partition
stringclasses 3
values | itemid
stringlengths 8
10
| languageisocode
stringclasses 1
value | respondent
stringlengths 3
135
| branch
stringclasses 4
values | date
int64 1.96k
2.02k
| docname
stringlengths 11
228
| importance
int64 1
4
| conclusion
stringlengths 12
5.89k
| judges
stringlengths 8
416
⌀ | text
stringlengths 64
316k
| binary_judgement
int64 0
1
|
|---|---|---|---|---|---|---|---|---|---|---|---|
test | 001-169521 | ENG | LVA | CHAMBER | 2,016 | CASE OF VAŠČENKOVS v. LATVIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev | 5. The applicant was born in 1986. He died on 3 November 2015. Ms N. Zīmele, the applicant’s grandmother, informed the Court of her wish to pursue the proceedings on his behalf. 6. The relevant facts of the case, as submitted by the parties, may be summarised as follows. 7. In July and August 2011 the police opened four criminal investigations into three incidents of theft and an incident of robbery. On 29 August 2011 these investigations were joined. 8. On 12 August 2011 the police arrested the applicant on suspicion of robbery. He was held in custody on this basis until 14 August 2011, when he was placed under arrest on suspicion of theft. 9. On 15 August 2011 the police lodged an application with the Ludza District Court (Ludzas rajona tiesa) for the applicant’s pre-trial detention in relation to the theft investigation. 10. On 16 August 2011 an investigating judge granted the application. With regard to the suspicion of theft, he reasoned as follows: “there are reasons to suspect that [the applicant] has committed the crime under section 175(3) of the Criminal Law (Krimināllikums) [theft] ... These suspicions are confirmed by the evidence gathered in the criminal case.” 11. On 18 August 2011 the applicant appealed against that decision. 12. On 2 September 2011 the Latgale Regional Court (Latgales apgabaltiesa) dismissed the appeal. With regard to the suspicion of theft, the judge stated: “The ... suspicion that [the applicant] has committed the crime ... is confirmed by the information contained in the file.” 13. No appeal lay against the aforementioned decision. 14. On 19 September 2011 the public prosecutor charged the applicant with robbery, theft, involving a minor in theft and petty theft on the basis of the facts as alleged. 15. On 26 September 2011 the applicant familiarised himself with the case material. 16. On 28 September 2011 the prosecutor transferred the case to the Ludza District Court for adjudication. She set out the case against the applicant and detailed the evidence upon which the prosecution intended to rely. 17. On 17 October 2011 the investigating judge decided to keep the applicant in detention. He gave the following reasoning: “the accusation against [the applicant] of the crimes under sections 175(3) [theft], 176(2) [robbery], 180(2) [petty theft] and 172 [involving a minor in theft] of the Criminal Law ... is confirmed by the evidence gathered in the criminal case.” 18. No appeal lay against the aforementioned decision. 19. On 28 December 2011 and 23 April 2012 the applicant’s detention was extended. The judge stated as follows: “[the applicant’s] detention is based on the suspicion that he has committed the crime under section 175(3) of the Criminal Law [theft]... in other criminal proceedings [he] has been declared a suspect in relation to crimes under sections 180(1) [petty theft] and 176(2) [robbery] ... ... There has been no change in the reasons noted in the detention order of 16 August 2011 ... which had been re-examined in [the subsequent decisions]...” 20. On 3 February, 19 June and 6 August 2012, the applicant complained to the Ludza District Court that it had failed to assess his detention in relation to the alleged robbery. 21. On 6 August and 2 November 2012, and on 25 January 2013 the judge decided to continue the applicant’s detention, using largely the same wording as in the previous decisions. In addition, she noted that the twenty-four-month period allowed by section 277(7) of the Criminal Procedure Law (Kriminālprocesa likums) for detention had been observed because the applicant had also been accused of an especially serious offence, robbery, under section 176(2) of the Criminal Law. 22. The aforementioned decisions were not subject to appeal. | 1 |
test | 001-140921 | ENG | TUR | COMMITTEE | 2,014 | CASE OF DÜLEK v. TURKEY | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance) | Helen Keller;Paulo Pinto De Albuquerque | 4. The applicant, Ms Gazal Dülek, is a Turkish national who was born in 1979 and lives in Istanbul. She is represented before the Court by Ms G. Tuncer, a lawyer practising in Istanbul. 5. On 25 April 2000 the applicant was arrested on suspicion of aiding and abetting an illegal organisation, namely the PKK. 6. On 26 April 2000 she was arrested for interrogation at the AntiTerrorism Branch of the Istanbul Security Directorate (“the Anti-Terrorism Branch”). In her statement, taken in the absence of a lawyer, the applicant declared that she had worked as a secretary at a local branch of HADEP for approximately five months and that she had been a member of the youth branch of HADEP since 1999. She also admitted that she was a member of the PKK, that on one occasion she had hidden a bomb in her house upon the request of another PKK member, that she had assisted in sending a number of persons to PKK camps in eastern Turkey and Iran and that she had acted as a messenger for some PKK members detained at the Ümraniye prison. The applicant duly signed her statement. 7. At 11.20 a.m. on 30 April 2000 the applicant was examined by a doctor, who stated that there were no traces of ill-treatment on her body. 8. Subsequently, on the same day, the applicant was brought before the Public Prosecutor at the Istanbul State Security Court, again in the absence of a lawyer. The applicant alleged that at the Anti-Terrorism Branch, she had been forced to sign a statement which had been prepared by the police officers and stated that she did not even know the content of the statement. When her police statement was read out to her, she denied any involvement in the activities mentioned therein, apart from her membership of the youth branch of HADEP and her work experience there. 9. On the same day, the applicant was further interrogated by a single judge at the Istanbul State Security Court, in the absence of a lawyer. She denied all the accusations against her, reiterating the statement she had made before the public prosecutor. At the end of the questioning, the judge ordered her pre-trial detention. 10. On 4 May 2000 the Public Prosecutor at the Istanbul State Security Court filed an indictment with that court against the applicant and four other persons, accusing the applicant of membership of an illegal organisation under Article 168 (2) of the former Criminal Code (Law no. 765). 11. On 7 August 2000 the Istanbul State Security Court, composed of three civilian judges, held its first hearing. The applicant made her defence statement at the fourth hearing held on 18 April 2001, and denied all the charges against her. The applicant also denied her police statement, alleging that she had been forced to sign it without knowing its content. At the end of the hearing the Istanbul State Security Court ordered the applicant’s release. 12. On 3 September 2003 the Istanbul State Security Court convicted the applicant under Article 169 of the former Criminal Code of aiding and abetting an illegal organisation. Accordingly it sentenced her to three years and nine months’ imprisonment. In convicting her, the State Security Court mainly relied on the applicant’s police statement, and the statements made by her co-defendants. 13. On 19 October 2004 the Court of Cassation quashed the judgment of the Istanbul State Security Court. 14. In the meantime, by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was accordingly transferred to the Istanbul Assize Court. 15. On 14 April 2008 the Istanbul Assize Court convicted the applicant of membership of an illegal organisation under Article 314 (2) of the new Criminal Code (Law no. 5237) based on the evidence in the file and sentenced her to six years and three months’ imprisonment. 16. On 27 October 2009 the Court of Cassation upheld the judgment of the first-instance court. It expressly held that the assize court had correctly classified the offence committed by the applicant as membership of an illegal organisation. 17. The relevant domestic law and practice in force at the material time, as well as recent developments, can be found in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008). | 1 |
test | 001-165440 | ENG | NOR | ADMISSIBILITY | 2,016 | BAKKE v. NORWAY | 4 | Inadmissible | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary | 1. The applicants, Ms Britt Bakke (A) and Ms Anna Midttveit Bakke (B), are Norwegian nationals, born in 1954 and 1930, respectively, and living in Steinsland. A is the mother of C, a Norwegian national born in 1983 who was found dead in her apartment on 11 March 2007, and B is the grandmother of C. The applicants are represented before the Court by Mr J.P. Rui, a lawyer practising in Bergen. 2. . 3. In the morning of 11 March 2007 C’s partner found her lifeless body in the shower in their common apartment. He called the emergency service centre at Haukeland University Hospital, requesting help. The phone operator advised him to start performing cardiopulmonary resuscitation (CPR) and ordered an ambulance to the apartment. When the medical personnel arrived at the apartment they continued to perform CPR, but shortly after their arrival the doctor declared C to be deceased. According to the doctor’s report from the scene there were signs of strangulation on C’s neck and his conclusion was that the cause of death had been strangulation. 4. The Hordaland Police (Hordaland politidistrikt) was called to the apartment. According to their report from that day, C, when they entered the apartment, had been lying naked on the floor in the living room covered with a blanket. It was also noted that her partner had told the police that he and C had been attending a party the night before and had drunk some alcohol. When they had returned to the apartment after the party, they had quarrelled. The quarrel had ended with C going to the bathroom, locking the door and turning on the water in the shower, while he had gone to bed to sleep. The next morning, he had discovered that C was not sleeping next to him in their bed and he had therefore searched for her in the apartment. As she had not been in the living room and the door to the bathroom had still been locked, he had broken up the lock on the bathroom door and found C lying in the shower with the shower hose around her neck. He had not been able to describe how C had been lying there. He had also said to the police that C had been depressed occasionally but that she had never told him that she had wished to commit suicide. The police photographed the scene as well as some marks on C’s neck. 5. On 12 March 2007 the police requested a forensic examination from the Department of Forensic Medicine of the University of Bergen (Avdeling for rettsmedisin). In the report from the examination, which was conducted on 13 March 2007, it was noted that there had been marks on C’s skin around the neck and point-shaped bleedings in the membranes of her eyes, eyelids and on her heart’s surface. The latter injury was thought to have resulted from the resuscitation attempts and it was very unlikely that it had anything to do with the cause of death. It had not been clarified how C had been lying when her partner had found her, but death spots on the front of her right thigh with imprints from the drain on the floor indicated that she had been lying slightly bent forward with the front of the right thigh down to the floor. The report concluded that the likely cause of death was suffocation by hanging. This conclusion was confirmed in an addendum to the report, dated 23 May 2007, which otherwise contained the chemical and microscopical analysis of the examination and showed that C had had 1.2 ‰ ethanol in her blood. 6. Since there was no suspicion of criminal conduct, the police decided to terminate the investigation on 23 July 2007. A requested the police to take further investigative steps to clarify what had happened in the apartment the night when C had died. However, on 14 August 2007, the police notified A that it upheld its previous decision. Nevertheless, C’s partner was formally questioned by the police on 21 September 2007. 7. A appealed to the public prosecutor in Hordaland (Hordaland statsadvokatembeter), which, on 16 October 2007, rejected the appeal stating, inter alia, that further measures would not be useful considering the time that had elapsed since the death. The public prosecutor noted that some investigative measures (for example the questioning of C’s partner) ought to have been carried out at an earlier stage of the investigation and that the photographs taken by the police at the scene should have been added to the case file. 8. On 25 November 2009 a private investigator, whom A had hired to scrutinise the investigation and to carry out further investigative measures, provided a report (which has not been submitted to the Court) where he concluded that it could not be excluded that C had been subjected to criminal conduct. However, since there was no concrete evidence indicating that a criminal act had been committed, he found that C most likely had taken her own life. In his overall assessment, he criticised the investigation, in particular its initial phase, and considered that the police should take further complementary investigative measures. 9. In a lawsuit against the State, brought before the Oslo City Court (tingrett) by A, she requested compensation, claiming police negligence. She stated that the investigation into C’s death had been deficient in several respects. On 26 October 2010 the court rejected the claim, although it acknowledged that some aspects of the investigation had been deficient. 10. On 23 May 2011 the police requested a complementary technical report, asking for a specialist assessment of the existing theories compared to the forensic evidence and other information available in the case. In the ensuing report of 11 August 2011 it was noted that a reconstruction of the scene had been made, from which it had been possible to determine the position of C’s body in the shower. The specialists came to the conclusion that it was possible that C had hanged herself using the shower hose and that there were no indications contradicting that conclusion. 11. Another technical report involving a reconstruction of the scene, dated 6 August 2013 and drawn up by external consultants at the request of A’s lawyer, concluded that it was possible that C had hanged herself in the shower using the shower hose but that it could not be excluded that someone else had strangled her with the hose. The consultants pointed out that the investigation had been deficient and had provided a poor basis for finding a clear result as to the cause of C’s death. 12. On 17 September 2013 A requested the public prosecutor to reopen the case, but on 7 October 2013 the request was rejected. The public prosecutor noted that, even if there were flaws in the initial investigation, the police had carried out several investigations after that point, for example the technical reconstruction of the scene, and since all the results pointed in the same direction, there were no reasons to carry out further investigative measures. A appealed to the Director of Public Prosecutions (DPP – Riksadvokatembetet), who, on 6 January 2014, upheld the decision. On 13 January 2014 the public prosecutor informed A about that decision. The letter stated that the decision was final but that A could take legal action by instituting private prosecution proceedings. | 0 |
test | 001-182594 | ENG | LTU | COMMITTEE | 2,018 | CASE OF BARTULIENĖ v. LITHUANIA | 4 | No violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque | 4. The applicant was born in 1938 and lives in Kaunas. 5. In October 1991 the applicant asked the authorities to establish that her father had had 7.06 hectares of land in Kaunas Region before nationalisation. The applicant indicated that she and her sister were their father’s heirs. It was indicated in her request that she and her sister would accept land in another location. A document proving that their father had owned 6.79 hectares of land was also attached to the request. 6. It appears that the applicant and her sister agreed that the applicant had a right to have her property rights to 3.40 hectares of their father’s land restored. 7. On 3 March 1993 the authorities issued a document containing a decision to return 0.66 hectares to the applicant in natura and to return the remaining 2.74 hectares to her by paying compensation. 8. On 16 March 1993 the Ministry of Agriculture repeated the authorities’ decision of 3 March 1993 (see paragraph 7 above). 9. In December 1993 and April 1994 the authorities decided to give the applicant eleven plots, each measuring 0.06 hectares. 10. In February 2003 the Kaunas Land Reform Division informed the applicant that she could, before 1 April 2003, declare or change her intentions regarding the method by which her property rights would be restored. She was informed that property rights to land that had been an urban area were to be restored by: giving plots of land to the citizens who had buildings on those plots – the maximum plot size was limited to a 0.2 hectares; giving plots of land in cities and rural areas where a citizen did not have land, except for the cities of Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas and Neringa; legally voiding a citizen’s liabilities to the State; and paying compensation in securities. 11. In March 2003 the applicant asked the authorities to pay her monetary compensation “in a convertible currency at world market prices” (konvertuojama valiuta pasaulinėmis kainomis) for the remaining 2.74 hectares of land. 12. In January 2007 the applicant asked the authorities to pay her monetary compensation for the remaining 2.74 hectares of land or return a part of the land in natura. The applicant specified that monetary compensation should be paid in a “convertible currency at market prices”. 13. In September 2007 the authorities informed the applicant that they had addressed the Kaunas municipality regarding vacant plots of land in the area where her father had had the land, and had been told that the restitution process had to be carried out in accordance with the detailed plan for restitution approved in 1991. 14. In July 2008 the applicant complained to the authorities that her previous requests (see paragraphs 11 and 12 above) had gone missing. 15. In November 2008 the applicant asked the authorities not to give her any land burdened by any kind of easement. 16. In August 2009 the applicant wrote a letter to the authorities and stated that, in accordance with the Constitution, not only did she have a right to receive fair compensation for the land, but a vacant plot of land situated in the same area where her father’s land had been had to be returned to her. She stated that she had to be paid compensation at market prices and in accordance with the land value map for 2009. She also wrote that if the land returned to her was burdened by any kind of easement, the authorities would have to pay her compensation at full market value for her inability to use it. It appears from the Kaunas Regional Administrative Court’s decision that the authorities indicated in August 2009 that compensation at market prices was not possible (see paragraph 33 below). The value of 2.5469 hectares of land was assessed at 20,167 Lithuanian litai (LTL – approximately 5,841 euros (EUR)) if the applicant preferred to acquire land in another area, and at LTL 32,267 (approximately EUR 9,345) if the applicant preferred compensation in securities (see paragraph 36 below). 17. On 21 October 2009 the Kaunas County Administration changed the decision of 16 March 1993 on the restoration of the applicant’s property rights (see paragraph 8 above) and decided that her property rights to the remaining 2.74 hectares of land would be restored at a later date. By that order, the applicant’s property rights were restored by giving her two plots of land measuring 0.0807 hectares and 0.1124 hectares respectively. 18. It appears from the courts’ decisions that in June 2010 the authorities asked the applicant to make a decision regarding the method of restitution in respect of the remaining plot of land (see paragraphs 35 and 36 below). 19. In June 2010 the applicant asked the authorities to pay her monetary compensation for the remaining 2.5469 hectares of land, plus 15% interest because she was the daughter of a military volunteer. 20. In September 2010 the applicant asked the authorities to remove all the underground telecommunications cables that were situated on one of the plots of land that had been returned to her. 21. On 4 October 2010 the authorities informed the applicant that the remaining plot of land of 2.5469 hectares was State redeemable, and she could be compensated for it by receiving securities or by a new plot of land of equal value in a rural area being transferred to her. The applicant was asked to inform the authorities about her decision before 18 October 2010. Should she fail to make a decision, the compensation would be paid in securities. 22. On 13 October 2010 the applicant repeated her request to be paid monetary compensation plus 15% interest. Her letter also contained some other requests regarding increasing the size of one plot, transferring a pond (kūdra) to her, and paying her compensation at market prices for another plot of land. 23. The authorities replied in November 2010 that, when deciding on issues of restitution, they were obliged to follow the requirements of domestic law. The applicant was asked to come to the Kaunas City Land Reform Division on 6 December 2010 to deal with the issue of restoring her rights to the remaining part of her father’s land. 24. In December 2010 the Kaunas City Land Reform Division asked the Kaunas Municipal Administration to prepare a plan of vacant land in the area where the applicant’s father’s land had previously been situated. The same month, the Kaunas Municipal Administration replied that it was not possible to prepare additional plans of vacant land, because the schemes relating to vacant plots of land had already been approved, and a similar request submitted by the applicant’s son had already been examined. 25. In November 2014 the authorities informed the applicant that as of 1 November 2014, Article 21 § 4 of the Law on Restitution provided that a citizen who had already asked for his or her property rights to a plot of land to be restored could, by 1 March 2015, express or change his or her wish regarding the form in which the ownership rights to the real property were to be restored, and choose a plot of forest of equal value, provided that a final decision on restitution had not been taken or, if taken, had not yet been executed or had been executed in part. 26. The applicant started court proceedings, demanding compensation in respect of pecuniary damage from the Kaunas municipality. She alleged that the plot of land of 0.1124 hectares which had been returned to her (see paragraph 17 above) had electricity and gas equipment installed on it (see paragraph 20 above), and that she was prevented from using it. The applicant also asked the court to oblige the authorities to remove the underground telecommunications cables installed on her plot within two months of the court decision becoming final. 27. On 22 June 2012 the Kaunas Regional Administrative Court held that the applicant had not complained about the decision of the authorities of 21 October 2009 by which her property rights to the specific plots of land had been restored (see paragraph 17 above). Moreover, the applicant had claimed that she was not able to use the land, more specifically, to construct buildings on it, but she needed to have a detailed plan of the land prepared in order to start any construction on the land, which she had not done. The court further held that the applicant’s request that the authorities be obliged to remove the underground telecommunications cables was unfounded, because the cables had been installed in accordance with the provisions of domestic law. The applicant’s claim was thus dismissed. 28. The applicant appealed, and on 18 December 2012 the Supreme Administrative Court upheld the first-instance decision. The court held that the applicant had signed a document informing her about the borders of the land and restrictions regarding its use. There was no information indicating that either the applicant or her representative had been misled by the authorities regarding the status of the land. Moreover, the State was not obliged to restore her property rights to land with no restrictions regarding its use. 29. It appears that a plot of land measuring 0.0498 hectares which had been situated in the area where the applicant’s father had had his land was sold to R.N. in 1994. In November 2011 the National Land Service informed the applicant’s son that the purchase contract regarding the plot of land sold to R.N. in 1994 had been concluded in breach of the requirements of domestic law, and that the issue would be referred to a prosecutor. 30. In January 2012 the Kaunas Division of the National Land Service informed the prosecutor that, in accordance with domestic law, one family could purchase or rent only one plot of land for construction of an individual home in the absence of an auction. If the family was provided with a plot of land before 15 March 1992, no other member of that family could acquire another plot of land for construction of an individual home without participating in an auction. R.N. had been provided with a plot of land of 0.06 hectares for construction of an individual home in 1992. In 1993 she had purchased that plot from the State. Moreover, in 1994 R.N. had been allowed to purchase another plot of land of 0.0498 hectares in the absence of an auction, which had not been allowed. In 2002 R.N. had sold the plot of land to R.Z. The prosecutor was thus asked to start court proceedings on the matter. 31. In February 2012 the prosecutor decided that the National Land Service could start court proceedings, and referred the matter to it. Subsequently, the National Land Service lodged a complaint with the Kaunas District Court, asking it to annul the relevant administrative acts by which the plot of land of 0.0498 hectares had been provided to R.N. and to annul the purchase agreements regarding that plot. The complaint was dismissed by the Kaunas District Court on 8 July 2013 because the limitation period had expired (see paragraphs 49 and 51 below). That conclusion was upheld by the Kaunas Regional Court on 14 October 2013. 32. On 13 March and 20 June 2013 the applicant brought a claim and an amended claim for LTL 30,000 (approximately EUR 8,688) in respect of non-pecuniary damage relating to the length of the restitution proceedings. She asked the court to oblige the authorities to restore her property rights within one month of the court decision becoming final, or to pay her fair monetary compensation, calculated in accordance with the land value map for 2013. The applicant also stated that she had sustained pecuniary damage in the amount of LTL 3,616,598 (approximately EUR 1,047,439), but she was not asking for any award in this respect. 33. On 7 October 2013 the Kaunas Regional Administrative Court held that there was no dispute that the applicant’s rights to 2.5469 hectares had not been restored. However, it also held that her request for damages could only be satisfied if the State had acted unlawfully. The court stated that the national authorities had taken various steps: they had provided data about unoccupied land and had asked the applicant to decide how she wished her property rights to be restored. The applicant’s requests submitted to the authorities for compensation “in a convertible currency at world market prices” and for compensation at market prices in accordance with the land value map for 2009 (see paragraphs 11, 12, 16, 19 and 22 above) could not constitute a proper way of expressing her decision, because such methods of compensation had not been defined in the domestic law. The court found that her property rights had not been restored because of her inactivity. As regards her request that the authorities be obliged to restore her property rights within one month, the court noted that she had to use an out-of-court procedure, and left that complaint unexamined. 34. The applicant appealed and also asked to be awarded compensation in respect of pecuniary damage amounting to EUR 1,047,439. On 24 July 2014 the Supreme Administrative Court held that the first-instance court had been obliged to examine the applicant’s request to have her property rights restored, but it had not examined all the documents submitted. It therefore returned the case to the Kaunas Regional Administrative Court for fresh examination. 35. On 24 February 2015 the Kaunas Regional Administrative Court held that on 9 October 1991 the applicant had submitted a request to have her property rights to 7.06 hectares of her father’s land restored (see paragraph 5 above). In 1992 the applicant and her sister had agreed that the applicant had a right to have her property rights to 3.40 hectares of her father’s land restored (see paragraph 6 above). The authorities had restored her property rights to 0.66 hectares of land on 16 March 1993 (see paragraphs 7 and 8 above), and on 21 October 2009 her property rights to another 0.1931 hectares of land had been restored (see paragraph 17 above). The latter decision indicated that the applicant’s property rights to the remaining plot of 2.5469 hectares would be restored at a later date, when the land reform project had been prepared. No land reform project had been prepared, because the land in question was in an area that had been within city boundaries before 1 June 1995, so the indication in the decision about the land reform project being prepared had been a mistake. In June 2010 the applicant had been asked to choose the form of compensation (see paragraph 18 above), but she had sent several letters submitting requests that were not possible under domestic law. The court further held that the authorities had examined numerous complaints submitted by the applicant and her son. The court further referred to the administrative proceedings regarding the applicant’s alleged inability to use one plot of land that had been returned to her (see paragraphs 26-28 above), and the civil proceedings regarding the sale of the plot of land of 0.0498 hectares to R.N., started by the National Land Service (see paragraphs 29-31 above). The court also noted that the applicant had been informed about the possibility of receiving a plot of forest of equal value (see paragraph 25 above). The court held that there was no dispute that the applicant’s property rights to 2.5469 hectares of land had not been restored. However, the applicant’s claims for compensation could only be satisfied if unlawful actions by the authorities had been established. The restitution process was carried out by the National Land Service and its territorial divisions. The court decided that, in the applicant’s case, the authorities had carried out their functions by: sending information about the methods by which the applicant’s rights could be restored; providing information about vacant land; and asking the applicant to express her choice as to the method of restitution. The relevant domestic law valid at the time the applicant had asked for compensation “in a convertible currency at world market prices” in March 2003 had provided that, before 1 April 2003, a citizen could declare or change the method of restitution. If no method was chosen, the authorities could choose for the citizen. The relevant domestic law valid at the time the applicant had asked for compensation at market prices and in accordance with the land value map for 2009 had provided that, before 31 December 2005, a citizen could change the method of restitution and choose compensation in securities instead of monetary compensation. The relevant domestic law valid at the material time when the case had been examined had provided that, until 1 March 2015, citizens could change the method of restitution and ask to have their property rights restored by being provided with a plot of forest of equal value in a rural area. If no method was chosen, property rights were restored by means of monetary compensation. The court held that the authorities could only choose the method of restitution for a citizen if he or she had not expressed his or her decision before 1 April 2003. In the applicant’s situation, the National Land Service had not issued any decision within the required six-month time-limit, and thus the applicant had a right to receive compensation in respect of non-pecuniary damage. The court held that the applicant’s right to have her property rights to 2.5469 hectares restored had not been denied, and decided to award her EUR 600 in respect of non-pecuniary damage. The remaining part of the applicant’s complaint was dismissed as unfounded. 