, on the proposal of the Council of Ministers and under Article 44 § 1 of the Constitution, adopted a Legislative Act (πράξη νομοθετικού περιεχομένου) by which the manner of election of the Muftis was changed. Law no. 1920/1991 retroactively validated the Legislative Act of 24 December 1990. 13. On 20 August 1991, in accordance with the new regulations, the Greek State appointed another Mufti. The applicant refused to step down. 14. Eight sets of criminal proceedings were instituted against the applicant under Articles 175 and 176 of the Criminal Code for having usurped the functions of a minister of a “known religion”. The Court of Cassation, considering that there might be disturbances in Xanthi, decided, under Articles 136 and 137 of the Code of Criminal Procedure, that the proceedings should take place in other cities. The applicant was legally represented throughout the proceedings by lawyers of his own choice. The courts heard a number of prosecution and defence witnesses. 15. On 17 January 1994 criminal proceedings were instituted against the applicant on the ground that on 11 January 1993 and 19 April 1993 he had issued messages in the capacity of the mufti of Xanthi. 16. On 28 June 1996 the single-member first instance criminal court (Μονομελές Πλημμελειοδικείο) of Agrinio found the applicant guilty and sentenced him to ten months’ imprisonment (decision no. 2206/1996). The applicant appealed (see below paragraph 19). 17. On an unspecified date the applicant was charged for having issued messages in the capacity of the mufti of Xanthi on 3 January 1994, 19 January 1994 and 10 February 1994. 18. On 28 June 1996 the single-member first instance criminal court of Agrinio found the applicant guilty and sentenced him to ten months’ imprisonment (decision no. 2207/1996). The applicant appealed. 19. On 29 April 1998 the three-member first instance criminal court (Τριμελές Πλημμελειοδικείο) of Agrinio upheld the applicant’s conviction in the first and second sets of proceedings. It imposed a global sentence of six months’ imprisonment and converted it into a fine (decision no. 682/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention (see below paragraph 29). 20. On 20 January 1996 a third set of proceedings was instituted against the applicant for the same offence on the ground that on 3 May 1995, 11 November 1995, 13 December 1995, 30 December 1995 and 17 January 1996 he had issued messages in the capacity of the mufti of Xanthi. 21. On 3 April 1997 the single-member first instance criminal court of Lamia found the applicant guilty and sentenced him to twelve months’ imprisonment (decision no. 1336/1997). The applicant appealed. 22. On 25 February 1998 the three-member first instance criminal court of Lamia upheld the applicant’s conviction and imposed a sentence of eight months’ imprisonment. The court converted this sentence into a fine (decision no. 641/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention (see below paragraph 29). 23. On 10 September 1996 a fourth set of proceedings was instituted against the applicant on the ground that on 8 August 1995 he had issued a message in the capacity of the mufti of Xanthi. 24. On 3 April 1997 the single-member first instance criminal court of Lamia found the applicant guilty and imposed on him an eight months’ prison sentence (decision no. 1335/1997). The applicant appealed. 25. On 25 February 1998 the three-member first instance criminal court of Lamia upheld the applicant’s conviction but reduced the prison sentence to six months and converted it into a fine (decision no. 640/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention (see below paragraph 29). 26. On an unspecified date a fifth set of proceedings was instituted against the applicant on the ground that on 6 March 1994, 15 May 1994, 14 August 1994, 22 November 1994, 24 December 1994 and 9 January 1995 he had issued messages in the capacity of the mufti of Xanthi. 27. On 7 May 1996 the single-member first instance criminal court of Thessaloniki found him guilty and sentenced him to ten months’ imprisonment (decision no. 23145/1996). The applicant appealed. 28. On 5 November 1998 the three-member first instance criminal court of Thessaloniki upheld the applicant’s conviction but reduced the prison sentence to eight months and converted it into a fine (decision no. 14370/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention (see below paragraph 30). 29. On 12 March 1999 the Court of Cassation rejected the applicant’s appeals concerning the first, second, third and fourth sets of proceedings. It considered that the offence in Article 175 of the Criminal Code was committed “when somebody appeared as a minister of a known religion and when he discharged the functions of the minister’s office including any of the administrative functions pertaining thereto”. The court considered that the applicant had committed this offence because he behaved and appeared as the Mufti of Xanthi. It further considered that the applicant’s conviction was not contrary to Articles 9, 10 and 14 of the Convention, because the applicant had not been punished for his religious beliefs or for expressing certain views but for usurping the functions of a Mufti. As regards Article 6 of the Convention, the Court of Cassation considered that the applicant was legally represented by lawyers of his own choice throughout the proceedings and that he had exercised all his defence rights (judgments nos. 592/1999 and 594/1999). 30. On 2 June 1999 the Court of Cassation rejected the applicant’s appeal concerning the fifth set of proceedings for the reasons set out in its judgments nos. 592/1999 and 594/1999 (judgment no. 1133/1999). 31. Three more sets of proceedings were instituted against the applicant on the ground that on various dates he had issued messages in the capacity of the mufti of Xanthi. The applicant was found guilty by the single-member first instance criminal court of Lamia (decisions nos. 4660/1997, 2552/1998 and 4699/1997). 32. On 28 March 2001 the three-member first instance criminal court of Lamia acquitted the applicant in the light of the Court’s judgment in the Serif v. Greece case (no. 38178/97, ECHR 1999–IX). The court held that, by addressing religious messages to a group of people who voluntarily followed him as their religious leader, the applicant had not usurped the functions of a minister of a “known religion”, but had simply exercised his right to manifest his religion, a right guaranteed by Article 9 of the Convention (decisions nos. 1000/2001, 1001/2001 and 1002/2001). 33. Article 11 of the Treaty of Peace of Athens between Greece and others, on the one hand, and the Ottoman Empire, on the other, which was concluded on 17 May 1913 and ratified by the Greek Parliament by a law published in the Official Gazette on 14 November 1913, provides as follows: (original) « La vie, les biens, l’honneur, la religion et les coutumes de ceux des habitants des localités cédées à la Grèce qui resteront sous l’administration hellénique seront scrupuleusement respectés. Ils jouiront entièrement des mêmes droits civils et politiques que les sujets hellènes d’origine. La liberté, la pratique extérieure du culte seront assurées aux Musulmans (...) Aucune atteinte ne pourra être portée à l’autonomie et à l’organisation hiérarchique des communautés musulmanes existantes ou qui pourraient se former, ni à l’administration des fonds et immeubles qui leur appartiennent (...) Les Muftis, chacun dans sa circonscription, seront élus par les électeurs musulmans (...) Les Muftis, outre leur compétence sur les affaires purement religieuses et leur surveillance sur l’administration des biens vacoufs, exerceront leur juridiction entre musulmans en matière de mariage, divorce, pensions alimentaires (néfaca), tutelle, curatelle, émancipation de mineurs, testaments islamiques et successions au poste de mutévelli (Tévliét). Les jugements rendus par les Muftis seront mis à exécution par les autorités helléniques compétentes. Quant aux successions, les parties Musulmanes intéressées pourront, après accord préalable, avoir recours au mufti, en qualité d’arbitre. Contre le jugement arbitral ainsi rendu toutes les voies de recours devant les tribunaux du pays seront admises, à moins d’une clause contraire expressément stipulée. » 34. On 10 August 1920 Greece concluded two treaties with the principal Allied Powers in Sèvres. By the first treaty the Allied powers transferred to Greece all the rights and titles which they had acquired over Thrace by virtue of the Peace Treaty they had signed with Bulgaria at Neuilly-sur-Seine on 27 November 1919. The second treaty concerned the protection of minorities in Greece. Article 14 § 1 of the second treaty provides as follows: “Greece agrees to take all necessary measures in relation to the Moslems to enable questions of family law and personal status to be regulated in accordance with Moslem usage.” 35. On 30 January 1923 Greece and Turkey signed a treaty for the exchange of populations. On 24 July 1923 Greece and others, on the one hand, and Turkey, on the other, signed the Treaty of Peace of Lausanne. Articles 42 and 45 of this treaty give the Moslem minority of Greece the same protection as Article 14 § 1 of the Treaty for the Protection of Minorities of Sèvres. On the same day Greece signed a Protocol with the principal Allied Powers bringing into force the two treaties concluded in Sèvres on 10 August 1920. The Greek Parliament ratified the three above-mentioned treaties by a law published in the Official Gazette on 25 August 1923. 36. In its decision no. 1723/1980 the Court of Cassation considered that it was obliged to apply Islamic law in certain disputes between Moslems by virtue of the Treaty of Peace of Athens of 1913, the Treaty for the Protection of Minorities of Sèvres of 1920 and the Treaty of Peace of Lausanne of 1923. 37. Law no. 2345/1920 provided that the Muftis, in addition to their religious functions, would have competence to adjudicate on family and inheritance disputes between Moslems in so far as these disputes are governed by Islamic law. It also provided that the Muftis were directly elected by the Moslems who had the right to vote in the national elections and who resided in the Prefectures in which the Muftis would serve. The elections were to be organised by the State and theological school graduates had the right to be candidates. Article 6 § 8 of the law provided for the promulgation of a royal decree to make detailed arrangements for the elections of the Muftis. Such a decree was never promulgated. 38. Under the legislative act of 24 December 1990 the functions and qualifications of the Muftis remain largely unchanged. However, provision is made for the appointment of the Muftis by presidential decree following a proposal by the Minister of Education who, in his turn, must consult a committee composed of the local Prefect and a number of Moslem dignitaries chosen by the State. The act expressly abrogates Law no. 2345/1920. In the act it is envisaged that it should be ratified by law in accordance with Article 44 § 1 of the Constitution. 39. Law no. 1920/1991 retroactively validated the legislative act of 24 December 1990. 40. Article 44 § 1 of the Constitution provides as follows: “In exceptional circumstances, when an extremely urgent and unforeseeable need arises, the President of the Republic may, on the proposal of the Council of Ministers, adopt legislative acts. These acts must be submitted to Parliament for approval ... within forty days ...” 41. Article 175 of the Criminal Code provides as follows: “1. A person who intentionally usurps the functions of a State or municipal official is punished with imprisonment up to a year or a fine. 2. This provision also applies when a person usurps the functions of a lawyer or a minister of the Greek Orthodox Church or another known religion.” 42. The Court of Cassation has considered that this provision applies in the case of a former priest of the Greek Orthodox Church who continues to wear the priest robes (decision no. 378/1980). The priest in question was defrocked after he joined the Old Calendarists, a religious movement formed by Greek Orthodox priests who wanted the Church to maintain the Julian calendar. In decision no. 454/1966 the Court of Cassation considered that the offence in Article 175 of the Criminal Code is also committed by a person who purports to discharge the administrative functions of a priest. In decisions nos. 140/1964 and 476/1971 the Court of Cassation applied Article 175 of the Code to cases of persons who had purported to exercise the religious functions of an Orthodox priest by conducting services, christening children etc. 43. Article 176 of the Criminal Code provides as follows: “A person who publicly wears the uniform or the insignia of a State or municipal official or of a religious minister of those referred to in Article 175 § 2 without having the right to do so ... is punished with imprisonment up to six months or a fine.” 44. Ministers of the Greek Orthodox Church and other “known” religions enjoy a number of privileges under domestic law. Inter alia, the religious weddings they celebrate produce the same legal effects as civil weddings and they are exempt from military service. | 1 |
dev | 001-4905 | ENG | TUR | ADMISSIBILITY | 1,999 | COLAK v. TURKEY | 4 | Inadmissible | Matti Pellonpää | The applicant, born in 1955, is a Turkish citizen who is resident in İzmir. He is a driver. The facts of the present case, as submitted by the applicant, may be summarised as follows. In early 1991 the applicant filed a petition with the İzmir Governor’s office for leave to participate in a public auction for 150 commercial taxi licence plates, which was to take place on 6 June 1991. On 24 May 1991 the İzmir Security Directorate’s Traffic Commission rejected the applicant’s request on the ground that he did not meet the eligibility requirements for the auction. On 13 June 1991 the Traffic Commission sent a letter to the applicant explaining that his request was rejected because he was earning his living not only as a driver but also as a cloth-seller, as indicated in the information in the registry of the Basmane Tax Office in İzmir. The Commission further explained that, under decree no. 86/10553, only those earning their living as drivers were eligible to take part in the auction. On 14 June 1991 the applicant brought an action before the İzmir Administrative Court. He alleged that he was eligible for the auction because he worked as a driver and was a member of the İzmir Drivers’ and Automobilists’ Association. He also stated that he had stopped working as a cloth-seller long before the auction. He asked the court to set aside the Traffic Commission’s decision of 24 May 1991 and to order a stay of execution of the decisions taken at the auction. On 20 January 1994 the İzmir Administrative Court set aside the Traffic Commission’s decision of 24 May 1991. It held that the applicant would be eligible for similar auctions in the future. The court rejected the applicant’s request for an order to stay the execution of the auction decisions. On 10 March 1995 the applicant brought an action before the İzmir Administrative Court against the İzmir Governor’s office. He alleged that he had suffered a loss of three billion Turkish liras because he could not work as a taxicab driver as he was not admitted to the auction and could not buy a taxicab licence plate. On 9 November 1995 the İzmir Administrative Court dismissed the applicant’s action. The court stated that even if the applicant had been admitted to the auction, he would not necessarily have succeeded in buying a taxicab licence plate. The court further considered that the applicant’s claim was based on assumption and that he had not suffered damage. It held that the applicant would be eligible for future auctions according to the Administrative Court’s decision of 20 January 1994. On 17 January 1996 the applicant lodged an appeal with the Supreme Administrative Court (Conseil d’Etat) against the judgment of 9 November 1995. On 3 March 1997 the Supreme Administrative Court dismissed the applicant’s appeal. | 0 |
dev | 001-58762 | ENG | FRA | GRANDCHAMBER | 2,000 | CASE OF FRYDLENDER v. FRANCE | 1 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Elisabeth Palm | 7. In July 1972 the applicant was engaged as an official employed under an individual contract (agent contractuel) by the Economic Development Department of the Ministry for Economic Affairs. Under a contract of 29 September 1977 he was sent to Athens to work as a technical adviser. Following an amendment of 30 August 1984 to the contract of 29 September 1977, he was posted to New York with effect from 25 June 1984 to head an autonomous section of the Economic Development Department. Under the authority of the chief commercial adviser of the New York office, who was himself responsible to the chief commercial adviser at the French embassy in Washington, to whom the agricultural attaché was also answerable, he was placed in charge of the wines, beers and spirits sector, where he had dealings with exporters and importers and, in particular, the SOPEXA company (Société pour l'expansion des ventes des produits alimentaires et agricoles). 8. In accordance with Decree no. 69-697 of 18 June 1969 on the general terms and conditions of service of persons working overseas for the State under individual contracts, the applicant was employed on a series of thirty-month contracts which were to be automatically renewed unless expressly terminated. The State could terminate any contract on three months' notice for, inter alia, inadequate performance. 9. In a letter dated 10 December 1985, which was served on the applicant on 27 December 1985, the Minister for Economic Affairs informed the applicant that, owing to his inadequate performance, he did not intend to renew his contract when it expired on 13 April 1986. In a letter dated 9 January 1986, served on the applicant on 21 January 1986, the Minister informed him of his final decision not to renew the contract, on the ground that, among other matters, the applicant had shown a marked lack of initiative towards importers. 10. By letters of 28 February, 3 March and 13 June 1986, the applicant lodged three applications for judicial review of this decision with the Paris Administrative Court. The first sought to have the Minister's first letter of 10 December 1985, which was in the nature of a preliminary to a final decision, set aside. The second was aimed at having the final decision to dismiss the applicant, contained in the letter of 9 January 1986, quashed. The third challenged the lawfulness of the appointment of the applicant's replacement. 11. In a judgment of 6 January 1989 the Paris Administrative Court, having joined all three applications, dismissed them. 12. On 24 October 1989 the applicant gave notice of an appeal to the Conseil d'Etat on points of law. He lodged a statement of the grounds of appeal on 23 February 1990. In a judgment of 10 May 1995, which was served on the applicant on 26 October 1995, the Conseil d'Etat dismissed the appeal, holding, inter alia, that it had been lawful for the Minister to dismiss the applicant on the ground of inadequate performance. 13. According to Article 1 of Decree no. 50-446 of 19 April 1950 laying down regulations governing the terms and conditions of service specific to economic development personnel, “the civil servants of the economic development offices overseas constitute a body of staff responsible to the Minister for Economic Affairs. In the performance of their duties they shall be attached to either a diplomatic delegation or a consulate ...” Article 3 of the decree provides that they are to act as delegates of the Minister for Economic Affairs in respect of all matters relating to France's foreign trade. In particular, they are responsible for studying all problems having a bearing on the French economy, supplying information to the various French administrative authorities and assisting with the preparation, negotiation and execution of commercial treaties and agreements. They must also participate in various surveys or special projects and in all economic events organised or run by the various ministries or official groups, defend the country's general economic interests and on that account provide direct assistance, in overseas markets, to French businessmen, industrialists and agricultural producers. The Overseas Economic Development Department has an establishment of 128 staff. Commercial attachés second class are recruited from among graduates of the National College of Administration (ENA); commercial advisers of the various classes may in addition be recruited from the State civil service. All commercial advisers and attachés are posted abroad by order of the Minister for Economic Affairs, made after the agreement of the Minister for Foreign Affairs has been obtained. 14. In addition, by Law no. 50-340 of 27 March 1950, five posts of agricultural attaché have been created. Agricultural attachés are responsible to the head of the relevant economic development office. Their duties are described in Article 3 of Decree no. 56-1242 of 3 December 1956: they study, from the technical point of view, problems affecting French agricultural development, particularly by seeking outlets in the local market for imports of French agricultural produce, and act as advisers during the preparation of negotiations on international commercial agreements and their application, assisting the head of office in his relations with the public administrative authorities dealing with foreign trade matters. 15. The general terms and conditions of service of persons of French nationality working overseas for the State or State public administrative bodies under individual contracts are laid down by Decree no. 69-697 of 18 June 1969. The provisions of the decree are not applicable to technical assistance or cooperation staff placed at the disposal of foreign States. The different types of post are defined in orders made by the ministries concerned. They may be filled either by non-established employees or by established civil servants. 16. The relevant provisions of the decree are worded as follows: “Persons to whom Article 1 applies shall sign a contract of service. The contract, which must refer to the provisions of this decree, shall specify its duration, the date on which it is to take effect, the staff member's category, grade and duties, the appropriate residence allowance group, the country of the posting and, where applicable, the family allowance group.” “Where the staff member was recruited in the country of the posting, the contract must be for a period of at least three years. Where the staff member was recruited in France or in a foreign country other than the country of the posting, the contract must be for at least thirty months plus the length of his or her official home leave entitlement. ... A contract does not become final until expiration of the period of probation or training which the staff member may be required to complete immediately after signature of the contract in the country of recruitment. The contract may be terminated by either party without restriction or notice at any time during this traineeship period or on its expiry.” “The contract shall be terminated: 1. when it expires, save that it will be deemed to have been tacitly renewed for a period equivalent to its original length unless terminated either by the State or by the member of staff at least three months before the date on which it is due to expire. Refusal to renew the contract or to sign a new contract shall be deemed a resignation. Such a refusal on the part of the State shall be deemed a dismissal, save where a new contract is signed within six months of the expiry of the previous one; 2. at any time if terminated by the State on three months' prior notice where the grounds for the termination are redundancy or inadequate performance; [or] in the case of dismissal on disciplinary grounds.” 17. Article 48(4) of the Treaty of 25 March 1957 instituting the European Economic Community (“the EEC Treaty”) provides for a derogation from the principle of freedom of movement for workers within the Community in respect of “employment in the public service”. The Court of Justice of the European Communities has developed a restrictive interpretation of this derogation. In its judgment of 17 December 1980 in the case of Commission v. Belgium (C-149/79, ECR 3881) it decided that the derogation concerned only posts which involved direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities, and which thus presumed on the part of those occupying them the existence of a special relationship of allegiance to the State and a reciprocity of rights and duties which formed the foundation of the bond of nationality. 18. The European Commission, to which the EEC Treaty assigned responsibility for ensuring the correct application of Community rules, noted that a large number of posts likely to be caught by the derogation had in reality no bearing on the exercise of powers conferred by public law or protection of the general interests of the State. 19. In a communication of 18 March 1988 it set itself the task of listing separately those activities which were covered by the derogation and those which were not. It thus established two distinct categories of activities according to whether or not they involved “direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State”. 20. These categories were defined as follows: “Exclusion of specific activities in the national public service [from freedom of movement for workers] On the basis of current Court of Justice rulings, and bearing in mind the present conditions for establishing the single market, the Commission considers that the derogation in Article 48(4) covers specific functions of the State and similar bodies such as the armed forces, the police and other forces for the maintenance of order, the judiciary, the tax authorities and the diplomatic corps. This derogation is also seen as covering posts in State Ministries, regional government authorities, local authorities and other similar bodies, central banks and other public bodies, where the duties of the post involve the exercise of State authority, such as the preparation of legal acts, the implementation of such acts, monitoring of their application and supervision of subordinate bodies ... Activities concerned by action in the public service sector The Commission considers that the functions involved in certain forms of public employment are for the most part sufficiently remote from the specific activities of the public service as defined by the Court of Justice that they would only in very rare cases be covered by the exception in Article 48(4) of the Treaty. The Commission proposes therefore to implement its action in the following areas by order of priority: – bodies responsible for administering commercial services (e.g. public transport, electricity and gas supply, airline and shipping companies, posts and telecommunications, radio and television companies), – public health care services, – teaching in State educational establishments, – research for non-military purposes in public establishments. Each of these activities also exists in the private sector, to which Article 48(4) does not apply, or may be exercised in the public sector without the imposition of nationality requirements ...” | 1 |
test | 001-179040 | ENG | GRC | ADMISSIBILITY | 2,017 | KOKKONIS AND CHALILOPOULOU v. GREECE | 4 | Inadmissible | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos | 1. The applicant in the first case, Mr Zois Kokkonis, is a Greek national who was born in 1964 and lives in Patra. The applicant in the second case, Ms Nikolitsa Chalilopoulou, is a Greek national who was born in 1968 and lives in Patra. They were represented before the Court by Mr A. Regglis, a lawyer practising in Patra. 2. The facts of the cases, as submitted by the applicants, may be summarised as follows. 3. On 7 January 2009 the applicants, a married couple, were convicted in absentia by the three-member Patras Court of First Instance of an offence of theft which they were found to have committed jointly, and sentenced to twelve months’ imprisonment (decision no. 22/2009). The applicants lodged an appeal, which was scheduled to be heard on 15 February 2011 by the three-member Patras Court of Appeal. However, on that date the applicants applied for an adjournment of the hearing, as their lawyer could not be present, and the hearing was rescheduled for 3 May 2011 (adjournment decision no. 543/2011). The applicants did not attend that hearing, and neither did a lawyer acting on their behalf. The Patras Court of Appeal, taking into account that the applicants had been present on 15 February 2011, considered that it was “as if [they were] present”, examined their appeal, and sentenced them to ten months’ imprisonment (decision no. 1084/2011). 4. The applicants applied for the annulment of the proceedings under Article 341 of the Code of Criminal Procedure, arguing that they had not been present at the court hearing owing to force majeure, which had prevented them from attending the hearing or informing the court of their absence. In particular, Mr Kokkonis submitted that he had been hospitalised on 29 April 2011 owing to acute febrile gastroenteritis, and had left hospital with instructions to stay in bed from 29 April 2011 to 8 May 2011; he attached the relevant documents to his application for annulment. Ms Chalilopoulou argued that she had been prevented from attending the hearing owing to her husband’s illness, as she had had to take care of him and their children at home. 5. The applicants’ applications for the annulment of the proceedings were heard by the Patras Court of Appeal on 17 May 2011 and the proceedings continued on 25 May 2011. The court dismissed their applications as inadmissible (decision no. 1356/2011). In particular, it held that an application for annulment under Article 341 could only be lodged if the defendant had been tried in absentia, and not when he had been tried “as if [he were] present”. 6. The relevant parts of the Code of Criminal Procedure read: “... 3. If the defendant has been legally summoned but is not present, or is not legally represented by a lawyer, he is tried as if he were present...” “1. If, as a result of force majeure or other insurmountable obstacles, the convicted defendant could not notify the court of the insurmountable obstacle promptly by any means, so as to request an adjournment of the hearing (Article 349), he can lodge an application for annulment of the proceedings which took place in his absence or in the absence of his representative... ... 2... If the application for annulment is granted, the decision against which it has been lodged is annulled and the court orders a new hearing for the case on a given date, during which the defendant shall appear without having been summoned. Under no circumstances is the defendant allowed to lodge an application for annulment against the decision [on his application for annulment].” 7. According to the case-law of the Court of Cassation, the decision that is issued following an application for annulment pursuant to Article 341 of the Code of Criminal Procedure is not subject to an appeal on points of law (decision no. 1245/2008 of the Court of Cassation). | 0 |