36. The applicant, the National Land Service and the State, represented by the National Land Service, appealed. On 10 July 2015 the Supreme Administrative Court held that it was clear from the case material that there was no more vacant land in the area where the applicant’s father had had his land. For this reason, the applicant’s demand that the authorities be obliged to return her father’s land in natura within one month of the court’s decision becoming final (see paragraph 32 above) was unfounded. As regards the applicant’s argument that her father’s plot of land of 0.0498 hectares had been sold to R.N. owing to unlawful actions by the National Land Service, the court held that this argument had been rebutted by the decisions issued by the domestic courts in other proceedings (see paragraph 31 above). As regards the length of the restitution process, the court decided that there was no information indicating that the authorities had acted unlawfully, and thus the firstinstance decision to award the applicant compensation of EUR 600 had been unfounded. In 1991 the applicant had expressed her wish to have her father’s land returned to her in natura (see paragraph 5 above). In 2003 she had asked for compensation “in a convertible currency at world market prices” (see paragraph 11 above); in 2009 she had asked for compensation at market prices in accordance with the land value map for 2009 (see paragraph 16 above); in 2010 she had asked for compensation at market prices plus 15% interest (see paragraphs 19 and 22 above); and in 2015 she had stated that her choice as to the method of restitution had been expressed in 1991, and she was not going to change her mind (see paragraph 37 below). The authorities had informed the applicant several times that her requested methods of compensation were not possible under domestic law. In 2003 the applicant had been informed that if a citizen did not express a decision as to a method of restitution before 1 April 2003, the authorities had to issue decisions taking into account the method indicated in the citizen’s last request (see paragraph 10 above). In June 2009 the authorities had indicated the method by which the compensation would be calculated and had stated that the value of the 2.5469 hectares of land which had to be restored to the applicant would be LTL 20,167 (approximately EUR 5,841) if the applicant preferred to acquire the land in another area, and LTL 32,267 (approximately EUR 9,345) if she preferred compensation in securities (see paragraph 16 above). In June 2010 the authorities had asked the applicant to choose the method of restitution: receiving either an area of land, forest or water of equal value (see paragraph 18 above). In October 2010 the authorities had repeatedly explained that the applicant could receive either a plot of land of equal value or compensation in securities, and should she fail to make a decision then she would be paid compensation in securities (see paragraph 21 above). In November 2010 the applicant had been asked to come to the Kaunas Division of the National Land Service to discuss the issue of restitution (see paragraph 23 above). In November 2014 the authorities had informed the applicant that it had become possible to have a plot of forest of equal value in a rural area (see paragraph 25 above). The court further held that the actions of the National Land Service had been lawful, considering that the applicant’s requests had not been possible under domestic law. Moreover, the authorities had stated that a decision to pay the applicant monetary compensation would be issued. The court therefore decided to change the first-instance decision and not award the applicant any compensation in respect of non-pecuniary damage. 37. In February 2015 the applicant sent a letter to the authorities stating that she had expressed her decision on the method of restitution in 1991 when she had asked for the return of her father’s land in natura. She also stated that she was not going to change her mind and would require her father’s land to be returned to her. In March 2015 the authorities replied that the remaining part of the land to which the applicant’s property rights had to be restored was State redeemable and could not be returned in natura. The authorities further stated that the applicant would be paid monetary compensation. The applicant replied to this letter in April 2015 and accused the authorities of unlawfully expropriating property. The authorities replied in May 2015 and repeated that it was not possible to return the applicant’s father’s land in natura. The applicant replied, stating that the authorities’ letter contained no substantive reasons and could not be taken into account. The applicant stated that the issue of restitution in her case would be considered in the courts, and asked the authorities not to bother her with letters containing no substantive reasons. 38. In November 2016 the authorities asked the applicant to come to a meeting on 5 December and familiarise herself with the draft decision restoring her property rights. 39. On 6 December 2016 the National Land Service issued a decision to restore the applicant’s property rights to 2.5469 hectares of land by paying her monetary compensation of EUR 9,359. 40. In March 2017 the applicant asked the authorities to provide her with copies of plans of vacant land plots situated in the area in which her father had had his land, and to explain how and when her father’s land had been used. The authorities replied in April 2017 that the Kaunas Municipal Administration provided information in map form about vacant land that was not State redeemable. The relevant Kaunas division had to mark the borders of land which an owner had owned before 1940 in accordance with the information received from the Kaunas Municipal Administration. In the applicant’s case, the Kaunas Municipal Administration had provided the relevant Kaunas division with information about vacant land plots. The Kaunas land reform division had then asked the Kaunas Municipal Administration to prepare land plans. Two plots of land had been returned to the applicant in natura in 2009. In 2010 the Kaunas land reform division had asked the Kaunas Municipal Administration to additionally examine whether there was vacant land in the area where the applicant’s father had owned land before 1940, but it had been established that there was no more vacant land. 41. The applicant lodged a claim with the domestic court, asking it to annul the decision of the National Land Service of 6 December 2016 by which her property rights to 2.5469 hectares of land had been restored and it had been decided that she would receive monetary compensation of EUR 9,359 (see paragraph 39 above). The applicant thought that the land that had not been returned to her had not been used for public use, and that the National Land Service had not provided any information as to why all of her father’s land had not been returned in natura. 42. On 21 August 2017 the Kaunas Regional Administrative Court rejected the applicant’s complaints. The court held that her father’s land was not vacant, as it was occupied by cadastral areas with or without buildings, areas containing infrastructure that was relevant for roads, side roads, underground infrastructure and the protective zones surrounding them, and recreational areas. There was a public interest in using that land, thus the land was State redeemable and compensation had to be paid for it. The court further assessed the actions of the National Land Service and held that the authorities’ actions had been lawful. This was because the applicant had not agreed with the information indicating that her father’s land was not vacant, and because on one hand she had asked for her property rights to be restored in natura, and on the other hand had asked for compensation at “market” and “world market” prices, although there was no such possibility under domestic law. Fair compensation was also a way to restore property rights, as confirmed by the Constitutional Court (see paragraph 53 below). The value of the land had been calculated in accordance with the method approved by the Government (see paragraph 52 below), and the amount calculated for the applicant had been in accordance with that method. Moreover, the court referred to the case-law of the Court, where it had been established that no right to receive a higher amount of compensation was guaranteed under the applicable domestic law or by a decision of the domestic court (see paragraph 54 below). The compensation calculated for the applicant was in line with domestic law and the practice of the Court. 43. In October 2017 the authorities asked the applicant to provide them with her account number so they could pay her the monetary compensation of EUR 9,359. In the event that the applicant failed to do that, the monetary compensation would be transferred to a notary’s deposit account. 44. In November 2017 the applicant sent a letter to the National Land Service stating that she would not give the authorities her account number. Should the compensation be transferred to her or the notary’s account nevertheless, it would be transferred back to the authorities. | 1 |
test | 001-168850 | ENG | RUS | COMMITTEE | 2,016 | CASE OF MAYEVSKIY AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 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 their pre-trial detention. In applications nos. 5403/07 and 12097/09, the applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-141191 | ENG | SVN | COMMITTEE | 2,014 | CASE OF ŠTRUKELJ v. SLOVENIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Ann Power-Forde;Helena Jäderblom | 5. The applicant was born in 1964 and lives in Ljubljana. 6. The applicant served his prison sentence in the closed section of Ljubljana prison in the period between 30 March 2009 and 23 December 2009. From 30 March 2009 to 14 April 2009 he was held in cell 5 (third floor), which measured 18 square metres (including a separate 1.72 square metre sanitary facility) and contained 5 sleeping places. From 14 April 2009 to 11 June 2009 he was held in cell 7 (third floor), which measured 16.8 square metres (including a separate 1.72 square metre sanitary facility) and contained 5 sleeping places. From 11 June 2009 to 2 July 2009 and from 30 July 2009 to 19 December 2009 he was held in cell 124 (second floor), which measured 8.8 square metres (including a separate 1.3 square metre sanitary facility) and contained two sleeping places. From 2 July 2009 to 30 July 2009 he was held in cell 120 (second floor), which measured 18 square metres (including a separate 1.72 square metre sanitary facility) and contained 6 sleeping places. From 19 December 2009 to 23 December 2009 he was held in cell 98 (first floor), which measured 8.8 square metres (including a separate 1.3 square metre sanitary facility) and contained two sleeping places. The Government submitted that in cells 5 and 7 the numbers varied between four and five, in cell 120 the numbers varied between five and six and in cells 98 and 124 the applicant was held with one other prisoner. 7. As regards the general characteristics of the cells, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011. 8. As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86). 9. During his imprisonment the applicant had thirty-three consultations with a general practitioner and declined some of them. He also had five dental appointments and five treatments by a psychiatrist. He asked for and was given a psychological consultation, however he did not attend it. 10. As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days. | 1 |
test | 001-184349 | ENG | NOR | ADMISSIBILITY | 2,018 | A v. NORWAY | 4 | Inadmissible | Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 1. The applicant, A, is a Norwegian national who was born in 1990. He is represented before the Court by Mr H. Birkeland, a lawyer practising in Bergen. The Chamber decided of its own motion to grant the applicant anonymity pursuant to Rule 47 § 4 of the Rules of Court. 2 3. On 6 June 2012 an indictment was lodged against the applicant for having engaged in sexual activity – intercourse – with a child who was under 14 years of age. The indictment stated that the applicant, on an occasion during June-July 2011, had inserted his penis into the vagina of X, born in 1998. 4. The charges were heard by the District Court (tingrett) on 4 and 5 December 2012. The applicant argued that he and X had not had intercourse. On 12 December 2012 the District Court convicted the applicant, sentenced him to three years’ imprisonment and ordered him to pay X a sum of 80,000 Norwegian kroner (NOK) (approximately 8,200 euros (EUR)) as civil redress. 5. The applicant appealed against the assessment of evidence relating to the question of guilt (“bevisvurderingen under skyldspørsmålet”) and the award of redress to X. 6. On 22 February 2013 the High Court (lagmannsrett) granted leave to appeal, and appeal hearings were held from 13 to 16 January 2014. By judgment of 17 January 2014, the jury acquitted the applicant. The civil claim submitted by X was to be decided by three professional judges, of whom a majority of two found that the conditions for civil liability had been met, and again awarded NOK 80,000. 7. On the issue of the civil claim for redress – which was dealt with in a separate part of the judgment, under the heading “the High Court’s professional judges’ assessments of the civil compensation claim from [X]” (“Lagmannsrettens fagdommeres vurderinger av det sivilrettslige erstatningskravet fra [X]”) – the High Court judges unanimously stated as their starting point that the applicant had been completely cleared of the criminal accusations (“fullstendig renvasket”) and acquitted of the charges with no reservations (“reservasjonsløst frifunnet for tiltalen“). He was unconditionally innocent under criminal law (“ubetinget strafferettslig uskyldig”). This was an acknowledgment of the factual situation and the judges had neither the right nor the wish to change this (“som fagdommerne hverken er berettiget til å rokke ved eller har noe ønske om å endre”). 8. By way of introduction the majority in the High Court noted that the criminal proceedings against the applicant was by then history (“et tilbakelagt stadium”) and that it would only consider the civil claim of X. It followed clearly from case-law of the European Court of Human Rights and the Supreme Court that a civil compensation claim could be adjudicated subsequent to a criminal case having ended with acquittal. The majority went on to examine X’s claim for financial redress, recalling that the civil rules on evidence applicable to the case required a clear or qualified preponderance of likelihood (“klar eller kvalifisert sannsynlighetsovervekt”). Upon thereafter reciting the legal basis for X’s redress claim, section 3-5 of the Compensation Act (see paragraph 22 below), it noted that the only relevant open question (“det eneste relevante åpne spørsmålet”) in the case before it was whether intercourse had taken place between the parties. If that was the case, there were no questions concerning the applicant’s intention, the half-hearted consent of X or whether the applicant had been mistaken as to X’s age. 9. Considering the evidence as a whole, the majority found clear preponderance of likelihood that the applicant had on one occasion had intercourse with X. Its starting point was X’s statement that had been taken by a judge (dommeravhør). X had told a friend of her own age about having had intercourse with the applicant some two-three months earlier. Her friend had told his mother, who had in turn notified the child welfare authorities. Misconceptions had at this point developed – it had been perceived that X had been raped two times by an adult – and X was ultimately contacted and asked what had happened. X had then explained that she and the applicant once had had intercourse; it had been voluntary, although she had been uncertain. X had emphasised that the applicant was kind and it was known to her family that she was in love with him. The two had also attempted to have intercourse on one other occasion, but had not carried this out. 10. From X’s extensive statement it followed that the intercourse had taken place late night or early morning in a cabin. Besides the applicant, X’s nephew and a girlfriend of his had also been present. X had had a few glasses of cider. The nephew and his friend had gone into one bedroom; X and the applicant into another, where they had had intercourse. X had consistently upheld her statement, whereas the applicant had consistently denied it. 11. The High Court’s majority found that decisive importance had to be attached to X’s statement. It had been consistent and, if anything, X had sought to downplay (“underrapportere”) the extent of what had happened and had pointed to the applicant’s positive sides when confronted with the notification that had been given to the child welfare authorities. As to that notification (see paragraph 9 above), there could be a number of reasons why it had misrepresented X’s story; X had herself been a child, who had confided in her friend – another child – who had in turn spoken to his mother. There was no evidence to indicate that X had told what the child welfare authorities had perceived. Even if it were the case that X had used the word “rape” when speaking of what had happened, this could not be decisive; also the legislator had used that term to describe intercourse with a minor. 12. X had grown up under demanding circumstances; her parents had left each other, her mother was alcoholic and had numerous times been admitted to psychiatric treatment. The child welfare authorities had periodically placed X in care with her siblings. She had nonetheless done well, both socially and at school. Prior to the intercourse, she had to some degree harmed herself and this situation had since deteriorated considerably; she had started to cut her skin not only on her arms but also on her thighs to give vent to pain and sorrow. She had more or less gone into hiding at the attic, skipped school and also become a victim of considerable bullying. 13. Also the applicant had had a difficult childhood. He had lived in a home characterised by intoxication and violence until, at the age of 13, after having been injured by a stepfather, he had packed a bag with clothes and departed for his grandmother, where he had remained. 14. The High Court’s majority went on to state that there was “nothing to indicate” that X had been testifying incorrectly about the intercourse, “apart from” the fact that the applicant had denied having intercourse (“[f]lertallet finner at det ikke er noe som tilsier at [X] har forklart seg uriktig om samleiet, bortsett fra at [the applicant] benekter samleie”). X’s nephew had stated that he could not understand that his friend (the applicant) could do such a thing towards his aunt – a serious infringement of the friendship between himself and the applicant – but that he also could not rule it out. 15. It was uncertain how long the two couples had been in the respective bedrooms during the night at the cabin, and when X had left. The majority of the High Court did not find that any importance could be attached to the nephew and his friend not having heard anything that indicated that an intercourse took place in the neighbouring room, although one could apparently “hear every sound” between the two rooms (“det skal ha vært svært lytt mellom værelsene”). 16. Based on an overall assessment and attaching particular importance to X’s statement and her subsequent self-harm and isolating behaviour, the majority concluded that there was a qualified preponderance of likelihood for intercourse having taken place. There was accordingly a legal basis for awarding X a “purely civil-law compensation” (“en rent sivilrettslig erstatning”). 17. The minority in the High Court noted in essence that the case only gave rise to the question of what had happened (“actus reus”), not the mental element (“mens rea”) of the accusations against the applicant. In the minority’s view, the majority, by finding that there had been a qualified preponderance of likelihood that intercourse had taken place, had in reality stated that it had found the evidence insufficient for criminal conviction, but sufficient for civil liability (“det flertallet i realiteten har gjort er å si at de[t] mener det nok ikke var bevis tilstrekkelig til domfellelse bare til erstatningsansvar”). This ran, in the minority’s view, contrary to the presumption of innocence. 18. According to the minority, the question had also to be assessed in the light of the fact that the District Court had first given reasons for its conviction of the applicant, while the jury in the High Court had not given any reasons for its acquittal, and it was unknown how many had voted in favour of acquittal or conviction, respectively. Furthermore, the reasons provided by the majority of the High Court judges in their decision on the civil claim were in reality a continuation (“påbygging”) of the reasons provided by the District Court. Moreover, the jury had not been asked a separate question on whether intercourse had taken place; instead a more complex question including all conditions for criminal liability had been asked. Lastly, although the question of civil claims had been decided subsequent to the decision to acquit the applicant of criminal liability, it was nonetheless decided in continuation of the criminal case. The minority concluded that it would not, given the specific circumstances in the present case, be possible to order the applicant to pay civil redress without impinging on his right to be presumed innocent. 19. On 27 February 2014 the applicant appealed against the High Court’s ruling on the civil claim to the Supreme Court (Høyesterett). He submitted that the High Court’s reasons for awarding civil redress ran contrary to the presumption of innocence as set out in Article 6 § 2 of the Convention and that it followed from Article 13 of the Convention that the High Court’s judgment, insofar as it concerned the civil claim, had to be quashed. 20. On 4 April 2014 the Supreme Court’s Appeals Leave Committee (Høyesteretts ankeutvalg) declared that the applicant’s right to be presumed innocent as enshrined in Article 6 § 2 of the Convention had been violated. The Committee first stated that the High Court had correctly explained the differences between the rules on evidence applicable to criminal and civil cases, respectively. It had also emphasised that the finding of civil liability did not affect (“ikke rokket ved”) the acquittal of criminal liability. The Committee went on to note that the High Court had stated as part of its reasons the above phrase that there had been “nothing to indicate that X had been testifying incorrectly about the intercourse, apart from the fact that the applicant had denied having intercourse” (see paragraph 14 above). In the Committee’s view, this phrase could give the impression that the High Court had not been in doubt that X’s testimony had been correct. In the light of the evidentiary situation in the case, the High Court had thereby cast doubt on whether the conditions for criminal liability had been met and hence violated the presumption of innocence. 21. The Supreme Court’s Appeals Leave Committee found that, in the circumstances (“etter forholdene”), it would be a sufficient remedy according to Article 13 of the Convention for it to declare that the presumption of innocence had been breached and to dissociate itself from the reasons provided by the High Court. It therefore unanimously found that neither the infringement of the presumption of innocence nor other submissions made by the applicant gave reasons to grant leave to appeal to the Supreme Court. 22. Section 3-5 § 1 of the Compensation Act of 13 June 1969 (skadeserstatningsloven) read at the relevant time: “Section 3-5 (Compensation (redress) for non-financial injury) Anybody who intentionally or by gross negligence (a) injures any person or (b) commits an infringement or an act of misconduct as mentioned in section 33 may, regardless of whether compensation for permanent injury under section 3-2 or standardised compensation under section 3-2a is paid, be ordered to pay the victim such non-recurrent amount as the court finds reasonable in compensation (redress) for injury of a non-financial kind. For offences or misconduct as mentioned in Articles 195, 196 and 200 § 3 of the Criminal Code, the nature of the act, the length of the matter, whether the act is an abuse of a relationship of relatives, care, dependency or trust, and whether the act is carried out in a particularly painful or hurtful way.” 23. Section 30-4 of the Dispute Act of 17 June 2005 (tvisteloven) reads: “Section 30-4 Leave to appeal against judgments (1) Judgments cannot be appealed against without leave. Leave can only be granted if the appeal concerns issues whose significance extends beyond the scope of the current case or if it is important for other reasons that the case be determined by the Supreme Court. (2) The issue of leave shall be determined for each appeal. Leave may be limited to specific claims and to specific grounds of appeal, including to specifically invoked errors in the application of law, procedure or the factual basis for the ruling. (3) The issue of leave shall be determined by the Appeals Committee of the Supreme Court by way of decision. A decision to refuse leave or to grant limited leave requires unanimity.” 24. The Supreme Court has several times dealt with cases in which the appellants have argued that the High Court, in the context of civil claims for compensation, had employed language incompatible with Article 6 § 2 of the Convention. In its judgment of 27 November 2003 (Norsk Retstidende (Rt.) 2003 page 1671) it concluded that the High Court’s reasons ran contrary to Article 6 § 2, and went on to examine how to remedy that situation under Article 13. The appellant in that case had maintained that the High Court’s judgment insofar as concerned the civil claim, had to be quashed in order for him to be afforded an adequate remedy. The Supreme Court, observing that based on the evidentiary situation in the case, the High Court would certainly reach the same conclusion if the Supreme Court were to quash the judgment under appeal and the High Court, hence, would be confined with the task of pronouncing a new judgment. Since the civil liability did not require that the conditions for criminal liability be met, a decision to impose civil liability could be given without having to impute any criminal liability to the appellant. The Supreme Court considered that in such circumstances, quashing the High Court’s judgment would not give the appellant any further degree of reparation than if the Supreme Court declared that the High Court had breached the Convention and distanced itself from the High Court’s problematic reasons. The Supreme Court made reference to, inter alia, Adolf v. Austria, no. 8269/78, 26 March 1982. It also took account of how a crucial element in the Strasbourg Court’s finding of a violation of Article 6 § 2 in Y v. Norway, no. 56568/00, §§ 45-46, ECHR 2003II (extracts), had been the Supreme Court’s failure to dissociate itself from troublesome statements in the High Court’s reasons in that case. This approach taken in Rt. 2003 page 1671 has since been followed in a number of Supreme Court decisions and judgments (inter alia, Rt. 2004 page 970; 2007 page 40; 2008 page 1292; and 2009 page 1456). | 0 |
test | 001-180853 | ENG | SRB | COMMITTEE | 2,018 | CASE OF ŠAĆIROVIĆ AND OTHERS v. SERBIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. The applicants’ personal details as well as the facts in relation to each case are set out in the appendix. 5. The applicants complained of the excessive length of different civil proceedings under Article 6 § 1 of the Convention. 6. In the first applicant’s case the Constitutional Court found a violation of his right to a hearing within a reasonable time, but failed to award any damages. As regards the third applicant the Constitutional Court rejected its appeal. Lastly, as regards the other two applicants, the Constitutional Court held that they had not raised a complaint about the length of the proceedings. | 1 |
test | 001-147700 | ENG | BGR | ADMISSIBILITY | 2,014 | TONKEVI v. BULGARIA | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicants, Mr Georgi Vasilev Tonkev and Ms Viktoria Vasileva Tonkeva, are Bulgarian nationals. Mr Georgi Vasilev Tonkev was born in 1990 and lives in Varna, while Ms Viktoria Vasileva Tonkeva was born in 1996 and lives in Pazardzhik. The applicants were represented before the Court by Mr L. Takov and Mr H. Donchev, lawyers practising in Sofia. 2. The applicants are the children of Mr Vasil Tonkev, who was killed on 1 May 2011 during a police operation aimed at apprehending him. 3. About twenty luxury cars were stolen in the Plovdiv region in April 2011. Mr Tonkev was one of the suspected perpetrators of the thefts. 4. On 30 April 2011 the head of the Directorate of the Ministry of the Interior in Plovdiv ordered an operation aimed at apprehending the perpetrators. He selected twenty police officers to participate in the operation, scheduled for that evening. The officers were briefed in advance; they were advised, in particular, that the individuals they were seeking to apprehend were dangerous and armed and would be unlikely to obey police orders. 5. At about 8 p.m. on 30 April 2011 the officers, in two police cars and a minivan, left Plovdiv for the city of Veliko Tarnovo, where, according to operational intelligence data, a theft was planned for that evening. They arrived in the city at around 11 p.m. At about 1 a.m. on 1 May 2011 they were informed that a car, a BMW X5, had been stolen and was heading towards Plovdiv. It transpired subsequently that the car had been stolen and was being driven by Mr Tonkev. Once in Plovdiv, he stole another car together with an accomplice. 6. The police officers returned to Plovdiv, where they were informed that the two stolen cars were taking the motorway to Sofia. Four police cars and a minivan followed them. At about 5 a.m. the two stolen cars left the motorway and entered nearby fields. The police officers set up four roadblocks, obstructing roads in the area. 7. At about 7 a.m. the two cars left the fields and headed towards the first roadblock. Once the drivers had seen it, they made a U-turn. One of the cars, driven by Mr Tonkev’s accomplice, took a dirt road back towards the fields, followed by several officers. The car was subsequently found, but the driver managed to escape. Mr Tonkev remained on the road in the other stolen car, driving at high speed towards the second roadblock. The officers who were there tried to stop him, placing the police car in the middle of the road. However, Mr Tonkev did not stop but managed to drive round the car, hitting it. Then he continued towards the third roadblock. 8. Having been told on the radio by their colleagues that Mr Tonkev had driven past the second roadblock, had hit the police car and was driving towards them, the officers at the third roadblock made preparations to stop him. They parked their police minivan in the middle of the road and stood around it. 9. Mr Tonkev approached at high speed. With their hands raised, the officers signalled to him to stop. He did not do that, but instead directed the car at the officer who was standing to the left of the minivan and who had to jump hastily into the ditch to escape. The other officers from the group stated later that they had thought the car had knocked him down, as they had not been able to see him. Mr Tonkev then drove towards the other officers, who were standing in a group to the right of the minivan. The first two of them, after once again making gestures indicating that he should stop, jumped out of the way. This left the third officer, Mr K.A., alone in front of the speeding car. Mr K.A. was armed with an AK-47 assault rifle, set to semi-automatic fire. He fired two warning shots aimed to be into the air. However, at that very moment he had to jump hastily out of the way to avoid being hit by the car and fell to the ground. This changed the direction of the shots, which instead hit the front right-hand door of the car driven by Mr Tonkev. Already on the ground, Mr K.A. fired one more shot, which hit the car’s right rear tyre. One of the other officers attempted to deploy a spike strip to stop the car, but did not succeed. Mr Tonkev continued driving and headed towards the fourth roadblock. 10. Approaching the roadblock at high speed, he once again directed the car at the police officers trying to stop him and they had to jump to one side to escape. They managed to deploy a spike strip, but despite passing through it, Mr Tonkev continued driving and soon after that turned off onto a small dirt road. The police officers started searching the area. Sometime later they found the abandoned car. They heard Mr Tonkev cry for help and found him close by, wounded. They called an ambulance, but Mr Tonkev died before its arrival. 11. Criminal proceedings concerning a possible offence under Article 119 of the Criminal Code (see paragraph 25 below) were instigated on 1 May 2011. The investigation was conducted against an “unknown perpetrator” until its conclusion. 12. On 1 May 2011 the scene of the incident was visited by an investigator from the investigation service in Pazardzhik. He also inspected the car which had been driven by Mr Tonkev. Two bullet holes were found in its front right-hand door, but only one of the bullets had pierced the door and penetrated the interior. Stains of dry blood were found on the left-hand front seat. A bag of tools including pliers and screwdrivers was found on the back seat. 13. A post mortem of Mr Tonkev’s body was carried out on 3 May 2011. A gunshot wound measuring 2.5 to 3 cm was found in the right lower part of the thorax. The bullet, which had penetrated horizontally, had caused a laceration of the liver. This had resulted in a severe intra-abdominal haemorrhage, which had caused the death. The expert concluded that the lethal shot had not been fired at close range. 14. A ballistic expert report was drawn up on 11 May 2011. It established that the lethal shot had been fired from the AK-47 rifle used by Mr K.A. 15. Many of the officers who took part in the operation on 30 April and 1 May 2011, including all of those who had been stationed at the third roadblock, were interviewed on different dates. Mr K.A. was interviewed on 4 May 2011. He said that he had fired into the air and immediately after that had jumped back to escape the speeding car. He also stated that his aim had been to preserve the life and physical integrity of his colleagues and of Mr Tonkev. 16. A combined medico-ballistic expert report was drawn up on 26 June 2011. It established that the lethal shot which had killed Mr Tonkev had been fired from between 0.8 and 3.8 metres. Whoever fired the shot had been positioned to the right and slightly in front of the victim. The shot had been fired while he was falling, staggering or jumping backwards and the gun had been in a horizontal position. The victim had been sitting in the driver’s seat, leaning against the backrest in the normal way. 17. Another medico-ballistic expert report, drawn up on 6 April 2012, concluded that, while firing the first two shots, Mr K.A. had been moving to the right, attempting to escape the approaching car. It was possible that at the time the second of these shots was fired he was no longer supporting the rifle with his left hand, which was thus in a position close to horizontal. The experts were of the view that it was impossible for shots fired into the air to have the trajectory observed in the case. 18. On several occasions in the course of the investigation the applicants’ representatives requested the replacement of the investigator and the prosecutor in charge of the case, arguing that they were not carrying out a thorough and independent investigation. In particular, the applicant’s representatives considered that the investigator and the prosecutor, by commencing an investigation concerning a possible offence under Article 119 of the Criminal Code, had predetermined the course of the criminal proceedings and had allegedly unjustifiably sought to discontinue the proceedings (see below). On all occasions the requests for replacement of the investigator and the prosecutor were refused by their superiors, it being found that the investigation was being carried out in a thorough and vigorous manner and that the allegations made by the applicants could not justify the conclusion that the investigator and the prosecutor were not independent. 19. On 30 December 2011 the prosecutor in charge of the case decided to discontinue the criminal proceedings, finding, on the basis of Article 12 § 1 of the Criminal Code (see paragraph 24 below), that no offence had been committed in connection with Mr Tonkev’s death. The prosecutor considered that Mr Tonkev’s actions, namely his directing of the powerful car he had been driving at high speed towards the police officers, represented an unlawful direct attack that placed their health and lives at risk. It therefore justified self-defence on their part, in particular the firing of the two shots by Mr K.A. 20. Upon an appeal by the first applicant, on 24 January 2012 the Pazardzhik Regional Court quashed the prosecutor’s decision, considering that she had not examined in a thorough manner the particular circumstances in which Mr K.A. had fired the lethal shot, such as the position of his body and the possible trajectory of the bullet. 21. The prosecutor collected further evidence, in particular the expert report mentioned in paragraph 17 above, and on 27 June 2012 decided to discontinue the criminal proceedings, relying once again on the provision contained in Article 12 § 1 of the Criminal Code. She considered that Mr Tonkev had launched a “direct and unlawful attack” on the police officers at the second, third and fourth roadblocks, using the car he was driving “as a weapon” capable of injuring or killing any one of them. Thus, Mr K.A. had “no longer aimed at apprehending” Mr Tonkev, but had acted in self-defence, in order to protect his own life, and also the lives of his colleagues. Given Mr Tonkev’s aggressiveness, the action taken in selfdefence had not been disproportionate. Mr K.A. had used his firearm after all other attempts to halt the attack had proved futile. 22. Upon an appeal by the first applicant, on 3 August 2012 the Pazardzhik Regional Court upheld the prosecutor’s decision, confirming her conclusion that Mr K.A. had acted in self-defence, and finding that the investigation of Mr Tonkev’s death had been objective and thorough. The court dismissed the first applicant’s argument that it had been necessary to examine as witnesses all officers who had participated in the operation of 30 April-1 May 2011, pointing out that all the eye-witnesses to the relevant events had been interviewed. The domestic court dismissed a further argument put forward by the first applicant that Mr Tonkev had not been armed, that his actions had been predictable and that he had not posed a danger to the officers. The court pointed out that Mr Tonkev had used the car driven by him “as a weapon” and that he had aimed at injuring or even killing the police officers trying to stop him. Thus, it did not appear that the use of lethal force was unjustified. Lastly, the domestic court dismissed the argument that the police officers’ actions had been “inadequate” and that they could have halted the car’s movement by using spike strips at a point earlier than the fourth roadblock. It noted that the place where Mr Tonkev and his accomplice had been hiding and the route they were intending to take had been unclear and that, moreover, the situation had unfolded very quickly. 23. Upon a further appeal by the first applicant, in a final decision of 19 October 2012 the Plovdiv Court of Appeal upheld the discontinuation of the criminal proceedings. It noted that Mr Tonkev’s death had occurred within the framework of a police operation organised with the aim of apprehending him after he had stolen a car. It observed also that Mr Tonkev’s actions had created “a real and immediate danger” for the police officers at the third roadblock and that in firing the shot which had killed Mr Tonkev, Mr K.A. had acted in self-defence. The Court of Appeal noted further that at the moment when the shots were fired, the attack carried out by Mr Tonkev had not ceased and that the actions taken in defence had been aimed at repelling it. This was illustrated by the fact that the shots fired by Mr K.A. had been directed at the front right door of the car, and not at the side windows; thus, he had aimed to halt the car’s movement and prevent its running over him and his colleagues. Lastly, the Court of Appeal concluded that the self-defence manifested in the case had been within the necessary limits, seeing that the attack launched by Mr Tonkev had been strongly violent. For the self-defence to be considered disproportionate, it would have to have clearly exceeded what had been necessary to repel the attack, and this had not been the case. 24. Article 12 § 1 of the Criminal Code of 1968 provides that an act committed in self-defence and not causing disproportionate harm to the attacker is not criminal. 25. Under Article 119 of the Criminal Code, causing death by a disproportionate reaction to an attack is punishable by up to five years’ imprisonment. | 0 |
test | 001-150704 | ENG | AUT | CHAMBER | 2,015 | CASE OF M.A. v. AUSTRIA | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 6. The applicant was born in 1968 and lives in Vittorio Veneto. 7. The applicant entered into a relationship with D.P., an Austrian national, and lived together with her in Vittorio Veneto. Their daughter, who is an Italian and Austrian national, was born in December 2006. Under Italian law the applicant and D.P. had joint custody of her. 8. The relationship between the applicant and D.P. deteriorated and the latter left the family home on 31 January 2008, taking their daughter with her. 9. The applicant applied to the Venice Youth Court (tribunale per i minorenni di Venezia) for an award of sole custody of the child and asked the court to issue a travel ban prohibiting her from leaving Italy without his consent. 10. On 8 February 2008 the Venice Youth Court issued a travel ban in respect of the applicant’s daughter. On the same day the applicant learned that D.P. had left Italy with the child and had travelled to Austria, where she intended to take up residence. 11. On 23 May 2008 the Venice Youth Court lifted the travel ban in respect of the applicant’s daughter, granted preliminary joint custody of the child to both parents, and authorised her to reside with her mother in Austria, having regard to her young age and close relationship with her mother. It also appointed an expert who was entrusted with the task of collecting the necessary information for a final decision on custody. In addition, the court granted the applicant access rights twice a month in a neutral location, noting that the meetings should alternate between Italy and Austria and that the dates and arrangements should be agreed with the expert. 12. According to the applicant, D.P. brought their daughter to Italy only once. Visits took place in Austria, although D.P. did not facilitate their organisation. At a later date visits ceased, allegedly due to D.P.’s obstructive behaviour. In a report of 15 May 2009 the expert noted that she was not in a position to evaluate the applicant’s ability to take care of his daughter. 13. According to the Government the applicant met his daughter fifteen times in Austria, where supervised visits took place between October 2008 and June 2009. Subsequently, he refused to travel to Austria without giving any reasons. 14. The applicant applied for assistance to secure his daughter’s return under the Hague Convention. His application was forwarded via the respective central authorities in Italy and Austria to the Leoben District Court (Bezirksgericht), where proceedings began on 19 June 2008. Subsequently, the court appointed an expert. 15. On 3 July 2008, the Leoben District Court dismissed the applicant’s application for the return of the child under the Hague Convention. Referring to the expert’s opinion and having regard to the very young age of the child, the court found that her return would constitute a grave risk for her within the meaning of Article 13(b) of the Hague Convention. 16. On 1 September 2008, the Leoben Regional Court (Landesgericht) set aside that decision because the applicant had not been duly heard in the proceedings. 17. On 21 November 2008 the Leoben District Court, having heard the applicant, again dismissed his application for his daughter’s return, referring to the Venice Youth Court’s decision of 23 May 2008. 18. On 7 January 2009 the Leoben Regional Court dismissed the applicant’s appeal, finding that returning the child to him and her separation from her mother would entail a grave risk of psychological harm within the meaning of Article 13(b) of the Hague Convention. 19. Meanwhile, in March 2009 D.P. brought proceedings before the Judenburg District Court, seeking an award of sole custody of the child. 20. On 26 May 2009 the Judenburg District Court held that it had jurisdiction with regard to custody, access and maintenance issues in respect of the child by virtue of Article 15(5) of EU Regulation 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the Brussels IIa Regulation”). 21. On 25 August 2009 the same court made a preliminary award of sole custody to D.P., referring to the child’s close links with Austria and the risk of danger to her well-being upon a possible return to Italy. 22. On 8 March 2010 the Judenburg District Court awarded D.P. sole custody of the child. 23. In the meantime, on 9 April 2009 the applicant made an application to the Venice Youth Court for his daughter’s return under Article 11(8) of the Brussels IIa Regulation. 24. In a judgment of 10 July 2009 the Venice Youth Court, having held a hearing, ordered the child’s return to Italy. The child would live with her mother, should the latter decide to return to Italy with her. In that event the Vittorio Veneto social services department was required to provide them with accommodation. In addition, a programme for the exercise of the applicant’s access rights would have to be established. If the child’s mother did not wish to return to Italy, the child was to reside with the applicant. 25. The Venice Youth Court found that it remained competent to deal with the case, as the Judenburg District Court had wrongly determined its jurisdiction under Article 15(5) of the Brussels IIa Regulation. It noted that its previous decision of 23 May 2008 had been designed as a temporary measure in order to re-establish contact between the applicant and his daughter through access rights and to obtain a basis for an expert opinion for the decision on custody of the child. However, the child’s mother had failed to co-operate with the appointed expert and had refused a programme of access rights for the applicant prepared by the expert. The latter had stated in her preliminary opinion that she was not in a position to answer all questions relating to the child’s best interests in a satisfactory manner. 26. On 21 July 2009 the Venice Youth Court issued a certificate of enforceability under Article 42 of the Brussels IIa Regulation. 27. On 22 September 2009 the applicant sought the enforcement of the Venice Youth Court’s judgment of 10 July 2009. He was represented by counsel in these and all subsequent proceedings. 28. On 12 November 2009 the Leoben District Court dismissed the applicant’s request for enforcement of the Venice Youth Court’s order to return the child. It noted that the child’s mother was not willing to return to Italy with her. However, the child’s return without her mother would constitute a grave risk for her within the meaning of Article 13(b) of the Hague Convention. 29. On 20 January 2010 the Leoben Regional Court quashed that decision and granted the applicant’s request for enforcement. 30. The Leoben Regional Court noted that under Article 11(8) of the Brussels IIa Regulation a judgment refusing return under Article 13 of the Hague Convention was irrelevant where the court which was competent pursuant to the Brussels IIa Regulation had ordered the child’s return in a subsequent judgment. It confirmed that the Venice Youth Court had been competent to issue the judgment of 10 July 2009, as D.P. had unlawfully removed the child from Italy and the applicant had immediately requested her return. Moreover, the applicant had submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation in respect of the judgment at issue. The Austrian courts therefore had to recognise the judgment and to enforce it. They were not to establish anew whether the child’s return would be contrary to her best interests. In any event, there was no indication that the circumstances had changed since the Venice Youth Court had given its judgment. It was for the court of first instance to order appropriate measures of enforcement. 31. D.P. lodged an appeal on points of law with the Supreme Court (Oberster Gerichtshof) on 16 February 2010. 32. On 20 April 2010 the Supreme Court requested a preliminary ruling by the Court of Justice of the European Union (CJEU), submitting a number of questions concerning the application of the Brussels IIa Regulation. 33. On 1 July 2010, the CJEU issued a preliminary ruling (C-211/10 PPU) confirming the jurisdiction of the Italian courts in the case and the enforceability of the Venice Youth Court’s judgment of 10 July 2009. It found, in particular, that: (1) a provisional measure [such as the one issued by the Venice Youth Court in 2008] did not constitute a ‘judgment on custody that does not entail the return of the child’ within the meaning of Article 10(b) subparagraph (iv) of the Brussels IIa Regulation and could not be the basis of a transfer of jurisdiction to the courts of the Member State to which the child had been unlawfully removed; (2) Article 11(8) of the Regulation applied to a judgment of the court with jurisdiction ordering the return of the child, even if it was not preceded by a final judgment of that court relating to custody of the child; (3) Article 47(2) subparagraph (2) of the Regulation had to be interpreted as meaning that a judgment delivered subsequently by a court of the Member State of enforcement which made a provisional award of custody could not preclude enforcement of a certified judgment previously delivered by the court which had jurisdiction in the Member State of origin and had ordered the return of the child; and (4) enforcement of a certified judgment [ordering the child’s return] could not be refused by the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change had to be pleaded before the court which had jurisdiction in the Member State of origin, which also had to hear any application to suspend the enforcement of its judgment. 34. On 13 July 2010 the Supreme Court dismissed D.P.’s appeal on points of law. It noted that according to the CJEU’s ruling the Austrian courts’ only task was to take the necessary steps for the enforcement of the return order, without proceeding to conduct any review of the merits of the decision. If D.P. asserted that the circumstances had changed since the Venice Youth Court had given its judgment, she had to apply to that court, which would also be competent to grant such an application suspensive effect. 35. The Supreme Court noted that it was now for the first-instance court to enforce the Venice Youth Court’s judgment. In doing so, it had to take into account the fact that the Venice Youth Court had in the first place envisaged that the child should reside with her mother upon her return to Italy and had ordered the Vittorio Veneto social services department to make accommodation available for them. The first-instance court would therefore have to ask the applicant to submit appropriate evidence, in particular confirmation from the Venice Youth Court or Vittorio Veneto municipal council, that accommodation was indeed available. The first-instance court would then have to order the mother to return with the child within two weeks. Should she fail to comply within that time-limit, the first-instance court would, upon the applicant’s request, have to order coercive measures for the child’s return, while still giving the mother the opportunity to avoid such drastic measures by voluntarily returning to Italy with the child. 36. On 31 August 2010 the Venice Youth Court refused to grant an application by D.P. for the enforcement of its judgment of 10 July 2009 to be stayed. Referring to that decision, the applicant asked the Leoben District Court to order his daughter’s return to Italy. 37. The applicant claimed that he had offered to make accommodation (apparently a flat belonging to him) available to D.P. and his daughter, but that the Leoben District Court had found that this did not fulfil the conditions set by the Venice Youth Court in its judgment of 10 July 2009. 38. On 17 February 2011 the Leoben District Court asked the applicant to submit evidence that appropriate accommodation would be made available to his daughter and her mother by the Vittorio Veneto social services department, as required by the Venice Youth Court’s judgment of 10 July 2009. 39. By letter of 22 March 2011 the Austrian Federal Ministry of Justice, as Central Authority, informed its Italian counterpart accordingly and also noted that to date the condition had not been complied with. A similar letter was sent to the Italian Central Authority on 27 May 2011. Three further letters with similar content were sent to the Italian Central Authority prior to November 2011. 40. By a judgment of 23 November 2011 the Venice Youth Court withdrew D.P.’s custody rights and awarded the applicant sole custody of the child. It further ordered the child’s return to Italy to reside with the applicant in Vittorio Veneto. The court ordered the Vittorio Veneto social services department – if need be in co-operation with the neuropsychiatry department of the local health authority – to ensure that contact between the child and her mother was maintained and to give the child linguistic and educational support in order to assist her integration into her new family and social environment. 41. The Venice Youth Court referred to its decision of 23 May 2008, which had been aimed at preserving the child’s relationship with her mother while re-establishing contact with the applicant, noting that such attempts had failed owing to a lack of co-operation from the mother. It had therefore ordered the child’s return to Italy in its judgment of 10 July 2009. It further considered that D.P. had unlawfully removed the child to Austria and had subsequently deprived her of contact with the applicant without good reason. She had thus acted contrary to the child’s best interests. It therefore found that sole custody was to be awarded to the applicant. Given that to date any attempts to establish contact step by step had failed, his daughter was to reside with him immediately. The court noted that this would entail a difficult transition for her, but considered that the damage caused by growing up without her father would weigh even heavier. The court considered that the social services department would have to give the child educational and linguistic support to help her settle in her new family and social environment and to maintain contact with her mother. Finally, the court considered that the child’s return would not entail any grave risk of psychological or physical harm within the meaning of Article 11 of the Brussels IIa Regulation, which in turn referred to Article 13 of the Hague Convention. 42. D.P. did not appeal against this judgment. 43. On 19 March 2012 the applicant notified the Leoben District Court of the Venice Youth Court’s judgment of 23 November 2011. He also submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation. 44. On 3 May 2012 the Leoben District Court dismissed the applicant’s request for enforcement of the Venice Youth Court’s order for the child’s return. Referring to the Supreme Court’s decision of 13 July 2010, it considered that he had failed to submit proof that appropriate accommodation would be made available for the child and her mother upon their return. 45. The applicant appealed. He submitted, in particular, that the Venice Youth Court’s judgment of 23 November 2011 had granted him sole custody of the child and had ordered her return to Italy, where she was to reside with him. 46. On 15 June 2012 the Leoben Regional Court granted the applicant’s appeal and ordered D.P. to hand the child over to the applicant within fourteen days, noting that enforcement measures would be taken in case of failure to comply. 47. The Regional Court found that the condition that appropriate accommodation be made available to the child and the mother was no longer valid: in its judgment of 23 November 2011 the Venice Youth Court had awarded sole custody of the child to the applicant and had ordered that she return to reside with him. The applicant had submitted that judgment together with a certificate of enforceability under Article 42 of the Brussels IIa Regulation. The mother’s obligation to return the child to the applicant thus resulted directly from the Venice Youth Court’s judgment of 23 November 2011. Finally, the Leoben Regional Court noted that the award of custody made by the Judenburg District Court on 8 March 2010 could not prevent the enforcement of the Venice Youth Court’s judgment. The latter had retained its competence to rule on custody matters, as D.P. had unlawfully removed the child to Austria and the applicant had made a timely request for her return under Article 10 of the Brussels IIa Regulation. 48. D.P. did not comply with the return order. She lodged an extraordinary appeal on points of law with the Supreme Court. 49. On 13 September 2012 the Supreme Court rejected D.P.’s extraordinary appeal on points of law, as the case did not raise an important legal issue. It noted that the return order had become final and was enforceable. The first-instance court now had no other task than to define the steps to be taken to enforce the return order. The CJEU had clarified that where there was a certificate of enforceability under Article 42(1) of the Brussels IIa Regulation, the requested court had to proceed with the enforcement of the main judgment. Any questions relating to the merits of the return decision, in particular the question whether the requirements for ordering a return had been met, had to be raised before the courts of the requesting State in accordance with the laws of that State. Consequently, any change in circumstances affecting the issue of whether a return would endanger the child’s well-being had to be raised before the competent court of the requesting State. D.P.’s argument that the child’s return would lead to serious harm for her and entail a violation of Article 8 of the Convention was therefore not relevant in the proceedings before the Austrian courts, but rather had to be raised before the competent Italian courts. 50. On 1 October 2012 the Leoben District Court held that it was not competent to conduct the enforcement proceedings and transferred the case to the Wiener Neustadt District Court, apparently on account of a change of residence by D.P. and the child. 51. On 4 October 2012 the Wiener Neustadt District Court issued a decision on the next steps to be taken in the enforcement proceedings. The judge noted, in particular, that a continuation of the path chosen by both parents, namely the use of the child in the conflict between them, would lead to the child being traumatised, especially if the parents’ unbending position eventually led to an enforcement of the return order by coercive measures as a last resort. He noted that the best interests of the child required the parents to reach a workable compromise. The judge therefore proposed that a hearing in the presence of both parents be held in order to seek a constructive solution. Accordingly, he asked both parents to indicate within two weeks whether they were ready to take part in the proposed hearing. The judge further noted that if the parents were not willing to take part in the hearing, the enforced return of the child would be arranged. In this connection, the judge stated that any trauma suffered by the child because of such enforcement would then have to be laid at the door of the parents. Moreover, the applicant would be required to find a way to deal with the trauma caused to the child. 52. On 16 October 2012 the applicant informed the Wiener Neustadt District Court that he was not ready to take part in a hearing with the child’s mother, but wanted to arrange the return of the child with the least traumatic impact possible. He therefore suggested that he come to Austria with his parents to pick up the child or, alternatively, that D.P. travel to Italy with the child to hand her over. He therefore asked D.P. to either set a pick-up date in Austria or to inform him of a date when she would bring the child to Italy. 53. On 23 October 2012 D.P. informed the District Court that she was ready to take part in the proposed hearing. She also informed the court that she had appealed against the decision which had transferred the case from the Leoben District Court to the Wiener Neustadt District Court. Consequently, the decision establishing the latter court’s competence had not become final. She therefore asked the court to await the decision on her appeal before taking any further steps. 54. In the related case brought before the European Court of Human Rights by the mother of the child (Povse v. Austria (dec.), no. 3890/11, 18 June 2013), the Court granted a request for interim measures on 4 December 2012. It asked the Government to stay the child’s return to Italy. Having obtained information from the Austrian and Italian Governments and from the applicants, the Court lifted the interim measure on 18 February 2013. 55. On 4 April 2013 the applicant’s counsel requested that the enforcement proceedings be continued. 56. On 25 April 2013 the Wiener Neustadt District Court decided to continue the enforcement proceedings and, on 30 April 2013, requested that the parties submit their views within two weeks in order to reach a comprehensive solution for the benefit of the child. According to the Government, the applicant refused to contribute to that process. 57. In a decision of 20 May 2013 the Wiener Neustadt District Court ordered D.P. to hand over the child to the applicant by 7 July 2013 and stated that in case of failure to comply coercive measures would be applied. The District Court noted that it was for D.P. to choose whether she would accompany her daughter to Italy or whether she would set a date within that timeframe for the applicant to pick up the child in Austria. Furthermore, the District Court, referring to the Supreme Court’s judgment of 13 September 2012, repeated that it was for the Italian courts to examine any issues relating to the child’s well-being. It noted finally that the deadline for handing over the child had been set in such a way as to allow her to finish the school year in Austria. 58. As D.P. did not comply with the order to hand over the child, an attempt to enforce it by means of coercive measures was made in the early hours of 24 July 2013 without prior notice. The attempt, in which the judge, trained bailiffs and police officers participated, was unsuccessful, as D.P. and the child were not present at their place of residence. The applicant had been informed of the planned enforcement and was present. 59. On 9 August 2013 D.P. asked the Venice Youth Court to stay the enforcement of its judgment of 23 November 2011. Furthermore, she sought an award of sole custody in her favour. She alleged that she had not been adequately heard in the initial proceedings. Furthermore, she asserted that there had been a change of circumstances, in that her daughter was fully integrated into her living environment in Austria and had formed bonds with D.P.’s family, consisting of her mother, the latter’s partner and her younger half-brother. There had been no contact between father and child for a lengthy period and the child had no knowledge of Italian. D.P. submitted an expert opinion, according to which the child’s return to her father through the use of coercive measures would cause serious harm to the child. 60. On 14 August 2013 the Wiener Neustadt District Court dismissed D.P.’s application for a stay of enforcement, but decided to provisionally refrain from returning the child until the Venice Youth Court gave a decision on D.P.’s action before it. 61. In his observations of 18 October 2013 the applicant claimed that he had not yet been duly notified of the fresh proceedings before the Venice Youth Court. The Government, in their submissions of 18 November 2013, stated that the proceedings were pending before the Italian courts and that the parties had been notified of the dates of hearings. Moreover, the Government submitted that the applicant had not taken advantage of numerous opportunities to re-establish communication between himself and his daughter. 62. According to information provided by the applicant in a letter of 17 November 2014, the Venice Youth Court held hearings in January and April 2014 in the presence of both parents and fixed a series of meetings between the applicant and his daughter. A number of meetings took place between February and May at intervals of three weeks in Austria and then in June in Italy. The mother of the child was present at the meetings and on some occasions also her partner. The applicant alleges that on two occasions the mother’s partner threatened him and disrupted the meetings. According to the applicant meetings which had been scheduled for July and August 2014 did not take place as the mother refused to bring the child to Italy. The Venice Youth Court held a further hearing on 29 September 2014 and scheduled further meetings in Italy between the applicant and his daughter for December 2014 and January 2015. The proceedings before the Italian courts are still pending. | 1 |