test | 001-158843 | ENG | LVA | ADMISSIBILITY | 2,015 | SPROĢE v. LATVIA | 4 | Inadmissible | Armen Harutyunyan;Branko Lubarda;Carlo Ranzoni;Johannes Silvis;Luis López Guerra;Mārtiņš Mits | 1. The applicant, Ms Natalija Sproģe, is a Latvian national, who was born in 1980 and lives in Riga. She is represented before the Court by Mr W. Bowring, a lawyer practising in London. 2. The Latvian Government (“the Government”) are represented by their Agent, Ms K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In the 1940s, following a nationalisation process (for more detailed historical background see Liepājnieks v. Latvia (dec.), no. 37586/06, 2 October 2010) , the applicant’s predecessors settled in an apartment in Čaka street, Riga, which was later rented by the applicant’s father. The applicant and her family lived in the apartment until 2002. 5. In February 1992 the dwelling house was denationalised and taken over by a private person. The new owner requested the applicant’s family to leave the apartment, alleging that it was unfit for occupation and required urgent repair. The dispute over the right to rent the apartment resulted in several sets of court proceedings between the applicant’s family and the landlord. 6. In 2000 the landlord brought a claim for eviction of the applicant’s family, without providing alternative accommodation. 7. On 29 January 2001 Judge T. of the Riga Centre District Court upheld the claim. On the basis of the parties’ statements and case materials, the court found that: (1) even in the absence of a written rental agreement between the parties, the applicant had been renting the contested apartment; (2) the apartment needed renovation and the plaintiff had proved his intention to carry out the necessary work, and therefore the condition for terminating the rental agreement had been met; (3) the plaintiff had warned the tenants about the termination of the rental agreement in accordance with a procedure provided by law. 8. On 14 March 2002 an appeal by the applicant was dismissed by the Riga Regional Court, which on 27 March 2002 issued an execution order. 9. The decision became final in August 2002 when the Senate of the Supreme Court dismissed an appeal on points of law by the applicant. 10. While the above proceedings were pending, in 2001 the landlord brought a claim against the applicant and her family asking the court to order the tenants to give him access to the apartment. He argued that certain parts of the apartment were in a critical condition and required urgent repair owing to the fact that the wooden construction between the floors was decayed and risked collapsing. 11. On 21 August 2001 Judge T. of the Riga Centre District Court, in the absence of the applicant and her family, upheld the claim. The applicant and her family were duly informed of the proceedings. 12. The judgment was subject to appeal. Owing to its urgent nature, the lower court ordered the immediate execution of the judgment. 13. The applicant and the other defendants appealed and refused to implement the judgment. Following the bailiff’s report that execution of the judgment was impossible, Judge T. on 10 September and 16 October 2001 imposed a fine of 50 lati (LVL) (70 euros (EUR)) and LVL 500 (EUR 700) on each of the three defendants, including the applicant. Upon appeal by the applicant, the Riga Regional Court quashed the decisions in a final ruling on 29 January 2002. 14. Meanwhile, the Administrative Commission of the Riga Municipality Centre District had on various occasions imposed fines on the applicant and her family for failing to allow the landlord to enter the apartment, in breach of the Administrative Offences Code in force at the time. On at least one occasion in January 2002 Judge T. had made a decision relating to an administrative fine imposed on one of the applicant’s family members; in the decision she had identified shortcomings in the administrative offence proceedings and discontinued them. The decision was final. 15. It appears that on 16 October 2002 a bailiff attempted to carry out the eviction in accordance with the order issued on 27 March 2002. The applicant and her family allegedly refused to leave the apartment, arguing that the eviction was unlawful. The landlord therefore proceeded to have the doors of the apartment opened by force, but it was discovered that the entrance was blocked with furniture and it was impossible to enter. An incident arose between the workers assigned by the bailiff and the people who were at the apartment during the eviction. 16. On 27 January 2003 the landlord brought a civil claim for damages against the applicant and her family for the broken apartment door and for damage to belongings of other people involved in the incident. 17. On 30 June 2003 the lower court, in the absence of the defendants, upheld the claim and ordered the defendants to pay LVL 1,979 (around EUR 2,830) in damages. 18. The applicant appealed, arguing that opening the doors by force had not been necessary, and that the court had failed to establish a causal link between the actions of each of the defendants and the alleged damage. 19. On 25 April 2005 the Riga Regional Court, sitting as a panel of three judges, examined the applicant’s appeal, with Judge T. as one of the judges. At the beginning of the hearing the applicant challenged Judge T.’s impartiality, arguing that she had evicted her family from the apartment and that therefore she might have an interest in the case. 20. The court dismissed the objection and since there were no other requests received by the parties, continued to examine the appeal on the merits. In a judgment of 9 May 2005 the court partly upheld the claim. It observed that the applicant’s family had been evicted from the apartment in accordance with a valid court judgment and that witness statements had established that on 16 October 2002 the defendants had objected to the request by the court bailiff. In the court’s opinion there was no doubt that the plaintiff had sustained damage and that the lower court had correctly found that the damage had been caused by the applicant and her family because the eviction concerned all of them. 21. In an appeal on points of law the applicant noted that she had raised objections against Judge T., listing all the decisions the judge had previously made. 22. On 8 August 2005 a Senate preparatory meeting refused leave to appeal on points of law and the cassation proceedings were discontinued. The decision did not address the allegations of a lack of impartiality. 23. Section 14 of the Law on Judicial Power provides that a judge does not have the right to participate in the adjudication of a case if he or she, personally, directly or indirectly, has an interest in the outcome of the case, or if there are other circumstances creating well-founded reasons to question the judge’s impartiality. In such cases a judge must withdraw from the case. If a judge or a lay judge has not withdrawn from the case, anyone participating in the proceedings may request such a withdrawal according to a procedure prescribed by law. 24. Sections 17 and 19 of the Civil Procedure Law contain similar provisions to those stated above. It also provides that any such requests must be accompanied by sufficient reasons. | 0 |
test | 001-173788 | ENG | HRV | CHAMBER | 2,017 | CASE OF MUIĆ v. CROATIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković | 5. The applicant was born in 1948 and lives in Rešetari. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. In 1978 the applicant was employed by the Z.B. company of Zagreb. He worked as a driver in the company’s Nova Gradiška branch. After organisational changes within the company he was given notice of dismissal on 14 February 2000. Pursuant to the notice his employment was terminated on 20 November 2000. 8. On 27 November 2000 the applicant applied to the Croatian Employment Bureau’s Regional Office in Slavonski Brod (Hrvatski zavod za zapošljavanje, Područna služba Slavonski Brod, hereinafter “the Slavonski Brod Bureau”), for unemployment benefit. 9. On 6 December 2000 he was granted unemployment benefit of 900 Croatian kunas (HRK) per month for the period between 21 November 2000 and 10 July 2013, provided that no grounds for terminating payment or the applicant’s entitlement to payment arose before the end of the period. The applicant then received unemployment benefit on a regular basis until 31 March 2008. 10. On 29 March 2000 the applicant brought a civil action in the Nova Gradiška Municipal Court (Općinski sud u Novoj Gradiški) challenging his dismissal and seeking reinstatement and compensation for lost salary. 11. On 11 January 2001 the applicant’s employer brought a counterclaim and asked the court to set 20 November 2000 as the day of the termination of his employment (sudski raskid ugovora o radu). On 5 October 2005 it also sought reimbursement of the severance pay the applicant had received. 12. On 23 January 2007 the Nova Gradiška Municipal Court ruled that the applicant’s dismissal from work had been unlawful and that his employment had never been terminated. It ordered the applicant’s reinstatement and awarded him compensation for lost salary. At the same time it ordered the applicant to reimburse the severance pay he had received, and dismissed the remainder of the employer’s counterclaim. 13. On 15 February 2008 the Slavonski Brod County Court (Županijski sud u Slavonskom Brodu) reversed the first-instance judgment in the part ordering the applicant’s reinstatement and decided that his employment had been terminated on 23 January 2007. It also awarded the applicant damages. The judgment was served on the applicant on 5 March 2008. 14. On 30 April 2008 the applicant applied to the Slavonski Brod Bureau for unemployment benefit for the period after 23 January 2007. 15. On 2 June 2008 the Slavonski Brod Bureau rejected the applicant’s claim, finding that it had been lodged outside the time-limit from the termination of his employment on 23 January 2007, as provided by section 31 of the Job Placement and Unemployment Insurance Act (hereinafter “the Job Placement Act”). 16. The applicant appealed to the Central Service of the Croatian Employment Bureau (Hrvatski zavod za zapošljavanje, Središnja služba, hereinafter “the Central Bureau”). In particular, he contended that the time-limit for lodging the unemployment benefit claim should not have been calculated from 23 January 2007, given that the termination of his employment had only been established by the Slavonski Brod County Court judgment of 15 February 2008. 17. On 15 October 2008 the Central Bureau, acting as a second-instance administrative authority, dismissed the applicant’s appeal as unfounded and upheld the decision of the Slavonski Brod Bureau. It also noted that the applicant himself had informed the Slavonski Brod Bureau of the outcome of the labour dispute, and had communicated with one of its officials on 27 March 2008 and 2 April 2008. He had also been informed of the consequences of the Slavonski Brod County Court judgment setting 23 January 2007 as the day of the termination of his employment. 18. In an administrative claim the applicant argued that he had only learned about the day of the termination of his employment after receiving the Slavonski Brod County Court’s judgment in March 2008, and that the time-limit for lodging the unemployment benefit claim should have been calculated from that date. 19. On 20 January 2011 the Administrative Court dismissed the applicant’s administrative claim and upheld the administrative authorities’ decisions. 20. A subsequent constitutional complaint by the applicant was dismissed by the Constitutional Court on 4 April 2012. The decision was served on the applicant’s representative on 9 May 2012. 21. On 21 November 2008 the Slavonski Brod Bureau found that the applicant had not been due unemployment benefit from 21 November 2000 to 31 March 2008. Given that the applicant had already reimbursed part of the unduly received sum, it ordered him to reimburse the rest within 15 days of receipt of the decision at issue. 22. On 16 July 2013 the Central Bureau upheld the decision of the Slavonski Brod Bureau, save in the part concerning the start of the deadline for the applicant having to pay back the money. In particular, it ordered him to reimburse the funds within 15 days of the receipt of his compensation for lost salary. 23. On 12 September 2014 the Osijek Administrative Court dismissed an administrative claim by the applicant and upheld the administrative authorities’ decisions. It found that according to the civil courts’ rulings in the labour dispute the applicant had not been entitled to unemployment benefit for the period up to 23 January 2007. It further found that his unemployment benefit claim for the period after that day had already been dismissed in another set of proceedings. 24. A constitutional complaint by the applicant was dismissed by the Constitutional Court on 17 July 2015. 25. In June 2008 the applicant applied to the Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje, hereinafter “the Fund”), to obtain an early retirement pension. 26. On 18 August 2008 the Fund granted him an early retirement pension of HRK 1,890.53 per month from 11 July 2008. The applicant has been receiving that pension since. | 0 |
test | 001-177453 | ENG | GBR | ADMISSIBILITY | 2,017 | GADD v. THE UNITED KINGDOM | 4 | Inadmissible | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos | 1. The applicant, Mr Christopher Adrian Gadd, is a British national who was born in 1969 and lives in Hampshire. He was represented before the Court by Mr E. Metcalf, a barrister at Monckton Chambers in London. 2. The British Government (“the Government”) were represented by their Agent, Ms M. Macmillan of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant qualified as a solicitor on 1 September 2006. He joined the firm WB Legal LLP (“WBL”) in March 2008. At that time WBL was a limited liability partnership with two members, namely MB, the managing partner, and a private company called WB Legal Training Limited (“WBLTL”). 5. On 31 August 2008 the applicant became a salaried partner of WBL and a director of WBLTL. 6. After he became a salaried partner of WBL and a director of WBLTL the applicant became aware that MB was defrauding clients and reported him to the Solicitor’s Regulation Authority (“SRA”). MB resigned from WBL and WBLTL in January 2009 and was later struck off the roll of solicitors. 7. Following MB’s resignation, the applicant continued to practice through WBL. As three years’ post-qualification experience was required before a solicitor could supervise a practice alone, another solicitor, PW, became a member of WBL and a director of WBLTL. 8. WBL remained in financial difficulty and was purportedly closed on 30 March 2009. On 2 April 2009 WBLTL, which was already authorised by the SRA to trade as a solicitor’s practice, was renamed Christopher Gadd Limited (“CGL”). Thereafter the applicant and PW practised through CGL, taking some of the client files of WBL with them. 9. On 3 April 2009 WBL was placed into administration by one of its creditors. 10. On 18 May 2009 the SRA wrote to the applicant reminding him that he and PW were responsible for the files, documents, and client money of WBL. In that letter it stated that it was satisfied, in light of assurances previously given by the applicant, that he and PW had attended to the closure of WBL correctly, but warned that the matter could be reinvestigated in future. 11. On 2 September 2009 PW resigned from CGL as the applicant, having achieved three years’ post qualification experience, was qualified to supervise the practice alone. 12. On 4 September 2009 the SRA informed the applicant that information received from WBL’s administrators suggested that the closure of the firm had not been dealt with in accordance with its regulatory requirements. 13. On 15 and 16 September 2009 members of the SRA’s Practice Standards Unit visited the offices of CGL to assess that firm’s compliance with the Solicitors’ Account Rules (“the Rules”), the Solicitor’s Code of Conduct (“the Code”) and other issued codes and guidance. The resulting report dated 28 September 2009 was sent to the applicant. It identified a number of breaches and requested confirmation that these would be rectified. 14. On 19 October 2009 the SRA’s Forensic Investigation Unit commenced an investigation into WBL. On 18 November 2009 a Forensic Investigation Report (“the Report”) concluded, inter alia, that CGL appeared to be the successor practice to WBL; that the administrators of WBL had complained that the applicant had not been helpful in effecting the administration of the firm; that the administrators had received a number of enquiries and complaints from former clients of WBL; and that the client account of WBL appeared to have a shortfall of almost GBP 240,000. 15. The Report formed the basis of a case-note submitted to the SRA’s Panel of Adjudicators. The case-note identified a number of breaches of the Rules and the Code in respect of WBL and recommended that the SRA exercise its powers of intervention in respect of WBL and any other firm or recognised body of which the applicant or PW were members, directors, managers or owners in order to protect the interests of the clients and former clients of WBL. The case-note indicated that due to the urgency of the matter no explanation had been sought from the applicant or PW. 16. On 7 December 2009 the Panel resolved to exercise its powers in accordance with the recommendations made in the case-note. As a result the accounts of both WBL and CGL were frozen and the applicant’s practising certificate was automatically suspended, leaving him unable to practise. Control of CGL passed to a nominated agent appointed by the SRA to manage the firm. The case was referred to the Solicitor’s Disciplinary Tribunal (“the Tribunal”). 17. The applicant was notified of the intervention by fax on the same day. The notice indicated the terms of the Panel’s resolution but the applicant was not provided with a copy of the Report or the case-note. In the course of a telephone call with the SRA on 7 December 2009 and a meeting on 8 December 2009 the applicant was informed that under paragraph 6(4) of Schedule 1 to the Solicitors’ Act 1974 (“the 1974 Act”) he was entitled to apply to the High Court within eight days of the service of the notice for an order directing its withdrawal. 18. On 17 December 2009 the SRA disclosed the Report to the applicant and requested his explanation of the issues identified within it. 19. The applicant subsequently applied to the SRA for his practising certificate to be reinstated. On 4 January 2010 it was restored subject to a number of restrictive conditions. However, CGL remained under the control of the SRA’s nominated agents and was eventually placed into administration on 16 April 2010. The applicant was unable to obtain alternative employment as a solicitor due to the outstanding disciplinary proceedings against him. 20. The professional disciplinary proceedings against the applicant came before the Tribunal on 13 December 2010. The Tribunal found that there had been breaches of the Code and the Rules in respect of both WBL and CGL but it did not find that the applicant had been dishonest or reckless. It ordered that the applicant be suspended from practice as a solicitor for a period of six months commencing on 13 December 2010 and recommended to the SRA that following the end of the suspension period he should only practise in approved employment. 21. On 6 December 2010 the applicant had issued a claim for damages against the SRA in the High Court under the Human Rights Act 1998 (“HRA 1998”). In respect of the applicant’s Convention rights, the particulars of claim asserted that his Article 6 § 1 rights had been breached by the provision of the eight-day limitation period, which precluded effective access to the courts; that as a consequence, he had been deprived of his property rights in CGL, in breach of Article 1 of Protocol No. 1; and that he was entitled to damages for the loss of an opportunity to challenge the intervention. He further complained that the intervention had been contrary to section 28 of the Legal Services Act 2007. 22. At a hearing on 8 September 2011 the claims concerning the Legal Services Act 2007 were struck out by consent. This left a single issue for determination by the High Court; namely, whether the eight-day time-limit contained in paragraph 6(4) of Schedule 1 to the Solicitors Act 1974 was incompatible with the applicant’s human rights. 23. The SRA applied to strike out the applicant’s claim and/or for summary judgment to be entered in its favour. 24. On 13 April 2012 the applicant applied for permission to amend his particulars of claim to assert, inter alia, that there had been a breach of the principle of natural justice, a breach of the rule of law and misfeasance in public office. He also sought to reintroduce a claim for breach of statutory duty. In respect of his Convention complaints, the amended particulars of claim averred that even if the intervention regime was in general compatible with the HRA 1998, the manner in which it was operated by the SRA – and in particular the process which led to the decision to intervene in CGL – had breached his Convention rights on the specific facts of his case. 25. Both applications came before Mrs Justice Sharp on 19 April 2012. She identified three reasons why the claim in relation to the statutory timelimit was hopeless and doomed to failure. First of all, the domestic courts had established that the statutory scheme for intervention was compatible with the Convention (see, for example, the decision of the Court of Appeal in Holder v. The Law Society [2003] 1 WLR 1059, Sheikh v. the Law Society [2006] EWCA (Civ) 1577 and Adams v. The Law Society [2012] EWHC 980 (QB)). Secondly, as the eight-day time-limit was prescribed by statute and not by The Law Society, the SRA could not be held liable for damages or for any breaches of the applicant’s human rights that might result from it. Thirdly, the applicant’s claim was academic since he had not sought to challenge the intervention within any other period which he himself considered reasonable but instead had waited twelve months before bringing a claim by a different and inappropriate procedure (the claim under the HRA 1998). 26. The judge noted that all other matters complained of were matters which “could and should have been dealt with by a challenge to the intervention via the statutory procedure and within the time-limit laid down by Parliament (and in the course of which disclosure would have been provided of the documents Mr Gadd has since been given or asked for)”. As such, his claim was “a collateral challenge to the intervention process by other means” and an attempt “to circumvent the statutory limitation on the right of challenge”. It was not open to the applicant to do this and, in the circumstances, his attempt to do so was an abuse of the process. 27. In conclusion, the judge noted that the applicant had been well aware of the eight-day time-limit, and there was “no evidence at all” that he had lacked sufficient resources to challenge the intervention when all that would have been required in the first instance was the court fee to issue a claim. Had he been genuinely unable to pay the fee it would have been open to him to apply to the SRA’s nominated agent for the release of some of CGL’s frozen practice money to use for that purpose. 28. With regard to the application to amend the grounds of appeal, the judge found that the claim for breach of statutory duty was misconceived; the common law principles of natural justice did not apply to the intervention process and, in any case, any procedural unfairness in the process leading to the intervention could have been raised in a statutory challenge to the intervention; the newly advanced claim for breaches of his human rights was only notified to the SRA in April 2012, and the limitation period for bringing such a claim had been one year from the date of the alleged breach; a “ breach of the rule of law” was not a pleading known to English law, but insofar as he was claiming that The Law Society acted ultra vires, such a challenge could have been made under the statutory procedure; and finally, the claim for misfeasance in public office was not maintainable in the circumstances. 29. Having found that the applicant’s claim had no real prospect of success, the judge refused the application for permission to amend the particulars of claim and ordered summary judgment to be entered in favour of the SRA. 30. On 10 May 2012 the applicant applied for permission to appeal the judge’s order on the ground that it was arguable that at least in exceptional cases a challenge to an intervention could be brought outside the eight-day time-limit, and the present case was exceptional on account of his impecuniosity and the fact that he had not been provided with reasons for the intervention until 21 December 2009. Permission was refused on the papers. The application was then renewed orally before the Court of Appeal on 6 June 2013 but permission to appeal was again refused. 31. In refusing permission to appeal, the Court of Appeal found that even if it were to assume that the eight-day time limit could be read down to allow for out-of-time applications in exceptional cases, this was not an exceptional case. First, impecuniosity was not a justifiable basis for not having brought a statutory challenge in time. The proceedings in the present case were not especially complex and the applicant was a solicitor who should have been well able to deal with the allegations against him. It was therefore not arguably necessary that he should have been provided with legal assistance. Secondly, although it was “difficult to understand” why the Report and the case-note had not been disclosed to the applicant prior to the expiry of the eight-day time limit, and there was some merit in the contention that it may have been difficult for him to have pursued proceedings without the Report, on the facts of the case the court did not consider this to be a ground for reading down the eight-day time limit. In particular, it noted that the basis of the applicant’s complaint was essentially that he had acted in good faith and co-operated with the authorities in relation to the wind-up of WBL, and those were matters which had been known to him when he received the original notice of intervention. Furthermore, even if some departure from the eight-day period was justified by reference to Convention principles, it had plainly been critical for the applicant to have acted very speedily thereafter. However, while he did take steps to get himself put back on to the register so that he could practice as a solicitor, he had taken no steps in relation to the intervention for twelve months. There was no reasonable prospect for saying that the time-limit should be read down so as to allow a challenge so long after the expiry of that period. 32. The Law Society is the governing body of the solicitors’ profession. It has a regulatory function and regulatory powers under the Solicitor’s Act 1974 (“the 1974 Act”), which it exercises through the SRA. Under section 35 of the 1974 Act, The Law Society is given the power to intervene in a solicitor’s practice in circumstances specified in Part I of Schedule 1 to the 1974 Act by exercising any or all of the powers set out in Part II of Schedule 1. 33. Paragraph 1(1) of Part I to Schedule 1 provides that The Law Society may exercise its right of intervention where, inter alia, it has reason to suspect dishonesty on the part of a solicitor in connection with that solicitor’s practice or in connection with any trust of which that solicitor is or formerly was a trustee; where it is satisfied that a solicitor has failed to comply with rules as to professional practice, conduct and discipline; and where it is satisfied that it is necessary to protect the interests of clients (or former or potential clients) of the solicitor or his firm. 34. Part II of Schedule 1 sets out the powers available to The Law Society upon intervention. Under paragraph 6, The Law Society has the power to take control of the practice’s accounts. 35. Finally, section 15 of the 1974 Act provides for the suspension of the solicitor’s practising certificate in the event of an intervention. 36. The 1974 Act allows an intervened-upon solicitor to apply to the High Court to request the withdrawal of an intervention. Under paragraph 6(4) of Schedule 1, a decision to take possession of the practice monies can be challenged within eight days of the service of the notice by application to the High Court for an order directing The Law Society to withdraw the notice, with not less than forty-eight hours’ notice to The Law Society. Paragraph 6(5) provides that upon an application under paragraph 6(4) the High Court may make such an order as it thinks fit. 37. Section 3 (1) of the HRA 1998 requires, so far as possible, that primary legislation and subordinate legislation be read and given effect in a way that is compatible with Convention rights. 38. Section 7(1) of the HRA 1998 further provides that a person who claims to be a victim of an unlawful act by a public authority may either bring proceedings against the authority under that Act in the appropriate court or tribunal, or rely on the Convention rights concerned in any legal proceedings. Subject to any rule imposing a stricter time limit in relation to the procedure in question, proceedings brought under the HRA 1998 should be brought within the period of one year beginning with the date on which the act complained of took place, or such longer period as the court or tribunal considers equitable having regard to all the circumstances. 39. Under section 16(3), a solicitor may, at any time before the expiry of his practising certificate, apply to The Law Society to have the suspension of the certificate terminated. Under section 16(4), upon receipt of an application The Law Society may terminate the suspension either unconditionally or subject to such conditions as it may think fit. 40. If The Law Society refuses the application or terminates the suspension subject to conditions, the solicitor may appeal against that decision. 41. In Holder v. Law Society [2003] 1 WLR 1059 ,[2003] EWCA Civ 39 the Court of Appeal accepted that an intervention under the 1974 Act gave rise to an interference with a solicitor’s right to peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 to the Convention. However, having regard to issues of proportionality and the margin of appreciation it concluded that both the legislation itself and the approach taken by The Law Society had struck the fair balance required by Article 1 of Protocol No. 1. 42. Sir Christopher Staughton, who agreed with the leading judgment of Lord Justice Carnwath, observed: “38. In the exercise of its powers of intervention the Law Society must of course comply with the Human Rights Convention. I can imagine circumstances where the Law Society might be found not to have complied with the Convention, or with the Human Rights Act 1998. After all, a solicitor whose practice is the object of an intervention loses his practising certificate, and in all probability his livelihood as well. The provisions for bringing an intervention to an end are very unlikely to restore the solicitor’s goodwill and his prosperity. If it comes about that the intervention was mistaken or unjustified, there is a risk that the solicitor will suffer a substantial loss without recourse to any remedy. In practice this may never happen; but it is a cause for concern. However, not in this case.” 43. In Sheikh v. Law Society [2007] 3 All ER 183, [2006] EWCA Civ 1577 Chadwick LJ, at the end of his leading judgment, made further obiter comments regarding the summary process for bringing a statutory challenge to an intervention and its compliance with claimants’ Convention rights of in light of the decision in Holder: “110... In Holder v Law Society [2003] EWCA Civ 39, [2003] 1 WLR 1059, this Court considered – and rejected – an argument that the procedure for which Parliament had made provision was incompatible with the solicitor’s Convention rights. It rejected that argument (inter alia) on the basis that the court’s power to consider whether a fair balance has been struck between the demands of the general interest of the community and the protection of the individual’s fundamental rights met the requirements of Article 1 of the First Protocol. But it is clear that, unless the matter can be determined by the court within a short time of the intervention, the solicitor is likely to be denied an effective remedy. That is because the consequences of intervention – if the intervention continues for more than a short time – are likely to be irreversible. The solicitor’s clients will have to take their affairs elsewhere; the staff will have found other employment; and the practice will be destroyed in any event. 111. There is an obvious tension between the need to have an application to the court determined speedily and the need for the court to give full and fair consideration to the task which it has been set under the 1974 Act and, now, the Human Rights Act 1998. This case illustrates the need for the Society to give thought as to how that tension can be resolved... 112...The Society should, I think, give thought to the need for Panel resolutions to identify, with much more specificity than in this case, the reasons which (in the Panel’s view) make intervention necessary. If those reasons are not identified at an early stage, there is a danger that the solicitor will be denied the effective protection which Parliament plainly intended a summary process to provide. 113. There will, of course, be many cases in which the solicitor who has suffered intervention will be in no doubt as to the Society’s concerns. And, as I have said, there will be cases where the solicitor wishes to challenge the validity of the resolution on public law grounds. But, in cases where, although the solicitor knows what material was before the Panel, there is genuine doubt as to the matters which the Society regards as sufficiently serious to justify intervention, it seems to me that the court should be ready to assist – on an early application for directions following the issue of an application under the schedule 1 procedure – by requiring the Society to state the grounds upon which (on the material then known to it) the application will be resisted. Such a statement would enable the solicitor to address the Society’s concerns in a focused response. And, in the light of that response, the Society can explain to the court why it takes the view (if it does) that the concerns have not been met. 114. I appreciate that the process suggested in the previous paragraph may require the court to adopt a more pro-active role on applications under schedule 1 to the 1974 Act than hitherto; and that the need for an early determination of such applications will place demands on the court’s resources which it may be difficult to meet. But, as it seems to me, the court will be ready to meet those demands in order to ensure that the solicitor does obtain the effective protection which the Convention requires and which the 1974 Act was plainly intended to provide.” | 0 |