test | 001-170468 | ENG | RUS | CHAMBER | 2,017 | CASE OF KHAMIDKARIYEV v. RUSSIA | 4 | 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 - Extradition;Positive obligations) (Substantive aspect) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 7. The applicant was born in 1978. He is currently serving a prison sentence in Uzbekistan. 8. The information provided by the applicant’s representative and the Government is limited and conflicting. The elements at the Court’s disposal are described below. 9. The following account of events is based on a series of written submissions to the Court by the applicant’s representative. 10. The applicant, while living in Uzbekistan, was a friend of a former boyfriend of Ms Gulnara Karimova, one of President Islam Karimov’s daughters. At some point Ms Karimova turned against her former boyfriend’s friends. Fleeing political persecution, on 26 December 2010 the applicant moved to Russia. He resided in Moscow with his partner, Ms I., and their child. 11. In 2011 the Uzbek authorities charged the applicant in absentia with crimes related to religious extremism on account of his alleged involvement in the establishment in 2009 of a jihadist organisation, issued an arrest warrant and put his name on an international wanted list. 12. On 10 July 2013 the applicant was arrested in Moscow on the basis of the Uzbek warrant. 13. On 12 July 2013 the Golovinskiy District Court of Moscow authorised the applicant’s detention pending extradition. 14. On 9 August 2013 the Golovinskiy inter-district prosecutor’s office of Moscow ordered the applicant’s release on the grounds that the Uzbek authorities had not lodged a formal extradition request and that the crimes he had been charged with did not constitute criminal offences under Russian law. It was also noted that the applicant could not have established the jihadist organisation in 2009 as the organisation in question had been banned by the Supreme Court of Russia in 2003. The applicant was then released. 15. Following his release, the applicant continued to live in Moscow. At some point he applied for refugee status, referring to a risk of illtreatment in Uzbekistan. 16. On 8 November 2013 the Moscow Department of the Federal Migration Service (“the Moscow FMS”) dismissed the allegations of a risk of ill-treatment in Uzbekistan as unfounded and rejected the applicant’s application for refugee status. He challenged that decision in court. 17. On 12 May 2014 the Zamoskvoretskiy District Court of Moscow approved the applicant’s application, quashed the Moscow FMS’s rejection and ordered it to grant the applicant refugee status. 18. The applicant’s passport remained in the Moscow FMS’s file concerning his application for refugee status. 19. Given that no appeal against the judgment of 12 May 2014 was lodged within the required time, the judgment entered into force. 20. On the evening of 9 June 2014, while the applicant and his family were visiting a friend, Mr T., the applicant’s child fell ill. The applicant and Ms I. decided to take him to hospital and the applicant called a taxi. A silver Lada Priora arrived. Mr T. wanted to accompany the applicant and Ms I., but the Lada’s driver told him that the car had been ordered for two adult passengers only. The applicant, Ms I. and the child got into the taxi. 21. On their way, at about 7.20 p.m., Ms I. decided to stop at a pharmacy in the centre of Moscow. She took the child out of the taxi and the applicant waited in the car. When Ms I. left the pharmacy she saw that the taxi had driven away. A woman told Ms I. that she had seen two men getting in a parked car, which had then driven off. 22. Ms I. tried calling the applicant but his mobile telephone was turned off. She then alerted Mr T. 23. The applicant’s representative was notified of the applicant’s disappearance shortly after. On the same date, that is, on 9 June 2014, he contacted the Federal Security Service (“the FSB”) and the border control agency, asking them to prevent the applicant’s involuntary removal from Russian territory. According to the applicant’s representative, he suspected the involvement of two FSB officers, “Timur” and “Zakhar”, who had shown an interest in the applicant in 2011. Nevertheless, he did not mention those people in his letters to the FSB and the border control agency. 24. On 18 June 2014 the investigation department of the Uzbek Ministry of the Interior informed the applicant’s father that the applicant had been arrested and placed in custody on 17 June 2014. On 25 June 2015 the applicant’s representative forwarded a copy of the notification to the Court. 25. The criminal case against the applicant was brought to trial before the Tashkent City Court. He was appointed a legal aid lawyer. 26. At the end of October 2014 the applicant’s representative, Mr Vasilyev, travelled to Tashkent. He discovered that the applicant had been kept incommunicado in a remand prison in Tashkent. Mr Vasilyev was repeatedly denied access to the applicant. 27. Mr Vasilyev attended three hearings at the Tashkent City Court on 31 October, and 3 and 4 November 2014. On 31 October and 3 November 2014 the trial judge allowed Mr Vasilyev to talk to the applicant. During the conversations the applicant sat in a cage in the courtroom surrounded by guards. The applicant’s representative summarised the applicant’s description of the events of 9 June 2014, given orally on 31 October and 3 November 2014, as follows. 28. At 7 p.m. on 9 June 2014 the applicant had been abducted by two FSB officers. They had put a sack over the applicant’s head during the abduction. They had then taken the applicant to an unidentified house, tied him up and taken the sack off his head. The applicant had recognised the two men as “Timur” and “Zakhar”, the FSB officers whom he had met previously in November 2011. The two men had beaten the applicant and kept him inside the house until the following day. 29. On 10 June 2014 the two FSB officers had taken the applicant to a runway at one of Moscow’s airports without passing through any border or passport controls as the applicant’s passport had remained with the Moscow FMS. The FSB officers had handed the applicant over to Uzbek officials near the steps of a Tashkent-bound airplane. 30. Once in Uzbekistan, the applicant had been placed under arrest by the Main Investigation Department of the Ministry of the Interior of Uzbekistan on suspicion of crimes related to religious extremism. He had been kept in detention for two months and had been subjected to torture and other illtreatment by Uzbek law-enforcement officers with a view to securing a self-incriminating statement. The applicant had been tied head downwards to a bar attached to the wall and had been beaten repeatedly. The officers had broken two of the applicant’s ribs and knocked out seven of his teeth. 31. On 4 November 2014 the applicant’s representative interviewed Ms I. 32. Ms I. stated that on 3 May 2011 an FSB officer named “Zakhar” and some police officers had come to their Moscow flat to search for the applicant, but had not found him. 33. In November 2011 “Zakhar” and another FSB officer, “Timur”, had interviewed Ms I. about the applicant and his religious views and practices. 34. Following the applicant’s abduction, on 10 June 2014 Ms I. had called “Timur” on his mobile phone, enquiring about her partner. “Timur” had replied that he was no longer working for “that office” (the FSB). Ms I. had also tried calling “Zakhar” but had received no response. 35. On 13 June 2014 Ms I. had flown to Tashkent with her son and mother. Upon arrival she had been detained at the airport for seven hours and then released. 36. Ms I. had been questioned by the investigator in charge of the applicant’s case at the Ministry of the Interior of Uzbekistan, Mr K., but had been denied access to the applicant. When she had seen the applicant in the courtroom, he had made signs to her that he had been beaten. 37. On 4 November 2014 Mr Vasilyev interviewed the applicant’s mother, Ms Kh. 38. Ms Kh. stated that her younger son had been convicted of crimes related to religious extremism in December 2010, which had influenced the applicant’s decision to leave Uzbekistan. She had had occasional contact with the applicant during his time in Moscow. 39. On 15 June 2014 Ms I. had arrived in Uzbekistan and informed Ms Kh. of the applicant’s abduction. 40. On 25 June 2014 officers of the Ministry of the Interior of Uzbekistan had come to Ms Kh.’s home and searched it. 41. On 27 June 2014 the applicant’s mother had visited the investigator, K., who had said that the applicant had voluntarily returned to Tashkent on 8 June 2014 and had gone to the police with a statement of surrender. 42. Some people had informed Ms Kh. that her son had been severely beaten while in detention. She had not had access to the applicant, but when she had seen him in the courtroom, he had looked very poorly. 43. On 18 November 2014 the Tashkent City Court found the applicant guilty of crimes under Articles 216 (“the illegal establishment of public associations or religious organisations”) and 244² (“the establishment of, management of, participation in religious extremist, separatist, fundamentalist or other proscribed organisations”) of Uzbekistan’s Criminal Code and sentenced him to eight years’ imprisonment. 44. The lawyer appointed for the applicant refused to lodge an appeal against the judgment. 45. On 26 November 2014 Mr Vasilyev lodged an appeal with the Appeal Chamber of the Tashkent City Court on the applicant’s behalf. It appears that later the applicant withdrew the statement of appeal. 46. The applicant remains imprisoned in Uzbekistan. 47. On 29 July 2014 the Moscow FMS lodged an appeal against the judgment of 12 May 2014. The statement accompanying the appeal did not contain any request to restore the time-limit for lodging it. 48. The Moscow City Court admitted the appeal on an unspecified date. The reasons for admitting it after the time-limit had run out are unknown. 49. On 19 October 2014 the UNHCR Representation in the Russian Federation (“the UNHCR”) submitted a memorandum on the applicant’s case to the Moscow City Court for consideration. It was noted that torture was a widespread method of coercion used by the Uzbek authorities to obtain selfincriminating statements from those suspected of involvement in “religious extremism”. The statement read, in particular: “As follows from the document of the Call for Urgent Action published by Amnesty International on 6 November 2014, after the forced return to Uzbekistan, Mr Khamidkariyev was subjected to torture and other kinds of proscribed treatment and punishment for two months with a view to obtaining a confession to made-up charges – he was tied head down to a bar attached to a wall and beaten, as a result of which he had seven teeth knocked out and two ribs broken.” 50. On 2 December 2014 the Moscow City Court examined the appeal lodged by the Moscow FMS against the judgment of 12 May 2014, quashed the judgment and upheld the Moscow FMS’s decision of 8 November 2013 owing to the fact that the applicant had not provided “convincing and irrefutable evidence of the existence of well-founded fears of becoming a victim of persecution in Uzbekistan”. The reasons for examining a belated appeal on the merits were not given in the text of the judgment. 51. In the course of the proceedings before the Court, the Government sent four sets of correspondence, the contents of which are described below. 52. By a letter of 1 July 2014 in reply to the Court’s request for information of 10 June 2014, made at the same time as the indication of the interim measures (see paragraph 4 above), the Government informed the Court that “the relevant State bodies have been informed about the disappearance of the applicant and the indication by the Court of the interim measures under Rule 39 of the Rules of Court”. 53. They further noted that the applicant had not been “apprehended by the officers of any Russian law-enforcement bodies on 9 June 2014 in Moscow” and that “his current whereabouts [are] unknown”. 54. The Government also stated that on 10 June 2014 the Basmannyy district department of the interior (“the Basmannyy police”) had received a complaint about the applicant’s kidnapping from Mr T. and that on 19 June 2014 a case file with the preliminary inquiry conducted on the basis of that complaint had been forwarded to the Basmannyy district investigative unit of the Moscow investigative department of the Investigative Committee of the Russian Prosecutor’s Office (“the investigative authority”) “for further enquiry and the possible initiation of a criminal case”. 55. Lastly, they noted that the applicant’s representative’s letter of 25 June 2014 (see paragraph 24 above) had been forwarded to the investigative authority for consideration. 56. No documents were enclosed with the letter of 1 July 2014. 57. On 24 October 2014 the Government submitted their observations on the admissibility and merits of the application, the contents of which can be summarised as follows. 58. On 9 September 2014 the investigative authority opened an investigation into the applicant’s kidnapping as criminal case no. 815447 under Article 126 § 2 (a) of the Russian Criminal Code (“aggravated kidnapping”). 59. In the course of the investigation CCTV pictures from cameras located in the vicinity of the scene of the incident were examined. They showed that on 9 June 2014 at about 7 p.m. the applicant had been kidnapped by unidentified people and taken away by car. 60. The Government claimed that the Court’s demand to submit lists of passengers checked in on Uzbekistan-bound flights between 9 and 12 June 2014 (see paragraph 5 above) could not be complied with as the lists in question contained personal data about third parties and could not be submitted to the Court without their prior consent. 61. The Government further submitted that there was no information about the arrest of the applicant on 9 June 2014 by lawenforcement agencies or his detention in remand prisons in Moscow or the Moscow Region, and that no information regarding the applicant crossing the State border had been received at that time. 62. The notification by the Uzbek authorities to the applicant’s father of 18 June 2014 concerning the applicant’s arrest and detention in Uzbekistan had been added to the criminal investigation file. 63. The Government concluded that there was no evidence to prove any direct or indirect involvement of the Russian authorities in the applicant’s alleged kidnapping and transfer to Uzbekistan. 64. The Russian authorities had not been made aware and could not have known of any risk that the applicant might be kidnapped. 65. The Government were not in a position to provide information on the criminal proceedings against the applicant in Uzbekistan as those proceedings fell outside their jurisdiction. However, they had sent a request for mutual legal assistance to the Uzbek authorities in order to establish the applicant’s whereabouts. 66. In conclusion, the Government submitted that there had not been any administrative practice of the involuntary removal of persons in respect of whom Rule 39 had been applied to their countries of nationality. Inquiries and investigations were opened into instances of the disappearance of such people. The Russian Prosecutor’s Office oversaw the compliance with Russian law of any decisions taken in the course of such inquiries and investigations. A large group of State agencies had held a co-ordination meeting on 10 September 2014 on the further enforcement of measures to ensure the security of asylum seekers. 67. No documents were enclosed with the Government’s observations of 24 October 2014. 68. On 26 February 2015 the Government, in reply to the applicant’s observations on the admissibility and merits of the application, submitted that they reaffirmed the position stated in their observations of 24 October 2014 and commented on the applicant’s just satisfaction claims. 69. No documents were enclosed with the Government’s correspondence of 26 February 2015. 70. Following the Court’s additional question to the Government regarding the respondent State’s compliance with Article 38 of the Convention (see paragraph 6 above), the Government submitted a letter which read as follows: “With reference to your letter of 24 April 2015 in respect of the above application, please find enclosed copies of the criminal investigation documents disclosed by the investigative authorities after a repeated request. The Government kindly ask the Court to join the documents to the case-file.” 71. No answer to the Court’s question under Article 38 of the Convention was given. 72. Forty-three pages of various documents issued by the Russian and Uzbek authorities were enclosed with the Government’s cover letter. 73. The contents of the documents issued by the Russian authorities and which were enclosed with the Government’s letter of 15 May 2015 can be summarised as follows. 74. On 10 June 2014 Mr T. reported the applicant’s kidnapping to the Basmannyy police and made a statement. Mr T. stated, in particular, that a woman on the street near the pharmacy had seen two men getting into the parked silver Lada Priora. 75. On 10 June 2014 Ms I. made a statement to the Basmannyy police that at 7 p.m. on 9 June 2014 she, her partner and child had taken a taxi, a silver Lada Priora. She had got out of the car to go into a pharmacy, but by the time she had come out the taxi had disappeared. 76. On 30 June 2014 the Basmannyy police reported to the investigative authority that they had failed to identify the applicant’s whereabouts and that there had been no “positive information” concerning any aeroplane or railway tickets issued in the applicant’s name or about the applicant being placed in remand prisons. Furthermore, it was noted that the Moscow department of the FSB and the data centre of the Russian Ministry of the Interior had not sent any reply to the police’s enquiries. The Basmannyy police also reported that the whereabouts of Mr T. and Ms I. were unknown and that it had been impossible to identify the taxi driver who had taken the applicant to the scene of the kidnapping. 77. On 9 July 2014 the investigative authority decided to open a criminal investigation into the applicant’s kidnapping. The decision described the events as follows: “On 9 June 2014 at about 7 p.m. persons who have not been identified by the investigation, acting jointly and by common accord, approached a car which has not been identified by the investigation parked near house no. 7/2 at Bolshoy Kharitonyevskiy Lane in Moscow, in which Mr Khamidkariyev was travelling, and, having got in the said car against the will of the victim, kidnapped Mr Khamidkariyev, fleeing the scene of the crime in the said car to an unknown destination.” 78. On 11 September 2014 the investigative authority requested the transport police to inform them whether any aeroplane or railway tickets had been issued in the applicant’s name between 1 June and 1 August 2014. 79. On 9 October 2014 the investigative authority granted the applicant victim status in case no. 815447. 80. On 15 January 2015 an investigator with the investigative authority decided to suspend the investigation of case no. 815447. The decision stated that the applicant’s whereabouts had been established as he had been detained in a remand prison in Tashkent, the scene of the incident had been inspected, seven witnesses had been questioned, various requests had been sent to the Russian authorities and a request for mutual legal assistance had been sent to Uzbekistan, but no reply had been received. 81. On 29 April 2015 the investigator’s superior at the investigative authority overruled the decision of 25 April 2015 to suspend the case and returned it to the investigator on the grounds that the suspension decision had been taken prematurely. It was noted that the following measures had to be taken to ensure a proper investigation: a response to the request for mutual legal assistance from the Uzbek authorities had still to be received, as had replies to “previously sent requests”. “Other requisite investigative and procedural measures” also still had to be performed. 82. On 29 April 2015 an investigator at the investigative authority decided to resume case no. 815447 following the order from his superior. It is clear from the text of the decision that between 9 October 2014 and 29 April 2015 the investigation had been suspended and resumed four times on the basis of decisions by a more senior officer at the investigative authority or by a prosecutor. 83. The materials provided by the Government included the following documents: - an undated sheet of paper with no letterhead entitled “Federal Search for an Individual” containing the applicant’s personal information and information on a criminal case pending against him in Uzbekistan, from which it transpires that the applicant was put on a Russian federal wanted list. The sheet contains a handwritten note “Database ‘Region’ of the Russian Ministry of the Interior (has not been arrested)”. - an undated document entitled “Request for legal assistance” addressed to “the competent State bodies of Uzbekistan” and signed by an investigator at the investigative authority, including a list of questions to ask the applicant, Ms I. and the officers in charge of the applicant’s arrest. The questions concerned, in particular, the circumstances of the applicant’s arrival in Uzbekistan, including how he crossed the border and the reasons for his detention in Tashkent. 84. The contents of the documents issued by the Uzbek authorities which were enclosed with the Government’s letter of 15 May 2015 can be summarised as follows. 85. According to an arrest record drawn up in Russian by the Uzbek police the applicant was placed under arrest at 10.40 a.m. on 14 June 2014 as a suspect in a crime under Article 244² § 1 of the Uzbek Criminal Code. The place of arrest was not indicated in the record. The grounds for the arrest were stated as “other information leading to a suspicion that a person has committed a crime, and if the person has attempted to flee or has no abode or his or her identity has not been established”. The purpose of the arrest was stated as “there are enough grounds to suspect the person of having committed a crime”. A note observed that “the arrested person has been placed in a temporary detention unit of the Ministry of the Interior of Uzbekistan”. 86. According to a document in Russian entitled “Record of providing an arrested person with the right to make a telephone call” of 14 June 2014, the applicant made use of that right to call his mother between 10.45 and 10.49 a.m. on 14 June 2014 to inform her of his arrest. 87. The record of the search of the applicant in Russian showed that 300 Russian roubles and one metallic ring were seized from the applicant when he was searched after being arrested. 88. On 18 June 2014 the Main Investigation Department of the Ministry of the Interior of Uzbekistan informed the applicant’s father that his son, who had been wanted and “declared guilty in absentia”, had been arrested on 17 June 2014, placed in custody and had been participating in investigative measures. 89. According to a Russian translation of a document in Uzbek of 10 February 2015 an investigator, K., at the Ministry of the Interior of Uzbekistan asked the State Customs Committee of Uzbekistan to provide information on “the facts of crossing the State border of Uzbekistan” by the applicant between 1 June and 1 July 2014. A Russian translation of the reply in Uzbek by the State Customs Committee of Uzbekistan of 12 February 2015 stated that there was no information in the customs’ database on the applicant crossing the Uzbek border between 1 June and 1 July 2014. It was noted that the database was compiled on the basis of written statements by those crossing borders and could thus contain errors owing to differences in people’s handwriting. 90. According to the record of an interview held on 11 February 2015 K. questioned the applicant as a victim in an unspecified criminal case. The interview was in Russian. In the course of the interview the applicant stated that he had not been arrested by the Russian authorities and that he had voluntarily left Moscow to go to Uzbekistan to visit his ailing mother. He stated that he had had no documents on him. Once in Uzbekistan, the applicant had taken a taxi to his mother’s, but the taxi had broken down and stopped. After getting out of the car, the applicant had been asked by police officers who had happened to be passing for an identification document. Since he had had no such document, he had been taken to a police station for identification and then arrested. The applicant’s answer to a question about his whereabouts between 9 and 15 June 2014 was as follows: “On 9 June 2014 I was at home, in the evening I took the child to hospital, then at about 9 p.m. I returned and stayed at home. Then on 10 June 2014 I was at home and at about 11 p.m. went to the railway station, and at 12 midnight left for Uzbekistan by bus. I was on the road for about seventy-two hours or a little longer, and on 14 June 2014 I arrived at the border between Kazakhstan and Uzbekistan, then, using roundabout ways, I crossed the border and at about 7 a.m. was on Uzbek territory, where I was arrested by officers of law-enforcement agencies.” 91. On 12 February 2015 the investigator K. questioned Ms I. as a witness. The interview was in Russian. Ms I. stated that the applicant had voluntarily and secretly left for Uzbekistan by bus on 10 June 2014 and that she had flown to Tashkent on 13 June 2014. 92. On 12 February 2015 K. questioned one of the police officers who had arrested the applicant, Mr Kh., as a witness. The interview was in Russian. The answer to the question about the circumstances of the applicant’s arrest reads as follows: “On 14 June 2014 at about 7.30 a.m. in the Yakkasarayskiy district of Tashkent Mr Khamidkariyev was stopped with a view to checking his identity documents, however, given that he had no documents on him, the latter was taken to the Yakkasarayskiy district department of the interior of Tashkent, where it was established that Mr Khamidkariyev was wanted, accordingly, Mr Khamidkariyev was taken to the initiator of the search for him in the temporary detention facility of the Ministry of the Interior of Uzbekistan, where the requisite documents were filled in.” 93. On an unspecified date K. drew up a report on the actions performed under the request for mutual legal assistance. According to the report, the investigator had questioned Ms I., Mr Kh. and the applicant, had received copies of documents pertaining to the applicant’s arrest, requested information concerning the border crossing and had identified two men allegedly connected with the applicant who as of November 2014 had been fighting on the side of ISIS in Syria. 94. The Government also submitted two documents in Uzbek of 14 June 2014 – a copy of the first page of Ms I.’s passport, and an extract from the Criminal Code of Uzbekistan with the text of Article 244² § 1 in Russian. The Article reads as follows: “the establishment, management, or participation in religious extremist, separatist, fundamentalist or other proscribed organisations shall be punishable by five to fifteen years of imprisonment”. 110. The Court observes that both parties to the present case have submitted information concerning its factual circumstances that is very fragmented. 111. The applicant’s representative summarised the applicant’s description of the events of 9 June 2014, given orally to the representative on 31 October and 3 November 2014 in the courtroom in Tashkent (see paragraphs 27-30 above), as follows. 112. At 7 p.m. on 9 June 2014 the applicant had been abducted by “Timur” and “Zakhar”, FSB officers whom he had previously met in November 2011. The two men had put a sack over the applicant’s head during the abduction. They had then taken him to an unidentified house, tied him up and taken the sack off his head. The FSB officers had beaten the applicant and kept him inside the house until the following day. 113. On 10 June 2014 “Timur” and “Zakhar” had taken the applicant to a runway at one of Moscow’s airports without passing through any border or passport controls as the applicant’s passport had remained with the Moscow FMS. The FSB officers had handed the applicant over to Uzbek officials near the steps of a Tashkent-bound airplane. 114. Once in Uzbekistan, the applicant had been placed under arrest by the Main Investigation Department of the Ministry of the Interior of Uzbekistan and had been subjected to torture and other ill-treatment by lawenforcement officers for two months with a view to securing a selfincriminating statement. The applicant had been tied to a bar attached to the wall head downward and had been beaten repeatedly. The Uzbek officers had broken two of the applicant’s ribs and knocked out seven of his teeth. 115. The Government submitted that according to CCTV pictures the applicant had been kidnapped at about 7 p.m. on 9 June 2014 by unidentified people and had been taken away by car to an unidentified destination. There had been no proof of the direct or indirect involvement of the Russian authorities in the applicant’s alleged abduction and forced transfer to Uzbekistan. 116. From the limited material provided by the parties the Court can discern the following as the few facts which appear to be not in dispute. Both parties have agreed that the applicant was abducted in Moscow at about 7 p.m. on 9 June 2014 (see paragraphs 21 and 77 above). It follows by implication from the Government’s assertion that the applicant was kidnapped by unidentified people (see paragraph 115 above) that they have acknowledged that the applicant was restricted in exercising his free will from that moment on. It is thus reasonable to assume that the Government have not contested the allegation that the applicant was involuntarily removed from the Russian territory. Furthermore, there is no dispute about the fact that the applicant was arrested and placed in custody in Tashkent by the Uzbek authorities, although there appears to be a certain amount of confusion as to the date of his arrest (see paragraphs 24, 62 and 92 above). The Government also raised no objection to the applicant’s representative’s submission that the applicant stood trial at Tashkent City Court and was convicted of crimes related to religious extremism (see paragraph 43). 117. Nevertheless, the events from 7 p.m. on 9 June 2014 onwards, in particular the factual circumstances of how the applicant travelled from Russia to Uzbekistan, have not been elucidated. 118. The Court notes in passing that the Government enclosed a record of the applicant’s interview by the Uzbek authorities, without providing any accompanying comment or explanation. According to that document, the applicant had travelled from Moscow to Tashkent by bus without a passport (see paragraph 90 above). Were the Government to be understood to be tacitly relying on the explanation appearing in that document, the Court would be reluctant to accept is as satisfactory given that the interview in question was not attended by sufficient procedural safeguards against abuse and arbitrariness. 119. The Court reiterates that it has established a number of general principles concerning situations in which, owing to a conflicting account of events by the parties, it has confronted difficulties when establishing the facts (for a summary of those principles see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 15153, 13 December 2012). 120. In particular, the Court reaffirms its constant position that the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation where the events giving rise to a complaint under Articles 2 or 3 of the Convention lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000VII), or where, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish in the context of a disappearance complaint under Article 5 of the Convention that he or she was officially summoned by the authorities, entered a place under their control and has not been seen since (see Tanış and Others v. Turkey, no. 65899/01, § 160, ECHR 2005–VIII). 121. Turning to the circumstances of the present case, the Court observes that, owing to the scarcity of the information before it, it is not in a position to establish with certainty the exact circumstances of the applicant’s travel from Moscow to Tashkent, including the date of arrival to destination and the means of transportation employed. Given that three documents issued by the Uzbek authorities that were submitted by the Government suggest that he reached Tashkent on 14 June 2014 (see paragraphs 85-86 above), the Court is ready to accept, in the absence of any other evidence, that date as the date of arrival. As to the means of transportation, the applicant’s representative submitted that the applicant was put on an aeroplane in one of the Moscow airports. The Government remained silent on the matter. The Uzbek authorities implied that the applicant took a bus from Moscow to Tashkent. 122. The Court considers that, owing to the scarcity of the information available, it cannot establish the precise circumstances surrounding the applicant’s travel from Moscow to Tashkent. Nevertheless, it regards the following two elements as salient for the analysis of the present case: (a) that the applicant was without his passport on 9 June 2014 (see paragraph 18 above), and (b) that, in order to arrive to Tashkent, he must have crossed the Russian State borders in one manner or another. 123. The Court notes in this connection that it has previously concluded that a forcible transfer of an individual to a State that was not a party to the Convention by aircraft from Moscow or the surrounding region could not happen without the knowledge and either passive or active involvement of the Russian authorities (see Iskandarov v. Russia, no. 17185/05, §§ 113-15, 23 September 2010; Abdulkhakov v. Russia, 14743/11, §§ 125-27, 2 October 2012; and Ermakov v. Russia, no. 43165/10, § 176, 7 November 2013). Any airport serving international flights is subject to heightened security measures, remaining under the permanent control of the respondent State’s authorities and notably, the State border service (ibid., also, see Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 201-02, ECHR 2013 (extracts)). As to the possibility of transport by bus, it would appear implausible that an individual whose name appeared on the wanted lists (see paragraphs 11 and 83 above) could travel some 3,400 kilometres through Russia and Kazakhstan by bus and cross the Russia-Kazakhstan and Kazakhstan-Uzbekistan State borders unimpededly despite having no passport on him (see paragraph 18 above). 124. The Court considers, accordingly, that a strong presumption of the Russian authorities’ involvement in the applicant’s relocation to Uzbekistan has arisen. The Government, however, have failed to rebut this presumption. In particular, they did not disclose the passenger logs for the Tashkentbound flights which had departed from the Moscow airports after 9 June 2014 (see paragraph 60 above). Nor did the Government submit any explanation as to how the applicant could cross the Russian border without a passport. 125. In view of the above, the Court considers that, whereas the applicant made out a prima facie case that he had been abducted and transferred to Uzbekistan with the direct or indirect involvement of the Russian authorities, the Government failed persuasively to refute his allegations and to provide a satisfactory and convincing explanation as to how the applicant arrived in Tashkent. 126. The Court accordingly finds it established that the Russian authorities bear responsibility, as a result of direct or indirect involvement, for the applicant’s forcible transfer from Moscow to Tashkent. On the basis of this finding, the Court will proceed to examine the applicant’s complaints under Article 3 of the Convention. | 1 |
test | 001-174969 | ENG | RUS | COMMITTEE | 2,017 | CASE OF MEMETOV AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation) | Dmitry Dedov;Luis López Guerra | 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 their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-147045 | ENG | SWE | CHAMBER | 2,014 | CASE OF GÖTHLIN v. SWEDEN | 3 | Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-b - Secure fulfilment of obligation prescribed by law) | André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1943 and lives in Sundborn. 6. On 8 September 2009 the Enforcement Authority (Kronofogdemyndigheten) in Falun issued a writ of execution (beslut om utmätning) attaching a mobile sawmill belonging to the applicant. It noted that the applicant’s total enforceable tax debts amounted to SEK 246,199 (roughly EUR 27,300) and that the sawmill had an estimated value of SEK 300,000 (roughly EUR 33,400). The Authority decided to leave the sawmill in the applicant’s possession but informed him that he was not allowed to sell or dispose of it or otherwise make use of it in a way that might negatively affect its value. 7. The applicant appealed against the decision to the District Court (tingsrätten) of Falun and also requested the Enforcement Authority to stay the sale of the sawmill while the court considered the case. The request for the interim measure was granted on 29 September 2009. 8. On 1 February 2010 the District Court rejected the applicant’s appeal and upheld the writ of execution. The interim measure was consequently also lifted. 9. Upon further appeal by the applicant, both the Svea Court of Appeal (hovrätten) and the Supreme Court (Högsta domstolen) refused leave to appeal, the latter on 6 May 2010. 10. On 22 April 2010 the Enforcement Authority contacted the applicant in order to plan the sale of the attached sawmill. In his reply a few days later, the applicant stated that he had removed the sawmill from his property and hidden it. He also submitted a written statement specifying that he had removed and hidden the sawmill, alone when no one else was at home. 11. On 5 May 2010 the Enforcement Authority visited the applicant’s property and confirmed that the sawmill was no longer there. The Authority also handed the applicant a summons for questioning on 7 May 2010 on its premises, as well as an injunction in which he was ordered to provide the Authority with the necessary information to be able to recuperate the sawmill. The injunction also informed the applicant that, according to Chapter 4, section 14, of the Enforcement Code (Utsökningsbalken), he was duty-bound to give information about his assets and their location. It further informed him of the Authority’s intention to ask the District Court to detain him if he did not cooperate. 12. At the questioning, the applicant acknowledged that he knew that the sawmill was attached and that he was not allowed to dispose of it in any way. However, since he considered that the basis for the attachment was wrong, he had decided to hide it. He stated that he took full responsibility for his actions and that nobody but him had been involved or knew where the sawmill was. He refused to give any information about its whereabouts but admitted that he had driven some distance with it around mid-April 2010. He further claimed that it could be only partly in his possession and that he was not sure that he could retrieve it if he wanted to. He stated that he had even considered setting fire to the sawmill. Meanwhile, the applicant’s wife was also questioned. She informed the Enforcement Authority that she had no information about where the sawmill was hidden. 13. On 17 May 2010 the Enforcement Authority requested the District Court to detain the applicant because he had refused to cooperate and give the required information. It relied on Chapter 2, section 16, and Chapter 4, section 14, of the Enforcement Code. On the same day, the District Court assigned a public defender for the applicant. 14. The applicant opposed the measure and claimed that it would be in violation of Articles 3 and 5 of the Convention to detain him and that no extraordinary reasons for such a measure existed. 15. On 27 May 2010, after having held an oral hearing, the District Court rejected the Enforcement Authority’s request. It first considered that Swedish legislation on this point did not contravene the said provisions in the Convention. The question was whether there were extraordinary reasons to detain the applicant. In this respect, the court noted that the writ of execution had gained legal force on 6 May 2010 when the Supreme Court refused leave to appeal. Thus, the court held, only a short time had passed since the matter had been finally resolved. It further observed that the Enforcement Authority had not resorted to any other measures in order to convince the applicant to reveal the location of the property, such as imposing a conditional fine. Whilst recognising that the applicant so far had been reluctant to give any information about the location of the sawmill, the court found that it could not be ruled out that a less severe coercive measure would alter his attitude. Consequently, the court concluded that currently there did not exist such extraordinary reasons to detain the applicant. 16. The Enforcement Authority appealed to the Court of Appeal, maintaining its claims and adding that, according to the preparatory works of the Enforcement Code, it was only necessary that the debtor had received an injunction but refused to comply with it. It further submitted that having regard to the applicant’s stance on the matter, the imposition of a conditional fine would most likely have no effect. Lastly, the Authority stated that it had reported the applicant to the police on the ground that he had committed a breach of an official order when he had removed and hidden the sawmill. 17. The applicant opposed the appeal, maintaining his claims and adding that he considered that, if he were detained, it would amount to imprisonment to obtain a confession. In his view, it would be clearly disproportionate to the aim pursued to detain him. 18. On 28 June 2010 the Court of Appeal quashed the lower court’s decision and granted the Enforcement Authority’s request. It stated that a debtor had to give necessary information about his assets and failure to do so could result in the debtor being detained, if there were extraordinary reasons for detention. Moreover, it was not necessary to impose a fine initially. Having regard to the size of the debts, the value of the hidden property and the fact that the applicant had maintained his refusal to reveal its location, the Court of Appeal found that there were extraordinary reasons to detain the applicant and that detention was proportionate to the aim pursued. In reaching its decision, the court found that the measure did not breach the Convention. Lastly, it noted that it should be informed as soon as the applicant had been detained in order to hold a hearing as to the continued detention. 19. The applicant was detained the following day. Consequently, on 30 June 2010, the Court of Appeal held an oral hearing and decided to maintain its earlier decision. At the hearing, the applicant stated that the taxes and the attachment had been imposed on him wrongly and that as long as these errors had not been corrected he would not cooperate to bring back the sawmill. The court reiterated its reasons as stated in its earlier decision and added that the applicant’s detention should be reviewed every second week and that he should be released immediately if he revealed the location of the property. Moreover, under no circumstances could the applicant be kept in detention for more than three months. 20. The applicant appealed to the Supreme Court which, on 6 July 2010, refused leave to appeal. 21. On 13 July 2010 the District Court reviewed the applicant’s detention and held a new hearing in the case as required by Chapter 2, section 16, of the Enforcement Code. The Enforcement Authority maintained that the applicant should be kept in detention since he still had not given any information about the location of the sawmill. It stated that it had not been able to undertake any investigative measures, since the applicant had stated that he had taken the sawmill far away from his property by car and its whereabouts thus were unknown to the Authority. The applicant, who requested his immediate release, maintained his refusal to give any information about the location of the sawmill and claimed, inter alia, that he suffered from high blood pressure and panic anxiety attacks, causing him difficulties sleeping. Moreover, he stated that he had recently been treated for prostate cancer and that he was not allowed to take his normal medication against his panic attacks since it contained narcotic substances. In its decision, the District Court noted that the applicant maintained his refusal to reveal the whereabouts of the sawmill and found, having regard to the proportionality of the measure, that there were extraordinary reasons for the applicant’s continued detention. Hence, the District Court decided that he should remain in custody. 22. The applicant appealed to the Court of Appeal which, on 20 July 2010, rejected the appeal. Upon further appeal, the Supreme Court dismissed the appeal since a new decision had already been taken by the District Court at that time. 23. On 27 July 2010 the District Court again reviewed the detention and held a new hearing in the case. The Enforcement Authority maintained its earlier point of view and acknowledged that no investigative measure had been possible due to the applicant’s continued refusal to cooperate. The applicant maintained his earlier position and added that he suffered from asthmatic symptoms due to the dry air in custody. Having regard to his age and health problems, he considered that it was clearly disproportionate to prolong his detention. The District Court found that there were still extraordinary reasons for the applicant’s continued detention and that it was not disproportionate to the aim pursued. It thus ordered that he should remain in custody. 24. The applicant appealed to the Court of Appeal which, on 2 August 2010, rejected the appeal. On 5 August 2010 the Supreme Court refused leave to appeal. 25. On 9 August 2010 the District Court once again reviewed the detention and held a hearing in the case. The parties maintained their earlier standpoints. The District Court found that continued detention of the applicant would be disproportionate to the measures he had taken. Hence, the District Court concluded that there were no extraordinary reasons for the applicant’s continued detention. As a consequence, the District Court ordered his immediate release and the order was implemented the same day. 26. The Enforcement Authority appealed to the Court of Appeal which, on 13 August 2010, rejected the appeal. 27. On 7 September 2010 the Supreme Court dismissed the Enforcement Authority’s further appeal and consequently, on 23 September 2010, the District Court struck the case out of its list of cases as the case was closed. 28. As concerns the Enforcement Authority’s police report concerning the applicant’s alleged breach of an official order pursuant to Chapter 17, section 13, of the Penal Code (Brottsbalken), the preliminary investigation was discontinued with reference to provisions on waiver of prosecution (åtalsunderlåtelse) on 13 April 2011. 29. On 4 October 2011 the Enforcement Authority decided to revoke the writ of execution concerning the sawmill since it considered that no additional circumstances had emerged that could reveal its location. Furthermore, it was considered that there were no other measures which could produce results to that end. 30. On 26 April 2012 the applicant submitted a claim for damages to the Chancellor of Justice (Justitiekanslern), pursuant to the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (Lagen om ersättning vid frihetsberövande och andra tvångsåtgärder, 1998:714), in the amount of SEK 80,000 for the suffering he had endured during the 42 days he was deprived of his liberty. He further demanded to be reimbursed SEK 2,940 for costs which had been deducted from his pension during his time in detention. 31. On 15 October 2012 the Chancellor of Justice rejected the claim. The Chancellor noted that the decision to detain the applicant had been taken by a court of law, in accordance with relevant legal provisions. Moreover, the examination of the case showed no basis for finding that the decision had been taken on erroneous grounds and therefore was incorrect. | 0 |
test | 001-168052 | ENG | RUS | COMMITTEE | 2,016 | CASE OF BEKUZAROV AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 4. The list of applicants and the relevant details of the applications are set out in the appended table. 5. The applicants complained of the excessive length of their pre-trial detention. In application no. 1884/12, the applicant also complained under Article 5 § 4 of the Convention based on the same set of facts. | 1 |
test | 001-140000 | ENG | SRB | COMMITTEE | 2,014 | CASE OF PREMOVIĆ v. SERBIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement 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) | Helen Keller;Paulo Pinto De Albuquerque | 4. The applicant was born in 1951 and lives in Novi Pazar. 5. The applicant was employed by “Raška Holding Kompanija A.D. u restrukturiranju”, a socially/State-owned company based in Novi Pazar (hereinafter – “the debtor”). 6. On 22 December 2004, 5 January 2007, 10 April 2007, and 24 October 2007 the Novi Pazar Municipal Court adopted four judgments in the applicant’s favour according to which the debtor was ordered to pay certain sums. 7. On 11 February 2005, 5 March 2007, 21 November 2007 and 31 December 2007 respectively, the applicant lodged applications for the enforcement of the above judgments with the Novi Pazar Municipal Court. 8. On 22 February 2005, 11 September 2007, 22 November 2007 and 3 January 2008 respectively, the court allowed the applications and issued enforcement’s orders. | 1 |
test | 001-148629 | ENG | RUS | CHAMBER | 2,014 | CASE OF HROMADKA AND HROMADKOVA v. RUSSIA | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 6. The first applicant was born in 1970 and lives in Prague, the Czech Republic. The second applicant was born in 2005. She currently lives in Russia with O.H., her mother. 7. On 5 June 2003 the first applicant married a Russian national, O.H. The couple decided to settle in Prague. 8. On 28 January 2005 their daughter, the second applicant, was born. 9. In 2007 the first applicant and O.H. decided to separate. 10. On 1 November 2007 O.H. filed for divorce in the Czech Republic. Both O.H. and the first applicant sought custody of the child. 11. In April 2008 O.H., unbeknownst to the first applicant, obtained a onemonth Russian visa for the second applicant, and on 17 April 2008, together with the latter, left for Russia (Vologda Region). Upon the expiry of the visa on 12 May 2008 O.H. did not bring the second applicant back to the Czech Republic. Instead, on 20 May 2008 she obtained a temporary residence permit for the second applicant from the Russian Federal Migration Service, and on 27 May 2008, Russian citizenship for the latter. On an unspecified date O.H. and the second applicant left for St Petersburg. 12. On 7 July 2009 O.H. applied to the Federal Security Service Border Control (Пограничное управление Федеральной службы безопасности Российской Федерации по городу Санкт-Петербургу и Ленинградской области) in order to restrict the second applicant’s travel outside Russia. 13. As of 10 July 2009 the second applicant’s travel abroad was restricted. 14. Since 29 May 2011 the first applicant has had no contact with the second applicant, because O.H. prevented him from either seeing the second applicant or communicating with her by telephone. The Russian authorities have been unable to establish O.H.’s and the second applicant’s whereabouts since then. 15. The interim decision of Prague 4 District Court of 30 April 2008 as amended by the interim decision of Prague Municipal Court of 21 July 2008 granted the first applicant temporary custody of the second applicant pending the outcome of the divorce proceedings. The Prague Municipal Court thereby obliged O.H. to hand the child over to the first applicant, not to leave the Czech Republic and not to remain outside the territory of the Czech Republic with the minor. The interim decision entered into force on 8 August 2008. 16. On 2 June 2011 Prague 4 District Court issued a final custody judgment by which custody of the second applicant was granted to the first applicant. O.H. was obliged to pay the first applicant 5,000 Czech korunas – about 200 euros (EUR) – monthly in alimony. The court held as follows: “The father loves [his daughter] very much; in the opinion of the experts he is better developed emotionally in comparison to the mother, is more capable of self-control and handling [stress] so as to not spoil the relationship between the mother and [the child] or otherwise turn [the child] against her mother. It was established that the interests of [the child] require that she be placed in her father’s care [as he] was established to be a more suitable caregiver; at the same time it was established that as a result of [the child’s] separation from her father the former’s psychological well-being [has been affected]. It was established that for the last three years the father, unlike the mother, has been cooperating with [the custody and guardianship authority], and the [guardian] had therefore had a real possibility to examine the father’s living conditions and his situation; ... it was established that he can provide [the child] with normal accommodation ... The father is financially stable, which enables him to provide [the child] with the material [items] and non-material values necessary for her health, mental, cultural and physical development. [The child] will soon go to primary school and the father, in view of his education and indisputable interest in [the child], is capable of providing her, along with the possibility of school education, with everything she needs. ... Despite the fact that the father was and is still being prevented from communicating with [the child], he [supports the child financially by giving money directly to the mother and making deposits into the child’s bank account], and in addition to alimony the father gives [the child] presents whenever he has the possibility to meet her. The mother, on the contrary, was characterised as unstable, authoritative, unfriendly to the father and inclined to impulsive aggression and rash behavior. While carrying out her parental duties she harms [the child], she has abused her parental authority since November 2007 at least ... Therefore, she acts both unlawfully and contrary to the interests of [the child] and the court’s decision. While exercising her parental authority the mother consciously and purposefully acts in total disregard of the recommendations of the experts and her lawful duties; she completely prevented communication between the father and [the child], at first without any reason. Subsequently, under an invented pretext, in April 2008 she took [the child], without the permission of the father, the court or [the custody and guardianship authority] abroad to the Russian Federation, where she has kept [the child] until now. At the same time the mother has not complied with the decision of the court pursuant to which she should have handed [the child] over to the father, to render to the father [the child’s] travelling passport and not to remain [with the child] outside the territory of the Czech Republic. [It was established that the decision in question] was served on [the mother] first of all through her representative in the Czech Republic, and thereafter to her personally in the course of the proceedings at the courts in St Petersburg and Moscow. Furthermore, the mother refuses to send an invitation for visiting Russia to the father, [who] has to go through demanding procedures to obtain Russian entry visas, and when the father succeeds in obtaining a visa and goes to Russia the mother often hides [the child] and refuses to communicate with the father[.] [S]he does not even allow the father to talk to [the child] on the telephone, and even if she lets them talk she purposefully manipulates the father’s and [the child’s] mindset according to the situation. Therefore, the court believes that the mother has, in disregard of the law of the Czech Republic, willfully interfered with [the child’s family life], her right to know her father and her right to be in her father’s custody. She has interfered with [the child’s] right to freedom of movement and to choose her place of residence, and her right to free entry to her homeland, the Czech Republic. Thereby the mother has breached the rights guaranteed by the State in the framework of Conventions on Human Rights, including the Convention on the Rights of the Child. The mother, unbeknownst to the father, the court or [the custody and guardianship authority] and without their consent in contravention of the legal order of the Czech Republic, applied to Russian administrative authorities to grant [the child], a national of the Czech Republic, Russian citizenship, on the basis of which in a record-breaking short term of five days the latter was granted Russian citizenship. ... Regarding the father’s claim for termination of the mother’s parental rights, the court has decided to dismiss it [since termination of parental rights is the most serious interference in relations between parents and children, when the violation of parents’ duties is so serious that the termination of parental rights is the only possible solution to protect the interests of the child]. The court has arrived at the conclusion that termination of the mother’s parental rights would be in contradiction with the father’s own statement in his final speech that [the child] should have both parents. ...” 17. The case was examined in the absence of O.H. The District Court established that on 10 May 2011 consul T. of the Czech Consulate General informed O.H. by telephone about the venue and the time of the hearing, that is, 2 June 2011 at 1 p.m. in Prague 4 District Court, but O.H. did not say anything in reply and hung up. Nobody answered the phone when the consul tried to reach O.H. again. The telephone was subsequently switched off. The International Department for Civil Matters of the Czech Ministry of Justice did not receive confirmation from the Russian authorities on whether the request of October 2010 for the delivery of a court summons to O.H. had been complied with. The District Court therefore considered that O.H. had been duly notified and that she had failed to appear in court without valid reason. It therefore proceeded in her absence. 18. On 10 February 2012 that judgment became final. 19. The judgment remains unenforced to this day. 20. The first applicant challenged the decision of the Russian Federal Migration Service of 20 May 2008 granting the second applicant a temporary residence permit (see paragraph 11 above). 21. On 13 February 2009 Vologda Town Court dismissed the first applicant’s claims. The court held that the temporary residence permit had been granted to the second applicant in accordance with the procedure established by law, and that the relevant procedure did not require the applicant’s consent. 22. On 24 April 2009 Vologda Regional Court upheld the above judgment on appeal. 23. The first applicant challenged the decision of the Russian Federal Migration Service of 27 May 2008 granting the second applicant Russian citizenship (see paragraph 11 above). 24. On 6 July 2009 Vologda Town Court dismissed the first applicant’s claim. The court held that the granting of Russian citizenship to the second applicant had been carried out in compliance with the procedure provided for by the Russian law and did not require the consent of the first applicant as O.H., the second applicant’s mother, had Russian citizenship and the second applicant, having received a Russian temporary residence permit, was considered to be residing in Russia at the moment when the relevant decision had been taken by the competent authorities. The court held that the Russian Constitution allowed for dual citizenship, and that the Treaty between the Czechoslovak Socialist Republic and the Union of Soviet Socialist Republics of 6 June 1980 on prevention of dual citizenship, relied on by the first applicant, was no longer in force after 5 July 2006. The court further held that there was no evidence of criminally punishable acts in the actions of the Federal Migration Service. 25. The hearing of the case on 6 July 2009 took place in the absence of the first applicant. His request for adjournment of the hearing (due to his involvement in other court proceedings in St Petersburg) was dismissed. The first applicant was, however, represented by a lawyer. 26. On 9 October 2009 Vologda Regional Court upheld the judgment on appeal. 27. On 12 March 2009 the first applicant applied to St Petersburg City Court seeking formal recognition of the interim measure of the Prague Municipal Court of 21 July 2008 granting him temporary custody of the second applicant pending the divorce proceedings (see paragraph 15 above). 28. By a final decision of 15 December 2009, however, the Supreme Court of Russia rejected the request. It held that the Treaty of 12 August 1982 between the Czechoslovak Socialist Republic and the Union of Soviet Socialist Republics on legal assistance did not apply to interim measures. 29. As he had been prevented by O.H. from seeing the second applicant, on 20 April 2009 the first applicant brought proceedings before the Russian court seeking to have the terms of his contact with the second applicant in Russia fixed. 30. By a final decision of 18 May 2010 St Petersburg City Court discontinued the above proceedings. It found that according to the Treaty of 12 August 1982 between the Czechoslovak Socialist Republic and the Union of Soviet Socialist Republics on legal assistance, litigation in the domestic courts of one High Contracting Party to the agreement had to be discontinued if the same litigation between the same litigants was pending before the domestic courts of the other High Contracting Party. 31. On 23 September 2010 the first applicant brought proceedings against O.H. seeking to cancel the restriction on the second applicant’s travel outside Russia (see paragraph 13 above). 32. By a final decision of 18 April 2011 St Petersburg City Court dismissed his claim. The court held that the essence of the first applicant’s complaint had been the fixing of the terms of his contact with the second applicant, which had been for the Czech courts to determine. The court held, therefore, that until the final judgment of the Czech courts the first applicant and O.H. were to decide on the issues in question by mutual agreement. The court further pointed out that the first applicant had the right to communicate with the second applicant on the territory of the Russian Federation and that O.H. had no right to prevent that. 33. On 29 June 2012 the first applicant applied to St Petersburg City Court for recognition and enforcement of the judgment of Prague 4 District Court of 2 June 2011 (see paragraph 16 above). 