test | 001-163463 | ENG | UKR | ADMISSIBILITY | 2,016 | GROMADA UKRAYINSKOYI GREKO-KATOLYTSKOYI TSERKVY SELA KORSHIV v. UKRAINE | 4 | Inadmissible | Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 1. The applicant, Gromada Ukrayinskoyi Greko-Katolytskoyi Tserkvy Sela Korshiv, is a Ukrainian religious community registered in the village of Korshiv. They were represented before the Court by Mr Fedir Boychuk. 2. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1843 the local community of the Ukrainian Greek Catholic Church in the villages of Korshiv (Ivano-Frankivsk Region) built a church to the Holy Virgin Mary’s Assumption. In 1946, after the relevant territory had been joined to the USSR, the community of the Ukrainian Greek Catholic Church formally became a part of the Russian Orthodox Church. The church of the Assumption was nationalised and transferred to the Russian Orthodox Church for religious purposes. 5. In 1991 part of the former Russian Orthodox Church community members decided to create a community of the Ukrainian Greek Catholic Church (the applicant) and another part decided to join the Ukrainian Autocephalous Orthodox Church. The church of the Assumption remained municipal property, managed by the Regional State Administration. On 5 March 1991 the newly created Ukrainian Autocephalous Orthodox Church community entered into an agreement on the use of church premises with the Korshiv District Municipal Council. 6. On 15 October 1991 the Ivano-Frankivsk Regional Council decided that the Ukrainian Autocephalous Orthodox Church and the Ukrainian Greek Catholic Church communities in Korshiv could use the church jointly. They had to agree on the details of the agreement. The applicant stated that the Ukrainian Autocephalous Orthodox Church did not agree to use the church jointly and prevented the applicant from having its religious ceremonies in the church. 7. On 20 June and 2 August 2000 and on 16 May 2001 the applicant applied to the IvanoFrankivsk Regional State Administration, seeking to be declared owner of the church of the Assumption. Having received no answer the applicant brought civil proceedings against the State Administration. 8. On 12 February 2002 the Kyiv City Commercial Court (the “Kyiv Court”) allowed the applicant’s claim and declared it owner of the church. The Ukrainian Autocephalous Orthodox Church appealed. 9. On 13 August 2002 the Higher Commercial Court quashed the judgment on the ground that the Ukrainian Autocephalous Orthodox Church had not been informed about the proceedings. The case was remitted for examination to the Kyiv Court. 10. In the course of the new examination, the applicant brought additional claims seeking to annul the agreement of 5 March 1991 concluded by the Council and the Ukrainian Autocephalous Orthodox Church (see paragraph 5 above). The court refused to entertain this action, indicating that the applicant was free to institute separate new proceedings concerning the agreement of 5 March 1991. 11. On 22 January 2003 the Kyiv Court found against the applicant, stating that transfer of the church to the applicant would lead to an infringement of the rights of the Ukrainian Autocephalous Orthodox Church community. On 6 May 2003 the Kyiv Commercial Court of Appeal upheld this judgment. On 15 July 2003 the Higher Commercial Court rejected the applicant’s appeal in cassation. On 13 November 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation. 12. The relevant domestic law and practice with regard to the activities of religious associations is summarized in Svyato-Mykhaylivska Parafiya v. Ukraine (no. 77703/01, 14 June 2007), and Tserkva Sela Sosulivka v. Ukraine (no. 37878/02, §§ 21-32, 28 February 2008). Other relevant domestic regulations and administrative and judicial practice are briefly summarised below. 13. Under section 17 § 2 of the Freedom of Conscience and Religious Organisations Act of 23 April 1991, the State undertook to transfer title to or possession of religious premises and property belonging to the State to religious organisations. The transfer of property had to be done free of charge, on the basis of decisions of the Kyiv and Sevastopol City State Administrations, regional administrations or the Government of the Crimea. 14. The relevant extracts from the text of section 17 of the Act (in force at the material time) read as follows: “Religious organisations shall be entitled to use buildings and property placed at their disposal by the State, by organisations and by private individuals, on a contractual basis. Religious buildings and property which constitute State-owned property shall be transferred by the organisations that administer them to the religious association for their unpaid use or shall be returned into their ownership without payment, in accordance with decisions by the regional, Kyiv and Sevastopol City State Administrations, and in the Republic of the Crimea, by the Government of the Republic of the Crimea ... ... Religious buildings and other property of historical, artistic and other cultural value shall be transferred into the use ... of the religious organisations and shall be used by them in compliance with the rules on protection and use of historical and cultural monuments ... ... Requests made by religious organisations for transfer of religious buildings and property into ownership or unpaid use shall be considered within a period of one month, and information in writing sent to the petitioners. ... Decisions by the State bodies with regard to ownership or use of religious buildings and property may be appealed against to a court in compliance with the procedure envisaged by the Code of Civil Procedure ...” 15. The relevant extracts from the Resolution of the Verkhovna Rada (Parliament) of Ukraine “On the Procedure for Entry into Force of the Freedom of Conscience and Religious Organisations Act”, as amended on 23 December 1993, read as follows: “... 6. The Cabinet of Ministers of Ukraine, the Government of the Crimea and the regional, Kyiv and Sevastopol State Administrations shall ensure in accordance with the Act the return to the ownership of or free use of religious buildings and property by religious groups, taking into account the following: - the rights of the religious organisations which owned these buildings and property when they were nationalised; - the rights of the religious organisations which use these buildings and property in accordance with the procedure established by law; - investments made by the religious organisations in the property, rebuilding of the religious premises and length of use of such premises; - existence in the same residential area of other religious premises and their use by other religious organisations ...; - other important matters in their entirety. The decision of the relevant State body shall be reasoned ...” 16. Under the Presidential Decree of 4 March 1992 “On Measures Relating to the Return of Religious Property to Religious Organisations” it was established that all religious premises and property owned by the State and used “contrary to their mission” should be returned to the religious associations within the period 1992-1993. This period was further extended until 1 December 1997 by a Presidential Executive Order of 22 June 1994. On 21 March 2002 the President issued another decree “On Urgent Measures Relating to the Final Overcoming of the Negative Impact of the Totalitarian Policy of the Former Soviet Union with regard to Religion and on Restoration of the Breached Rights of Churches and Religious Organisations”, in which he recommended that regional bodies of local selfgovernment finalise the transfer of church premises that were being used “contrary to their designation”, and other buildings, to religious organisations. 17. Resolution No. 83 of the Cabinet of Ministers of Ukraine of 5 April 1991 (in force until 5 February 2002) “On the List of Historical Architectural Monuments which shall not be subject to Transfer to Permanent Use by Religious Organisations”, provided that the following cathedrals in Sevastopol were not to be returned to religious organisations: Volodymyrsky Cathedral (XIX century), Petropavlivsky Cathedral and Mykhaylivsky Cathedral (XIX century). 18. By Resolution No. 137 “On the Conditions of Transfer of Religious Premises which are Architectural Monuments to Religious Organisations”, adopted on 14 February 2002 by the Cabinet of Ministers, it was decided that such religious premises could be given to religious organisations for permanent use if the relevant educational institutions, archives or cultural institutions were moved to other premises. 19. On 14 July 1997 the Constitutional Court rejected a request for interpretation of section 17 § 3 of the Act, stating, inter alia, that complaints concerning the use of religious buildings and property were to be examined by courts of general jurisdiction. It also referred to the recommendations of the Presidium of the Higher Commercial (former Arbitration) Court in that regard. 20. On 21 October 1997 the Constitutional Court rejected a request for interpretation of the provisions of section 17 § 2 of the Act, lodged by the Greek-Catholic community “Preobrazhenska”, finding, inter alia, that there was no proof of inconsistent application of its provisions by the domestic courts. 21. According to paragraph 7 of the Practice Recommendation, the religious premises and property that belonged to State property were to be transferred into unpaid use or ownership of the religious organisations on the basis of the decisions taken by the regional, Kyiv and Sevastopol city state administrations and the Government of Crimea. The above-mentioned authorities were under an obligation to return such property, not used for religious purposes, within a period from 1992-1993. The return of property included transfer into unpaid use or ownership. The property could be returned to religious associations, which proved that they had owned the property before nationalisation. Thus, the Recommendation, with reference to Presidential Decree of 22 June 1996, mentioned that the transfer of ownership of the religious premises was one of the measures envisaged by law. Moreover, religious premises or property could be transferred to another religious association if there was no “legal successor” (правонаступник) religious association found in the vicinity where the religious premises or property were situated. 22. Paragraph 9.3 of the Practice Recommendation provided that property was to be returned to the same religious confessions which had owned the religious buildings before nationalisation (orthodox church to be returned to orthodox community, Roman-catholic church to Roman-catholic community, etc.). Information or written evidence as to the previous ownership of religious premises was to be sought from the parties, State archives, or State Religions Committee (paragraph 9.4 of the Recommendation). Claims for the return of religious premises to their original ownership could be lodged under the provisions of the Property Act with the commercial courts, and the lodging of complaints with the courts of general jurisdiction did not impede the examination of such claims (paragraphs 9.4–9.6 of the Recommendation). 23. Paragraph 9.8 of the Practice Recommendation stated that all property belonging to religious organisations before the entry into force of the Act was deemed to belong to the State and the State was to be regarded as the proper owner of such property. In particular, this ensued from the provisions of Article 366 of the Administrative Code of the Ukrainian Soviet Socialist Republic of 1927. Therefore, in accordance with section 4 of the Property Act, State bodies, which are mentioned in Section 17 of the law, could perform any lawful acts with respect to such property and the courts were to reject any claims against such lawful acts, unless these acts contravened the law. | 0 |
test | 001-178509 | ENG | TUR | COMMITTEE | 2,017 | CASE OF ÜNAL AND OTHERS v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing) | Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström | 4. The applicants were cadets in military schools. Based on classified investigation reports, they were expelled from their schools. None of the applicants had access to these classified reports. They all filed actions against the Ministry of Defence with the Supreme Military Administrative Court to have annulment of the impugned decisions. 5. Relying on the classified investigation reports, the Supreme Military Administrative Court rejected the applicants’ requests and their subsequent requests for rectification on different dates shown in detail in the attached list. | 1 |
test | 001-150786 | ENG | HRV | CHAMBER | 2,015 | CASE OF ČIKANOVIĆ v. CROATIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1952 and lives in Vukovar. 6. The applicant worked for the Borovo Municipality until 16 January 1991, when he was made redundant. 7. On 28 March 1991 the applicant brought a civil action against the Borovo Municipality in the Vukovar Municipal Court (Općinski sud u Vukovaru), seeking reinstatement and salary arrears. 8. By a partial judgment (djelomična presuda) of 15 October 1996, the Vukovar Municipal Court annulled the decision on the applicant’s dismissal as unlawful and ordered his reinstatement within eight days of the judgment becoming final. At the same time, the court decided to wait until the partial judgment became final before examining the applicant’s claim for salary arrears. The relevant part of the partial judgment in question reads as follows: “The decision of the defendant, the Borovo Municipality, ... of 16 January 1991 on the termination of the plaintiff’s [the applicant’s] employment is hereby annulled, ... the defendant, the Borovo Municipality, is ordered to reinstate the plaintiff in his post ... and to acknowledge his employment-related rights ..., and to do so within eight days of this judgment becoming final ... On the remaining part of the claim and the [claim for] costs and expenses [the court] shall decide by a definitive [i.e. later] judgment.” The judgment was served on the applicant’s representative on the same day, and on the defendant on 13 November 1996. 9. On 5 December 1996 the defendant, represented by the Zagreb State Attorney’s Office, appealed against the partial judgment. The applicant received a copy of that appeal on 27 January 1997. 10. In the meantime, after having submitted several written requests for reinstatement to the Borovo Municipality without success, on 17 December 1996 the applicant wrote to the President of the Vukovar County Court (Županijski sud u Vukovaru) seeking help in that regard. In particular, he submitted that on 26 November and 16 December 1996 he had requested the Vukovar Municipal Court to certify that its partial judgment had become final (see paragraph 8 above) by adding a stamped endorsement to that effect (klauzula pravomoćnosti – “certificate of finality”). He alleged that his requests had been refused orally with the explanation that the defendant’s appeal of 5 December 1996 had prevented the judgment from becoming final. 11. On 6 February 1997 the applicant lodged a response to the defendant’s appeal, arguing, inter alia, that the Vukovar Municipal Court should declare the appeal inadmissible as it had been lodged out of time. 12. By a decision of 28 March 1997 the Vukovar Municipal Court declared the defendant’s appeal inadmissible as having been lodged outside the statutory time-limit, finding that the last day for lodging the appeal had been 28 November 1996. The defendant appealed against that decision. 13. On 30 September 1997 the applicant took early retirement on grounds of disability. 14. By a decision of 2 July 1998 the Vukovar County Court dismissed the defendant’s appeal against the Vukovar Municipal Court’s decision of 28 March 1997 (see paragraph 12 above). 15. On 13 October 1998 the Vukovar Municipal Court stamped the applicant’s copy of its partial judgment of 1996 (see paragraph 8 above) to indicate that it had become final. The stamp indicated that the partial judgment had become final on 29 November 1996. 16. In the resumed proceedings concerning the salary arrears (see paragraph 8 above), by a judgment of 28 April 2004 the Vukovar Municipal Court found for the applicant and ordered the defendant to pay him salary arrears for the period between 1 March 1991 and 1 October 1997, that is, 110,226.19 Croatian kunas (HRK) in total, together with the accrued statutory default interest. 17. However, following an appeal by the defendant, on 16 June 2004 the Vukovar County Court reversed the first-instance judgment, dismissing the applicant’s action in its entirety. That court noted, inter alia, that under section 238 of the Enforcement Act (see paragraph 30 below) an employee could apply for the enforcement of a judgment ordering his reinstatement within thirty days of its becoming final. The partial judgment (see paragraph 8 above) had become final on 29 November 1996 (see paragraph 15 above and paragraph 27 below) but the applicant had never applied for its enforcement, and he should have done so by 29 December 1996. The County Court therefore held that the applicant had not only lost the right to seek reinstatement but consequently also the right to receive salary arrears. 18. On 23 July 2004 the applicant lodged an appeal on points of law (revizija) against the second-instance judgment. He argued that he could not possibly have applied for enforcement of the partial judgment (see paragraph 8 above) by 29 December 1996 because at that time the defendant’s appeal of 5 December 1996 (see paragraph 9 above) against the partial judgment had still been pending and he had consequently been unaware that the partial judgment had become final. That the partial judgment had actually become final on 29 November 1996 had become apparent to him only on 13 October 1998, when it had been confirmed by the stamped endorsement of the Vukovar Municipal Court. However, since he had retired on 30 September 1997 (see paragraph 13 above), he had not been able to apply for enforcement of the partial judgment and seek reinstatement. 19. On 8 December 2004 the Supreme Court (Vrhovni sud Republike Hrvatske) quashed the second-instance judgment in part and upheld it in part. In particular, it quashed the second-instance judgment in the part dismissing the applicant’s claim for salary arrears for the period between 1 March 1991 and 29 December 1996 (that is, for HRK 76,477.7, together with the accrued statutory default interest) and in that part remitted the case to the first-instance court. However, it upheld the second-instance judgment in the part dismissing the applicant’s claim for salary arrears for the period between 29 December 1996 and 1 October 1997 (that is, for HRK 33,748.42, together with the accrued statutory default interest). The relevant part of that judgment reads as follows: “In dismissing the plaintiff’s claim for payment of salary arrears for the period between 1 March 1991 and 29 December 1996 [the County Court] misapplied the substantive law. In the proceedings it was established that the defendant’s decision on the termination of the plaintiff’s employment ... had been annulled by the final partial judgment of the Vukovar Municipal Court of 15 October 1996, [whereby] the defendant had [also] been ordered to reinstate the plaintiff ... It was [further] established that the [partial] judgment in question had become final on 29 November 1996, and that the plaintiff had not instituted enforcement proceedings for reinstatement within the thirty-day time-limit laid down in section 238 of the Enforcement Act. Given that the [partial] judgment in question is final, the plaintiff is entitled to the rights he would have acquired had the annulled decision never been rendered. Therefore, the defendant has to pay the plaintiff the salary arrears ... as if the unlawful decision on dismissal had never existed. ... Since the lower courts erred in law, the factual background was not properly established. The appeal on points of law is therefore allowed [in part] and the impugned judgment quashed in the part whereby the plaintiff’s claim for salary arrears for the period between 1 March 1991 and 29 December 1996 was dismissed. In that part the case is remitted to the first-instance court. ... As regards the [part of the contested] judgment whereby the plaintiff’s claim for salary arrears for the period after 29 December 1996 was dismissed, it is to be noted that the lower courts correctly applied the substantive law in dismissing the plaintiff’s claim as unfounded. In particular, the plaintiff failed to institute enforcement proceedings for reinstatement within the strict thirty-day time-limit set forth in section 238 of the Enforcement Act ... It follows that the plaintiff did not work from 29 December 1996 onwards owing to his own omission. He is therefore not entitled to salary arrears for that period. For these reasons the appeal on points of law has to be dismissed ... in so far as it contests that part of the impugned judgment ...” 20. On 8 December 2004 the applicant lodged a constitutional complaint against the Supreme Court’s judgment, alleging a violation of his constitutional right to a fair hearing. In so doing he repeated the argument raised in his appeal on points of law. 21. On 20 November 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint, serving its decision on the applicant’s representative on 29 November 2006. The relevant part of that decision reads as follows: “... The constitutional complaint is unfounded. ... As regards the complainant’s argument that he could not have obtained a certificate of finality and thus observed [the statutory time-limit laid down in] section 238 of the Enforcement Act, the Constitutional Court finds ... ... that this [argument] cannot be raised for the first time in a constitutional complaint. Rather, it should have been raised in proceedings before the ordinary courts. Moreover, the complainant’s submissions suggest that he never instituted enforcement proceedings for reinstatement, but only unsuccessfully contacted the defendant on several occasions requesting to be returned to work. The complainant therefore lost the right to salary arrears from 29 December 1996 onwards owing to his own failure to undertake the procedural steps required by section 238 of the Enforcement Act ...” 22. Meanwhile, in the resumed proceedings following the part of the Supreme Court’s decision of 8 December 2004 remitting the case (see paragraph 19 above), by a judgment of 27 January 2006 the Vukovar Municipal Court ordered the Borovo Municipality to pay the applicant salary arrears for the period between 1 March 1991 and 29 December 1996. 23. By a judgment of 13 July 2007 the Vukovar County Court dismissed an appeal by the defendant and upheld the first-instance judgment. | 1 |
test | 001-161047 | ENG | RUS | CHAMBER | 2,016 | CASE OF ALEKSANDR ANDREYEV v. RUSSIA | 3 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1987 and lives in Orsk, the Orenburg region. 6. The applicant received a summons from investigator K. to attend office no. 44 at the Sovetskiy district police department of the town of Orsk (отдел внутренних дел Советского района г. Орска) at 11 a.m. on 15 February 2005. The summons contained no further details. At 11 a.m. on 15 February 2005 the applicant, who was 17 years old at the time, arrived at the police station, as requested, together with his father and his friend Ms L. A police officer on duty registered their arrival at the police station. Investigator K. was absent and the applicant was asked to wait. Police officer M. took the applicant to his office. 7. At some point the applicant’s father was asked to participate in an investigative measure. When this was finished he could not locate the applicant at the police station. He and Ms L. were requested by police officer M. to leave the building. They remained outside near the main entrance waiting for the applicant. At some point they were told that the applicant was no longer in the police station. They left at about 7 p.m. As the applicant did not appear at home his parents enquired about his whereabouts at the Sovetskiy district police department, by telephone and in person. After many unsuccessful attempts they were finally told that the applicant had gone to police station no. 2 together with police officer Sh. and that he had stayed there until 8 p.m. 8. According to the applicant, police officer Sh. took him to an experts’ room where he was photographed and fingerprinted. Then, shortly after 3 p.m., Sh. led him out of the police station from a back door in the experts’ room and took him to Orsk police department no. 2 in a police car for questioning. According to the police station logbook, the applicant left the Sovetskiy district police station at 3.20 p.m. on 15 February 2005. 9. The applicant provided the following account of events at police department no. 2. The head of the police department, P., and police officer E. interviewed him about his alleged involvement in thefts from certain shops. The applicant denied involvement in the thefts. E. shackled the applicant’s hands behind his back, told him “to sit on the floor with his legs crossed in front of him”, tied his legs with a rope, “threw the rope across the neck to the back”, “hung it on a chair and pulled it”. The applicant felt severe pain in his back. 10. At some point operative police officer K. came in and interviewed the applicant. When P. and E. both came out K. untied the applicant’s legs and demanded that the applicant write a statement of “surrender and confession”. The applicant maintained his refusal. K. opened the door and called E. The applicant “understood that he would be tortured again”. He ran up and hit his head against the glass door of a bookcase. The glass broke and the applicant received cuts on his face above the left eyebrow and on his head. 11. Then E. tied the applicant’s hands and legs behind his back, passed a metal bar under the rope and hung him on the bar, the ends of which were put on the table and the back of a chair. The applicant had been hanging in that position for about eight minutes when somebody took the bar off and asked E. to untie the applicant. E. refused. 12. At some point E. came out and the applicant was untied and the handcuffs were removed from him. K. demanded again that the applicant write a statement of “surrender and confession”. The applicant started writing the statement as requested. P. came in together with lawyer S. who offered his services as counsel for the applicant’s defence. The applicant refused because he wished to be represented by a lawyer of his own choice. 13. Reluctant to continue writing the confession statement, the applicant was taken by E., who was allegedly drunk, to his office. An ambulance, which had been called after the incident with the broken glass, arrived and the applicant was examined by the ambulance medical assistant, who provided him with first aid and left. 14. Thereafter the applicant was questioned by two police officers, who were also drunk. One of them hit the applicant several times on both ears simultaneously with the palms of his hands. The other police officer punched him in the head. 15. Then E. tied the applicant up and hung him on the bar again. The applicant saw blood dripping from his head to the floor. 16. Police officer B. untied the applicant and demanded that he finish writing the statement of “surrender and confession”. The applicant did so and was allowed by P. to leave. The applicant went home, which was about three kilometres away, on foot. 17. At about 9.40 p.m. the applicant arrived home. At 11.05 p.m. he was hospitalised. According to the medical records of town hospital no. 2, where he stayed for in-patient treatment until 4 March 2005, at the time of his admission the applicant was complaining of headache, nausea, vomiting and giddiness. He explained that he had been beaten up by police officers three hours previously. He had an abrasion up to 2 cm long over the left eyebrow and bruises on his scalp. He was diagnosed with an abrasion on the left superciliary arch, contusions of the soft tissues of the head and concussion. 18. The evidence in the case file indicates that police officer E. drew up a record of the applicant’s being “conveyed” (доставление) to the police station. According to that record, at 7 p.m. on 15 February 2005 the applicant was brought to the police station “for examination” (разбирательство) and searched in the presence of attesting witnesses V. and Sh. It was stated in the record, which was signed by police officer E., the two attesting witnesses and the applicant, that the applicant, a “violator”, had been informed of the rights and obligations of a person against whom administrative proceedings were initiated. The record contained no further details. 19. On 15 February 2005 the Orsk police department was alerted by the town hospital that the applicant had been taken to hospital with injuries allegedly inflicted by police officers. 20. On 17 February 2005 the Orsk Sovetskiy district prosecutor’s office received information about the applicant’s alleged ill-treatment by police officers. 21. On 21 February 2005 the applicant’s father complained to the Sovetskiy district prosecutor’s office that the applicant had been the victim of police officers’ unlawful actions. On 4 March 2005 he lodged a similar complaint with the Orenburg regional prosecutor’s office. 22. The Sovetskiy district prosecutor’s office carried out a preliminary inquiry. Its investigator B. received explanations from a number of persons, including the following persons. 