34. On 9 October 2012 St Petersburg City Court, relying on Article 60 of the Treaty between the Czechoslovak Socialist Republic and the Union of Soviet Socialist Republics on legal assistance and Articles 409-12 of the Russian Code of Civil Procedure, refused the first applicant’s request, because O.H. had not been duly notified of the hearing of 2 June 2011 and had been deprived of the opportunity to take part in it. The relevant part of the decision reads as follows: “As it follows from the material of the case file [O.H.] did not participate in the proceedings before Prague 4 District Court resulting in a judgment the compulsory enforcement of which is sought by [the first applicant]. This circumstance is supported by the text of the judgment itself. As it follows from this document [O.H.] failed to appear [in court] for the hearing of the case [on 2 June 2011], although she had been informed orally about [the time and the place] of the hearing. The [Prague 4 District Court] found it established that [O.H.] had been informed about the hearing orally by a consul. At the same time it follows from [the applicant’s] application and the text of the above-mentioned judgment that in 2008 [O.H.] had left the territory of the Czech Republic with the child [and] resides on the territory of the Russian Federation. Taking into consideration [the fact] that at the time of delivery of the judgment O.H. has been residing on the territory of the Russian Federation, her notification should have been carried out in accordance with Article 9 of the Treaty, which provides that service of documents [must be] certified by a confirmation signed by the person on whom the document is served and officially sealed and signed by the competent authority responsible for the service with indication of the date of service, or by a confirmation issued by that competent authority with indication of the means, the place and the time of service. No such [confirmation] was provided by [the first applicant]. It follows from the contents of the above-mentioned judgment that a request for delivery of documents to [O.H.] was addressed to the Ministry of Justice of the Russian Federation and remained without reply. At the same time, according to Article 411 of the Code of Civil Procedure of the Russian Federation a request for compulsory enforcement of a foreign court judgment must be accompanied by a document showing that the party against whom the judgment was taken, and who did not participate in the proceedings, had been duly notified of the time and the place of the hearing. The same rule is contained in Article 55 of the Treaty. It follows from the contents of the above-mentioned legal provisions that notification of [O.H.] of the time and the place of the hearing should have been certified by [a] written confirmation, signed by [O.H.], [and] sealed by [the competent authority] which handed over the notification. No such documents were, however, provided by the [first applicant]. ... As noted above, the judgment of Prague 4 District Court indicates that [O.H.] was notified orally by a consul. ... The [first applicant’s] argument that [O.H.’s] notification by consul orally by telephone was in accordance with section 51 of the Civil Procedure Code of the Czech Republic does not amount to proof of [O.H.’s] proper notification ... The above-mentioned Treaty does not provide for the possibility of notification by a consul. Under Article 10 of the Treaty Contracting Parties are entitled to serve the documents through consular establishments to their citizens only. However, [since O.H.] is not a citizen of the Czech Republic, but only had a permit for permanent residence on the territory of the Czech Republic, the [court summons] was not served on her ... In view of the foregoing the court finds that [O.H.] was deprived of the possibility to take part in the proceedings as a result of a failure to duly notify her of the time and the place of the hearing ...” 35. The decision of 9 October 2012 was taken in the absence of O.H. Court summonses were repeatedly sent to O.H.’s place of residence in St Petersburg and to the address in Nyuksenitsa, Vologda Region, given to the court by the first applicant. However, the summonses returned unclaimed following the expiration of the storage time. Attempts were also made to notify O.H. through a local police inspector, without success. The court therefore considered that it had taken sufficient and exhaustive measures to notify O.H. and to ensure her presence at the hearing, that the latter had abused her right, and that it was possible to examine the first applicant’s request in her absence. 36. On 3 December 2012 St Petersburg City Court upheld the judgment of 9 October 2012 on appeal. 37. On 16 September 2013 the first applicant’s “cassation appeal” lodged against the judgment of 9 October 2012 and the decision on appeal of 3 December 2012 was dismissed. 38. In February 2009 the first applicant applied to the guardianship and trusteeship body for St Petersburg Porokhovye municipal circuit (орган опеки и попечительства местной администрации внутригородского муниципального образования г. Санкт-Петербурга муниципальный округ Пороховые) to facilitate visits between him and the second applicant. 39. In March 2009 the first applicant renewed his application. 40. On 12 March and 29 September 2009 representatives of the guardianship and trusteeship body accompanied the first applicant to visit the child. 41. In the meantime, on 8 July 2009 the guardianship and trusteeship body examined O.H.’s living conditions in St Petersburg. It was established that the flat was in a very good condition, that all the furniture and household appliances were new, and that the girl had a separate room, which was spacious, tidy and cosy. 42. Between 2010 and July 2011 the first applicant did not apply to the guardianship and trusteeship body to organise visits between him and the second applicant. 43. In February 2012 the first applicant again applied to the guardianship and trusteeship body to organise his upcoming visit in March 2012. He relied on the judgment of Prague 4 District Court of 2 June 2011. However, his request was refused in the absence of a judgment by the Russian court obliging the guardianship and trusteeship body to organise visits between the first applicant and the second applicant. 44. On over a dozen occasions the first applicant applied to the Ombudsman for Children in St Petersburg seeking for assistance in establishing contact with his daughter and visa support. 45. In response to the first applicant’s requests the Ombudsman tried to reconcile the first applicant and O.H. In particular, during his visit to Russia between 23 September and 4 October 2010 the first applicant stayed at O.H.’s apartment and was able to have contact with his daughter. However, the first applicant and O.H. later had a conflict. O.H. claimed that the first applicant had been cruel to the child and that she would interfere with contact between the first applicant and the child in the interests of the latter. The Ombudsman explained to O.H. the provisions of the Family Code concerning the right of the parent living apart from the child to have contact with the child. Nevertheless O.H. stated that she viewed the situation as a strictly private family matter. In her opinion the wide media coverage of the case initiated by the first applicant and the involvement of a number of official bodies went contrary to the principles of the inviolability of private and family life. She further submitted that the child did not want to communicate with the first applicant. Since May 2011 the Ombudsman for Children in St Petersburg has lost all contact with O.H. Information about the second applicant was put on the Ombudsman’s website (www.spbdeti.org) in the “missing child” section. 46. Concerning the issue of visa support to the first applicant, the Ombudsman applied to the representation of the Russian Ministry of Foreign Affairs in St Petersburg, which explained that the first applicant could apply to the health care and social welfare authorities for the invitation which was required in order to obtain a Russian visa. 47. In his letter of 23 August 2013 the first applicant expressed his gratitude to the Ombudsman for Children in St Petersburg for her active participation in protecting the second applicant’s rights. 48. On 24 October 2012 the first applicant lodged a request with the Ombudsman for Children in Vologda Region asking for assistance in establishing his communication with his daughter. 49. On 21 November 2012 the Ombudsman visited Nyuksenitsa, where O.H. was supposedly living. However, the information about O.H. and the second applicant’s whereabouts in Nyuksenitsa was not confirmed. The first applicant was informed accordingly. 50. On 7 December 2012 the first applicant applied to the Ombudsman for Children in Vologda Region asking for an inquiry into the activity of the commission for the affairs of minors in Nyuksenskiy municipal district to be carried out owing to what he saw as their negligent attitude in examining the issue of establishing his communication with his daughter. 51. On 29 December 2012 the first applicant was informed that his request was outside the Ombudsman’s competence and that he could apply to the prosecutor’s office or the court. 52. On 11 April 2013 the first applicant again applied to the Ombudsman for Children in Vologda Region asking for assistance in establishing his daughter’s whereabouts. 53. On 29 April 2013 the first applicant was informed that the child was not studying in any school in Nyuksenskiy municipal district and was not living there. 54. On 25 November 2009 and 29 July 2010 the Czech Ministry of Labour and Social Affairs applied to the Ombudsman for Children under the President of the Federation of Russia for assistance in the protection of the right of the second applicant to communicate with both parents. Since at the time O.H. lived in St Petersburg with the child, the applications were transmitted to the Ombudsman for Children in St Petersburg. 55. On 21 March 2011 and 28 November 2011 the Ombudsman for Children under the President had consultative meetings with the Ambassador Extraordinary and Plenipotentiary of the Czech Republic in the Russian Federation and actively corresponded with the Czech Embassy on the issue. Regular contact was maintained with the Russian Ministry of Foreign Affairs and the guardianship and trusteeship body for St Petersburg Porokhovye municipal circuit. 56. Meanwhile, on 25 July 2011 and 3 September 2012 the first applicant himself applied to the Ombudsman for Children under the President of the Federation of Russia. Regular contact was maintained with the first applicant by telephone and e-mail. 57. As a result of the work carried out by the Ombudsman for Children under the President and the ombudsmen for children in St Petersburg and Vologda Region, on 28 February 2013 a reply was given to the first applicant. He was informed about the legal means of protecting his right to communicate with his daughter which were applicable to his situation. In particular, he was told that he could bring a civil action before the Russian courts in order to determine his access rights (иск об определении порядка общения с дочерью). That recommendation was made with regard to the first applicant’s repeated assurances that he was not seeking compulsory enforcement of the judgment of Prague 4 District Court of 2 June 2011 as he understood that after such a long – in comparison to the child’s life – passage of time, the enforcement of that judgment could be harmful to his daughter and would not be in her best interests. At the same time the first applicant repeatedly stated his wish to establish and maintain regular contact with his daughter and to receive information about her life. However, the first applicant did not follow the above recommendation. 58. On 2 November 2011 the first applicant reported O.H.’s refusal to allow him to communicate with his daughter, the second applicant, to the Krasnogvardeyskiy District Prosecutor’s Office of St Petersburg. 59. The local police inspector went to O.H.’s registered place of residence in St Petersburg and found that she was not living there. The neighbours had no information about O.H.’s whereabouts. A summons requesting O.H. to present herself at the local police station was returned unclaimed after the expiration of its storage time. 60. On 22 December 2011 the first applicant asked the police to search for O.H. in the absence of any information about her and the second applicant since 30 May 2011. The file was transferred to Krasnogvardeyskiy District investigations department (следственный отдел по Красногвардейскому главному следственному управлению Следственного комитета Российской Федерации по Санкт-Петербургу). 61. The investigator of Krasnogvardeyskiy District investigations department succeeded in reaching O.H.’s mother, G.K., on her mobile telephone. The latter submitted that she was in regular contact with O.H., but refused to divulge O.H.’s whereabouts. 62. On 11 January 2012 the investigator received a fax message from O.H. in which the latter confirmed that she was living at her registered place of residence with the second applicant, and that she refused all contact with the first applicant. 63. On the same day the investigator refused to institute criminal proceedings into the disappearance of O.H. and the second applicant. 64. On 22 March 2012 the juvenile inspector of the local police went to the flat at O.H.’s registered address in St Petersburg, but nobody opened the door. O.H.’s neighbour, Mr Sh., said that O.H.’s flat had not been lived in since June 2011. 65. On 26 March 2012 the Krasnogvardeyskiy District Deputy Prosecutor set aside the decision of 11 January 2012 and returned the file to the investigator with instructions to carry out an additional check aimed at determining the whereabouts of O.H. and the second applicant. 66. On 3 April 2012 and 26 May 2013 the investigator again refused to institute criminal proceedings into O.H.’s and the second applicant’s disappearance. Those decisions were subsequently set aside by the Krasnogvardeyskiy District Deputy Prosecutor and additional checks were ordered. 67. The additional checks revealed that O.H. had not been receiving her correspondence. They also established that the second applicant had not been attending kindergarten since 6 June 2011, and that the last appointments she had attended at the health care facility had been on 22 June and 6 September 2011. 68. According to information provided by the Krasnogvardeyskiy District commission for the affairs of minors (комиссия по делам несовершеннолетних и защите их прав при администрации Красногвардейского района), since the end of May 2011 O.H. had been hiding the second applicant from her father, the first applicant; she had not been opening the door and had been ignoring summonses to appear in court. 69. The Krasnogvargeyskiy District Prosecutor’s Office examined the possibility of bringing administrative proceedings against O.H. under Article 5.35 § 2 of the Code of Administrative Offences. However, the failure to establish O.H.’s whereabouts made it impossible to serve summonses on her, to obtain her explanations and to serve her with the record of administrative offence. 70. The prosecution authorities also conducted a check at O.H.’s presumed place of residence in Nyuksenitsa, Vologda Region. It was established that O.H. and the second applicant did not live there. 71. On 21 December 2012 Nyuksenskiy District Prosecutor questioned O.H.’s mother, G.K. The latter submitted that O.H. had lived and worked in Nyuksenitsa between June and August 2012, but that O.H.’s subsequent whereabouts were unknown to her. G.K. further submitted that the first applicant was not supporting O.H. financially, that he had arrived in Nyuksenitsa in summer 2012 and sent 4,000 Russian roubles (RUB) to O.H.’s place of residence in St Petersburg, although he had known that O.H. had been living and working in Nyuksenitsa at that time. 72. It was established that in 2012 the second applicant had been enrolled for external studies in the first grade of Kirovskiy District school no. 277 in St Petersburg under a distance learning programme. When O.H. had signed a contract with the school she had given a St Petersburg address. 73. On 31 January and 13 May 2013 the local police inspector again went to the above-mentioned address in St Petersburg, in vain. 74. In August 2013 O.H. logged onto the school educational website, which suggested that the child started the second grade programme. 75. To the present day the whereabouts of O.H. and the second applicant remain unknown. 76. On 30 December 2008 the Russian Ministry of Justice received from the Ministry of Justice of the Czech Republic court orders issued by Prague 4 District Court for a check of O.H.’s living conditions and certain other procedural actions to be carried out. 77. On 26 January and 27 January 2009 respectively, in accordance with the Treaty between the Czechoslovak Socialist Republic and the Union of Soviet Socialist Republics on legal assistance, the court orders were submitted to the North-Western Federal Circuit Department of the Ministry of Justice (Управление Министерства юстиции Российской Федерации по Северо-Западному федеральному округу). 78. On 16 March and 30 April 2009 reminders were sent to the NorthWestern Federal Circuit Department of the Ministry of Justice. 79. According to that department, the execution of the orders had been complicated by the failure of the court to provide O.H.’s correct address. 80. On 31 July 2009 the Russian Ministry of Justice submitted to the Ministry of Justice of the Czech Republic the documents on execution of the orders of Prague 4 District Court. 81. On 29 October 2010 and 12 November 2010 the Russian Ministry of Justice received from the Ministry of Justice of the Czech Republic another order issued by Prague 4 District Court to take certain procedural steps in respect of O.H. and a request for service of court documents on O.H. 82. On 11 November and 23 November 2010 respectively the court order and request for service of documents were submitted to the NorthWestern Federal Circuit Department. 83. On 12 May 2011 the Russian Ministry of Justice informed the Ministry of Justice of the Czech Republic that it was impossible to execute the orders of Prague 4 District Court. 84. Following receipt of a note from the Embassy of the Czech Republic forwarded by the Ministry of Foreign Affairs of Russia, on 29 March 2012, the Russian Ministry of Justice submitted to the North-Western Federal Circuit Department a court order issued by Prague 4 District Court for service of court documents on O.H. 85. On 31 July 2012 the Russian Ministry of Justice submitted to the Russian Ministry of Foreign Affairs the documents attesting to the impossibility of executing that court order. 86. Following receipt of another note from the Embassy of the Czech Republic, on 22 November 2012 the Russian Ministry of Justice again submitted to the North-Western Federal Circuit Department a court order issued by Prague 4 District Court for service of court documents on O.H. 87. On 1 June 2012, the first day of acceptance by the Czech Republic of Russia’s accession to the 1980 Hague Convention on the Civil Aspects of Child Abduction, the first applicant filed a request under Article 21 of the Convention for securing the effective exercise of his “access rights” in respect of his daughter, the second applicant. 88. On 21 August 2012 the Office for the Legal Protection of Children (“the Czech Central Authority”) informed the Russian Ministry of Education and Science (“the Russian Central Authority”) that the first applicant had discovered the whereabouts of O.H. in Vologda Region. However, he had not seen his daughter. 89. As the Russian Central Authority had not replied to the abovementioned letters, on 1 October 2012 a reminder was sent to it. 90. On 1 November 2012, at the request of the Czech Central Authority, the Ambassador of the Czech Republic in Moscow sent a letter to the Russian Central Authority. 91. On 5 March 2013 the Russian Central Authority replied that it was not possible to establish O.H. and the second applicant’s place of residence. 92. In the meantime, on 12 December 2012 and 27 March 2013 the Czech Central Authority contacted the Russian Children’s Ombudsman about the same issue. The Czech Authority has not yet received a reply. 93. On 21 May and 6 September 2013 the Czech Central Authority sent further letters to the Russian Central Authority. No reply has been received. Another reminder was sent on 13 December 2013. 94. On 11 November 2013 the Czech Central Authority sent a letter to the Secretary General of the Hague Conference on Private Law asking for help in securing effective cooperation between the Czech and Russian Central Authorities. | 1 |
test | 001-145571 | ENG | SRB | CHAMBER | 2,014 | CASE OF PETROVIĆ v. SERBIA | 3 | Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall | 7. The applicant was born in 1950 and lives in Belgrade. The applicant’s son, Mr Dejan Petrović, was born in 1973 and died on 15 February 2002 in hospital, a month after reportedly having fallen from the window of a police station in Belgrade. 8. At about 9.30 p.m. on 16 January 2002 Mr Dejan Petrović was arrested by the Vračar Police Department (OUP Vračar-SUP Beograd) on suspicion of having snatched a woman’s handbag earlier that evening and was kept overnight in police custody. Mr Dejan Petrović, then aged twenty-nine, was apparently known to the police as an alleged drug user and as having been involved in similar incidents previously. 9. According to the police reports, the following morning at 8.30 a.m. Mr Dejan Petrović was questioned by three police officers, D.K., S.K. and N.K. Mr Dejan Petrović allegedly confessed that he had committed the robbery in question and had hidden a sum of money (around 20,000 Serbian dinars (RSD)) in his home. After an unsuccessful search of the Petrović family’s flat that morning, the police officers left the house together with Mr Petrović in handcuffs. 10. The applicant alleged that her son had been visibly distressed and very pale, and his mouth had been yellowish. On the way out, he had turned to her and said “call a lawyer, I have done nothing, they will kill me”. 11. According to the incident report of 17 January 2002 drawn up by Major M.M., the police officers’ superior, Mr Dejan Petrović had been brought back handcuffed, at around 10.30 a.m., to office no. 24 on the second floor of the Vračar police station to be questioned further. As they entered the office, while D.K. was approaching his desk, S.K. was standing and N.K. was closing the office door, Mr Dejan Petrović suddenly rushed forward, jumped head first through a closed window, breaking a window pane, and fell out into the courtyard. None of the police officers had been able to prevent it. The police officers ran out to the courtyard and, as Mr Dejan Petrović showed some signs of still being alive, they took the handcuffs off, while some other colleagues called an ambulance. 12. Around noon, the police informed the applicant’s family that Mr Dejan Petrović had jumped from the second floor of the police premises and that he had been taken to the emergency unit of the Serbian Clinical Centre in Belgrade. 13. Upon their arrival at the emergency unit, the applicant and her husband (Mr Dejan Petrović’s father) were informed that at around 11.10 a.m. the hospital had admitted an unidentified and severely injured patient who had jumped from the second floor of a building. He was in a comatose state, with a fracture of his left ribs and femur and contusion and haematoma of the liver, and was undergoing surgery that could take several hours. 14. While the surgical operation was being carried out, the applicant’s husband went to the Vračar Police premises. Following an on-site inspection (see paragraphs 18-19 below), he was shown the scene of the incident. The applicant claimed that her husband, as well as certain media, had initially been informed that their son, who had been handcuffed and in his winter jacket, had been alone in the office when he had jumped through the window, but had later been told that their son had broken away in the presence of the three police officers. 15. Mr Dejan Petrović remained in a comatose state while in hospital, except between 26 and 28 January 2002, when he showed some signs of consciousness and movement. 16. According to the medical certificate issued by the Serbian Clinical Centre, Mr Dejan Petrović died from sepsis and cardiac arrest on 15 February 2002 at 4.30 a.m. Following a request by the investigating judge (M.P.) of the Belgrade District Court, the post-mortem examination of Mr Dejan Petrović’s body was carried out on 18 February 2002 at 9 a.m. by two doctors, Sl.K. and V.D.J., of the Institute for Forensic Medicine of the Faculty of Medicine in Belgrade. The autopsy report stated that Mr Dejan Petrović’s death had been violent and caused by damage to his brain (vitalne centre) and complications thereafter. It further concluded that the damage to his brain, as well as the rib and femur fractures and other external and internal bodily injuries described in the report, had been “inflicted with a blunt, heavy and swinging object (naneti tupim, teškim i zamahnutim predmetom)”. No photographs or results of any toxicological analysis have been submitted to the Court. 17. Following a telephone call from the Belgrade criminal police department for investigative and operational affairs (Odelenje za uviđajno-operativne poslove Uprave kriminalističke policije (UKP) - SUP Beograd; hereinafter “the DIOA”), the investigating judge on duty, V.M., from an unspecified court, arrived at the Vračar Police Department at an unspecified time to inspect the scene of the incident. D.Z., from the DIOA, and a crime-scene technician, M.K., from the Belgrade criminal police forensics unit (Odeljenje kriminalističke tehnike UKP-a) were also present. 18. According to the investigating judge’s one-and-a-half-page report of his inspection of the scene of the incident (zapisnik o uviđaju), upon his arrival at the Vračar Police Department, unspecified police officers had shown him office no. 24 and a broken window pane in the left corner of the window, closest to the floor. As it was a double, wooden multi-paned window, and as he had been informed that Mr Dejan Petrović had jumped out through the window pane by breaking the glass, he had examined the pane in question. As he had seen no blood stains, hair or any other trace of this nature, he had asked the two above-mentioned investigators whether they had seen any traces, in order to inspect them, but they had both responded in the negative. He had ordered the crime-scene technician to draw a sketch of the scene and to photograph it, as well as to measure the size of the window. The investigating judge had noted the broken window pane, as well as pieces of glass between the two window frames and on the floor below the inside window. In the snow-covered courtyard of the police building, into which the suspect Mr Dejan Petrović had allegedly fallen, he had “noticed footprints and trodden snow of an indeterminate shape below the window”, but had not found “any blood stains or other physical traces”. 19. The sketch of the scene of the incident, thirteen photographs of the office and three of the courtyard were an integral part of the investigating judge’s report. The copies of the photographs submitted to the Court show an armchair under the broken window with a cabinet to its right and a hat stand to its left. In the report on the forensic inspection of the scene of the incident (izveštaj o kriminalističko-tehničkom pregledu lica mesta), the crime-scene technician noted the following: (a) as regards biological traces, the investigating judge had not requested that fingerprints be lifted and collected; (b) as regards the other evidence and objects found, broken glass had been noticed in the pane of the lower left part of the interior and exterior window frames. The window pane’s frames measured 50 x 55 and 45 x 50 centimeters respectively and stood one metre from the office floor. Both window frames had been found closed. Pieces of broken glass had been found between the interior and exterior window frames and on the windowsill. The outside window stood nine metres above the ground. The trodden snow and pieces of glass had been found 1.5 metres away from the building’s wall. Other traces had not been found. 20. According to a separate report on the questioning of the three police officers drawn up by D.Z. from the DIOA, they had provided concurring statements to the same effect as those detailed in the incident report (see paragraph 11 above). The police officers also stated that Mr Dejan Petrović had, as usual, been very well-behaved that morning and had confessed to committing the robbery. 21. A report was drawn up, apparently in the framework of a fact-finding visit conducted on 17 January 2002, at an unspecified time, by Major D.T. and Captain Ð.D. of the Belgrade Police Internal Control Department (Odeljenje za kontrolu zakonitosti u radu SUP-a Beograd). The report restated the events as outlined by the previous reports (see paragraphs 11 and 20 above). It was further noted that Mr Dejan Petrović’s parents had mentioned that he had been taking antidepressants as part of his therapy for drug addiction in order to prevent any possible self-injury. Regarding the police officers’ accountability, the inspectors considered that the police officers in charge had undertaken preventive, but apparently insufficient, measures for the protection of Mr Dejan Petrović. For that reason, disciplinary action against S.K. and D.K. and a verbal reprimand to N.K. by her superior were recommended. The inspectors also recommended that the police ensure appropriate conditions, for example, window security bars, on premises where apprehended individuals were questioned. 22. In the framework of a preliminary disciplinary inquiry (prethodni disciplinski postupak) that evening, the three police officers were questioned again, one by one, by their superior, Major M.M. The three officers repeated their earlier statements. 23. On 7 March 2002 S.K. and D.K. were prosecuted in disciplinary proceedings for gross misconduct, namely, omitting to take adequate measures for the protection of Mr Dejan Petrović’s safety while in custody. The disciplinary body heard the officers as the suspects, as well as N.K. as a witness, all of whom reiterated their earlier recollection of the incident. The police officers were acquitted at two levels, the last decision being rendered on 10 May 2002. It was found thathave done more than they had done to protect Mr Dejan Petrović and prevent his suicide. 24. On 28 January 2002 the applicant’s husband lodged a criminal complaint against police officer D.K. on behalf of the Petrović family, on the ground that there was a reasonable suspicion that he had forcibly extracted a statement from Mr Dejan Petrović. In the complaint it was claimed that the police officers had used force in order to extract a statement and had severely ill-treated Mr Dejan Petrović to such an extent that it had driven him to jump out of the office window. The family also alleged that the police officers had failed to disclose Mr Dejan Petrović’s identity and all the circumstances of the incident to the emergency medical team. 25. In the meantime, on 24 January 2002, the Belgrade police sent the District Public Prosecutor’s Office in Belgrade (hereinafter “the DPPO”) the two reports of 17 January 2002 (see paragraphs 21-22 above). On 14 May 2002 and 12 June 2002, respectively, the DPPO also received the autopsy report and the report on the forensic inspection of the scene of the incident (see paragraphs 16 and 18-19 above). 26. On 11 October 2002 the DPPO requested information from the Belgrade Police Internal Control Department on the outcome of the disciplinary proceedings against the police officers who had been present during the incident. The DPPO also supplied that department with its own case file to enable them to establish the facts of the case more easily. The requested documentation from the disciplinary proceedings was received by the DPPO on 14 November 2002. 27. On an unspecified date, the applicant’s husband extended the criminal complaint to include two other police officers who had been involved in the incident. 28. On 9 January 2003 the DPPO requested a commission of forensic experts from the Institute for Forensic Medicine of the Belgrade Faculty of Medicine to give their opinion on what other causes, apart from a fall from the window, could explain Mr Dejan Petrović’s injuries. On 1 August 2003 the Institute for Forensic Medicine requested the case file and the DPPO sent it to them a month later. On 18 September 2003 the DPPO requested an investigating judge of the District Court to issue an order for a forensic opinion, as the Institute could apparently not proceed on the basis of the DPPO’s order alone. The investigating judge did so on 8 October 2003. 29. Almost a year later, in an expert opinion dated 13 September 2004, the experts stated, on the basis of the autopsy report and other medical records, that a person of Mr Dejan Petrović’s height and build could have “squeezed through” the window in question. They further maintained that Mr Dejan Petrović’s fatal injuries could have been caused by his jump from the window and his falling on a hard surface. Finally, they concluded that no other injuries, lacerations, scratches or bruises of a nature or location which would indicate that they had any cause other than the one mentioned above had been recorded in the autopsy report or in the hospital’s files. 30. On 1 November 2004 the DPPO rejected the criminal complaint on the ground that there was no reasonable suspicion that the suspects had committed the alleged crime. The applicant’s husband was notified accordingly and informed that he could pursue a subsidiary criminal prosecution (preuzeti krivično gonjenje) within eight days of the date that decision had been served on him by filing a request for an investigation (zahtev za sprovođenje istrage). 31. On 16 February 2005 the Petrović’s family lodged with the DPPO a new and more detailed criminal complaint against the police officers (P.N., N.K., D.K. and S.K.) for causing severe bodily harm (teške telesne povrede), extracting a statement by coercion (iznuđivanje iskaza) and ill-treatment in the discharge of their official duties (zlostava u službi). In the complaint they expressed their doubt that Mr Dejan Petrović had jumped out of the office window of his own volition and their suspicion that the suspects had thrown their son’s corpse out of the window in order to conceal previous ill-treatment. The complaint pointed out certain alleged contradictions and shortcomings in the previous investigative measures and reports, and proposed numerous investigative activities to be carried out in order to investigate the circumstances of Mr Dejan Petrović’s death adequately. 32. On 22 March 2005 the DPPO in Belgrade rejected that criminal complaint for the same reasons relied on in its decision of November 2004, and repeated the information it had provided about the possibility of a subsidiary prosecution. That letter was served on the applicant on 8 April 2005. 33. Following the rejection of the first criminal complaint (see paragraph 30 above), on 17 November 2004 the applicant attempted to take over the prosecution as a subsidiary prosecutor by filing a request for an investigation with the District Court in Belgrade and subsequently, on 11 April 2005, a request to broaden the scope of the investigation (zahtev za proširenje istrage). She relied on and reaffirmed the assertions and requests she had made in her second criminal complaint (see paragraph 31 above). 34. In response to a request of 22 March 2005 by the District Court’s investigating judge, B.P., as well as a reminder sent on October 2005, on 15 January 2006 two forensic pathologists, Dr Z.S. and Dr N.M., from the Military Medical Academy in Belgrade provided an expert opinion. Relying on the previous medical and autopsy reports, they found that the location, distribution and types of injuries observed on Mr Dejan Petrović indicated that they were severe and life-endangering, and that they could undoubtedly have been the result of a fall from the second floor, but only through an open window. In particular, they found that taking into account the circumstances of the incident, including Mr Dejan Petrović’s build, his winter clothes and his handcuffs, the size of the window pane in question and the position of the furniture and the window in the office, it would have been practically impossible for him to have broken through the window and jumped out. Otherwise, it would mean that he had been able to “fly horizontally” over the armchair and break the window with his head exactly in its centre. 35. On 18 April 2006 the investigating judge held a hearing and interviewed the suspects. They repeated their earlier statements. S.K. added that Mr Dejan Petrović had jumped from the floor one metre away from the window and gone through it without touching the armchair, which was under the window; none of the furniture had fallen over or been moved. 36. On 8 May 2006 the investigating judge refused to open the investigation sought by the applicant (izrazio neslaganje sa zahtevom), and referred the case to a three-judge criminal panel (see paragraph 49 below). 37. On 17 July 2006 the three-judge panel of the District Court upheld the investigating judge’s findings, relying on the case file, namely, the “concordant statements of the suspects” and the findings and opinions of the forensic experts in 2004 and 2006, “which [were] consistent and indicate[d] that all the injuries of the deceased could have been caused at the same time by his fall from a height of nine metres onto a hard surface”. The applicant was instructed that she could appeal against that decision within three days from the date on which the decision was served on her and she did so on 2 November 2006, reiterating her previous arguments. 38. On 30 November 2006 the Supreme Court of Serbia rejected the applicant’s appeal as unfounded. In reaching that decision, by reference to the expert commission’s forensic findings of 2004, it upheld the lower court’s reasoning as clear, conclusive and convincing. That decision was served on the applicant on 20 February 2007. 39. On 7 March 2007 the applicant applied to the Chief Public Prosecutor’s Office (inicijativa za podizanje zahteva za zaštitu zakonitosti), urging him to lodge a request with the Supreme Court for the protection of legality (zahtev za zaštitu zakonitosti) against the decision of 30 November 2006 on her behalf. 40. On 27 August 2007 the Chief Public Prosecutor informed the applicant that on that same day he had accepted her motion and had lodged a request for the protection of legality against the decision of 30 November 2006, submitting, in particular, that: (a) the court had based its finding on evidence that had been challenged by the applicant and, which, according to him, had been flawed by inconsistencies; (b) the court had dismissed the applicant’s appeals without addressing her arguments; and (c) the collection and examination of evidence had been superficial, which had resulted in the incorrect and implausible conclusion reached by the court. 41. On 8 February 2008 the Supreme Court of Serbia, sitting in a different composition from that of 30 November 2006, rejected the Prosecutor’s request. Having regard to the case file and a hearing in the presence of the three suspects and their lawyer, the court stated the following: (a) the forensic experts had not ruled out that the victim might have sustained the injuries while breaking the window and falling on a hard surface; (b) no evidence had shown that the suspects had caused the victim any bodily harm by any other means; (c) according to the relevant evidence, there was no reasonable suspicion that the suspects had committed the alleged crimes which would warrant the opening of criminal proceedings; and, lastly, (d) the impugned decision did not ultimately preclude the opening of criminal proceedings if the victim, as a subsidiary prosecutor, submitted new evidence which had not existed or had been unknown at the time of her previous request for an investigation. This decision was served on the applicant on 30 May 2008. 42. In December 2002 the applicant and her husband brought a joint civil action against the respondent State and the Ministry of the Interior to obtain redress for the mental anguish suffered as a consequence of Mr Dejan Petrović’s death. They relied on the Obligations Act and various international human rights instruments. The defendant contested the claim in general, but did not make any further clarification in that respect. 43. In its judgment of 4 June 2007, the First Belgrade Municipal Court clarified that although it could not ascertain a reliable course of the events in question or anyone’s clear fault, this was not its task in any event. Referring to the 2006 forensic experts’ report and Article 172 of the Obligations Act (see paragraphs 34 above and 51 below, respectively), the court concluded that the respondent State should compensate the plaintiffs on the basis of the State’s liability for its officials’ omissions, which had undoubtedly occurred given that Mr Dejan Petrović had sustained injuries and died while in police custody under the supervision of State officials. Pursuant to Articles 200 and 201 of the Obligations Act, it awarded each plaintiff RSD 1,000,000 for non-pecuniary damage, and made an award in respect of costs. 44. That judgment was upheld on the merits by the District Court and the Supreme Cassation Court on 23 February 2009 and 24 June 2010 respectively. The sums awarded were paid on 7 December 2010. | 1 |
test | 001-140912 | ENG | AZE | CHAMBER | 2,014 | CASE OF NOVRUZ ISMAYILOV v. AZERBAIJAN | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 5. The applicant was born in 1961 and is currently serving a sentence of imprisonment in a prison in Baku. 6. The applicant was a founder of the private Borçalı Bank and of the Borçalı Association. He was also the chairman of the bank’s supervisory board. 7. On 19 April 2004 criminal proceedings were instituted under Article 213 of the Criminal Code (tax evasion) by the Ministry of Taxes in connection with the activities of the Borçalı Association. 8. The applicant responded to the investigator’s calls to testify as a witness within the framework of the above-mentioned criminal proceedings and participated in various investigative steps. 9. In particular, on 16 July 2004 the applicant was questioned by the investigator and on 20 July 2004 a confrontation was carried out between the applicant and another witness. 10. On 21 and 27 July 2004 the applicant was again requested to attend to assist with the investigation; however he failed to comply with the request. 11. On 18 and 26 August 2004 the applicant voluntarily appeared before the investigating authorities and two confrontations were conducted by the investigator between the applicant and two other persons. 12. In the beginning of September 2004, the investigator tried to contact the applicant, but he could not determine his whereabouts. 13. On 14 September 2004 the investigator ordered the applicant’s compulsory participation in the investigation. 14. On 28 September 2004 the applicant appeared before the investigating authority. On the same day the investigator in charge of the case informed the applicant that he was charged under Articles 178 (fraud), 179 (embezzlement) and 313 (forgery by an official) of the Criminal Code. The charges against the applicant were based on the results of a financial audit carried out in respect of the Borçalı Association, and on the statements of various persons with whom the applicant had business relationships within the framework of his activities at the Borçalı Bank and the Borçalı Association. 15. Again on the same day, the prosecutor requested the judge to apply the preventive measure of remand in custody (həbs qətimkan tədbiri) in respect of the applicant. The prosecutor gave as the reasons for requesting that measure the seriousness of the applicant’s alleged criminal acts and the possibility of his absconding from and obstructing the investigation. 16. At the hearing before the court, the applicant and his lawyer submitted that the applicant had never absconded from or obstructed the investigation. They also submitted that the applicant’s failure to comply with some of the requests to assist with the investigation had been due to his state of health, because he had been sick at the time. 17. On 28 September 2004 the judge, relying on the official charges brought against the applicant and the prosecutor’s request for the application of the preventive measure of remand in custody, ordered the applicant’s detention for a period of three months. The judge reasoned the necessity for this measure as follows: “Taking into account that Ismayilov Novruz Binnat oglu has committed a serious crime, the possibility of his absconding from the investigation and illegally influencing persons participating in the criminal proceedings, obstructing the normal functioning of the investigation by hiding or falsification of the items necessary for the prosecution, and that there are sufficient grounds [that he might] fail to comply with calls to attend the investigation without any good reason, or flee from criminal responsibility by other means, ... the preventive measure of remand in custody should be applied in respect of Ismayilov Novruz Binnat oglu.” 18. The applicant appealed against the Khatai District Court’s decision of 28 September 2004, complaining of a lack of evidence that he had committed a criminal offence and lack of justification for the application of the preventive measure of remand in custody. He noted, in particular, that he had always collaborated with the investigating authority before his arrest and that the court had not taken into consideration his family status, state of health or other personal circumstances. The applicant also noted that it would be impossible for him to hide or falsify any document relating to the case, because all the relevant documents had been taken from his office by the investigating authority. 19. On 5 October 2004 the Court of Appeal dismissed the appeal, finding that the detention order was justified. The relevant part of the court’s decision reads as follows: “After having examined the arguments of the appeal, heard the lawyer’s submissions in support of the appeal and the prosecutor’s submissions against it, the panel of the court considers that the court’s decision of 28 September 2004 should remain unchanged as it is lawful and justified”. 20. On 16 December 2004, the investigator requested from the Deputy Prosecutor General an extension of the applicant’s detention, because although a number of statements had been obtained and a financial audit of the Borçalı Bank had been conducted by the National Bank and the Ministry of Taxes, more time was needed to complete the investigation. 21. On 23 December 2004 the Deputy Prosecutor General submitted a request to the court for the extension of the applicant’s detention period until 28 February 2005. The relevant part of the prosecutor’s request reads as follows: “The records of the documented audit carried out in this case must be obtained, depending on the conclusions of the audit, certain witnesses must be questioned, confrontations must be conducted, if necessary, accounting and handwriting analyses must be carried out, relevant steps must be taken for the reimbursement of the damage caused, Ismayilov Novruz Binnat oglu must be charged with additional offences in connection with the above-mentioned points, and following the end of these investigative actions, it must be determined which other persons in the circle have committed crimes, and the issue of their responsibility must be decided. In order to carry out the said investigative actions, no less than two months are needed. However, the period of remand in custody in respect of the accused person Ismayilov Novruz Binnat oglu ends on 28 December 2004. Thus, because of the complexity of the criminal case and the need for at least two months for the carrying out of the above-mentioned investigative actions, the period of remand in custody in respect of N. Ismayilov must be extended until 28 February 2004.” 22. On 23 December 2004 the judge at the Khatai District Court, relying on the prosecutor’s request, extended the length of the applicant’s remand in custody by a period of two months, until 28 February 2005. The court decision, which is almost identical in wording to the prosecutor’s request, reasoned the necessity for the extension of the applicant’s detention as follows: “The records of the documented audit carried out in this case must be obtained, certain witnesses, depending on the conclusions of the audit, must be questioned, confrontations must be conducted, if necessary, accounting and handwriting analyses must be carried out, relevant steps must be taken for the reimbursement of the damage caused, Ismayilov Novruz Binnat oglu must be charged with additional offences in connection with the above-mentioned points, and following the end of these investigative actions, it must be determined which other persons in the circle have committed crimes, and the issue of their responsibility must be decided. The period of remand in custody in respect of Ismayilov Novruz Binnat ... ends on 28 December 2004. However, as it will not have been possible to complete the additional investigative actions during this period, I consider that the request must be granted and the period of remand in custody in respect of N. Ismayilov must be extended for a period of two months, that is, until 28 February 2005.” 23. The hearing of 23 December 2004 on the extension of the detention period was held in the applicant’s absence, but in the presence of the investigator. According to the record of the hearing, the applicant was represented by his lawyer (F.A.) and the latter took the floor and stated that he had no objections to the extension of the applicant’s detention. 24. On 27 December 2004, when the record of the Khatai District Court’s hearing of 23 December 2004 was made available to F.A., he made written comments on the record, stating that false information was included in it, as he had not participated in that hearing and had not pronounced in favour of the extension of the applicant’s detention. On the same day he lodged a request with the judge of the Khatai District Court for the rectification of the record of the hearing of 23 December 2004. He submitted, in particular, that he had not been informed of the date and place of that hearing and that he had not participated in it. He argued that the record of the hearing had been falsified. 25. Moreover, it appears from the transcripts of phone conversations of 28 December 2004 between F.A. and a court clerk, between F.A. and the investigator in charge of the case, and between F.A. and the Khatai District Court judge who ordered the extension of the applicant’s detention, that F.A. did not participate in the hearing, as all the above-mentioned persons confirmed it in their phone conversation with F.A. In particular, although the judge acknowledged in the phone conversation that there had been a mistake in the record of the hearing concerning the lawyer’s presence at the hearing, in the same conversation he also refused to officially rectify the record. 26. By a decision of 28 December 2004, the same Khatai District Court judge rejected F.A.’s rectification request, holding that the lawyer had participated in the hearing of 23 December 2004. 27. On 28 December 2004 the applicant appealed against the Khatai District Court’s decision of 23 December 2004 concerning the extension of his detention. The applicant complained that he had not been taken to the court for the hearing and that his lawyer had not been informed of the date and place of the hearing. He further submitted that there was no justification for the extension of his detention period and that the first-instance court had failed to substantiate its decision. On 5 January 2005 he lodged additional submissions in support of his appeal, reiterating his previous complaints and asking the court to deliver a special ruling with regard to the judge of the Khatai District Court in connection with the falsification of the record of the hearing of 23 December 2004. 28. On 6 January 2005 the Court of Appeal left unchanged the Khatai District Court’s decision on the extension of the detention period, finding no reason for quashing it. As to the justification for the extension of the applicant’s detention, the appellate court stated as follows: “The investigating authority considers it necessary that the records of the documented audit carried out in this case must be obtained, some witnesses, depending on the conclusions of the audit, must be questioned, confrontations must be conducted, if necessary, accounting and handwriting analyses must be carried out, relevant steps must be taken for the reimbursement of the damage caused, Ismayilov Novruz Binnat oglu must be charged with additional offences in connection with the above-mentioned points, and following the end of these investigative actions, it must be determined which other persons in the circle have committed crimes, and the issue of their responsibility must be decided. At the stage of the carrying out of the said procedural actions, it is not appropriate to release N. Ismayilov from pre-trial detention. The panel of the court considers that the judge of the first-instance court took into account the seriousness of the crime attributed to N. Ismayilov, the possibility of him influencing persons participating in the criminal proceedings if released, as well as obstructing the normal functioning of the investigation or the court proceedings by hiding or falsification of items necessary for the prosecution, and correctly extended the period of his detention. The decision is lawful and justified.” 29. The appellate court did not examine the applicant’s specific complaints concerning his and his lawyer’s absence from the hearing of 23 December 2004 or the alleged falsification of the record of the above-mentioned hearing. 30. The hearing of 6 January 2005 before the Court of Appeal was held in the absence of the applicant, but in the presence of the prosecutor and the applicant’s two lawyers. 31. On 12 May 2005 the prosecutor in charge of the case filed the indictment with the Assize Court. It appears from the indictment that the applicant had been charged with additional offences on 15 April 2005 and that in the meantime his period of detention had been extended by the Khatai District Court until 28 April 2005. The relevant part of the indictment reads as follows: “... on 28 September 2004 Ismayilov Novruz Binnat oglu was charged under Articles 178.2.2., 178.2.3, 178.3.2, 179.2.1, 179.2.2, 179.2.3, 179.3.2 and 313 of the Criminal Code of the Republic of Azerbaijan and the Khatai District Court ordered the application of the preventive measure of remand in custody in respect of him. On 15 April 2005 he was charged with new criminal offences under Articles 178.2.3, 178.3.2, 179.2, 179.2.2, 179.2.3, 179.3.2 and 213.4 of the Criminal Code of the Republic of Azerbaijan. His period of pre-trial detention was extended by the Khatai District Court’s decision until 28 April 2005 ...” 32. However, despite an explicit request by the Court that the Government submit all the judicial decisions concerning the applicant’s detention, no copy of the decision extending his detention until 28 April 2005, nor any other copy related to his detention until 31 January 2006, was submitted. 33. On 31 January 2006 the Assize Court convicted the applicant of fraud, embezzlement and tax evasion and sentenced him to nine years’ imprisonment. | 1 |
test | 001-146501 | ENG | GBR | GRANDCHAMBER | 2,014 | CASE OF HASSAN v. THE UNITED KINGDOM | 1 | Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | Angelika Nußberger;Dean Spielmann;George Nicolaou;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Ledi Bianku;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano;Vincent A. De Gaetano;Zdravka Kalaydjieva | 8. The facts of the case, as submitted by the parties, may be summarised as follows. Where certain facts are in dispute, each party’s version of events is set out. 9. On 20 March 2003 a coalition of armed forces under unified command, led by the United States of America with a large force from the United Kingdom and small contingents from Australia, Denmark and Poland, commenced the invasion of Iraq from their assembly point across the border with Kuwait. By 5 April 2003 British forces had captured Basrah and by 9 April 2003 United States troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003. 10. Prior to the invasion, the applicant was a general manager in the national secretariat of the Ba’ath Party and a general in the Al-Quds Army, the army of the Ba’ath Party. He lived in Umm Qasr, a port city in the region of Basrah, near the border with Kuwait and about 50 kilometres from Al-Basrah (Basrah City). After the British army entered into occupation of Basrah, they started arresting high ranking members of the Ba’ath Party. Other Ba’ath Party members were killed by Iraqi militia. The applicant and his family therefore went into hiding, leaving the applicant’s brother, Tarek Resaan Hassan (henceforth, “Tarek Hassan”), and his cousin to protect the family home. 11. According to information given by the Government, members of a British army unit, the 1st Battalion The Black Watch, went to the applicant’s house early in the morning of 23 April 2003, hoping to arrest him. The applicant was not there, but the British forces encountered Tarek Hassan, who was described in the contemporaneous report drawn up by the arresting unit (“the battalion record”) as a “gunman”, found on the roof of the house with an AK-47 machine gun. The battalion record indicated that the “gunman” identified himself as the brother of the applicant and that he was arrested at approximately 6.30 a.m. It further indicated that the house was found by the arresting soldiers to contain other firearms and a number of documents of intelligence value, related to local membership of the Ba’ath Party and the Al-Quds Army. 12. According to a statement made by the applicant and dated 30 November 2006, Tarek Hassan was arrested by British troops on 22 April 2003, in the applicant’s absence. According to this statement, “When my sisters approached the British military authority they were told that I had to surrender myself to them before they would release my brother”. In a later statement, dated 12 September 2008, the applicant did not mention his sisters but instead stated that he asked his friend, Saeed Teryag, and his neighbour Haj Salem, to ask British forces for information about Tarek Hassan. The applicant asked these friends because he could trust them; Haj Salem was a respected businessman and Saeed Teryag had been to university and spoke English. According to the applicant, “[W]hen they approached the British military authorities the British told them I had to surrender myself to them before they would release my brother”. 13. According to a summary of a telephone interview with the applicant’s neighbour, Mr Salim Hussain Nassir Al-Ubody, dated 2 February 2007, Tarek Hassan was taken away by British soldiers on an unknown date in April at around 4.30 a.m., with his hands tied behind his back. Mr Al-Ubody stated that he approached one of the Iraqis who accompanied the soldiers to ask what they wanted, and was told that the soldiers had come to arrest the applicant. Three days later, the applicant telephoned Mr Al-Ubody and asked him to find a guard for his house and to find out from the British army what had happened to Tarek Hassan. Two days later, Mr Al-Ubody went to the British headquarters at the ShattAlArab Hotel. He asked an Iraqi translator if he could find out anything about Tarek Hassan. Two days later, when Mr Al-Ubody returned, the translator informed him that the British forces were keeping Tarek Hassan until the applicant surrendered. The translator further advised Mr Al-Ubody not to return, as this might expose him to questioning. 14. Both parties agreed that Tarek Hassan was taken by British forces to Camp Bucca. This Camp, situated about 2.5 kilometres from Umm Qasr and about 70 kilometres south of Al-Basrah was first established on 23 March 2003 as a United Kingdom detention facility. However, it officially became a United States facility, known as “Camp Bucca”, on 14 April 2003. In April 2003 the Camp was composed of eight compounds, divided by barbed wire fencing, each with a single entry point. Each compound contained open-sided tents capable of housing several hundred detainees, a water tap, latrines and an uncovered area. 15. For reasons of operational convenience, the United Kingdom continued to detain individuals they had captured at Camp Bucca. One compound was set aside for internees detained by the United Kingdom on suspicion of criminal offences. In addition, the United Kingdom operated a separate compound at the Camp for its Joint Forward Interrogation Team (JFIT). This compound had been built by British forces and continued to be administered by them. Although detainees captured by both the United Kingdom and the United States armies were interrogated at the JFIT compound, and teams of United Kingdom and United States interrogators worked there, the United Kingdom JFIT team controlled the detention and interrogation of all prisoners held there. Elsewhere in the Camp, the United States army was responsible for guarding and escorting detainees and the United Kingdom was obliged to reimburse the United States for costs involved in maintaining United Kingdom captured detainees held at the Camp. The British Military Provost Staff (military police) had an “overseeing responsibility” for United Kingdom detainees transferred to United States custody, except those detained in the JFIT compound. United Kingdom detainees who were ill or injured were treated in British field hospitals. The United Kingdom authorities were responsible for liaising with the International Committee of the Red Cross (ICRC) about the treatment of United Kingdom detainees and the notification of their families regarding the detention (see further paragraph 20 below). The United Kingdom also remained responsible for classifying detainees under Articles 4 and 5 of the Third Geneva Convention (see paragraph 33 below). 16. In anticipation of the United Kingdom using shared facilities to hold United Kingdom detainees, on 23 March 2003 the United Kingdom, United States and Australian Governments entered into a Memorandum of Arrangement (“MOA”) relating to the transfer of custody of detainees, which provided as follows: “This arrangement establishes procedures in the event of the transfer from the custody of either the US, UK or Australian forces to the custody of any of the other parties, any Prisoners of War, Civilian Internees, and Civilian Detainees taken during operations against Iraq. The Parties undertake as follows: 1. This arrangement will be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, as well as customary international law. 2. US, UK, and Australian forces will, as mutually determined, accept (as Accepting Powers) prisoners of war, civilian internees, and civilian detainees who have fallen into the power of any of the other parties (the Detaining Power) and will be responsible for maintaining and safeguarding all such individuals whose custody has been transferred to them. Transfers of prisoners of war, civilian internees and civilian detainees between Accepting Powers may take place as mutually determined by both the Accepting Power and the Detaining Power. 3. Arrangements to transfer prisoners of war, civilian internees, and civilian detainees who are casualties will be expedited, in order that they may be treated according to their medical priority. All such transfers will be administered and recorded within the systems established under this arrangement for the transfer of prisoners of war, civilian internees, and civilian detainees. 4. Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power will be returned by the Accepting Power to the Detaining Power without delay upon request by the Detaining Power. 5. The release or repatriation or removal to territories outside Iraq of transferred prisoners of war, civilian internees, and civilian detainees will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power. 6. The Detaining Power will retain full rights of access to any prisoner of war, civilian internees and civilian detainees transferred from Detaining Power custody while such persons are in the custody of the Accepting Power. 7. The Accepting Power will be responsible for the accurate accountability of all prisoners of war, civilian internees, and civilian detainees transferred to it. Such records will be available for inspection by the Detaining Power upon request. If prisoners of war, civilian internees, or civilian detainees are returned to the Detaining Power, the records (or a true copy of the same) relating to those prisoners of war, civilian internees, and civilian detainees will also be handed over. 8. The Detaining Powers will assign liaison officers to Accepting Powers in order to facilitate the implementation of this arrangement. 9. The Detaining Power will be solely responsible for the classification under Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of potential prisoners of war captured by its forces. Prior to such a determination being made, such detainees will be treated as prisoners of war and afforded all the rights and protections of the Convention even if transferred to the custody of an Accepting Power. 10. Where there is doubt as to which party is the Detaining Power, all Parties will be jointly responsible for and have full access to all persons detained (and any records concerning their treatment) until the Detaining Power has by mutual arrangement been determined. 11. To the extent that jurisdiction may be exercised for criminal offenses, to include pre-capture offenses, allegedly committed by prisoners of war, civilian internees, and civilian detainees prior to a transfer to an Accepting Power, primary jurisdiction will initially rest with the Detaining Power. Detaining Powers will give favourable consideration to any request by an Accepting Power to waive jurisdiction. 12. Primary jurisdiction over breaches of disciplinary regulations and judicial offenses allegedly committed by prisoners of war, civilian internees, and civilian detainees after transfer to an Accepting Power will rest with the Accepting Power. 13. The Detaining Power will reimburse the Accepting Power for the costs involved in maintaining prisoners of war, civilian internees, and civilian detainees transferred pursuant to this arrangement. 