23. On 18 February 2005 lawyer S. stated that on 15 February 2005, some time after 7.20 p.m. [the head of the police department] P. had asked him to be present at an investigative measure as counsel for the defence of the applicant, who was suspected of having committed a crime. S. had seen coagulated blood on the applicant’s eyebrow and on his head. S. had asked the operative officers to leave the office and asked the applicant about the origin of his injuries. The applicant had explained that he himself had hit his head against a bookcase. S. had offered his services as counsel for his defence. The applicant refused, as he wanted lawyer Z. to defend him. 24. On 22 February 2005 police officer E. stated that he had left work at 6.50 p.m. on 15 February 2005. At a bus stop he had seen the applicant who had been suspected of having committed thefts from two shops. E. had taken the applicant to the police station, where he had invited two attesting witnesses so that a record could be drawn up about the applicant’s being conveyed to the police station and searched. In the presence of the attesting witnesses the applicant had jumped from his chair and hit his head against the glass door of a bookcase. The glass had broken and the applicant had received cuts on his eyebrow and head. E. had provided the applicant with first aid, had drawn up the record of his being conveyed to the police station, and had transferred him to operative officer K. Some twenty minutes later K. had brought the applicant back, as the applicant was complaining of feeling unwell. E. had called an ambulance. The ambulance staff had provided the applicant with first aid. E. denied any use of force or psychological pressure in relation to the applicant. 25. On 22 February 2005 the head of the police department P. stated that at 7-7.30 p.m. on 15 February 2005 he had been informed that the applicant had been brought to the police station on suspicion of having committed a theft. P. gave statements similar to those by E. about the applicant hitting the bookcase with his head. According to P., the applicant had stayed at the police station for one hour and had left at about 8 p.m. None of his subordinates had committed any unlawful actions in relation to the applicant. 26. On 24 February 2005 attesting witnesses V. and Sh. stated that at about 7 p.m. they had been invited to be present as attesting witnesses at the applicant’s search. After being searched the applicant had jumped to his feet, run up and hit his head against a bookcase. The glass of the bookcase had broken and the applicant had cut his eyebrow. Two police officers had been present during the incident. 27. On 3 March 2005 police officer Sh. stated that on 15 February 2005 at the Sovetskiy district police station he had taken the applicant to the experts’ room, where the applicant had been fingerprinted and photographed, and then to the exit. Sh. denied having taken the applicant to police station no. 2. 28. On 5 March 2005 operative officer K. stated that the police had had information, notably explanations by an eyewitness to a theft at a certain shop, that the applicant could have been involved in the theft. K. had interviewed the applicant, who had been known to the police on account of thefts previously committed by him, at about 7 p.m. on 15 February 2005, after the incident with the broken glass. The applicant had confessed to the theft and had written a statement. After that E. had called the ambulance as the applicant was complaining of a headache. K. denied any use of force in relation to the applicant. 29. On 11 March 2005 investigator G. stated that she had requested that the applicant be summoned to the police station for an identity parade in a criminal case concerning assault and battery. On 15 February 2005 she had carried out the identity parade with the participation of the applicant’s father. As the applicant’s lawyer had not appeared she had cancelled the identity parade in which the applicant was to have participated. The applicant had left her office together with police officer Sh. 30. Expert M. stated that in the afternoon of 15 February 2005 police officer Sh. had brought the applicant to the experts’ room. The applicant had been fingerprinted and photographed. M. confirmed that there was another exit from the building through the experts’ room. He stated, however, that Sh. and the applicant had left through another, “normal” door, through which they had arrived. 31. The applicant gave a description of his alleged ill-treatment (see paragraphs 9-16 above). He stated that he had hit his head against the bookcase in order to stop the ill-treatment. He also stated that police officer E. had threatened to kill him if he told the ambulance staff about the illtreatment. When left with lawyer S. in private he had told him about the illtreatment and forced confession. 32. The applicant’s father and Ms L. gave statements about their visit to the police station on 15 February 2005 (see paragraphs 6 and 7 above). 33. On 14 March 2005 investigator B. ordered a forensic medical examination of the applicant, which was carried out by expert B. on 17 March 2005. The expert was requested to determine the degree of harm to the health of the applicant, who had allegedly been beaten up by police officers on 15 February 2005. The applicant complained of recurring headaches. He had a scar over the left eyebrow. Expert B. also examined his medical records from the town hospital (see paragraph 17 above). In his report no. 892 the expert concluded that the applicant’s injuries, notably the concussion, the wound over the left eyebrow and the bruises on the scalp, had been inflicted by hard blunt objects shortly before he was hospitalised. The injuries were qualified as light damage to health as they had caused short-term health disorder. 34. On 17 March 2005 investigator B. ordered that by virtue of Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”) no criminal proceedings were to be instituted in respect of the applicant’s complaint, in view of the absence of constituent elements of a crime under Article 286 of the Criminal Code (abuse of power) in the acts of police officers Sh. (as well as under Article 301 of the Criminal Code, unlawful arrest or detention), P., K., E. (also under Article 302 of the Criminal Code, coercion to obtain statements), and four others. 35. On 21 March 2005 a deputy prosecutor of the Sovetskiy district prosecutor’s office overturned the investigator’s decision, as the inquiry on which it was based was considered incomplete, and ordered an additional inquiry. 36. Investigator B. received the following additional explanations. 37. On 22 March 2005 N., a medical assistant, stated that at 7.30 p.m. an ambulance had been called by police station no. 2. She and G., a junior nurse, had gone to the police station. She had found the applicant in a room with two police officers, who had explained to her that the applicant had hit the glass with his head and broken it. She had examined the applicant, who had cuts over the left eyebrow and on the head. Her examination had not revealed any obvious signs of concussion. The applicant had taken off his clothes. She had not seen any visible injuries on his body. 38. On 23 March 2005 junior nurse G. gave similar explanations. She noted that the applicant had been in a room with two police officers, one of whom had later come out. Then medical assistant N. had examined the applicant. 39. On 23 and 24 March 2005 Ya. and V. stated that in February 2005 they had undergone inpatient treatment at the town hospital and had been in the same ward as the applicant, who had told them that he had been illtreated at the police station. Ya. understood that police officers had handcuffed the applicant and hung him and afterwards hit his head against the wall. According to V., police officers had handcuffed the applicant and hung him, and then either he himself had hit the bookcase with his head or police officers had hit his head against the bookcase. 40. The applicant’s schoolteacher, I., characterised the applicant as sly, deceitful and shifty. 41. Forensic medical expert B. stated that he did not consider it possible to establish reliably how the applicant had received concussion. It could have been the result either of the applicant’s hitting the bookcase with his head or of being punched on the head. 42. On 24 March 2005, on the basis of the results of the inquiry, investigator B. again refused to open a criminal case under Article 24 § 1 (2) of the CCrP, on the grounds that the constituent elements of a crime in the acts of police officers Sh., P., K., E. and four others were absent. As before, the investigator referred to a crime under Article 286 of the Criminal Code (abuse of power), as well as Article 301 of the Criminal Code (unlawful arrest or detention) in relation to Sh., and Article 302 of the Criminal Code (coercion to obtain statements) in relation to P., K. and E.. The investigator found that the applicant had been at the Sovetskiy district police department from 11 a.m. until 3.20 p.m. on 15 February 2005 for an identity parade in a criminal case concerning assault and battery, and that at about 7 p.m. on the same day police officer E. had taken him to police station no. 2 on suspicion of theft. The investigator held that the results of the inquiry had showed that the applicant’s injuries were self-inflicted, as a result of his hitting the bookcase with his head, and that the allegations of ill-treatment by police officers were devoid of any foundation. 43. The applicant’s father appealed against the investigator’s decision of 24 March 2005. He complained, in particular, that the investigator had never held an identity parade in order to identify the two unknown police officers who had delivered blows to the applicant’s head. 44. On 20 May 2005 the Orsk Sovetskiy District Court, sitting in a single-judge formation, heard the applicant’s father, his representative and a deputy prosecutor of the Sovetskiy district prosecutor’s office, and examined the evidence of the inquiry carried out by the investigator. It was satisfied that the inquiry had been comprehensive and thorough, and that the investigator’s assessment of its results had been impartial, reasoned and logical. It dismissed the applicant’s father’s appeal. It noted that an identity parade could only be held once a criminal case had been opened, which was not the case in the present proceedings. 45. The applicant’s father appealed against the District Court’s decision. On 16 June 2005 the Orenburg Regional Court dismissed his appeal and fully endorsed the first-instance court’s findings. It held, inter alia, that the evidence of the inquiry had reliably shown that on 15 February 2005 the applicant had not been arrested as a suspect in a criminal case. | 1 |
test | 001-176002 | ENG | SRB | ADMISSIBILITY | 2,017 | SKENDERI AND OTHERS v. SERBIA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 1. A list of the applicants is set out in the appendix. 2. Mr Halit Muhaxhiri maintained that he was a national of Kosovo, while all other applicants maintained that they were nationals of Serbia. Additional personal details, the dates of introduction of their complaints before the Court, and information regarding their legal counsel, respectively, are also set out in the appendix. 3. The Serbian Government (“the Government”) were initially represented by their former Agent, Ms V. Rodić, who was subsequently substituted by their current Agent, Ms N. Plavšić. 4. Following the intervention of the North Atlantic Treaty Organisation (“NATO”) in June 1999, Kosovo was placed under international administration. 5. On 18 June 2004 the Serbian Ministry for Work, Employment and Social Policy, in response to a prior query, informed Kosovo’s Ombudsman that the pension system in Serbia was based on the concept of “ongoing financing”. Specifically, pensions were secured through current pension insurance contributions. Consequently, as the Serbian authorities had been unable to collect any such contributions in Kosovo since 1999, persons who had received their pensions from the Kosovo Branch Office of the Serbian Pensions and Disability Insurance Fund (“SPDIF”) could not expect to continue receiving them. The Ministry also reminded the Ombudsman that Regulation no. 2001/35 on pensions in Kosovo provided for a separate pension system for persons living in the territory (see paragraph 80 below). 6. The facts, as submitted by the parties, may be summarised as follows. 7. The first applicant was born in 1946 and lives in Novi Pazar. 8. On 9 March 1999, following the death of her husband, the first applicant – together with her daughter Ms Beharka Renda, née Skenderi – was granted a survivor’s pension by the SPDIF Branch Office in Kosovo, with retroactive effect as of 27 November 1998. 9. On 16 October 2002 the first applicant informed the SPDIF that she had moved from Kosovo to Novi Pazar, and sought payment of her pension at her new address. 10. Between 2001 and 2004 the first applicant repeatedly complained to the SPDIF that she had never received any pension payments. 11. In March 2006 the first applicant lodged a civil claim with the First Municipal Court in Belgrade, seeking payment of her accrued pensions with statutory interest and the reinstatement of her entitlement pro futuro. 12. On 8 May 2006 the said court found that it did not have territorial jurisdiction and forwarded the case file to the Second Municipal Court in Belgrade. 13. On 11 September 2006 the Second Municipal Court suspended the proceedings. It explained that the international status of Kosovo was yet to be resolved and that in the meantime the Serbian authorities were unable to collect any pension insurance contributions in that territory. The status of Kosovo was therefore a preliminary question which had to be settled before the first applicant’s claim could be adjudicated. 14. On 17 September 2007 the District Court in Belgrade quashed the Second Municipal Court’s decision of 11 September 2006, holding that the status of Kosovo was not a valid reason to suspend the proceedings. 15. On 13 October 2008 the Second Municipal Court reaffirmed the suspension of the first applicant’s civil case, pending the outcome of her complaints lodged with the SPDIF. It also reiterated that the status of Kosovo was a preliminary issue which had to be resolved first. 16. On 4 March 2009 the District Court quashed that decision, reiterating that the status of Kosovo was not a valid reason to suspend the proceedings in question. 17. On 21 December 2011 the Court of First Instance in Belgrade, which had jurisdiction to deal with the matter following the reorganisation of the Serbian judiciary, ruled against the first applicant. It explained that she had not exhausted the administrative remedies before the SPDIF and had, in any event, failed to properly substantiate her calculation of the accrued pension. 18. On 17 May 2012 the Court of Appeal, which also had jurisdiction to deal with the matter following the above-mentioned reorganisation of the Serbian judiciary, quashed that judgment on the grounds of inadequate reasoning. 19. On 23 November 2012 the Court of First Instance again ruled against the first applicant, this time primarily based on her failure to exhaust administrative remedies before the SPDIF. 20. On 11 July 2013 the Court of Appeal ruled partly in favour of the first applicant (Gž. 2179/13). In so doing, it ordered the SPDIF to pay her the pension arrears between 9 March 2003 and 25 October 2012 with statutory interest, as well as the costs of the proceedings. The court opined that the suspension of payment of the first applicant’s pension had been unlawful from a domestic legal perspective and had also been in breach of Article 1 of Protocol No. 1, as explained by the European Court of Human Rights in its judgment in the case of Grudić v. Serbia (no. 31925/08, 17 April 2012). The first applicant’s claim regarding the payment of her accrued pension between 27 November 1998 and 9 March 2003, however, was rejected based on Article 376 of the Obligations Act, which provided for a three-year prescription period (see paragraph 67 below). Finally, the Court of Appeal dismissed the first applicant’s request for the reinstatement of her pension pro futuro on procedural grounds. 21. As of 23 September 2013 the SPDIF resumed payment of the first applicant’s pension. 22. In the meantime, on 27 May 2010, the first applicant also lodged an appeal with the Serbian Constitutional Court (see paragraph 78 below). However, on 4 November 2010 her appeal was rejected because her representative did not have adequate authorisation. 23. The second applicant was born in 1943 and lives in Tutin. 24. On 3 June 1980, following the death of her husband, the second applicant was granted a survivor’s pension by the SPDIF Branch Office in Kosovo. 25. The second applicant regularly received her pension until January 1999, when the monthly payments stopped without an explanation from the SPDIF. 26. Thereafter, the second applicant repeatedly sought the resumption of her pension payments. Finally, on 6 March 2003 she lodged a formal request with the SPDIF. 27. On 21 March 2005 and 1 June 2006 the second applicant again made requests to the same effect. 28. In the absence of any action on the part of the SPDIF, on 27 December 2006 the second applicant brought an administrative dispute (pokrenula upravni spor) before the District Court in Novi Pazar (see paragraphs 73-75 below). 29. On 26 June 2007 the said court ruled in favour of the second applicant and ordered the SPDIF to decide on her request. 30. On 13 February 2008 the SPDIF suspended the proceedings, holding that the pensions-related situation in Kosovo was in a state of flux and that crucial information was lacking. The second applicant’s request was thus deemed not ready for consideration. 31. On 3 December 2008 that decision was quashed on appeal, for procedural reasons, at a higher administrative level and remitted for re-examination. 32. On 23 April 2009 the second applicant brought another administrative dispute before the District Court, seeking, this time, that the court itself decide on the merits of her claim addressed to the SPDIF. 33. On 10 November 2011 the SPDIF rejected the second applicant’s request to have the payment of her pension resumed, “in the absence of proper substantiation”. 34. On 12 January 2012 that decision was upheld on appeal at a higher administrative level. 35. On 3 April 2014 the Administrative Court in Kragujevac, which had jurisdiction to deal with the matter following the reorganisation of the Serbian judiciary, quashed the impugned decisions of the SPDIF on procedural grounds and remitted the case for re-examination. 36. On 30 July 2014 the SPDIF ordered payment of the second applicant’s pension which had accrued between 6 March 2002 and 9 July 2008. Regarding the reinstatement of her pension thereafter, the SPDIF decided that the matter would be considered following receipt of evidence from the United Nations Interim Administration Mission in Kosovo (“UNMIK”) as to whether the second applicant was a beneficiary of a separate “Kosovan pension” as of 2008, which was when she had reached the age of sixty-five (see paragraph 80 below). 37. On 13 January 2015 the SPDIF rejected the second applicant’s request to have the payment of her pension resumed because, based on an UNMIK certificate, she had been a recipient of a Kosovan pension as from 10 July 2008. The SPDIF based its conclusion on Article 119 of the Pensions and Disability Insurance Act (see paragraph 64 below). 38. On 23 January 2015 the second applicant appealed against that decision at a higher administrative level, arguing that the so-called “Kosovan pension”, in the amount of 75 euros (EUR), was not in fact a pension at all but a benefit offered to all persons aged sixty-five or over residing in Kosovo. 39. The third applicant was born in 1950 and lives in Gnjilane. 40. In 1988, following the death of her husband, the third applicant was granted a survivor’s pension by the SPDIF Branch Office in Belgrade. 41. At some point thereafter the third applicant moved from Belgrade to Kosovo. 42. The third applicant regularly received her pension until January 1999, when the monthly payments stopped without an explanation from the SPDIF. 43. Thereafter, the third applicant repeatedly sought the resumption of her pension payments. On 14 February 2006 she lodged a formal request to that effect with the SPDIF. 44. Having received no response and following an additional request which was also ignored, on 18 July 2006 the third applicant brought an administrative dispute before the District Court in Belgrade. 45. On 21 July 2006 the said court declined its territorial jurisdiction and forwarded the case file to the District Court in Gnjilane (provisionally based in Vranje). 46. On 27 March 2008 and 12 May 2009 the third applicant requested information from the District Court in Gnjilane regarding the status of those proceedings. 47. On 28 July 2014 the SPDIF resumed payment of the third applicant’s pension as of 14 February 2005 onwards. 48. The fourth applicant was born in 1943 and lives in Gnjilane. 49. On 1 January 1997 the fourth applicant was granted a disability benefit. 50. The fourth applicant regularly received his benefit until January 1999, when the monthly payments stopped without an explanation having been offered. 51. Thereafter the fourth applicant repeatedly sought the resumption of his benefit payments. On 24 March 2006 he lodged a formal request to that effect with the SPDIF. 52. Having received no response and following an additional request which was also ignored, on 15 August 2006 the fourth applicant brought an administrative dispute before the District Court in Belgrade. 53. On 14 September 2006 the said court declined its territorial jurisdiction and forwarded the case file to the District Court in Gnjilane (provisionally based in Vranje). 54. On 27 March 2008 and 12 May 2009 the fourth applicant requested information from the District Court in Gnjilane regarding the status of those proceedings. 55. On 22 July 2010 the Administrative Court in Belgrade, which had jurisdiction to deal with the matter since the reorganisation of the Serbian judiciary, apparently rejected the fourth applicant’s claim because he had not shown that he had properly made use of the administrative remedies available to him before applying for judicial review. 56. The fifth applicant was born in 1942 and lives in Jagodina. 57. On 24 July 1991 the fifth applicant was granted an old-age pension by the SPDIF Branch Office in Kosovo. 58. The fifth applicant regularly received his pension until March 1999, when the monthly payments stopped without an explanation from the SPDIF. 59. Thereafter the fifth applicant repeatedly sought the resumption of his pension payments. On 28 January 2008 he lodged a formal request with the SPDIF. 60. Having received no response, on 7 October 2008 the fifth applicant again addressed the same request to the SPDIF. 61. On 1 June 2012 the SPDIF rejected the fifth applicant’s claim because he had apparently failed to provide adequate supporting documentation. 62. On 7 August 2012 that decision was upheld on appeal at a higher administrative level. 63. Article 110 provides, inter alia, that a person’s pension and disability rights must be terminated if it transpires that he or she no longer meets the original statutory requirements. However, should an entitled pensioner secure an additional pension from another pension and disability insurance fund established by one of the other States within the territory of the former Yugoslavia, his or her pension paid by the SPDIF must, unless stipulated otherwise by an international agreement, be reassessed (recalculated) based on the pensionable employment period (penzijski staž) already taken into account by the former. 64. Article 119 provides that when a pensioner is entitled to two or more pensions within the territory of the Republic of Serbia, only one of those pensions may be paid, in accordance with the pensioner’s own preference. 65. Article 123 provides that pension instalments which have not been paid owing to circumstances caused by the pensioner can be sought only for the twelve months preceding the date on which he or she lodged a request to that effect. 66. The Opinions state, inter alia, that the pension system in Serbia is based on the concept of “ongoing financing”. Specifically, pensions are secured through current pension insurance contributions. Since the Serbian authorities have been unable to collect any such contributions in Kosovo since 1999, persons who have been granted SPDIF pensions in Kosovo cannot expect, for the time being, to continue receiving them. It is further stated that Regulation 2001/35 on pensions in Kosovo, adopted by UNMIK, provides for a separate pension system for persons living in the territory (see paragraph 80 below). 67. Article 376 §§ 1 and 2 provides, inter alia, that the prescription period for seeking civil compensation is three years from the date on which the claimant first learnt of the damage in question, but that, in any event, the absolute deadline is five years from the time the damage occurred. 68. In response to the situation in Kosovo, this Opinion states, inter alia, that a person’s recognised right to a pension may only be restricted on the basis of Article 110 of the Pensions and Disability Insurance Act (see paragraph 63 above). Recognised pension rights cannot depend on whether current pension insurance contributions can be collected in a given territory. 69. The Opinion further explains that administrative proceedings (upravni postupak) and, if necessary, judicial review proceedings (upravni spor) would be the appropriate avenue to challenge any restriction of a person’s pension rights. 70. Lastly, the Opinion notes that, in this context, the civil courts are competent to adjudicate only cases involving claims of malfeasance (nezakonit i nepravilan rad) on the part of the SPDIF. 71. Article 208 § 1 provides, inter alia, that in simple matters an administrative body must issue a decision within one month of the date on which the claimant lodged his or her request. In all other cases, the administrative body must render a decision within two months thereof. 72. Article 208 § 2 enables a claimant whose request has not been decided within the time-limits established in the previous paragraph to lodge an appeal as if his or her request has been refused. Where an appeal is not allowed, the claimant has the right to directly bring an administrative dispute before the competent court of law. 73. Articles 5 and 6 provide, inter alia, that judicial review proceedings may be brought against the State body or public authority that issued the disputed administrative decision. 74. Article 24 provides that should a second-instance administrative body fail to decide on an appeal lodged more than sixty days earlier, and should it again fail to do so in another seven days upon receipt of the claimant’s repeated request to that effect, the latter may directly institute judicial review proceedings, as if his or her appeal had been rejected. 75. Article 41 § 3 provides that the competent court may not only quash the impugned administrative decision but may also rule on the merits of the plaintiff’s claim, should the facts of the case and the very nature of the dispute in question allow for that particular course of action. 76. The substance of Articles 19 § 1, 42 and 43 of this Act corresponds, in the relevant part, to that of Articles 24 and 41 § 3 of the Administrative Disputes Act 1996. 77. The Administrative Disputes Act 2009 entered into force on 30 December 2009 thereby repealing the Administrative Disputes Act 1996. 78. Article 170 provides: “[a] constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed”. 79. As of 8 August 2014, the Constitutional Court considered a total of eleven appeals related in one way or another to the general issue of payment or reinstatement of pensions suspended by the SPDIF (see Už. nos. 537/08, 169/09, 2720/09, 2591/10, 2931/10, 758/11, 1582/11, 1810/11, 3007/11, 2391/12 and 2650/12, decisions rendered between 3 February 2009 and 30 May 2013). In a total of six out of those eleven cases the Constitutional Court found violations of the appellants’ constitutional rights. In two cases the violations concerned the length of proceedings before the SPDIF or the competent courts; in three cases they concerned the inconsistent domestic case-law as regards whether persons seeking reinstatement of their pensions should provide the supporting documentation themselves or whether it should be obtained by the SPDIF proprio motu; and in one case the Constitutional Court quashed an earlier decision adopted by an appellate court for lack of proper reasoning. The said appellate court had rejected the request for payment of accrued pensions because the claimant had allegedly failed to make proper prior use of the administrative remedies which it deemed relevant. In decisions Už. nos. 1582/11, 758/11 and 3007/11 of 20 March 2013, 24 April 2013 and 25 April 2013, respectively, the Constitutional Court also referred to the Grudić judgment, stating that it had taken that case-law into account but that the appellants had simply not complained that their property rights had been breached. Their complaints had focused instead on the inconsistent domestic case-law, as mentioned above. The other appeals were dismissed for various procedural reasons. In any event, the Constitutional Court always considered only the complaints as specified by the appellants and “could not go beyond that”. 80. These regulations provide for a separate system whereby all persons aged sixty-five or over “habitually residing” in Kosovo have the right to a “basic pension”. 81. On 13 June 2008 the Kosovan Assembly adopted this Act, which essentially endorsed the system as set up by the two Regulations cited above but transferred the functional competencies from UNMIK to the Kosovan authorities. 82. These regulations provide, inter alia, that the basic pension referred to in paragraph 80 above, in the amount of EUR 40 monthly, could be increased to EUR 75 monthly in respect of all pensioners aged sixty-five or over, habitually residing in Kosovo, who could, inter alia, prove that they had been paying pension insurance contributions to the SPDIF for at least fifteen years and were not in receipt of another pension on the same basis. 83. These regulations essentially affirm those described in paragraph 80 above, but raise the pension in question from EUR 75 to EUR 80 monthly. 84. Articles 3 (1.4) and 7 § 1 state, inter alia, that a “basic age pension”, that is a “minimal regular monthly pension”, shall be paid to all “permanent citizens” of Kosovo aged sixty-five or over, regardless of whether they had ever been employed. 85. Articles 3 (1.5) and 8 § 1 provide for an “age contribution-payer pension”, that is a “regular monthly pension” for “employed citizens” of Kosovo, who had paid their contributions to the SPDIF prior to 1 January 1999. Article 8 § 2 envisages that all persons entitled to a contribution-based pension shall be categorised by the Ministry taking into account the applicable pensionable employment period, as well as other relevant criteria. 86. Article 13 provides, inter alia, that pension adjustments, taking into account the living costs and the rate of inflation, shall be regulated by the Kosovan authorities on an annual basis. | 0 |
test | 001-173494 | ENG | UKR | COMMITTEE | 2,017 | CASE OF SHAMRAY AND OTHERS v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time) | Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. | 1 |
test | 001-144145 | ENG | RUS | COMMITTEE | 2,014 | CASE OF SAMAROV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Erik Møse;Julia Laffranque;Khanlar Hajiyev | 4. The applicant was born in 1957 and lives in Penza. 5. The applicant sued the Penza town administration and the Penza committee for municipal property management (“the property management committee”), seeking to obtain free of charge the title to a plot of land under the office building he owned. 6. On 16 November 2005 the Leninskiy District Court of Penza (“the District Court”) held for the applicant and ordered the town administration to establish his title to the land at issue. The judgment was not appealed against and became final within the statutory ten-day time-limit. 7. On 7 March 2006 the Penza town administration lodged an application for supervisory review. 8. On 19 June 2006 the Presidium of the Penza Regional Court quashed the judgment of 16 November 2005, considering that the District Court had incorrectly established the facts of the case and erroneously applied the domestic material law. It consequently remitted the case to the District Court for consideration anew. 9. On 10 August 2006 the District Court dismissed the applicant’s claim in full. The applicant did not appeal and the judgment became final within the statutory ten-day time-limit. | 1 |
test | 001-158531 | ENG | AUT | ADMISSIBILITY | 2,015 | ATV PRIVATFERNSEH-GMBH v. AUSTRIA | 4 | Inadmissible | András Sajó;Barbara Leitl-Staudinger;Dmitry Dedov;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque | 1. The applicant, ATV Privatfernseh-GmbH, is a broadcasting company established under Austrian Law with its seat in Vienna. It is represented before the Court by Mr G. Lansky, a lawyer practising in Vienna. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 19 November 2007 the applicant company aired a broadcast as part of a society programme that showed the then Federal Minister for Health, Families and Youth, A.K., and her partner, P.I., entering a restaurant in Mayerling. The report concerned mainly the Minister’s presence at a charity event – an exhibition of contemporary art in a gourmet restaurant and the sale of towels for the benefit of female sport cycling. The commentary referred to the Minister’s own forthcoming cookery book on roast pork and the chef’s creations for the evening. 5. The report started with the Minister arriving, with her new partner at her side. The introductory commentary stated that they were currently Austria’s most observed couple, but rarely appeared in public together. However, that evening the divorced Minister and her new partner, P.I., a senior manager with Austrian railways, came to H. restaurant in Mayerling together to “do good and eat well”. 6. Overlaying images of the couple entering the restaurant and A.K. greeting people, the voice-over continued, stating that A.K. looked fabulous and showed no trace of the difficulties she had successfully left behind her in 2007. On the other hand P.I., the new man at her side, was not entirely prepared for the media’s interest: P.I. was in his early thirties, division manager with a company of the Austrian railways and in the middle of divorce proceedings. Because of the pending court proceedings, P.I. did not want to pose officially next to his new love. 7. The images showed P.I. entering beside A.K., later stepping aside and stroking a puppy. A.K. also cuddled the puppy and expressed her love for animals in the direction of the camera. 8. On 19 December 2007 P.I. lodged an action under Section 7 of the Media Act (Mediengesetz) claiming that the commentary stating that “P.I. was the new man at A.K.’s side”, that “he was in the middle of divorce proceedings” and that “because of the pending proceedings he did not want to pose at his new love’s side” had violated his most intimate personal sphere. 9. On 26 March 2008 the Vienna Regional Court (Landesgericht) ruled that the statement that P.I. was “in the middle of divorce proceedings”, and that these proceedings were pending, infringed his most intimate personal sphere. The court ordered the applicant company to pay compensation in the amount of 500 Euros (EUR), to publish the operative part of the judgment and to bear the costs of the proceedings. However, it dismissed P.I.’s claim that the statement that he was “the new man at A.K.’s side” and refused to pose with “his new love” compromised his privacy. 10. The court found that the media had already reported on A.K.’s new relationship in summer 2007. The print media had also reported that P.I. was still married at the time and that divorce proceedings were pending. P.I. had, however, lodged proceedings under the Media Act against those publications in at least thirteen cases with the Vienna Regional Court alone. P.I. never gave interviews on his personal situation and did not pose for press photographs with A.K. P.I. had been seen in public with A.K. when they went out to dinner on several occasions, or attended several smaller parties and two weddings. 11. The court found the statement on the pending divorce proceedings to be compromising, since the end of a relationship was often considered a personal failure and resulted in adverse reactions from the public, ranging from pity to malice. Divorce proceedings were not public. Pending divorce proceedings had thus no public consequence; only the divorce itself publicly testified to the end of a marriage. While other media had reported on P.I.’s failed marriage before the airing of the broadcast, that had happened without his consent. Furthermore, he had objected to those reports by initiating court proceedings against them. Therefore, the applicant company could not argue that the facts broadcast had already been spread by other media. 12. As concerns the reference to the relationship between P.I. and A.K., the court found that, from their appearing together at the charity dinner, the media could assume that P.I. would consent to the reporting. That assumed consent did not include the statements on his pending divorce. The mere fact that A.K. was the Minister for Health, Families and Youth did not suffice to bring the private person P.I. into the public arena. 13. Both the applicant company and P.I. appealed against this judgment. On 15 April 2009 the Vienna Court of Appeal (Oberlandesgericht Wien) partly followed P.I.’s appeal and declared in addition that P.I. had also been hurt in his most intimate personal sphere by the statement that he was “the new man at A.K.’s side, but did not want to pose with his new love”. The applicant company was ordered to pay compensation in the amount of EUR 600 and to publish the operative part of the judgment. It was also ordered to bear the costs of the appeal proceedings. 14. The Court of Appeal referred to case-law according to which the “intimate personal sphere”, within the meaning of the Media Act, not only encompassed events and situations confined to home, but also a “private area within a public space” (“Privatöffentlichkeit”) meaning that private events in a public space were nevertheless not open for just anyone. When the applicant company thus complained that A.K. and P.I. had appeared in public before the charity dinner, the court referred to this concept of “private area within a public space”. The mere fact that the relationship between P.I. and A.K. had been witnessed in public before was not decisive for determining whether a specific media report was capable of compromising P.I., or not. The allegation of an extramarital affair must be considered to affect adversely the intimate sphere within the meaning of Section 7 of the Media Act, as must the statement on pending divorce proceedings, and in this context the information on a “new partner” and a “new love”. The Court of Appeal reiterated that the phrase “pending divorce proceedings” clearly has a different meaning from “finality of divorce”, since a couple could still decide to discontinue divorce proceedings. However, according to the jurisprudence of the civil courts, the intention to divorce was part of a person’s intimate sphere. In response to the applicant company’s argument that P.I. himself had demonstrated the end of his marriage in public by appearing with A.K., the Court of Appeal found that such appearances were not comparable to those of public figures within the context of their political work or state functions, but needed to be seen as belonging to that already-mentioned “private area within a public space”. Those appearances had not had any official character and did not allow the conclusion that P.I. had opened up his private life to the public arena. They could also not be interpreted as consent to exclusive media reporting – not only on the couple attending a charity dinner, but also on their conducting an extramarital affair, being partners and in love, while divorce proceedings in respect of P.I. were still pending. 15. The Court of Appeal also rejected the applicant company’s argument that reporting on P.I. as being the Minister’s new partner was inseparable from reporting on the Minister herself. It observed that the media were entitled to report on the Minister of Health, Families and Youth’s conduct, considering that she was appointed by the People’s Party which represented a conservative image on families, that her credibility was at stake and that this was a matter of public interest. However, this did not mean that the media also had the right to violate her partner’s private sphere. Indeed, P.I. himself was not a public figure. It would have been sufficient, to satisfy the public interest in the Minister’s conduct, to report that she maintained an apparently sexual relationship with a married man. However, it had not been necessary to reveal the identity of that married man. The report in question exceeded the necessary information and also included details on P.I.’s marriage. 16. The Court of Appeal altered the decision of the Vienna Regional Court concerning the statement that P.I. was the “new man at A.K.’s side and refused to pose with his new love” because this statement had to be seen in the context of the whole broadcast and not separately. Therefore, it was also an infringement of his most intimate personal sphere. That judgment was served on the applicant company’s counsel on 4 May 2009. 17. The applicant company did not file a request under Article 363a of the Code of Criminal Proceedings (Strafprozessordnung) to the Supreme Court (Oberster Gerichtshof). 18. By an amendment of 30 December 1996 which entered into force on 1 March 1997 under the heading “Renewal of criminal proceedings” (Erneuerung des Strafverfahrens), Article 363a of the Code of Criminal Proceedings (Strafprozeßordnung) was introduced, which provides as follows: “1. If it is established in a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette [Bundesgesetzblatt] no. 210/1958) or of one of its Protocols on account of a decision [Entscheidung] or order [Verfügung] of a criminal court, a retrial shall be held on application in so far as it cannot be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned. 2. All applications for a retrial shall be decided by the Supreme Court. Those who are affected by the determined violation as well as the Procurator General’s Office are entitled to file an application. Article 282 § 1 of the Code of Criminal Proceedings shall be applicable analogously. The application is to be filed at the Supreme Court. If the Procurator General’s Office files an application, those who are affected, if the one affected files an application the Procurator General’s Office, shall be heard. Article 35 § 2 of the Code of Criminal Proceedings shall be applicable analogously.” 19. On 1 August 2007 the Supreme Court decided on an application under Article 363a by a convicted person in a case in which no application to the Court had been filed previously and no judgment of the Court had been delivered (file no. 13 Os 135/06m): “... In the present case there are no indications that a decision or order of a criminal court which had an adverse effect on the applicant had been found to be in violation of Articles 8 and 14 of the Convention by the European Court of Human Rights in respect of the applicant. However, this does not render the application inadmissible. Article 13 of the Convention required each Contracting State to provide any person, who shows with some plausibility that there has been a violation of his or her rights under the Convention and its Protocols, with an effective remedy, in other words, to ensure that there is a national instance examining whether there has been a violation of a Convention right. Article 363a § 1 of the Code of Criminal Proceedings must not be interpreted as permitting a retrial only in cases where a violation of Convention rights has already been established in a judgment against Austria by the European Court of Human Rights. The Supreme Court, as the highest instance in Austria in criminal matters established by the Federal Constitution, sees itself called upon to fulfil the obligations under the Convention by ensuring that in the field of criminal law the spirit of the Convention is respected also in cases in which no judgment was issued against Austria by the Court. The Supreme Court has previously detected lacunae in the law (planwidrige Lücke) as regards the protection of human rights and has used its powers to close them. ... A judgment by the Court which establishes a violation of the rights under the Convention is a necessary and sufficient precondition for a renewal of the criminal proceedings under Article 363a. But also the legal practice and case-law of the European Court of Human Rights concerning criminal proceedings have changed significantly since the entry into force of this provision. There is therefore a lacuna in law that has to be closed. This must be done by interpreting the relevant law in a way, that a judgment by the Court is no longer a precondition for the renewal of the criminal proceedings under Article 363a. In fact, this can be done by the Supreme Court itself deciding on a violation of the rights and freedoms under the Convention upon an application under Article 363a of the Code of Criminal Proceedings. Also the Supreme Court’s previous case-law does not conflict with this result. This extensive understanding of the provisions dealing with the renewal of criminal proceedings had been necessary not only because of the recent developments in human rights: The Supreme Court was not involved in any of the seven cases, in which the Court found a violation of the right to freedom of expression under Article 10 in 2006, even though this could have been possible by means of a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) or an extraordinary reopening under Article 362 § 1 of the Code of Criminal Proceedings (ausserordentliche Wiederaufnahme des Strafverfahrens). Therefore, in all these cases the Supreme Court had not been given the opportunity to fulfil its function as the highest instance in criminal matters as foreseen by Article 92 of the Federal Constitution. Therefore, this court did not have the opportunity to examine the question of a possible violation of human rights. On the one side, there are proceedings before the Constitutional Court (Verfassungsgerichtshof) in which an allegation of a violation of the rights and freedoms under the Convention can be raised. On the other side, as it is in this case of relevance, the Supreme Court – as the highest instance in criminal matters – has the duty to observe the compliance not only with the fundamental rights guaranteed at the level of ordinary law but also with rights guaranteed at the level of constitutional law (Article 92 (1), Article 89 (2) of the Federal Constitution). The Supreme Court has the power to deal in an effective way with alleged violations of human rights committed by the lower courts in proceedings on a plea of nullity, a request for the renewal of proceedings, a fundamental rights complaint (Grundrechtsbeschwerde) and proceedings under Section 91 (Fristsetzungsantrag) of the Courts Act (Gerichtsorganisationsgesetz). These remedies give the Supreme Court the possibilities set out by Article 1 of the Convention not only to follow the Court’s caselaw but also to take, itself, the initiative for influencing the development of human rights law on its own. ...” 20. In the same judgment, the Supreme Court further stated that it would apply the criteria set out in Article 35 of the Convention on the admissibility of an application also in respect of a request for renewal of criminal proceedings under Article 363a, in particular the six-month time-limit, also in a case which had not been previously examined by the Court and in which no judgment of the Court had been issued. 21. Since then, the Supreme Court has decided in several cases on requests lodged under Article 363a of the Code of Criminal Proceedings as from 2008 onwards (for example the decision of 26 June 2008, 15 Os 41/08f; of 26 June 2008, 15 Os 25/08b; of 23 July 2008, 13 Os 162/07h; of 21 August 2008, 15 Os 30/08p; of 15 January 2009, 12 Os 180/08z; of 14 October 2009, 15 Os 171/08y; of 14 October 2009, 12 Os 106/09m). In all of these cases the Supreme Court confirmed its leading decision of 1 August 2007 and developed further its case-law in regard to the admissibility of the applications under Article 363a of the Code of Criminal Proceedings. Among these were cases concerning the Media Act (for example the decision of 14 October 2009, 15 Os 171/08y). In cases where the Supreme Court found a violation of rights guaranteed under the Convention, it quashed the lower court’s decisions and ordered that a fresh decision be taken (for example the decision of 15 January 2009, 12 Os 160/08h; of 14 January 2010, 13 Os 36/09g; of 17 September 2013, 11 Os 73/13i). 22. The Supreme Court further stated in its case-law that victims of crimes and private prosecutors (Privatankläger), as well as public prosecutors, are not entitled to this remedy (see, inter alia, the Supreme Court’s decisions of 26 June 2008, 15 Os 41/08f and of 17 August 2010, 11 Os 121/09t). | 0 |
test | 001-169657 | ENG | ESP | COMMITTEE | 2,016 | CASE OF RUIZ-VILLAR RUIZ v. SPAIN | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time) | Alena Poláčková;Helen Keller;Pere Pastor Vilanova | 4. On 8 July 1991 the Spanish State instituted proceedings before the Ciudad Real Judge of first instance No. 1 to obtain an order that the Ruidera Lakes (Lagunas de Ruidera), located on part of the land which belonged, partly, to the applicant’s mother (and which he inherited after her death), should be considered the source to the Guadiana River and was therefore in the hydraulic public domain. 5. On 27 March 2002 the Ciudad Real Judge ruled in favour of the applicant’s mother (and several other defendants) and declared that the Ruidera Lakes fell into the private domain. However, on 6 November 2003 the Ciudad Real Audiencia Provincial quashed that judgment and declared that the Ruidera Lakes had to be classified as being in the public domain. 6. The applicant’s mother, along with the other co-defendants, lodged an appeal on points of law (recurso de casación) with the Supreme Court. On 2 July 2004 the Ciudad Real Audiencia Provincial sent the complete file, along with the appeals lodged by the parties, to the Supreme Court. On 22 June 2009 the Supreme Court issued a judgment ruling against all the appellants and upholding the judgment of the Ciudad Real Audiencia Provincial. 7. On 4 September 2009 the applicant (as his mother’s heir with locus standi) lodged an amparo appeal with the Constitutional Court complaining, inter alia, of the excessive length of the proceedings. By a decision of 28 July 2010, served on the applicant on 2 September 2010, the Constitutional Court dismissed the appeal on the grounds that it had no constitutional relevance. | 1 |
test | 001-162012 | ENG | EST | ADMISSIBILITY | 2,016 | A.V. v. ESTONIA | 4 | Inadmissible | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković | 1. The applicant, Ms A.V., is an Estonian national. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Ms K. Rekand, a lawyer practising in Tallinn. 2. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant’s mother E., aged 82, complained about lower back pain. She was diagnosed with radiculitis and hypertension by a general practitioner who also prescribed medicines for her. Since the pain did not disappear, E. was taken to hospital on 15 April 2013. She underwent an X-ray examination and was diagnosed with lumbar spondylosis and osteochondrosis. Medicines were prescribed for her and nursing care was ensured in Tapa Hospital. While in hospital, she developed gangrene. On 4 May 2013 she died in hospital. According to the notice of death the cause of her death was atherosclerosis with gangrene. 5. The applicant filed an offence report with the prosecutor’s office, which refused to initiate criminal proceedings, considering that no offence had been committed. On 19 July 2013 the State Prosecutor’s Office dismissed the applicant’s appeal. It was noted in the decision sent to the applicant that pursuant to Article 208 of the Code of Criminal Procedure, the victim of an alleged offence could lodge a complaint with a court of appeal against a refusal by the Prosecutor’s Office to initiate criminal proceedings. It was further stated that such a complaint had to be lodged through a lawyer. The applicant did not lodge a complaint. 6. The applicant also turned to the Expert Committee of Quality of Medical Aid (Tervishoiuteenuse kvaliteedi ekspertkomisjon). According to the Expert Committee’s opinion given on 21 November 2013 the applicant’s doubts and accusations that the staff of Tapa Hospital had not given E. the required treatment and nursing care and had failed in their duty of care and thereby caused E.’s death were groundless. Nevertheless, the Expert Committee noted that there were certain shortcomings in the documentation of E.’s treatment. It made recommendations to Tapa Hospital regarding the medical documentation and prevention and cure of pressure sores. It was noted in the Expert Committee’s assessment that the Committee’s assessment created no legal rights or obligations but it could be used as evidence in civil proceedings. 7. Article 117 of the Penal Code (Karistusseadustik) lays down that negligent homicide is punishable by up to three years’ imprisonment. 8. Article 119 of the Code provides that causing serious health damage through negligence is punishable by a pecuniary punishment or up to one year of imprisonment. 9. Article 123 of the Code provides that placing or leaving another person in a situation that is life-threatening or likely to cause serious damage to the health of the person is punishable by a pecuniary punishment or up to three years’ imprisonment. 10. Article 6 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) establishes the principle of mandatory criminal proceedings according to which the investigative bodies and the Public Prosecutor’s Office are required to conduct criminal proceedings when facts referring to a criminal offence have become evident. 11. The Code of Criminal Procedure further provides: “(1) An investigative body or the Public Prosecutor’s Office commences criminal proceedings by the first investigative activity or other procedural act if there is reason and grounds therefor and the circumstances provided for in Article 199 § 1 of this Code do not exist.” “(1) The reason for the commencement of criminal proceedings is a report of a criminal offence or other information indicating that a criminal offence has taken place. (2) The grounds for criminal proceedings are constituted by ascertainment of criminal elements in the reason for the criminal proceeding.” “(2) If a health care professional conducting an autopsy suspects that the person died as a result of a criminal offence, he or she is required to notify an investigative body or the Public Prosecutor’s Office of such suspicion immediately.” “(1) Criminal proceedings shall not be commenced if: 1. there are no grounds for criminal proceedings; ...” 12. Pursuant to Article 208 of the Code of Criminal Procedure, the victim of an alleged offence can lodge a complaint with a court of appeal against a refusal by the Prosecutor’s Office to initiate criminal proceedings. Such a complaint must be lodged through a lawyer. 13. Section 5 of the Establishment of the Cause of Death Act (Surma põhjuse tuvastamise seadus) provides that the death of a person who died at a hospital must be immediately notified to the person’s attending physician or doctor on call. Furthermore, if there is reason to believe that a person has died as a result of a criminal offence or as a result of external causes or a suspicion thereof, an investigative body or the Public Prosecutor’s Office must be immediately notified thereof. 14. Section 7 of the Act provides that the doctor having received a notice of death must immediately perform an external examination of the deceased in order to establish death and ascertain the cause thereof. If the cause of death cannot be established as a result of an external examination of the deceased or based on the information concerning his or her latest disease and treatment, the doctor must send the body for a pathoanatomical autopsy. 15. Upon ascertaining the elements of a criminal offence in respect of a death, the investigative body or the Public Prosecutor’s Office must commence criminal proceedings and order a forensic medical examination. In the case of a death caused by other external causes or a suspicion thereof or if the cause of death of a person is not established in another manner provided for in the law, the investigative body or the Public Prosecutor’s Office must send the body for a forensic medical autopsy (section 9 of the Act). 16. Section 14 of the Act provides that pathoanatomical autopsy is performed to ascertain an unclear cause death or in case of death caused by disease to assess the disease and the course thereof or if it is necessary in view of general health care and treatment quality if the cause of death cannot be established as the result of an external examination of the deceased and based on the information the doctor has on the last disease and treatment of the deceased, and there is no reason for a forensic medical autopsy or forensic medical examination in criminal proceedings. Pursuant to section 14(2) of the Act, a pathoanatomical autopsy must be performed, inter alia, in the case of an unclear death if there is no reason to believe that a person has died as a result of a criminal offence or due to external causes, in case of an unclear diagnosis of a disease in the person’s lifetime, if the person undergoing hospital treatment died at the hospital within the first twenty-four hours and the doctor has no data on the cause of death, or if the person died as a result of diagnostic or treatment methods. In addition, a pathoanatomical autopsy is performed at the written request of the persons close to the deceased. A pathoanatomical autopsy is not be performed in order to establish the cause of death if the deceased suffered from a chronic illness in his or her lifetime which has been recorded in the documents evidencing the provision of health care services to the person and which caused his or her death due to complications or becoming acute. 17. Section 128 of the Obligations Act (Võlaõigusseadus) stipulates that non-pecuniary damage involves primarily the physical and emotional distress and suffering caused to the aggrieved person. 18. Section 134(2) provides that in the case of an obligation to compensate for damage arising from causing bodily injuries to or damage to the health of a person, the aggrieved person must be paid a reasonable amount of money as compensation for non-pecuniary damage. Section 134(3) provides that in the case of an obligation to compensate for damage arising from the death of a person or a serious bodily injury or health damage caused to the person, the persons close to the deceased or the aggrieved person may also claim compensation for non-pecuniary damage if payment of such compensation is justified by exceptional circumstances. 19. Section 759 provides that a contract for the provision of health care services is also, inter alia, deemed to have been entered into upon commencement of the provision of health care services or assumption of the obligation to provide health care services with the consent of a patient, and also if commencement of the provision of health care services to a patient without the capacity to exercise his or her will corresponds to his or her actual or presumed intention. 20. Section 762 stipulates that health care services must at the very least conform to the general level of medical science at the time the services are provided and the services must be provided with the care which can normally be expected of providers of health care services. If necessary, a provider of health care services must refer a patient to a specialist or involve a specialist in the treatment of the patient. 21. Section 766 sets out an obligation for the provider of health care services to inform the patient and to obtain the patient’s consent for his or her examination and the provision of health care services. 22. Section 767 concerns the provision of health care services to patients who are incapable of exercising their will. In such circumstances, the provision of health care services is permitted without the consent of the patient if this is in the interests of the patient and corresponds to the intentions expressed by him or her earlier or to his or her presumed intentions and if failure to provide health care services promptly would put the life of the patient at risk or significantly damage his or her health. The intentions expressed earlier by a patient or his or her presumed intentions must, if possible, be ascertained using the help of his or her immediate family. The immediate family of the patient shall be informed of his or her state of health, the provision of health care services and the associated risks if this is possible in the circumstances. 23. Section 769 sets out the obligation of a provider of health care services to document the provision of health care services. 24. The Obligations Act further provides: “(1) Providers of health care services ... shall be liable only for the wrongful violation of their own obligations, particularly for errors in diagnosis and treatment and for violation of the obligation to inform patients and obtain their consent. (2) Providers of health care services shall also be liable for the activities of persons assisting them and for any defects in the equipment used upon the provision of health care services. (3) The burden of proof regarding circumstances which are the basis for the liability of the provider of health care services ... shall lie with the patient unless the provision of health care services to the patient is not documented as required. (4) If there is an error in diagnosis or treatment and a patient develops a health disorder which could probably have been avoided by ordinary treatment, the damage is presumed to have resulted from the error. In this case, the burden of proof regarding the damage resulting from the health disorder shall also lie with the patient.” 25. The rules on the non-contractual (delict-based) liability of the Obligations Act provide: “A person (tortfeasor) who unlawfully causes damage to another person (victim) shall compensate for the damage if the tortfeasor is culpable of causing the damage or is liable for causing the damage pursuant to the law.” “(3) If the death, bodily injury or damage to the health of a person is caused as a result of the violation of a contractual obligation, the tortfeasor shall also be liable for such damage on the basis provided in this Chapter.” “(1) The causing of damage is unlawful if, above all, the damage is caused by: 1. causing the death of the victim; 2. causing bodily injury to or damage to the health of the victim;” “(1) Unless otherwise provided by law, a tortfeasor is not liable for the causing of damage if the tortfeasor proves that he or she is not culpable of causing the damage.” 26. Health Services Organisation Act (Tervishoiuteenuste korraldamise seadus) provides: “(1) The Expert Committee on Quality of Health Services ... is an advisory committee the purpose of which is to assess the quality of health care services provided to patients and to make proposals arising from the assessment to the Health Board, the Estonian Health Insurance Fund and the health care providers. (2) The Committee is competent to: 1. assess the quality of a health care service provided to a patient; 2. make propositions to the Health Board for initiation of supervision proceedings over the activity of a health care provider; ...” 27. Under section 60 of the Health Services Organisation Act, the Health Board, a governmental authority operating within the purview of the Ministry of Social Affairs, shall exercise supervision over compliance with the requirements established for health care providers. Individuals have a right to submit complaints to the Health Board regarding compliance with those requirements. 28. The Supreme Court in its judgment of 22 September 2010 (case no. 3-1-1-60-10) reiterated the principle of mandatory criminal proceedings provided for in Article 6 of the Code of Criminal Procedure. It noted that while the principle in dubio pro reo required that the accused was to be given the benefit of the doubt when a judgment was made, the principle in dubio pro duriore applied in respect of initiation of criminal proceedings and at that stage any suspicion of crime was to be interpreted in favour of initiation of the proceedings. Nevertheless, due to the prevailing attitudes in society persons could also be stigmatized by merely initiating criminal proceedings in respect of them. Therefore, it was objectionable to initiate criminal proceedings in a situation where no suspicion of a crime existed at all or was merely theoretical. 29. The Tallinn Court of Appeal in its decision of 14 February 2011 (case no. 1-10-15692) examined a complaint against the refusal of the Public Prosecutor’s Office to initiate criminal proceedings related to serious health damage allegedly caused by a medical error. The Court of Appeal ordered the Public Prosecutor’s Office to initiate criminal proceedings in order to clarify the circumstances described in the offence report. It noted, inter alia, with reference to a Supreme Court’s judgment of 29 November 2010 (case no. 3-1-1-79-10), that if non-legal specialist knowledge had to be applied in criminal proceedings, an expert opinion had to be sought, whereas the decisions of the Expert Committee on Quality of Health Services were not admissible as expert opinions in criminal proceedings. In that case the Court of Appeal had granted legal aid to the alleged victim for filing the complaint with it against the decision of the Public Prosecutor’s Office. 30. The Supreme Court in its decision of 11 April 2011 (case no. 3-1-1-97-10) confirmed the generally recognized concept that, for example, in case of manslaughter or murder the next-of-kin of the killed person was to be considered a victim. 31. The Tallinn Court of Appeal in its judgment of 19 October 2011 (case no. 1-09-21700), in a case concerning manslaughter, agreed with the lower court that had awarded the victim’s next-of-kin non-pecuniary damages. The Court of Appeal found that unlawful causing of the death of a person’s very close next-of-kin (the person’s son) should be considered an exceptional circumstance within the meaning of section 134(3) of the Obligations Act (see paragraph 18 above). 32. Further cases provide examples concerning medical negligence and related issues, such as conviction of a doctor of causing serious health damage through negligence under Article 119 of the Penal Code (Supreme Court’s judgment of 29 November 2010, case no. 3-1-1-79-10, followed by the Tallinn Court of Appeal’s judgment of 27 June 2013 in the same case (no. 1-12-5377) in which also pecuniary and non-pecuniary damages were awarded), and conviction of an employee of the emergency call centre for leaving a person in a life-threatening situation under Article 123 of the Penal Code (Tartu County Court’s judgment of 16 September 2009, case no. 1-09-9063; subsequent to the criminal proceedings, the spouse of the deceased also initiated administrative court proceedings, was granted legal aid and awarded pecuniary and non-pecuniary damages). The Tallinn Court of Appeal, by a judgment of 18 May 2007 (case no. 1-06-4949), acquitted an ambulance worker who had been charged with negligent homicide under Article 117 of the Penal Code for not having taken an intoxicated person with signs of trauma and problems of consciousness to the hospital but instead having handed the person over to the police. 33. As regards the connection between the criminal and civil proceedings in alleged medical malpractice cases, Tartu Court of Appeal in its decision of 24 April 2007 (case no. 1-07-4017) confirmed the State Prosecutor’s Office’s decision that failure of a doctor to comply with the duty of notification about medical treatment or keeping a documentary record of the treatment can be unlawful under civil law, but cannot entail a criminal liability. The Court of Appeal stressed that the violation of a duty under the Obligations Act entails liability under civil law, but that type of liability falls outside the scope of criminal proceedings. 34. As regards civil liability, the Supreme Court in its judgment of 8 April 2011 (no. 3-2-1-171-10) noted that a victim may claim compensation for the damage caused by the non-conforming health care service first and foremost on the basis of a breach of the health care services contract. In addition, in the case of causing health damage to a person as a result of a violation of contractual obligations the health care provider may also be liable under the provisions concerning compensation for unlawfully caused damage (non-contractual liability) (section 1044 et seq. of the Obligations Act; see paragraph 25 above). In such a case, the victims may submit their claims alternatively and the legal basis of the claim has to be determined by a court regardless of the arguments of the parties. 35. The Tallinn Court of Appeal in its judgment of 22 September 2008 (case no. 2-05-2059) reiterated that in the case of an error in diagnosis or treatment resulting in health damage to the patient, which could have probably been avoided by ordinary treatment, it is presumed that the damage occurred as a result of the error. The absence of the causal link must be proved by the defendant. In that case, the plaintiff was awarded compensation for non-pecuniary damage. The court also noted that an opinion of the Expert Committee on Quality of Health Services constituted documentary evidence in civil court proceedings. 36. In several medical negligence cases non-pecuniary damages have been awarded. These include cases in which the duty of notifying the plaintiffs and obtaining their consent had been breached (Tartu Court of Appeal’s judgment of 2 December 2013 (case no. 2-10-61884), and Tartu Court of Appeal’s judgment of 9 October 2013 (case no. 2-06-9959); in the latter case the Supreme Court also granted the complainant’s request for legal aid for filing an appeal with it). 37. In a judgment of 15 February 2014 (case no. 2-14-13101) the Viru County Court dealt with the liability related to the provision of health care services. The court relied, inter alia, on the opinion of the Expert Committee on Quality of Health Services. It noted that breach of the duty to notify the patient or to obtain the patient’s consent did not serve as sufficient grounds for awarding damages if the patient had not sustained health damage as a result thereof. In that case the plaintiff had been granted legal aid. 38. The Supreme Court in its judgment of 9 April 2008 (case no. 3-2-1-19-08) noted that a person who had unlawfully been the victim of a bodily injury or health damage but who had only died later due to this also acquired the right to claim monetary compensation for non-pecuniary damage under section 130(2) of the Obligations Act. Under the conditions provided for in section 166(1) of the Obligations Act, such claims could be transferred or bequeathed, that is the successors of the deceased person could also file such a claim. In this case, the plaintiff had not acted as a successor in claiming compensation for the possible non-pecuniary damage caused to her spouse. The Supreme Court further noted that under section 134(3) of the Obligations Act the next-of-kin of a person who had died or sustained a serious injury or health damage could also claim compensation for non-pecuniary damage if payment of such compensation was justified by exceptional circumstances. Analysing the notion of “exceptional circumstances”, the Supreme Court found that these did not comprise causing of death or serious health damage as such and noted that grief inevitably accompanied the death of a close person. Rather, a compensation claim of next-of-kin was justified in case of spatial proximity with the next-of-kin at the time of causing of the damage or being a direct witness of an accident or its consequences as well as subsequent distress caused by seeing the injuries or suffering of the died or injured next-of-kin. 39. In a judgment of 14 February 2012 (case no. 2-06-17756) the Tallinn Court of Appeal dealt with a claim against the hospital for compensation for damage due to the causing of the death of the plaintiff’s mother. The court, inter alia, considered that an opinion of the Expert Committee on Quality of Health Services was admissible as documentary evidence. Relying on the said opinion, expert assessment ordered by the first-instance court and other evidence, the courts found that there was no causal link between the provision of the health care service and the death of the plaintiff’s mother. As regards the damage, the Court of Appeal noted that under section 134(3) of the Obligations Act the next-of-kin of the deceased also had an independent right of claim but held that the plaintiff had to substantiate and prove the existence of “exceptional circumstances” within the meaning of section 134(3). 40. In a case decided by the Supreme Court on 15 November 2013 (case no. 3-2-1-131-13) the courts established an error in treatment by a hospital that had caused the death of the plaintiffs’ new-born child and ordered the defendant to pay EUR 7,000 to the mother and EUR 3,000 to the father for non-pecuniary damage. 41. Lastly, further examples show that plaintiffs have been granted legal aid in proceedings related to compensation claims in medical negligence cases (cases nos. 2-09-9677 and 2-09-1724). | 0 |
test | 001-142518 | ENG | RUS | CHAMBER | 2,014 | CASE OF LAGUTIN AND OTHERS v. RUSSIA | 3 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal conviction for drug dealing. 6. The facts of each individual criminal case, as submitted by the parties, are summarised below. The applicants disagreed with the Government on the underlying causes and the circumstances leading to the test purchases, and where this is so both versions are given. As regards the factual details of the covert operations, it is common ground that the applicants knowingly procured drugs in the course of the test purchases. 7. The applicants are brothers. At the time of arrest they were vendors working in a video- and audio-rental kiosk. At the time of lodging their applications they were serving prison sentences in correctional colonies following their criminal conviction in respect of which they lodged these applications. 8. On an unspecified date the Federal Service for Drug Control (ФСKН, the drugs police) received information from an undisclosed source that the applicants were involved in drug dealing. On that basis the police decided that an undercover policeman, X, would infiltrate the group and carry out test purchases of cannabis from the applicants. 9. It is undisputed by the parties that X approached Ivan Lagutin through an acquaintance and asked him whether he could supply him with cannabis. The parties differ as to whether Ivan Lagutin agreed to do so. According to the Government, which relied on X’s testimony, Ivan Lagutin had readily agreed to supply him with cannabis. According to the applicants, he had replied that he did not have any but could ask his dealer who occasionally passed by his kiosk. 10. The applicants contended that after that conversation X had called Ivan Lagutin repeatedly to ask if he had cannabis. Ivan Lagutin thought that X was a drug user, and being a cannabis smoker himself he decided to help him. When the dealer eventually came to the kiosk Ivan Lagutin asked him to supply cannabis for X as well, and when the dealer agreed the applicant called X back to tell him. He bought the cannabis for X with money borrowed from the kiosk cash till which he refunded after X had paid him back. On that occasion it was Viktor Lagutin who had passed the parcel to X at his brother’s request. After that, X had continued to call Ivan Lagutin regularly. In total Ivan Lagutin had bought cannabis for X on three occasions, all of which had been test purchases. 11. The official records of the three test purchases contain the following account. On 16 October 2007 undercover policeman X was assigned to carry out the first test purchase of cannabis from the applicants. He was given 350 Russian roubles (RUB) in banknotes that had been photocopied. He met the applicants at the kiosk, they went inside and he purchased 7.5 grams of cannabis. Ivan Lagutin took the money and Viktor Lagutin handed him a paper bag with the drug inside. He asked the applicants if he could come back for more in future, and they confirmed that he could. Afterwards, he handed the cannabis to the police. The second test purchase took place on 1 November 2007, allegedly following a phone call from Ivan Lagutin telling X that he had obtained the cannabis. After being given RUB 500 that had been photocopied X called Ivan Lagutin to arrange a meeting, picked him up in town and drove to the kiosk where he purchased 7.8 grams of cannabis wrapped in paper. Afterwards, he handed the packet of cannabis to the police. The third test purchase took place on 23 November 2007, this time for RUB 1,000. X pre-arranged it by telephone, then left the money at the kiosk with another vendor and came back later to get the drugs from Ivan Lagutin, who gave him 10 grams of cannabis which X then handed over to the police. 12. The telephone communications between X and the applicants were not recorded or intercepted. 13. On 14 December 2007 the police searched the kiosk and seized 7.6 grams of cannabis wrapped in newspaper and a cut-off plastic bottle with paper foil inside, which was allegedly a device for smoking cannabis. The applicants were arrested and charged with procuring large quantities of narcotic drugs, acting in conspiracy, and illegally possessing drugs. 14. The case was examined at first instance by the Promyshlennyy District Court of Stavropol. The applicants pleaded guilty in part, but claimed that they had committed the crime as a result of police entrapment. They pointed out that there had been no evidence of their prior involvement in drug dealing. They maintained that Ivan Lagutin had only exceptionally agreed to assist X in acquiring the drugs because he believed that he was a cannabis smoker like himself. As regards Viktor Lagutin, he had not been directly involved in the transactions with X, although he knew that his brother had occasionally smoked cannabis. 15. The court cross-examined X, whose identity had been disclosed, and the witnesses, who gave a detailed account of the test purchases. The court also examined the video recordings of the first two test purchases. 16. X testified that he had infiltrated the group in order to verify operational information received by the drugs police concerning the supplying of cannabis. He had approached the applicant at a party asking if it was possible to obtain any, and the applicant had agreed to help. Defence counsel asked whether X had been aware that the law prohibited incitement to commit criminal offences, but the judge rejected the question as irrelevant. 17. The court also cross-examined S, an operations officer who had been in charge of the undercover operation. He testified that the police had received information from an undisclosed source that the applicants were selling drugs. He testified that the information had not come from X, but refused to provide any details on the grounds that it was classified information. He testified that X had been instructed to infiltrate the group but had not been obliged to disclose his methods of undercover work and had not reported back to his superior about the manner of his communications with the applicants prior to, and between, the test purchases. In particular, he did not know and was not interested in how X had come to an agreement with the applicants about supplying the drugs. He did not know whether the transaction had been initiated by X or one of the applicants. 18. On 1 October 2008 the Promyshlennyy District Court of Stavropol convicted the applicants as charged and sentenced Ivan Lagutin to six years’ and Viktor Lagutin to five years’ imprisonment. The applicants appealed, pleading, in particular, police entrapment and alleging that the results of the test purchases had to be excluded from the body of evidence as unlawfully obtained. They contested the allegation that the police had had information indicating that they had previously sold drugs. 19. On 26 November 2008 the Stavropol Regional Court dismissed the appeal, without expressly addressing the allegation of entrapment, and upheld the first-instance judgment. 20. On 28 January 2011 the Deputy Prosecutor of the Stavropol Region lodged a request for supervisory review of the case on the grounds that the operational-search activity against the applicants had ceased to be lawful after the first test purchase, which had yielded sufficient proof of their criminal activity. The Deputy Prosecutor considered that the police should have instituted criminal proceedings immediately after the episode of 16 October 2007 and that therefore the second and third episodes constituted entrapment contrary to the Operational-Search Activities Act. Those episodes should therefore be excluded from the grounds of their conviction. 21. On 16 February 2011 a judge of the Stavropol Regional Court dismissed the prosecutor’s request and refused to reopen the criminal proceedings in the applicants’ case, having dismissed the arguments concerning entrapment. 22. On an unidentified date the Deputy Prosecutor General of the Russian Federation lodged a request for supervisory review of the case on essentially the same grounds. 23. On 26 January 2012 the Presidium of the Stavropol Regional Court granted the request. It found that the first test purchase had been carried out on the basis of operational information that two persons, Ivan and Viktor Lagutin, had been selling cannabis. During the test purchase that information had been confirmed and at the same time the criminal offence had been committed, which was sufficient to bring charges. There had been no need for any further test purchases as these had not been aimed at investigating the chain of supply of drugs. The second and third episodes were therefore to be considered as intentional incitement to commit the drug offences. The evidence relating to those two episodes was declared inadmissible and excluded from the grounds of the applicants’ conviction. Ivan Lagutin’s sentence was commuted to five years and two months’ imprisonment, and Viktor Lagutin’s sentence remained unchanged. 24. The applicant is a drug user. He claims to have become a heroin addict in prison where he was serving his first sentence. At the time of his arrest he was unemployed. At the time of lodging his application he was serving his third prison sentence in a correctional colony following his criminal conviction in respect of which he lodged this application. 25. According to the official version, the drugs police received operational information that the applicant was selling drugs. The Government claimed that the drugs police had been keeping a file on the applicant’s involvement in drug dealing for a year and a half prior to the test purchase. On 18 November 2005 the interception of his mobile phone was authorised by a court. On the basis of that preliminary information, on 25 November 2005 the police decided to carry out a test purchase of heroin from the applicant. It was carried out by a police informant, “Ivanov”, whose identity remained undisclosed in the ensuing proceedings. During the test purchase the applicant sold four packets of heroin and a syringe with heroin to “Ivanov”, who paid him RUB 5,000. 26. According to the applicant, he knew “Ivanov” as a fellow drug addict. On 25 November 2005 “Ivanov” called him to tell that he had RUB 1,000 and was looking to buy heroin with that amount. The applicant told him that his dealer was selling only 5-gram doses for RUB 5,000, that he had only RUB 700 and was suffering from withdrawal symptoms, and suggested sharing a dose between them. “Ivanov” called him back later and told him that he had found RUB 5,000, and they agreed to share the purchase. “Ivanov” brought the money to the applicant’s flat and the applicant asked him to wait outside to avoid crossing with the dealer. When the dealer brought the drug the applicant paid him with “Ivanov’s” cash. He then reimbursed “Ivanov” RUB 700 and they consumed part of the heroin together. “Ivanov” took the remaining heroin away with him. 27. After the test purchase a search was carried out at the applicant’s flat. No money was found, but the police seized an empty sachet with traces of heroin, a piece of cotton wool soaked in heroin and an empty syringe, also with traces of heroin. The applicant was charged with drug trafficking. 28. The Moskovskiy District Court of Cheboksary examined the case at first instance. The applicant denied having been involved in drug dealing. He pleaded guilty to having acquired heroin on behalf of “Ivanov” but explained that he had only done so because of the arrangement to consume it together, as he was suffering from withdrawal symptoms. He alleged that he had committed the offence as a result of entrapment. 29. “Ivanov” was called as a witness and examined during the trial, although his identity was kept secret. He testified that he had called the applicant asking him to supply him with heroin and that he had purchased four sachets of the drug at the applicant’s flat. When cross-examined, “Ivanov” refused to answer the following questions: whether he knew the applicant; whether he knew the applicant’s heroin dealer; whether he knew that the dealer was coming after he had left the money with the applicant; whether it was his initiative to conduct a test purchase from the applicant; whether he had previously bought drugs from the applicant; and whether he had previously been arrested by the drugs police. 30. On 5 May 2006 the first-instance court found the applicant guilty of selling drugs and sentenced him to six years’ imprisonment, having found him to be a serial offender. In its judgment the court relied, among other evidence, on the transcripts of the applicant’s intercepted telephone calls which had taken place between him and “Ivanov” during the transaction on 25 November 2005. It noted that the audio recording had confirmed receipt of the money and that the applicant had given drugs to the informant. 31. The applicant appealed on the grounds, inter alia, that he had been convicted of an offence committed as a result of police entrapment. 32. On 6 July 2006 the Supreme Court of the Republic of Chuvashiya dismissed the applicant’s appeal, upholding, in substance, the first-instance judgment. At the same time it reclassified the offence as attempted sale, having reduced the sentence to five years and eleven months’ imprisonment. 33. On 18 August 2006 the Presidium of the Supreme Court of the Republic of Chuvashiya examined a request by the applicant for supervisory review and decided that the applicant was not a serial offender. It reduced the applicant’s sentence to five years and nine months’ imprisonment and upheld the remainder of the earlier judicial decisions. 34. The applicant is a drug user. At the time of her arrest she was unemployed. At the time of lodging her application she was serving a prison sentence in a correctional colony following her criminal conviction in respect of which she lodged this application. 35. On the night of 6 to 7 October 2007 the drugs police conducted two test purchases whereby the applicant first procured 5 grams of cannabis for police informant “Smirnov” and about one and a half hours later procured 5.8 grams of cannabis for an undercover police officer, “Zhirkov”. The parties differ as to the reasons for ordering the test purchases and as to the circumstances in which the applicant had agreed to procure the drugs. According to the Government, the drugs police had been in possession of operational information from an undisclosed but reliable source that the applicant was trafficking in cannabis. According to the applicant, the police had had no preliminary information about her alleged criminal activity and had ordered the test purchase without a valid reason. She claimed that she had procured drugs for the undercover agents as a result of entrapment. 36. On the basis of the test purchases the applicant was charged with selling drugs. 37. The Sovetskiy District Court of Krasnodar examined the case at first instance. At the trial the policemen and the witnesses testified regarding the test purchases. They all pointed out that during the test purchase the applicant had been in a state of narcotic intoxication. A forensic report also confirmed that at the time of arrest the applicant had been under the influence of opiates. 38. The court asked the prosecutor if the investigating authorities had had any classified information incriminating the applicant. The prosecutor replied that all confidential material relating to the conduct of the test purchase had been disclosed. However, when the court subsequently examined the police officers they testified that, prior to the test purchase, the police had received operational information that the applicant was selling cannabis at RUB 350 per box, but they could not name the source or expand on that information at the hearing because the information remained confidential. 39. “Smirnov” and “Zhirkov” were called as witnesses and were examined during the trial, although their identity was kept secret. 40. “Zhirkov” testified that he had met the applicant in September 2007 and that she had immediately offered to purchase cannabis for him. He had called her back in October 2007 and asked her to supply him with cannabis. She had sold him two sachets for RUB 800 during the test purchase, and he had paid her with banknotes marked with a UV marker pen. He denied having been acquainted with “Smirnov” and also denied the involvement of any intermediary between himself and the applicant. 41. “Smirnov” testified that he was an occasional cannabis smoker and that he had collaborated with the drugs police. He had met the applicant in autumn 2007 and she had asked him if he was taking drugs. He stated that the applicant had offered to buy him drugs but could not remember in what circumstances. He had then reported on her to the drugs police, who had decided to carry out a test purchase in which he would act as a buyer. The transaction had taken place inside the entrance to a block of flats, and the applicant had handed him two sachets of cannabis. When cross-examined, he denied having consumed drugs with the applicant during the test purchase. 42. The applicant alleged that she was a cannabis smoker but had never been involved in drug dealing. She pleaded guilty to having acquired cannabis on behalf of “Smirnov” but explained that she had only done so exceptionally and as result of entrapment. She testified that she had met “Smirnov” when she was renting a room in his flat. She knew that he was a drug user and they had once smoked cannabis together. On one occasion he had told her that he wanted to overcome his addiction to strong drugs and needed some “weed” to ease the withdrawal pains. The applicant could see that he was suffering and out of compassion had agreed to buy cannabis for him from her dealer. On 6 October 2007 she had met “Smirnov” to take the money before going to the dealer, and he had then introduced her to “Zhirkov”, who had also asked for cannabis and complained of withdrawal symptoms. The applicant replied that she could find cannabis for “Smirnov”, but not for “Zhirkov”. Later on the same day she had met “Smirnov” to give him the cannabis that she had purchased for him. They had entered a block of flats so that she could pass it over to him and then “Smirnov” had produced a syringe of heroin and offered it to the applicant. She had accepted, although she was not a heroin user, and “Smirnov” had injected her with it. He had then told her to wait for “Zhirkov” and to pass part of the cannabis to him. Feeling disorientated from the effects of the drug, she had done as she was told and when “Zhirkov” came she had passed him the cannabis and then been arrested. 43. On 5 March 2008 the first-instance court found the applicant guilty of selling drugs and sentenced her to five years and six months’ imprisonment. The applicant appealed, inter alia, on the grounds that she had committed the offence as a result of police entrapment. 44. On 9 April 2008 the Krasnodar Regional Court dismissed the applicant’s appeal, having found, in particular, that there had been sufficient evidence that the applicant had procured drugs on the night of 6 to 7 October 2007. It noted that the police officers had testified that they had received preliminary information that the applicant had been selling drugs. It also found that the police had acted in accordance with the law and therefore rejected the defence of entrapment. It upheld the first-instance judgment. 45. The applicant is a drug user. At the time of his arrest he was working for his father’s company. At the time of lodging his application he was serving a prison sentence in a correctional colony following his criminal conviction in respect of which he lodged this application. 46. On an unspecified date the Kaluga regional office of the drugs police received information from an undisclosed source that the applicant was involved in drug dealing. On that basis the police carried out a test purchase of MDMA pills, commonly known as “ecstasy”, from the applicant. The test purchase was carried out by an undercover police officer acting under the pseudonym of “Azamatov”. 47. According to the Government, “Azamatov” had infiltrated a group of people close to the applicant, all of whom were dealing in and/or using drugs, pretending that he was a drug user himself. The first time he met the applicant and his acquaintance, Ms S., they had told him that they were MDMA users and that they could help if he wanted to buy some, the price of one MDMA pill being RUB 600. They gave him their cell phone numbers. 48. According to the applicant, he was approached by an acquaintance, “Timagin”, with a request to buy some “ecstasy” for him. He knew that Ms S had a contact, a drug dealer, and he asked her to help him purchase four MDMA pills for his friend. “Timagin” picked him up in a car, with another person, “Azamatov”, who was supposedly in need of the drug. They then met Ms S. and she took them to a night club where she met the dealer and purchased four pills for “Azamatov” with the latter’s money (RUB 2,400). 49. The official records of the three test purchases contain the following account. On 2 April 2007 the police officer “Azamatov” was assigned to carry out the first test purchase of the MDMA pills from the applicant. “Azamatov” was given RUB 2,400. The banknote numbers had been noted, but they were not otherwise marked or photocopied. He met the applicant and Ms S. at around midnight the same day, handed the applicant RUB 2,400 and they drove together to a night club where Ms S. left them for a few minutes and returned with a packet containing four pills. “Azamatov” came back to the police station and handed in the pills. It was later established by an expert that only one of the four pills contained an active MDMA ingredient, while the other three did not contain any narcotic substances. 50. The telephone communications between “Azamatov”, the applicant and Ms S. prior to the test purchase were not recorded or intercepted, but an audio recording was made in the course of the transaction, starting at 11.30 p.m. on 2 April 2007. 51. On 12 April 2007 the President of the Kaluga Regional Court authorised the tapping of the applicant’s and Ms S.’s telephones for up to three months. Several recordings were made, the transcripts of which were appended to the case file, but they were not used as evidence during the trial. Transcripts made available to the Court included four conversations during which the applicant spoke about drugs, in jargon. It transpires from those conversations that he and his correspondents lived in constant search of drugs, shared information about their sources and purchased them together from whatever dealer they could find. 52. On 6 June 2007 “Azamatov” called the applicant and asked him to purchase drugs for him. The applicant said that he could not help him, but they agreed to meet. When they met the applicant was arrested and charged with procuring large quantities of narcotic drugs on 2 April 2007 in conspiracy with Ms S. 53. The case was examined at first instance by the Borovskiy District Court of Kaluga Region. The applicant and Ms S. pleaded guilty in part but claimed that the crime they had committed was the result of police entrapment. The applicant pointed out, in particular, that there was no evidence of his prior involvement in drug dealing. He maintained that he had only agreed to assist “Timagin” in acquiring drugs because he had believed that he was an occasional “ecstasy” user, like himself. He had not intended to purchase it for “Azamatov”, but had ended up doing so because of “Timagin’s” manipulation. 54. The court cross-examined “Azamatov” under a procedure whereby his identity was concealed from the participants in the proceedings, except the judge. He testified that his infiltration and the covert operation had been ordered because of the information about the applicant and Ms S. received by the police, but he refused to name the source of that information. He stated that the applicant and Ms S. had told him that they could sell him MDMA pills, but he had never bought any from them prior to the test purchase and had never seen either of them selling drugs to anyone. The court also cross-examined another police officer who had taken part in the test purchase and the witnesses in the investigation who had given details of the test purchase. The court also examined extracts of the recordings made during the test purchases, which were about five minutes long. 55. Ms S. testified at the trial that the applicant had called her at about 10 p.m. on 2 April 2007 and asked her to find some drugs for his friend, who was “unwell”. She had refused to begin with, but in the end he had persuaded her to help. She had called her dealer and found out that he had MDMA pills available. She had called the applicant back and confirmed that they could go and get the pills, and they had driven together to the night club to meet up with the dealer. There had been four people in the car: the applicant, herself, “Azamatov” and “Timagin”. Before she left the car the applicant had given her RUB 2,400 and she had purchased the packet of four pills with that money. She had then returned to the car and handed the packet to “Azamatov”. 56. The applicant’s defence counsel referred in oral pleadings to the guidelines adopted on 15 June 2006 by the Plenary Supreme Court of the Russian Federation on jurisprudence in criminal cases involving narcotic drugs or psychotropic, strong or toxic substances. He claimed, in particular, that it had not been established that the applicant had intended to engage in drug trafficking prior to being contacted by the undercover agent, or that he had carried out any preparatory steps to the commission of the offence. 57. On 7 February 2008 the Borovskiy District Court of Kaluga Region convicted the applicant as charged and sentenced him to five years and six months’ imprisonment. 58. The applicant appealed. He reiterated his plea of entrapment and claimed, inter alia, that the police had no information suggesting that he had previously sold drugs. He also complained that the authorities had not made any attempts to find and question “Timagin”, who had played a key role in the test purchase and could have cast light on the role of the police in the offence he had committed. He claimed that the first-instance court had failed to follow the guidelines adopted by the Plenary Supreme Court of the Russian Federation on 15 June 2006. 59. On 1 July 2008 the Kaluga Regional Court upheld the first-instance judgment. It did not address the plea of entrapment, having limited itself to the finding that the applicant’s conviction had been lawful and well founded. It also noted that the undercover operation had been based on preliminary information indicating that the applicant was involved in drug dealing. | 1 |
test | 001-154149 | ENG | MNE | CHAMBER | 2,015 | CASE OF MILIĆ AND NIKEZIĆ v. MONTENEGRO | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 5. The applicants were born in 1974 and 1981 respectively and live in Podgorica. 6. At the relevant time they were in detention (u pritvoru) at the Institution for the Execution of Criminal Sanctions (Zavod za izvršenje krivičnih sankcija, hereinafter “IECS”), where they shared a cell with five other detainees. 7. On 27 October 2009 the first applicant was to be transferred to a disciplinary unit (disciplinsko odjeljenje) and the cell in which he was detained was to be searched. The submissions of the applicants and the Government as to what exactly happened on that occasion differ. 8. The first applicant submitted that after having entered his cell, several guards had grabbed him and thrown him on to the concrete floor of the corridor outside the cell. They had handcuffed him, beaten him using batons and their fists, and sworn at him. In addition, two rows of guards positioned along the corridor had beaten him as he was being taken away. 9. The second applicant submitted that he had protested against this abuse. In response, four guards had started to kick him and had beaten him with their fists and batons. After that he had been taken into the corridor outside the cell, where eight other guards had continued to beat him. The beating had continued after he had returned to the cell. 10. The Government, for their part, submitted that the applicants had resisted the actions of the prison guards and had tried to prevent them from performing their duties, which had triggered the guards’ intervention. In particular, when they had entered the cell the second applicant had attacked one of the guards without any reason and had injured him. 11. The first applicant had refused to be examined by a prison doctor as he doubted his impartiality. On the same day, however, he had talked to the doctor and, in answer to the doctor’s question whether he was feeling well and whether he had any injuries, he had apparently said “No, doctor, I am healthy and both physically and psychologically stable, and I do not consent to an examination; there is no need for it as I have not been ill-treated either physically or psychologically by the security forces”. 12. The second applicant had been examined by the prison doctor after the Deputy Ombudsman had made a request to that effect. It would appear that the doctor made two reports in this regard. The Ombudsman, who obtained the reports from the IECS, described them as barely legible and apparently referring to the same subject matter in two different ways. 13. On 30 October 2009 the first applicant’s representative in the domestic criminal proceedings reported the incident to the prison governor and requested that the appropriate responsible bodies be informed, that his client be provided with medical assistance, and that no further punitive measures be taken against him. 14. On an unspecified date before 4 November 2009 the State prosecutor (Osnovno državno tužilaštvo) asked the Court of First Instance (Osnovni sud) in Danilovgrad to establish the elements of criminal offences of torture and ill-treatment (predlog radi utvrđivanja elemenata bića krivičnog djela mučenje i zlostavljanje). Acting upon this an investigating judge (istražni sudija) from the Court of First Instance requested, inter alia, the medical examination of both applicants by an external forensic doctor, and ordered evidence to be heard from a number of individuals, including the prison guards, and the second applicant. 15. On 4 November 2009 an external forensic doctor examined the second applicant. He confirmed in his report that the second applicant had light body injuries, namely a 10-day old haematoma (krvni podliv) measuring 8 x 15 cm on the back of his left thigh and a haematoma on the lower lid of each eye. The doctor added that there was an undated medical report in the second applicant’s file confirming the presence of bruises around his eyes. He emphasised that the medical documentation provided by the IECS was “largely illegible”. The first applicant refused an examination by the external forensic doctor, as the examination had apparently been ordered when his bruises were already fading. 16. On 5 November 2009, the first applicant’s mother – during a visit – observed bruises on his face and haematomas on visible parts of his body. She reported this immediately to the prison administration (Upravi zavoda). On 9 November 2009 she lodged a criminal complaint (krivična prijava) with the competent State prosecutor against persons unknown, stating that the first applicant had two bruises, one on his left temple – which was already fading – and another on one of his legs, and that he had also complained that he was having difficulty sitting. 17. On an unspecified date the second applicant’s mother – who had been informed by one of the detainees about what had happened – reported the incident to the Ombudsman and visited her son. She observed that his eyes were closed and his face and visible parts of his body were covered in bruises. She reported this to the prison administration and asked that it be investigated. On 6 November 2009 she lodged a criminal complaint with the police (Upravi policije) against persons unknown. 18. On 5 November and 10 November 2009 the State prosecutor asked the Court of First Instance in Danilovgrad to investigate the complaints lodged on behalf of the second and first applicants respectively (predlog za preduzimanje istražnih radnji). Acting upon this the investigating judge requested, inter alia, a video-recording from the prison, the identification of all the guards who had been involved in the cell search, and that the evidence be heard from a number of individuals, including the prison guards, other detainees in the cell, the first applicant, and the first applicant’s representative in the domestic criminal proceedings. 19. The requested questioning (see paragraphs 14 in fine and 18 in fine above) took place between 4 November and 9 December 2009. Two of the detainees stated that they had seen the first applicant being beaten. Some of the guards stated that the first applicant had resisted being handcuffed by “attempting to get out of [their] hands, cursing and swearing” and, when on the floor, by kicking out (“gicao se i mlatio nogama i rukama”). One of the guards admitted “hitting [the first applicant] once with a baton, as he continued to resist and kick”. Another guard, who had seen the first applicant several days after the incident, had observed a cut below his left eye as well as a visible injury to one of his legs. 20. When visiting his client several days after the incident, the first applicant’s representative in the domestic criminal proceedings had observed a bruise under one of his eyes, and a bruise on the calf of his left leg with a diameter of about 20 cm. He described him as frightened and “mentally broken”. 21. One of the guards stated that the second applicant had grabbed the collar of one of his colleagues from behind, following which the guard in question had fallen over a bench. The guard had pushed him away and the second applicant had hit the wall and sunk to the floor (pao je na zid i spustio se dolje na sjedalo). The guard stated that his colleague had not hit the second applicant. Three other guards confirmed this. The prison doctor stated that he had noticed a haematoma under the second applicant’s eye. Three detainees confirmed that the second applicant had been beaten by several guards both in the cell and in the corridor. The applicants, for their part, repeated their allegations. 22. On 12 February 2010 the State prosecutor rejected (odbacio) the criminal complaints against two guards, I.M. and R.T., on the ground that even though they had used force by hitting the first applicant three times and the second applicant once with a baton, they had done so in order to overcome the applicants’ resistance and thus acted within their powers (u granicama službenog ovlašćenja). While the first applicant had not been examined by a doctor, the medical documentation of the second applicant confirmed that he had sustained light injuries. That being so, the prosecutor concluded that the force used had not infringed human dignity and that there were no elements of any criminal offence entailing prosecution ex proprio motu. The prosecutor’s decision also identified other guards who had participated in the cell search. At the same time, the applicants were informed that they could pursue a subsidiary prosecution by lodging an indictment (optužni predlog) with the Court of First Instance. 23. On 23 February 2010 the lawyer retained by the applicants in respect of the complaints of alleged ill-treatment lodged an indictment for torture and ill-treatment which had resulted in severe bodily injuries (teške tjelesne povrede) against 16 prison guards named in the previous decision, including I.M. and R.T. 24. On 16 March 2010 the lawyer was informed by the first applicant that the video-recording obtained from the IECS by the Court of First Instance did not show the entire incident, namely it omitted his being beaten by two rows of guards in the corridor. He claimed, however, that another camera in the corridor must have recorded the beating and that the recording should be obtained from the prison authorities. 25. On 30 March 2010 the lawyer asked the court to obtain a recording from another camera, but apparently without success. 26. On 22 April 2010 the Court of First Instance decided that the applicants’ indictment was to be treated as a criminal complaint and, as such, was to be lodged with the State prosecutor. 27. On 10 May 2010 the applicants appealed against the above decision. At the same time they also lodged a criminal complaint with the State prosecutor. 28. On 13 September 2010 the High Court rejected the applicants’ appeal on the ground that the State prosecutor had delivered a decision only in respect of I.M. and R.T. and not the other guards. 29. On 19 October 2010 the State prosecutor rejected the applicants’ criminal complaint on the ground that there were no elements of any criminal offence entailing prosecution ex proprio motu. At the same time the applicants were notified that they could pursue a subsidiary criminal prosecution by lodging a request for an investigation (zahtjev za sprovođenje istrage) with the Court of First Instance. 30. On 12 November 2010 the applicants lodged a request for an investigation with the Court of First Instance. 31. On 10 February 2011 the Constitutional Court rejected (odbacuje se) a constitutional appeal by the applicants against the above decisions of the Court of First Instance and the High Court on procedural grounds. In particular, it considered that the applicants’ complaints were in substance about the criminal prosecution of other individuals and that – pursuant to the Court’s case-law – such complaints were incompatible ratione materiae with the Convention. It was also concluded that the decision of the Court of First Instance did not represent an “individual decision” in respect of which the Constitutional Court would be competent, but rather a procedural decision establishing whether the conditions were met for conducting an investigation in response to a direct indictment lodged by the applicants. In the impugned proceedings the courts had not decided on the merits of the request itself, but rather had ruled that the request should be treated as a criminal complaint. 32. On 18 March 2011 the Court of First Instance dismissed the applicants’ request for an investigation on the grounds of lack of reasonable suspicion (osnovana sumnja) that the guards had tortured and ill-treated the applicants and that the force they had used had been necessary to overcome the applicants’ resistance. On 13 June 2011 the High Court upheld this decision. 33. On 30 October and 12 November 2009 the Deputy Ombudsman visited the applicants. She also spoke with other detainees from the same cell, who confirmed the first applicant’s allegations. She noted that the second applicant, who had “visible injuries on his head, especially around the eyes” as well as on his legs, had asked that he be allowed to lodge a criminal complaint and to be examined by the prison doctor. 34. In its response to an inquiry from the Ombudsman, the IECS stated that the second applicant had unjustifiably resisted and physically attacked guards who, in response, had used force and a baton to the extent necessary to overcome his resistance. The IECS also provided the doctor’s reports in respect of the second applicant, which were described by the Ombudsman as barely legible and from which it could be concluded that they dealt with the same subject matter, but had a different content. 35. In an opinion of 29 March 2010, the Ombudsman found that the applicants’ rights had been violated on 27 October 2009. The opinion stated that they had offered no resistance and that there had been no justification for the use of force (sredstva prinude), especially not to the extent and in the manner alleged. At the same time the Ombudsman recommended that the IECS institute disciplinary proceedings against the guards responsible and report to the Ombudsman within 20 days on the measures taken. 36. On 1 April 2010 disciplinary proceedings were instituted against three prison guards, I.M., I.B. and R.T. On 31 May 2010 they were found responsible and fined 20% of their salaries in October 2009 for abusing their position or exceeding their authority (zloupotreba položaja ili prekoračenje ovlašćenja) as they had used excessive force disproportionate to the resistance offered by the applicants on 27 October 2009. In particular, I.M. had hit both applicants once with a rubber baton, I.B. had kicked the first applicant, and R.T. had hit the second applicant on the lower part of the body with the baton. The applicants’ families and the Ombudsman were informed about the outcome of the disciplinary proceedings and the applicants’ lawyer attended the hearing before the disciplinary commission. 37. Four other staff members who had participated in the cell search on the stated date, in relation to whom it was not proved that force had been used against the applicants, had apparently been transferred to other posts in other IECS units. 38. On 5 May 2010, during the parliamentary hearing of the prison governor (see paragraph 47 below), the Ombudsman confirmed that the IECS administration had duly acted upon his recommendations within the set time-limit. 39. On 15 March 2011 the applicants lodged a compensation claim against the IECS relying, inter alia, on Article 3 of the Convention, and seeking 15,000 euros (EUR) each for non-pecuniary damage caused by torture on 27 October 2009. 40. On 7 November 2013, after a remittal, the Court of First Instance in Podgorica ruled partly in favour of the applicants by awarding EUR 1,050 each for non-pecuniary damage on account of violations of their rights and EUR 397 for the costs of the proceedings. The court based its decision on section 166 of the Obligations Act (see paragraph 62 below). In its reasoning the court took into account the statements of the applicants and the prison guards, medical findings, the video-recording, the fact that the three prison guards had been found responsible in disciplinary proceedings for the disproportionate use of force and had been fined, and the fact that the applicants had offered resistance, thus contributing to the non-pecuniary damage. The court found that the guards had exceeded their powers but also explicitly held that such actions could not be qualified as torture or inhuman or degrading treatment. 41. On 29 May 2014 the High Court upheld this judgment. In so doing it did not disagree with the conclusion of the first-instance court as to the qualification of the impugned incident. 42. On 23 October 2014 the Supreme Court partly overturned the previous decisions by awarding the applicants 1,500 EUR each for non-pecuniary damage, together with the statutory interest. In so doing the Supreme Court held, inter alia, that the use of force by prison guards could not be justified by the applicants’ resistance and held that such action was in breach of fundamental values of every democratic society and degraded human dignity, but that it did not constitute torture or inhuman treatment. The applicants received this decision on 25 November 2014. 43. The applicants also maintain that they were threatened or abused between 23 December 2009 and 15 January 2010, in which regard their mothers lodged criminal complaints on 18 January 2010. On 22 June 2011 the State prosecutor (Osnovni državni tužilac) rejected the criminal complaint as regards the threat against the first applicant on the ground that no such incident had taken place. The criminal complaint in respect of the abuse alleged by the second applicant would appear to be still pending. 44. Between 27 April and 5 May 2010 the first applicant went on hunger strike, the reason being that disciplinary proceedings, with regard to the events of 27 October 2009, had been instituted against only three guards, who – according to him – were those least responsible for what had happened to him. 45. On an unspecified date in early May 2010 the first applicant had a meeting with the prison governor. On that occasion he apparently suggested to show the prison governor the camera which had recorded the entire incident of 27 October 2009. The governor allegedly suggested that the first applicant draw a sketch instead. 46. On at least two occasions the applicants complained to their lawyer that their ill-treatment had been continuous, and on at least one occasion they threatened to commit suicide if the pressure on them did not ease. The lawyer informed the High Court, the Minister of Justice, and the prison governor, requesting that disciplinary proceedings be instituted against those responsible. 47. On 5 May 2010 and 14 June 2011 the prison governor was questioned by the parliamentary Human Rights Committee. 48. On 25 June 2011 the parliamentary Human Rights Committee submitted its report to Parliament, one of its conclusions being that “there had been no torture or systemic violations of human rights in the IECS and that all the reported cases of the use of force and exceeding of powers had been sanctioned”. 49. The applicants also submitted that they had been deprived of an effective domestic remedy because one of the deputy State prosecutors at the time was the prison governor’s daughter and the Deputy Supreme State Prosecutor was his wife. 50. The first applicant is currently serving four prison sentences. He had been convicted eight times prior to this for various criminal offences. During his detention he had been subject to disciplinary sanctions four times, and twice more while serving his prison sentence. | 1 |
test | 001-162005 | ENG | ROU | CHAMBER | 2,016 | CASE OF PLEŞ v. ROMANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque | 5. The applicant was born in 1976 and lives in ClujNapoca. 6. The applicant is the son and heir of Mr C. Pleş. He replaced his father in the domestic proceedings after his death. 7. The applicant’s father was shot on 21 December 1989 while participating in a demonstration organised in Cluj against N. Ceauşescu. He was immediately hospitalised and diagnosed with “a gunshot wound in the right side of the chest, rupture of the right lung and fracture of ribs seven and eight, plus a gunshot wound in the right arm”. Following surgery, two lobes of his right lung were removed. He was left with a breathing deficit of over 30%, paresis of his right arm, and a permanent disability that prevented him from continuing to work to support his family. Furthermore, in subsequent years he was hospitalised many times because of serious breathing problems. 8. Criminal proceedings were instituted against the army commanders who had ordered the shooting of demonstrators during the events of December 1989 in Cluj. Many victims of the repression joined civil complaints to the proceedings, requesting compensation for pecuniary and nonpecuniary damage. The applicant’s father lodged one such civil complaint, requesting 150,000,000 Romanian lei (ROL) (approximately 4,100 euros (EUR)) in respect of pecuniary damage, ROL 500,000,000 (approximately EUR 14,000) in respect of non-pecuniary damage, and ROL 50,000,000 (about 1,400 euros) for costs and expenses incurred during the trial. 9. On 17 May 2004 the applicant’s father died. He was replaced as a civil party in the proceedings by the applicant. 10. By a judgment of 23 May 2005 the High Court of Cassation and Justice, acting as a first-instance court, convicted five of the officers involved in the events of December 1989 in Cluj. They were ordered to pay compensation jointly with the Ministry of National Defence to all eightyfour civil parties in the case. The court granted the applicant ROL 150,000,000 in respect of pecuniary damage and ROL 50,000,000 for costs and expenses. It omitted to grant the claim for ROL 500,000,000 in respect of non-pecuniary damage, without providing any reason. 11. Eighteen civil parties to the criminal proceedings, including the applicant, lodged an appeal on points of law, complaining about the way in which the first-instance court had examined their claims for damages. The grounds of appeal of the civil parties were not identical. In most of the cases they concerned the amount of damages awarded. The applicant complained that the first-instance court had not granted him the requested compensation for non-pecuniary damage. 12. By a decision of 20 March 2006, a panel of nine judges of the High Court of Cassation and Justice dismissed all the appeals lodged by the civil parties. The court of last resort referred to the general provisions of the Code of Criminal Procedure and Civil Code concerning compensation for damages in the context of civil actions joined to criminal proceedings (see paragraph 13 below) and without examining in particular any of the civil parties’ appeals, it dismissed all the appeals as illfounded. | 1 |
test | 001-156261 | ENG | POL | CHAMBER | 2,015 | CASE OF R.S. v. POLAND | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Pecuniary damage - award (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev | 5. The applicant was born in 1969 and lives in Zurich. 6. The applicant is a Polish national. He married M.S., another Polish national, in 1994. Shortly afterwards they moved to Switzerland where the applicant works as a software specialist. In 1998 their son P. was born and in 2002 their daughter J. 7. In autumn 2007 the applicant began an affair with H. 8. In February 2008 the applicant and M.S. decided to separate and he moved to another flat. However, the applicant’s flat was located opposite the flat of his family and he kept regular contacts with his children. 9. On 24 September 2008 M.S. filed a petition for divorce with the Kraków Regional Court. M.S. applied for an interim order granting her temporary custody over P. and J. for the duration of the divorce proceedings. She had also informed the court that she would be in Kraków between 4 and 28 October 2008. 10. On 4 October 2008 M.S. took the children to Poland for school holidays. She promised to return on 20 October 2008. The applicant was informed about the trip and consented to the travelling dates. 11. On 15 October 2008 the Regional Court granted the request of M.S. for an interim custody order. The applicant was neither informed of nor summoned to the court session concerning this order. 12. Subsequently, on 24 October 2008 the applicant lodged a request for return of his children under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) (see paragraphs 20-30 below). 13. On 12 November 2008 the applicant requested the Kraków Regional Court to stay the execution of the interim custody order of 15 October 2008. He also appealed against that order. 14. On 11 December 2008 the Kraków Regional Court dismissed the applicant’s request for stay of the execution of the interim order and instead stayed the divorce proceedings. The court referred to the pending proceedings under the Hague Convention (see below). The applicant’s appeal against this decision and against the interim custody order was dismissed by the Kraków Court of Appeal on 26 February 2009. 15. On 3 March 2010 the Kraków Regional Court gave an interim order and determined the applicant’s contacts with P. and J. for the duration of the divorce proceedings. 16. On 6 May 2011 the Kraków Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) submitted an expert report to the Kraków Regional Court. According to the report, M.S. should continue to exercise custody of the children as she had always been more involved in their upbringing. Moreover, the experts considered that another separation from a parent and another change of environment would be detrimental to the children. They further noted that the applicant should be allowed to have contacts with his children outside the territory of Poland as long as there was no risk of destabilisation of their situation. He should have the right to spend with them half of summer vacation, holidays and weekends and to visit them 1-2 times a month. 17. On 24 July 2012 the Kraków Regional Court dissolved the applicant’s marriage. It found that the applicant had been at fault in the breakdown of the marital relationship. It further held that full parental authority was to be exercised by M.S., whereas the parental rights of the applicant were limited to decisions regarding the children’s upbringing, health and education. He was authorised to have contacts with P. and J. two afternoons per week and two weekends per month. He was further ordered to pay child maintenance and alimony. 18. The applicant appealed. He argued, in particular, that, due to the fact that he resided in Switzerland, his visiting rights during holidays and summer vacation should have been regulated by the court. 19. On 15 March 2013 the Kraków Court of Appeal dismissed the applicant’s appeal and upheld the first instance’s judgment. 20. On 24 October 2008 the applicant lodged with the Swiss Central Authority a request concerning the return of the children to Switzerland under the Hague Convention. It was transmitted to the Administrative Division of the Kraków Regional Court on 25 November 2008. 21. Subsequently, in a letter of 13 March 2009 the Swiss Central Authority confirmed that the applicant and M.S. had exercised joint custody over P. and J. The authority expressed the view that since the Swiss authorities had not been aware of any decision of Swiss courts or authorities limiting the applicant’s custody rights, the fact that the children stayed in Poland after 20 October 2008 without their father’s consent constituted a wrongful removal under Article 3 of the Hague Convention. 22. Meanwhile in Kraków, on 9 December 2008 a local assessment (wywiad środowiskowy) was conducted at the home of M.S. by a courtappointed guardian with a view to establishing the children’s situation. The report confirmed that the children’s living conditions with their mother were very good and that they continued their education in private schools. 23. On 17 December 2008 the Kraków District Court held the first hearing in the proceedings under the Hague Convention. The court also gave an interim order and allowed the applicant to visit the children on that day in the afternoon. 24. On 5 January 2009 the court requested a psychologist to prepare a report concerning the children’s mental and emotional maturity and their capacity to express views on the matter of their return to Switzerland. 25. On 9 January 2009 another hearing took place. 26. On 21 January 2009 the expert submitted his report to the court. 27. On 27 January 2009 the District Court allowed the applicant another exceptional contact with his children. They were to stay with him from 30 January until 1 February 2009. However, the applicant was not allowed to leave Poland with the children. 28. On 11 February 2009 the Kraków District Court gave a decision and refused to grant the applicant’s request for the children’s return to Switzerland. The court referred to the applicant’s and M.S.’s consistent testimonies and the information included in the divorce file. The court established that on 4 October 2008 M.S. had come to Poland together with P. and J. and the applicant had consented to this trip. On 20 October 2008 M.S. had not returned to Switzerland and stayed in Poland together with the children. The applicant had not accepted this decision. The court subsequently stressed that in the proceedings under the Hague Convention it should be firstly established whether wrongful removal or retention took place. It further held that in the case at issue there had been no wrongful removal since the applicant had agreed to P and J’s trip to Poland on the 4 October 2008. With reference to the fact that M.S. failed to return on 20 October 2008 (the date agreed with the applicant), the court noted that she had been granted temporary custody over her children for the duration of the divorce proceedings. When the interim order was delivered, that is between 4 and 20 October 2008, the children remained in Poland with their father’s consent. Consequently, M.S. could have decided to stay in Poland also after 20 October 2008 and there had been no wrongful retention in the case. The court also considered that the interim custody order was not contrary to Article 16 of the Hague Convention, since the applicant’s request for return of his children had been received by the Kraków Regional Court only on 25 November 2008 while the custody order had been delivered on 15 October 2008. Lastly, the court held that the refusal to grant the request for return was not contrary to Article 17 of the Hague Convention, since that provision concerned custody decisions delivered after the removal of a child. 29. On 24 March 2009 the applicant lodged an appeal against the firstinstance decision. He argued that the contested decision was in breach of Article 3 of the Hague Convention. He further argued that Article 17 of that Convention was also breached as the first-instance court had relied on a decision which was merely of a temporary character, whereas this provision expressly prohibited to refuse an application for return on the basis that a decision on custody was given in the country to which children were abducted. 30. On 2 June 2009 the Kraków Regional Court dismissed the applicant’s appeal. The court first refused to accept as evidence the document from the Swiss Central Authority since that document failed to refer to the interim custody order of 15 October 2008. It its decision, the Kraków Regional Court referred in particular to the events leading to the breakdown of the applicant’s marriage. It also noted that when M.S. had discovered that the applicant’s new partner had been pregnant, she had decided to institute divorce proceedings. However, she had been informed by a Swiss lawyer that in view of the applicant’s lack of consent to a divorce, she could only have filed a petition in Switzerland after two years of separation. For these reasons she had decided to file a petition for divorce with the Polish courts. The court further noted that on 4 October 2008 M.S. had arrived in Kraków with her children in order to spend two weeks of school holidays there, after having obtained the applicant’s consent for their trip. The court further stressed that M.S. decided to stay in Poland permanently only when she was granted temporary custody. Consequently, in the court’s opinion the removal of the children was not a wrongful removal within the meaning of Article 3 of the Hague Convention. The decision was served on the applicant on 28 July 2009. It is final. | 1 |
test | 001-164197 | ENG | POL | CHAMBER | 2,016 | CASE OF JÓZEF WOŚ v. POLAND | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1966 and lives in Węglówka. 6. At about 5 p.m. on 26 January 2009 the applicant and his wife went by car from their home to another village. The applicant’s wife was driving. The car had been borrowed from the applicant’s friend. On a narrow section of the road they saw a police car trying to stop another car. The applicant’s wife, who apparently considered it an unsafe place to stop other cars, overtook the police vehicle and sounded the horn, though she claims to have done this by accident. 7. While being overtaken, the police officers noticed that the car driven by the applicant’s wife had no left rear light and that its rear registration plate was not lit. They decided to stop the car to inspect it. 8. They overtook the applicant and his wife, stopped the car and requested the relevant documents. They considered that the registration document of the car was partly illegible. According to the applicant, he read the contents of the registration document aloud to the officers. They tried to contact the Nowy Targ police station to confirm the identity of the driver but to no avail. The applicant and his wife spent about half an hour in the car at the side of the road. He then requested that they all drive to the police station because he wanted to speak to the officers’ supervisor. They all drove to the police station in Jabłonka, but there was no one there, so the police officers continued the inspection on the street outside. 9. They found that, apart from the light that did not work, the fire extinguisher in the car was too small. They wanted to fine the applicant’s wife 200 Polish zlotys (PLN). The applicant then told her: “do not sign anything for those beggars” (“Nie podpisuj nic tym dziadom”). The officers felt offended and one of them told the applicant that he would be arrested for insulting police officers. 10. According to the applicant, by that time the “routine” inspection had already lasted for about two hours, and he and his wife were getting nervous. His wife began to cry because the officers wanted to take her to the police station for questioning. The policemen repeated “this will cost a lot” each time they found a fault with the car. He therefore considered that they wanted him to bribe them and referred to them as “beggars”. According to the applicant, he was trying to defend his wife who, after two hours of intervention, was very anxious and upset. The officers claimed that the applicant had been disturbing their routine activities. As established by the domestic courts in the set of proceedings against the police officers, when one of the police officers had told the applicant that he would be arrested, the applicant pushed the police officer and started to run away. 11. As established by the domestic courts in the set of proceedings against the applicant, on the basis of the testimony of the policemen, after the comment made by the applicant the police officers tried to apprehend him, however he resisted arrest and moved a few steps back. Officer J.B. then forcefully put the applicant onto the ground and pressed down on him with his knee. The applicant continued to resist and try to get away and then kicked J.B. several times in his left leg. The other officer, D.B., then used pepper spray against him. When the applicant calmed down he was handcuffed. 12. The applicant was subsequently taken to the police station. His wife informed the policemen that her husband had heart problems, so they called an ambulance. The doctor who came to the police station considered that the applicant needed to be examined in a hospital so he was taken to Nowy Targ. After examination he was placed in police custody (Policyjna Izba Zatrzymań). He was released the following day. Apparently after his release he was examined again in a hospital in Myślenice. 13. The relevant notes from the hospitals, in so far as they were legible, contained the following information. 14. Notes by the Nowy Targ Hospital on 26 January 2009 read: “Skin bruising on the right hand. Chemical burn to the right eye.” 15. A document dated 27 January 2009 confirming the applicant’s release from the Myślenice Hospital read: “He claims that yesterday he was beaten up by the police officers who used pepper spray on him. Skin bruising on the right hand, chemical burn to the right eye, reddish conjunctivitis in the right eye.” 16. The applicant also submitted a copy of a medical certificate requesting that he be examined by an ophthalmologist, because of “burns from pepper spray”. The note was marked “urgent” but bore no date. 17. On 28 January 2009 the applicant lodged a complaint about his arrest with the Nowy Targ District Court (“the District Court”). He submitted that he had been apprehended by force and put onto the ground, that the police had used a whole container of pepper spray and that he had many scratches and bruises. He had been released from the police custody facility at about midday and let out by the back door without a jacket or any money. He had had to walk until he had found a taxi driver who had agreed to give him a lift and call his wife, who had apparently been waiting at the police station since 10 a.m. and had had no idea that he had been released and let out by the back door. 18. On 4 February 2009 the District Court refused to allow the applicant’s complaint. It found that in his complaint he had presented “his own version of events” and that his arrest had been lawful because “although there was no fear that he might go into hiding there was a reasonable suspicion that he might influence the testimony of a witness to the events in question”. The court also considered that at the moment of the arrest there were grounds to suspect the applicant of having committed the offence referred to in Article 226 § 1 of the Criminal Code and there were grounds to bring proceedings against him in an expedited manner. Having examined the grounds, legality and appropriateness of the applicant’s arrest, the court found no shortcomings. It appears that the court did not hear evidence from any witnesses; it based its findings on a note made by the police and the arrest and examination records. The court did not refer to the applicant’s allegations as regards the use of excessive force by the police. 19. On 22 February 2009 the police lodged an indictment against the applicant with the District Court. He was charged with offending police officers on duty and breaching the personal inviolability of a police officer by kicking him. On 8 April 2009 in his reply to the bill of indictment, when describing the “kicking” he stated that these could have been involuntary movements as he had been pushed to the ground and pressed down on with a police officer’s knee and pepper spray had been directed into his face. He submitted that he had not intended to hit anybody. 20. On 28 May 2009 the District Court found the applicant guilty as charged and conditionally discontinued the proceedings against him. The court held that in his statements the applicant had not actually denied kicking the police officer J.B. as he could not rule out that he had made the movements with his legs involuntarily, without the intention of hitting anybody. He was also ordered to pay PLN 200 to charity and the costs of the proceedings. 21. On 24 July 2009 the applicant appealed. He submitted that he did not feel guilty; on the contrary, he had been a victim. He also considered that he could not have violated anybody’s personal inviolability because he had been pressed against the ground and two officers had been sitting on his back trying to handcuff him. 22. On 8 September 2009 the Nowy Sącz Regional Court quashed the first-instance judgment and discontinued the proceedings, finding that the prohibited acts committed by the applicant had not constituted offences because the resulting harm to the public was insignificant (znikoma szkodliwość społeczna czynu). 23. On 28 January 2009 the applicant reported the two police officers who had arrested him on 26 January 2009 to the Nowy Targ District Prosecutor for abuse of power. 24. On 25 February 2009 the District Prosecutor opened an investigation into their alleged abuse of power. 25. On 11 March 2009 the applicant and his wife were questioned. On 9 April 2009 the prosecutor questioned officers D.B. and J.B. 26. On 16 April 2009 the District Prosecutor discontinued the investigation, finding that no offence of abuse of power had been committed. Referring to the relevant provisions of domestic law, in particular the 1990 Police Act, the prosecutor found that the police had had the right to use force because “the applicant had not obeyed their orders, had behaved nervously and had tried to run away”. 27. The applicant appealed. He argued, among other things,officers had apprehended him for no legal reason. The applicant admitted that he had been nervous because of the inspection which had lasted for about two hours, but considered that this could not have been the basis for his arrest. He further submitted that the officers had used excessive force, inappropriate in the circumstances; they had put him onto the ground with his face down and had sat on his back and used pepper spray to incapacitate him. He had had injuries afterwards and had to take over a month’s sick leave. He also referred to the circumstances of his release from the police station and the fact that his wife, who had been waiting there for him, had not been informed that he had left by the back door. 28. On 12 August 2009 the District Court upheld the challenged decision discontinuing the investigation. It found that the applicant had again repeated his version of events which the prosecutor had found not to be credible. The court did not refer in any way to his submissions as regards his injuries. It found that the “circumstances of the applicant’s arrest [had already been] examined because the applicant had complained about his arrest and his complaint [had been] dismissed”. The court further held that “it had been reprehensible not to have informed the applicant’s wife of the applicant’s release but this had not constituted any offence”. | 0 |
test | 001-164227 | ENG | HRV | ADMISSIBILITY | 2,016 | KRPIĆ v. CROATIA | 4 | Inadmissible | Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković | 1. The applicant, Mr Antun Krpić, is a Croatian national, who was born in 1958 and lives in Zagreb. He was represented before the Court by Mr Z. Zaninović, an advocate practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant held a specially protected tenancy (stanarsko pravo) of a flat in Zagreb measuring 16.25 square metres. The flat was located in a socially-owned building in the centre of Zagreb built in 1776. 5. By a decision of 16 January 1990 the local authorities decided to demolish the building because it was so dilapidated that it risked collapsing at any time and thus posed a risk to life and property. The decision specified that the building would be demolished once all the tenants (five at the time, including the applicant) had vacated it, after being provided with replacement flats pursuant to the law, in particular section 107(2) of the Housing Act (see paragraph 24 below). 6. On the basis of that decision two of the tenants living in the building were subsequently allocated replacement flats. 7. On 19 June 1991 the Specially Protected Tenancies (Sale to Occupier) Act entered into force (see paragraph 25 below). It entitled holders of specially protected tenancies to purchase the flats in respect of which they held such a tenancy under favourable conditions. In that way, a large majority of specially protected tenancies became a right of ownership for those tenants. 8. On 11 January 1993 an explosive device was detonated in front of one of the flats in the building, which caused further damage. 9. On 14 January 1993 the applicant and another tenant who were still living in the building, wrote to the local authorities housing department asking it to allocate them urgently replacement flats, as after the explosion the building was no longer suitable for habitation. 10. On 25 January 1993 the local authorities held an on-site inspection and established that due to the damage caused by the explosion, the building was indeed no longer habitable and that the two remaining tenants (of which one was the applicant) had moved in with their friends. 11. On 26 January 1993 the applicant was offered a replacement flat in Zagreb measuring 17.10 square metres. He refused the flat, stating that it “was damp and had rotten floors” and was therefore uninhabitable. 12. On 8 April 1994 the applicant, relying on section 107 of the Housing Act (see paragraph 24 below), brought a civil action against the local authorities, in particular the City of Zagreb, before the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking to be provided with a replacement flat. More specifically, he asked to be awarded a specially protected tenancy of such a flat. 13. At the hearing held on 3 July 1996 the applicant stated, inter alia, that the building in which his old flat was located had been demolished. 14. On 5 November 1996 the Lease of Flats Act entered into force (see paragraph 27 below). It repealed the Housing Act, abolished the legal concept of the specially protected tenancy and provided that the remaining holders of such tenancies were to become “protected lessees” (zaštićeni najmoprimci, see paragraphs 29 and 32 below). Under the Act such lessees are subject to a number of protective measures, such as the duty of landlords to conclude a lease of indefinite duration; payment of protected rent (zaštićena najamnina), the amount of which is set by the Government and is significantly lower than the market rent; and better protection against termination of the lease (see paragraph 28 below). 15. Accordingly, in his written submissions of 4 March 1997 the applicant amended his action and sought to be awarded a replacement flat under the protected lease scheme, with an option to purchase it under the conditions set forth in the Specially Protected Tenancies (Sale to Occupier) Act (see paragraph 25 below). 16. On 1 April 1998 the applicant deregistered his domicile at the address at which his old flat was located and registered it at the address where his stepson was living. 17. By a judgment of 26 September 2006 the Municipal Court dismissed the applicant’s action. The court established, on the basis of a witness testimony, that the replacement flat the applicant had been offered but had refused (see paragraph 11 above) had indeed been unsuitable for habitation because it was shabby and had flooded floors and damp walls. It held, however, that while the local authorities had indeed been bound under section 107 of the Housing Act (see paragraph 24 below) to provide the applicant with a replacement flat, that obligation had been extinguished with the entry into force of the Lease of Flats Act, which had repealed the Housing Act and abolished the specially protected tenancy as such. 18. On 27 April 2010 the Zagreb County Court (Županijski sud u Zagrebu) dismissed an appeal lodged by the applicant and upheld the first-instance judgment by endorsing the reasons given therein. The first-instance judgment thereby became final. 19. The applicant then, on 24 June 2010, lodged an appeal on points of law (revizija) against the second-instance judgment. Aware that the value of the subject matter of the dispute, amounting to 21,000 Croatian kunas (HRK), which he had set when bringing his action did not reach the statutory threshold (HRK 100,000) for lodging an ordinary appeal on points of law, the applicant lodged a so-called extraordinary appeal on points of law under section 382(2) of the Civil Procedure Act (see paragraph 23 below), stating that the main issue in his case was important for the uniform application of the law. 20. By a decision of June 2011 the Supreme Court (Vrhovni sud Republike Hrvatske) declared inadmissible the applicant’s appeal on points of law. It found that the applicant had not complied with the formal requirements for lodging an extraordinary appeal on points of law, as stipulated in section 382(3) of the Civil Procedure Act (see paragraph 23 below), because he had not specified the legal issue for which he had lodged the appeal or explained why it was important for the uniform application of the law. 21. On 26 July 2011 the applicant lodged a constitutional complaint against the Supreme Court’s decision, alleging violations of his constitutional rights to equality before the law, equality before the courts, fair procedure and the right of ownership. 22. By a decision of 7 May 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant’s constitutional complaint and served that decision on his representative on 25 May 2012. It held, inter alia, that the Supreme Court’s decision was not arbitrary and that it did not raise a constitutional law issue. 23. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/1991, with subsequent amendments), which has been in force since 1 July 1977, read as follows: “(1) Parties may lodge an appeal on points of law (revizija) against a second-instance judgment: - if the value of the subject matter of the dispute of the contested part of the judgment exceeds HRK 100,000, - [in certain employment disputes], - [if the second-instance court assessed the evidence and/or established the facts differently from the first-instance court or held a hearing]. (2) In cases where parties are not entitled to lodge an appeal on points of law in accordance with paragraph 1 of this section, they may [nevertheless] do so if a decision in the dispute depends on the resolution of a substantive or procedural legal issue [that is] important for ensuring the uniform application of the law and equality of citizens, for example: - if the Supreme Court has not yet ruled on that issue ... in respect of which there is divergent case-law of the second-instance courts, - if the Supreme Court has not yet ruled on that issue and the second-instance court may develop divergent case-law in respect of it, for example, because of possible different interpretations of certain statutory provisions, - if the Supreme Court has already ruled on that issue but the decision of the second-instance court is not in conformity with that ruling, - if the Supreme Court has already ruled on that issue and the decision of the second-instance court is in conformity with that ruling but ... the case-law should be revisited in view of changes in the legal system occasioned by new legislation, international treaties or decisions of the Constitutional Court or the European Court of Human Rights. (3) In the [extraordinary] appeal on points of law referred to in paragraph 3 of this section, the appellants must specify the legal issue for which they are lodging the appeal and give reasons as to why they find that issue important for ensuring the uniform application of the law and equality of citizens. (4) An appeal on points of law must be lodged within thirty days of the service of the second-instance judgment.” “A belated, incomplete or inadmissible [in the strict sense] (section 386) appeal on points of law shall be declared inadmissible by a decision of the judge rapporteur of the Supreme Court, unless the first-instance court ... has not already done so.” 24. The relevant provision of the Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), which was in force between 25 December 1985 and 5 November 1996, read as follows: “(1) A specially protected tenancy shall be terminated if, on the basis of a decision issued by the relevant authority or in the proceedings for enforcement of a decision on expropriation, the building or part of the building in which the flat is located has to be demolished. (2) If, in the case referred to in paragraph (1) of this section the tenants have to move out, on the basis of a decision [issued] by the housing authority, the municipality or the person to whose benefit the building is being demolished shall provide them with another [replacement] flat which does not significantly reduce the quality of their housing. (3) If the relevant authority establishes that a building has to be demolished or reconstructed because it poses a risk to life or property, or for other reasons specified in separate legislation, the specially protected tenancy of flats in such a building shall be terminated and the provider of the flats ... shall provide the tenants with other [replacement] flats which do not significantly reduce the quality of their housing.” (4) ... (5) ...” 25. The Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/91 with subsequent amendments – “the Sale to Occupier Act”), which entered into force on 19 June 1991, entitled holders of specially protected tenancies of flats in social or State ownership to purchase the flats in respect of which they held such tenancy under favourable conditions. 26. Section 3(1) subparagraph 1 excluded the application of the Act to the sale of flats located in buildings in respect of which proceedings for demolition had been instituted. 27. The Lease of Flats Act (Zakon o najmu stanova, Official Gazette no. 91/1996 of 28 October 1996), which entered into force on 5 November 1996, regulates the legal relationship between landlords and lessees with regard to the lease of flats. 28. Transitional provisions (sections 30-49) of the Lease of Flats Act establish a special category of lessees (“protected lessees” – zaštićeni najmoprimci), namely, those who previously held specially protected tenancies in respect of privately owned flats or those who did not purchase their flats under the Specially Protected Tenancies (Sale to Occupier) Act. Such lessees are subject to a number of protective measures, such as the obligation of landlords to conclude a lease of indefinite duration; payment of protected rent (zaštićena najamnina), the amount of which is set by the Government; and a limited list of grounds for termination of the lease. 29. Section 30 of the Act provided for the abolition of the remaining specially protected tenancies and holders of such tenancies became “protected lessees” once the Act entered into force. 30. Section 51 provided, inter alia, that within six months of the Act’s entry into force the local authorities had to adopt criteria for renting out flats in their ownership. 31. Section 52(1) provides that proceedings instituted under the Housing Act must be concluded under the provisions of that Act. 32. Section 53 provided that on the date of the Act’s entry into force, the Housing Act was repealed. 33. In its decision no. U-III-1925/2005 of 19 December 2007 the Constitutional Court held that after the repeal of the Housing Act, the right of a holder of a specially protected tenancy to be provided with a replacement flat under section 107 of the Act (see paragraph 24 above) had been transformed into the right to be provided with such a flat with an option to purchase it under favourable conditions, as provided for in the Sale to Occupier Act (see paragraph 25 above). 34. In that case the complainant’s flat, in respect of which she held a specially protected tenancy, was located in a building that had to be demolished. The local authorities eventually allocated a replacement flat to the complainant in 1998, that is, after the repeal of the Housing Act. She therefore could not acquire a specially protected tenancy of the replacement flat (see paragraph 29 above). 35. The complainant sued the local authorities before the ordinary courts, seeking to purchase the replacement flat under favourable conditions, a right granted to holders of specially protected tenancies under the Sale to Occupier Act. The ordinary court held that the complainant’s specially protected tenancy of her old flat had been extinguished in 1990 when the local authorities had decided to demolish the building in which the flat was located. Furthermore, the complainant did not have a specially protected tenancy of the replacement flat for the reason stated (see the preceding paragraph). Consequently, she had no right to purchase that flat, as under the Sale to Occupier Act such a right was granted only to holders of specially protected tenancies. 36. The Constitutional Court allowed the constitutional complaint, found a violation of the complainant’s constitutional right to equality before the law and quashed the judgments of the ordinary courts. It held as follows: “[From the complainant’s submissions] it is evident that her constitutional complaint is essentially based on the view that, despite the fact that her specially protected tenancy had undoubtedly been extinguished by the operation of the law, there is a need for more extensive interpretation of the relevant legislation, in which case her right to purchase a flat would continue to exist. The applicant considers that she was prevented from exercising her right to purchase a flat only because the time-limits for submitting a request to that effect had expired, which was not due to her fault, but the fault of [the local authorities] which had offered her appropriate replacement flat ‘too late’. The contested decisions [of the ordinary courts] are based exclusively on the fact that the complainant’s specially protected tenancy had been extinguished in 1990 on the basis of section 107 of the Housing Act ... Bearing in mind that the Sale to Occupier Act recognises the right to purchase flats only in respect of tenants, and that after the entry into force of the Lease of Flats Act a specially protected tenancy could no longer be acquired, the [ordinary] courts took the view that, because she had lost the status of a holder of a specially protected tenancy, the complainant did not have the right to purchase the flat, and [thus] dismissed her action. ... The purpose of the Sale to Occupier Act was, regarding specially protected tenancies of socially-owned flats, to precisely define owners of socially-owned property, and that the owners would primarily be the persons who legally occupied such flats thus far. The said Act was amended on several occasions in ways that clearly indicate that its purpose was, taking into account the objective social circumstances and the legal and factual difficulties, to facilitate the exercise of the right [to purchase the flat] for those who under that Act were entitled to do so. The loss of rights of citizens because of the expiry of time-limits, prescription or similar reasons was not the aim of the Act, as this would have been contrary to its purpose. Therefore, the court, in principle, finds well-founded the arguments raised in the constitutional complaint ... concerning the need for an extensive interpretation of the relevant legal norms, when this is in accordance with the Constitution. ... [T]his means that the complainant had lost her specially protected tenancy of the old flat but that, under the assumption that she was allocated another appropriate flat while the Housing Act was still in force, she would have reacquired the rights and obligations of a holder of a specially protected tenancy on the basis of the mere fact that she had previously held such a tenancy. It is evident that in the period between the termination of one and the acquisition of another specially protected tenancy there can be no ‘legal vacuum’. On the contrary, during this period the rights inherent to a specially protected tenancy exist as ‘pending’ rights. It is beyond doubt that citizens who were at the same time in the same legal situation as the complainant, save for the fact that in their cases the proceedings for allocating replacement flats were shorter, had acquired specially protected tenancies and, as holders of such tenancies, had acquired the right to purchase their flats under the Sale to Occupier Act. In the end, they had acquired ownership of those flats. In this case, however, the procedure for allocating another appropriate flat to the complainant was not completed while the Housing Act was still in force. The Act was repealed by the entry into force of the Lease of Flats Act on 5 November 1996 ... However, section 52(1) of the Lease of Flats Act provides that proceedings instituted under the Housing Act must be concluded under the provisions of that Act. This provision implies that even in the changed legislative circumstances the interpretation that the rights inherent in the specially protected tenancy ..., which have been the subject of proceedings [instituted] while the Housing Act was in force but not completed before the entry into force of the Lease of Flats Act, exist even after the repeal of the Housing Act. Otherwise, the meaning and purpose of section 52(1) of the Lease of Flats Act would be called into question. It is clear that since the Housing Act has been repealed the legal basis for acquiring a specially protected tenancy no longer exists ... However, respecting the principles and values of the constitutional order of the Republic of Croatia ... requires the legislature and the authorities ... applying the law ... to be guided by these principles and values and to follow them. ... The legal views expressed in the judgments of the competent courts are based on a constitutionally unacceptable interpretation of the relevant substantive law because it neglects the constitutional guarantee of equality. The scope and effects of this principle in the present case are not determined by the mere mechanical subsuming of the facts under the relevant provisions of the Housing Act and the Lease of Flats Act, but also by giving effect to the other highest values of the constitutional order of the Republic of Croatia.” | 0 |
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