14. At the request of one of the Parties, the Parties will consult on the implementation of this arrangement.” 17. According to the witness statement of Major Neil B. Wilson, who served with the Military Provost Staff at Camp Bucca during the period in question, the usual procedure was for a detainee to arrive at the Camp with a military escort from the capturing unit. On arrival he would be held in a temporary holding area while his documents were checked and his personal possessions were taken from him. Medical treatment would be provided at this point if required. The detainee would then be processed through the arrivals tent by United Kingdom personnel with the aid of an interpreter. A digital photograph would be taken and this, together with other information about the detainee, would be entered on the database used by the United Kingdom authorities to record a wide range of military personnel information during the operations in Iraq, including detainee information, known as the AP3-Ryan database. 18. Examination of this database showed that there was no entry under the name Tarek Resaan Hassan but there was an entry, with a photograph, for “Tarek Resaan Hashmyh Ali”. In his witness statement the applicant explained that for official purposes Iraqis use their own first name, followed by the names of their father, mother, grandfather and great-grandfather. “Ali” was the applicant’s great-grandfather’s name and it appeared that Hassan (his grandfather’s name) was omitted by mistake. Tarek Hassan was issued with a wristband printed with his United Kingdom internment serial number UKDF018094IZSM; with “DF” denoting “detention facility”, “IZ” meaning allegiance to Iraq and “SM” standing for “soldier male”. Screen shots from the AP3-Ryan database also show that Tarek Hassan was asked whether he consented to the national authorities being informed of his detention and that he did not consent to this. 19. Following the United Kingdom registration process, detainees would be transferred to the United States forces for a second registration. This involved the issue of a United States number, printed on a wrist band. Tarek Hassan’s United States registration number was UK912-107276EPW46. The “UK” reference indicated that the United Kingdom was the capturing nation and “EPW” indicated that he was treated by the United States forces as an enemy prisoner of war; however, at this stage all detainees were classified as prisoners of war except those captured by British forces on suspicion of having committed criminal offences. After registration, detainees were usually medically examined, then provided with bedding and eating and washing kits and transferred by United States forces to the accommodation areas. 20. The Government submitted a witness statement by Mr Timothy Lester, who was charged with running the United Kingdom Prisoner of War Information Bureau (UKPWIB) in respect of Iraq from the start of military operations there in March 2003. He stated that the UKPWIB operated in Iraq as the “National Information Bureau” required by Article 122 of the Third Geneva Convention and monitored details of prisoners of war internees and criminal detainees in order to facilitate contact with their nextof-kin. The Third Geneva Convention also required the establishment of a “Central Prisoners of War Information Agency”. This role was subsumed by the Central Tracing Agency of the International Committee of the Red Cross (ICRC). The ICRC collected information about the capture of individuals and, subject to the consent of the prisoner, transmitted it to the prisoner’s country of origin or the power on which he depended. In practice, details of all prisoners taken into custody by British forces were entered by staff at the detention facility in Iraq and sent to Mr Lester in London, who then transferred the data to a spread-sheet and downloaded it to the ICRC’s secure website. He stated that during the active combat phase he typically passed data to the ICRC on a weekly basis, and monthly thereafter. However, Tarek Hassan’s details were not notified to the ICRC until 25 July 2003, because of a delay caused by the updating of UKPWIB computer system. In any event, it was noted on Tarek Hassan’s record that he did not consent to the Iraqi authorities being notified of his capture (see paragraph 18 above). In the absence of consent, Mr Lester considered it unlikely that the ICRC would have informed the Iraqi authorities and that those authorities would, in turn, have informed the Hassan family. 21. According to the Government, where the status of a prisoner was uncertain at the time of his arrival at Camp Bucca, he would be registered as a prisoner of war by the United Kingdom authorities. Any detainee, such as Tarek Hassan, captured in a deliberate operation was taken immediately to the JFIT compound for a two-stage interview. According to the Government, there were United Kingdom and United States interrogation teams working in the JFIT compound, and both teams interviewed both United Kingdom- and United States-captured detainees. The first interview may have been undertaken simply by whichever team was available when the detainee arrived. The aim of the interview process was to identify military or paramilitary personnel who might have information pertinent to the military campaign and, where it was established that the detainee was a non-combatant, whether there were grounds to suspect that he was a security risk or a criminal. If no such reasonable grounds existed, the individual was classified as a civilian not posing a threat to security and ordered to be released immediately. 22. A print-out from the JFIT computer database indicated that in Camp Bucca Tarek Hassan was assigned JFIT no. 494 and registration no. UK107276. His arrival was recorded as 23 April 2003 at 16.40 and his departure was recorded as 25 April 2003 at 17.00, with his “final destination” recorded as “Registration (Civ Cage).” Under the entry “Release/Keep” the letter “R” was entered. Under the heading “TQ”, which stood for “tactical questioning”, there was the entry “231830ZAPR03Steve” and under the heading “Intg 1” was the entry “250500ZAPR03”. According to the Government, the first of these entries meant that Tarek Hassan was first subjected to tactical questioning on 23 April 2003 at 18.30 Zulu (“Zulu” in this context meant Coordinated Universal Time, also known as Greenwich Mean Time). On 23 April, 18.30 Zulu would have been 21.30 Iraqi time. The second entry indicated that Tarek Hassan was again subject to questioning on 25 April 2003 at 5.00 Zulu, or 8.00 local time and then released into the civilian pen at Camp Bucca at 20.00 local time on 25 April 2003. 23. The Government provided the Court with a copy of a record of an interview between Tarek Hassan and United States agents, dated 23 April 2003, 18.30 Zulu, which stated as follows: “EPW [Enemy Prisoner of War] was born in BASRA on August 3, 1981. He currently resides in his home with his father, mother, older brother (Name: Qazm; born in the 1970s), and his little sister (age; unexploited). Home is across from the Khalissa school in the Jamiyat region in N. BASRA. EPW left middle school as a recruit to play soccer. He currently plays in the Basra Soccer Club and his position is attacker/forward. His team receives money from the government and the Olympic committee to pay for team expenses. EPW has no job since soccer is his life and they pay for all of his soccer expenses. EPW knows that he was brought in because of his brother, Qazm. Qazm is a Othoo Sherba in the Ba’ath party and he fled his home four days ago to an unknown destination. Qazm joined the Ba’ath party in 1990 and is involved in regular meetings and emergency action planning (nothing else exploited). Before the war, Qazm received a pickup from the Ba’ath party. When the coalition forces entered BASRA, Qazm gave the pickup to a neighbour (name not exploited) to safeguard it and Qazm went to a hotel in downtown BASRA (name of hotel is unknown). Qazm made a few phone calls during that time, but never mentioned where he was staying. A problem arose when the original owners of the pickup, the local petroleum company, came to reclaim the vehicle they had lent the Ba’ath party. Qazm became frustrated with the whole mess and fled soon after that. EPW seems to be a good kid who was probably so involved with soccer that he didn’t follow his brother’s whereabouts all that much. But it seems they have a close knit family and EPW could know more about his brother’s activities in the Ba’ath party, and some of his friends involved in the party, too. Using any type of harsh approach is not going to be effective. EPW loves his family and soccer. EPW will cooperate, but he needs someone he can trust if he’s going to tell information about his brother that is going to harm him. EPW seems to be innocent of anything himself, but may help with information about others around him.” 24. A record of the second questioning was provided by the Government in the form of a Tactical Questioning Report. This document indicated that it related to “PW 494” with the “date of information” recorded as “250445ZAPR03”, that is 4.45 Zulu or 7.45 local time on 25 April 2003. The report stated: “1. EPW [Enemy Prisoner of War] is 22 years old, single, living with his 80 year old father (who is a Sheik) and his mother in the Jamiyet district of BASRAH. He works as a handyman and has not done his military service due to his status as a student. He stated that an AK 47 was present in their house at the time of his arrest but it was only kept for personal protection. The EPW and his father are not Ba’ath Party members. 2. EPW says he was arrested at his house by United States troops [sic] who were looking for his brother, Kathim. His brother is a Ba’ath Party member, an Uthoo Shooba. He joined the party in 1990 when he became a law student in the school of law in the Shaat Al Arab College. His brother is still a student, in his last year of study, married but with no children. He has alternated study with periods of work as a car trader. His brother was in fear of his life because of fear of reprisals against Ba’ath Party members and so had run away possibly to SYRIA or IRAN. The EPW last spoke with his brother 5 days ago by phone. His brother did not disclose his location. JFIT COMMENT: EPW appears to be telling the truth and has been arrested as a result of mistaken identity. He is of no intelligence value and it is recommended that he is released to the civilian pen. JFIT COMMENT ENDS.” 25. The applicant submitted a summary of an interview dated 27 January 2007 with Fouad Awdah Al-Saadoon, the former chairman of the Iraqi Red Crescent in Basrah and a friend of the applicant’s family. He had been arrested by British troops and detained at Camp Bucca, in a tent holding approximately 400 detainees. He stated that on 24 April 2003 at around 6 p.m. Tarek Hassan was brought to the tent. Mr Al-Saadoon stated that Tarek Hassan seemed scared and confused but did not mention that Tarek Hassan complained of having been ill-treated. Tarek Hassan was not interrogated during the time they were together in Camp Bucca. Since Mr Al-Saadoon was in ill-health, Tarek Hassan brought him food and cared for him. Mr Al-Saadoon was released on 27 April 2003, in a batch of 200 prisoners, since the United Kingdom authorities had decided to release all detainees aged 55 or older. The detainees were released at night, on a highway between Al-Basrah and Al-Zubair and had to walk 25 miles to the nearest place they could hire cars. Following his release, he informed the applicant’s family that he had seen Tarek Hassan at Camp Bucca. According to the applicant, this was the only information received by the family about his brother’s whereabouts following the latter’s arrest. In response to this statement, the Government submitted that Mr Al-Saadoon might have been mistaken about the date, because it appeared from the interrogation records that Tarek Hassan was released to the civilian holding area on 25 April 2003. They also emphasised that stringent efforts were made to return individuals to their place of capture or to an alternate location if requested, and that 25 miles was much greater than the distance between Al-Basrah and Al-Zubair. 26. According to the witness statement, provided by the Government, of Major Neil Wilson, who commanded a group of soldiers from the Military Provost Staff who advised on detention issues within the United Kingdom area of operations in Iraq during the relevant period, the decision to release United Kingdom captured detainees held at Camp Bucca, other than those facing criminal charges, was taken by a tribunal convened by United Kingdom military legal officers. Details were then passed to the United States guards, before those released were processed out of the Camp, with their details checked and entered on the AP3Ryan database. According to the orders made by the United Kingdom’s Military Divisional Headquarters based in Basrah and applying at that time, the United States forces were responsible for the repatriation of all prisoners to the areas within their field of operation and the United Kingdom forces were responsible for returning prisoners to areas within their field of operation, namely South East Iraq, regardless of which force had captured the prisoners. The ICRC was to have access to all those being released. Again according to the applicable orders, prisoners repatriated by British forces were to be loaded on to buses with armed guards on-board and armed military escort vehicles to the front and rear. Release was to be to specific repatriation points in daylight hours, with sufficient food and water to last the individuals being released until they got home. According to the evidence of Major Wilson, efforts were made to return individuals to their point of capture. There were four drop-off points within the United Kingdom field of operation, including “Al-Basrah GR TBC [grid reference to be confirmed]”. Umm Qasr was not listed as a dropoff point but could be entered as a point of release on the records of individuals being processed for release. 27. The Government also submitted a military order dated 27 April 2003 (FRAGO 001/03), the purpose of which was to ensure the release from detention of the maximum possible number of civilians and prisoners of war prior to the cessation of hostilities (which was subsequently announced on 1 May 2003). The annex to the order set out the procedures to be followed. A number of individuals would continue to be detained on security grounds or because they were suspected of being criminals; they had already been identified by JFIT, with the decision recorded on the AP3-Ryan database, and a list given to the United States authorities to ensure they were not released. The remaining population would stay within the individual compounds and await release processing by the United Kingdom authorities. At the processing tent, a three-point check would be made of each detainee’s wrist-band, face and digital profile held on AP3-Ryan. The following information was then required to be entered into the database: “(1) Releasing Force Element; (2) Release Date; (3) Releasing Nation; (4) Selected Place of Release.” The text of the order itself referred to four dropoff points (Al-Basrah, Najef, Al-Kut and An Nasariah (the latter three towns were to the north of Al-Basrah), but the annex listed in addition Um Qasr (south of Al-Basrah and 2.5 kilometres from the Camp) as a drop-off point. The United Kingdom forces would then retain the detainee’s identity card and pass him back to the United States authorities for final processing, including the issue of food and water and the return of personal belongings. Four holding areas would be established, “one for each release location”, from which the detainees would then be transported to the agreed repatriation points and released in daylight hours. The order also required a final audit to be conducted to check that all United Kingdom detainees listed on the AP3-Ryan database had either been released or continued to be detained. Should the record be identified of any person who had neither been released nor detained, a board of inquiry had to sit to determine what had happened. 28. In addition, the Government submitted a witness statement dated 29 October 2007 by Warrant Officer Class 2 Kerry Patrick Madison, who had responsibility for the management of the AP3-Ryan database. He stated that by 22 May 2003 AP3-Ryan showed that the United Kingdom forces had captured and processed 3,738 detainees in Iraq since the start of hostilities and had released all but 361. Annexed to Warrant Officer Madison’s statement were a number of screen prints showing entries on the database relating to Tarek Hassan. They showed that an entry was made on AP3-Ryan on 4 May 2003 at 1.45 p.m. recording the release of “Tarek Resaan Hashmyh Ali” at 00.01 on 2 May 2003. The releasing authority was stated to be “United Kingdom (ARMD) DIV SIG REGT”; the place of release was stated to be “Umm Qasr”; the method of release was “By Coach” and the ground of release was recorded as “End of Hostilities”. A further entry was made in the United Kingdom AP3-Ryan system on 12 May 2003 at 10.13 p.m. recording that: “PW was found to be absent from the internment facility when 100% check was conducted. PW was released on AP3 on 12 May 03”. According to the Warrant Officer Madison, some 400 individuals’ records included the statement “PW was released on AP3 on 12 May 03”, when they had in fact been released earlier and it was therefore likely that the Camp’s computer release records were brought up to date on 12 May following a physical check. The United States computer system did not record any release until 17 May 2003 but again, according to the Government, this was probably explained by a reconciliation of the United States Camp Bucca database with a physical check of occupants of the Camp by the United States authorities on 17 May. 29. According to the applicant, Tarek Hassan did not contact his family during the period following his purported release. On 1 September 2003 one of the applicant’s cousins received a telephone call from a man unknown to them, from Samara, a town north of Baghdad. This man informed them that a dead man had been found in the nearby countryside, with a plastic ID tag and piece of paper with the cousin’s telephone number written on it in the pocket of the sport’s top he was wearing. According to the applicant, Tarek Hassan was wearing sportswear when he was captured by British forces. The applicant’s cousin called him and, together with another brother, the applicant went to the forensic medical station of the Tekrit General Hospital in Samara. There they saw the body of Tarek Hassan with eight bullet wounds from an AK-47 machine gun in his chest. According to the applicant, Tarek Hassan’s hands were tied with plastic wire. The identity tag found in his pocket was that issued to him by the United States authorities at Camp Bucca. A death certificate was issued by the Iraqi authorities on 2 September 2003, giving the date of death as 1 September 2003, but the sections reserved for the cause of death were not completed. A police report identified the body as “Tariq Hassan” but gave no information about the cause of death. 30. The applicant remained in hiding in Iraq until October 2006, when he crossed the border to Syria. In November 2006, through a representative in Syria, he made contact with solicitors in the United Kingdom. The applicant’s solicitors wrote to the Government’s Treasury Solicitors on 21 December 2006 requesting explanations for the arrest and detention of Tarek Hassan and the circumstances that resulted in his death. It took some time to identify the applicant’s brother, because he was entered in the Camp Bucca databases under the name “Tarek Resaan Hashmyh Ali” (see paragraph 18 above). However, in a letter dated 29 March 2007 Treasury Solicitors stated that a check of the United Kingdom’s prisoner of war computer records had produced a record of Tarek Resaan Hashmyh Ali being detained at Camp Bucca. In a further letter dated 5 April 2007 Treasury Solicitors stated that further computer records had been recovered which “confirm the handover” of Tarek Hassan from the United Kingdom authorities to the United States authorities at Camp Bucca and which recorded his release on 12 May 2003. 31. The applicant commenced proceedings in the High Court on 19 July 2007 seeking declarations in respect of breaches of his brother’s rights under Articles 2, 3 and 5 of the Convention, as set out in Schedule 1 to the Human Rights Act 1998, financial compensation and an order requiring the Government to initiate an independent and public investigation into the fate of the deceased after he was detained by British forces on 22 April 2003. The claim was heard on 19 and 20 January 2009 and was rejected in a judgment delivered by Walker J on 25 February 2009 ([2009] EWHC 309 (Admin)). The judge held that, in the light of the judgment of the House of Lords in Al-Skeini (see further the summary of the House of Lords’ judgment in Al-Skeini v. the United Kingdom, cited above, §§ 83-88), it could not be said that Tarek Hassan was within the United Kingdom’s jurisdiction under Article 1 of the Convention at any time. In Al-Skeini the House of Lords had recognised a number of exceptions to the general rule that a State did not exercise jurisdiction extra-territorially, but these did not include detention of a person unless this took place within a military prison or other comparable facility controlled by the Contracting State. The judge’s analysis of the MOA (see paragraph 16 above) indicated that Camp Bucca was a United States rather than a United Kingdom military establishment, for the following reasons: “... It is plain that the detaining power [the United Kingdom] relinquishes, until such time as it requires return of the individual in question, responsibility for maintaining and safeguarding those transferred. Accountability in that regard is the responsibility of the accepting power [the United States]. As regards adjudications concerning the individual’s contact after transfer to the accepting power the detaining power relinquishes to the accepting power primary jurisdiction. Overall this amounts to a legal regime in which the detaining power has no substantial control over the day to day living conditions of the individual in question.” 32. The applicant was advised that an appeal would have no prospect of success. 43. The applicant contended that the evidence of his sisters, friend and neighbour demonstrated that his brother was captured and detained by British forces with the purpose of inducing the applicant to surrender himself. The first reference made by the Government to the battalion record, which referred to Tarek Hassan’s arrest (see paragraph 11 above), was in its observations to the Grand Chamber in September 2013. No good explanation for the recent appearance of this material had been provided, which was surprising given the emphasis placed on the document by the Government. The applicant made no admissions as to whether or not he accepted it was genuine. He underlined, also, that it was the sole document to make any reference to Tarek Hassan’s having been found in possession of an AK-47 machine gun and positioned on the roof. Neither of the records of his interviews (see paragraphs 23-24 above) referred to his having been detained as a suspected combatant or having posed any threat, real or suspected, to British forces at any time. 44. The applicant further contended that the Camp Bucca computer detention records recorded three different release dates, none of which appeared reliable (see paragraph 28 above). Similarly, the place of release was a matter of speculation based on unclear and inconsistent evidence (see paragraphs 27-28 above). It could not even be said with any certainty that Tarek Hassan was not still being detained after the search of Camp Bucca on 12 May 2003, given in particular the release date entered on the United States records. The applicant pointed out that his brother was found dead with the United States Camp Bucca identity tag still on him (see paragraph 29 above) and that he had not contacted his family at any point after he had been captured by United Kingdom forces, which strongly suggested that he had had no opportunity to do so. 45. The Government submitted that the applicant had not established an adequate justification for the delay in raising his complaints with the United Kingdom authorities. The delay had imposed an inevitable impediment to the effective investigation of Tarek Hassan’s death. No adverse inferences should be drawn from the Government’s inability to provide an explanation for Tarek Hassan’s death in circumstances where the evidence provided a satisfying and convincing explanation of his arrest, detention and release. 46. The Government denied the allegation that Tarek Hassan was detained as a means of putting pressure on the applicant to surrender. They contended that the evidence submitted by the applicant in support of this claim was imprecise and hearsay and that such a purpose on the part of the United Kingdom authorities would have been inconsistent with Tarek Hassan’s subsequent release from Camp Bucca as soon as his status had been established as a civilian who did not pose a threat to security. Instead, they contended that it was reasonable for the British forces to suspect Tarek Hassan of being a combatant, since he was found, armed, on the roof of the house of a general of the Al-Quds Army, which house contained other firearms and a number of documents of intelligence value relating to local members of the Ba’ath Party (see paragraph 11 above). The Government further pointed out that, apart from the applicant’s witness statement, there was no independent evidence of the cause of death because this information had not been entered on the death certificate (see paragraph 29 above). In any event, they emphasised that Samara was some 700 kilometres from Camp Bucca, in an area that had never been occupied by British forces, and that the AK-47 machine gun was not a weapon used by British forces. 47. At the outset, the Court recalls that the domestic proceedings were dismissed on the ground that the applicant’s brother did not fall within the jurisdiction of the United Kingdom at any material time (see paragraph 31 above). It was not therefore necessary for the national courts to establish the facts in any detail. The Court is generally sensitive to the subsidiary nature of its role and cautious in taking on the role of a first-instance tribunal of fact (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). However, in the present circumstances it is unavoidable that it must make some findings of fact of its own on the basis of the evidence before it. 48. In cases in which there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. It reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions the Court’s approach to the issues of evidence and proof. In the proceedings before it, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 151, ECHR 2012). 49. Furthermore, it is to be recalled that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio (the principle, that is, that the burden of proof lies on the person making the allegation in question). The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events in issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation. In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government. The Court has already found that these considerations apply to disappearances examined under Article 5 of the Convention, where, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she was officially summoned by the authorities, entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible and satisfactory explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty. Furthermore, the Court reiterates that, again in the context of a complaint under Article 5 § 1 of the Convention, it has required proof in the form of concordant inferences before the burden of proof is shifted to the respondent Government (see El Masri, cited above, §§ 152-153). 50. It is not in dispute in the present case that the applicant’s brother was captured by United Kingdom forces on 23 April 2003, subsequently detained at Camp Bucca and that he died shortly before his body was found in Samara on 1 September 2003. The disagreement over the facts centres on two issues: first, whether Tarek Hassan was arrested and detained as a means of exerting pressure on the applicant to surrender himself and, secondly, in what circumstances Tarek Hassan left Camp Bucca. In addition, since the applicant alleges that Tarek Hassan’s body had marks of ill-treatment on it, the question arises whether he was ill-treated while in detention. 51. As to the first point, the Court notes that the only evidence before it which supports the claim that Tarek Hassan was taken into detention in an attempt to force the applicant to surrender himself are the two statements made by the applicant and the note of a telephone interview with the applicant’s neighbour, both prepared for the purposes of the domestic proceedings (see paragraphs 12-13 above). In the applicant’s first statement he alleged that his sisters had been told by the British military authority that Tarek Hassan would not be released until the applicant gave himself up. In the second statement, the applicant claimed that this information was given to his neighbour and his friend. In neither of the applicant’s statements, nor that of his neighbour, Mr Al-Ubody, is the representative of the United Kingdom military who made the alleged assertion identified, by name or rank. Given the lack of precision, the hearsay nature of this evidence and the internal inconsistencies in the applicant’s statements, the Court does not find the evidence in support of the applicant’s claim to be strong. 52. For their part, the Government were not able to present the Court with any witness evidence relating to Tarek Hassan’s capture. However, they provided the Court with the operational log of the Black Watch Battalion which was created contemporaneously with the events in question (see paragraph 11 above). It records that, when British forces arrived at the house, Tarek Hassan was positioned on the roof, armed with an AK-47 machine gun and that other firearms and documents of intelligence value were found in the house. In addition, the Government provided records of interviews at Camp Bucca with Tarek Hassan and screen shots of entries relating to him on the AP3-Ryan database (see, respectively, paragraphs 2324 and 18, 22 and 28 above). The Court has no grounds on which to question the authenticity of these records. They show that Tarek Hassan was registered at Camp Bucca on 23 April 2003, taken to the JFIT compound at 16.40 on 23 April 2003 and released to the civilian holding area of Camp Bucca on 25 April 2003 at 8 p.m. local time. The computer records further show that he was questioned once on 23 April 2003 21.30 local time and again on 25 April at 8 a.m. local time. Records of both interviews have been provided to the Court. They show that Tarek Hassan’s identity as the applicant’s brother was known and that it was established in the course of questioning that he had no personal involvement with the Ba’ath Party or the Al-Quds Army. 53. In the Court’s view, the capture and questioning records are consistent with the Government’s submission that Tarek Hassan was captured as a suspected combatant or a civilian posing a threat to security. This view is supported by other evidence which tends to show that Tarek Hassan may well have been armed with, or at least in the possession of, an AK-47 machine gun at the moment of his capture, namely the applicant’s assertion that his younger brother had been left to protect the family home (see paragraph 10 above) and Tarek Hassan’s reported explanation, during his interrogation by British agents, of the presence of the weapon as being for personal protection (see paragraph 24 above). The Camp Bucca records further indicate that he was cleared for release as soon as it had been established that he was a civilian who did not pose a threat to security. 54. The Court accepts that Tarek Hassan’s capture was linked to his relationship with his brother, but only to the extent that the British forces, having been made aware of the relationship by Tarek Hassan himself and finding Tarek Hassan armed at the moment of capture (see paragraph 11 above), may have suspected that he also was involved with the Ba’ath Party and Al-Quds Army. The Court does not find that the evidence supports the claim that Tarek Hassan was taken into custody to be held until the applicant should surrender. If that had been the intention of the United Kingdom forces, he would not have been cleared for release immediately after the second interview and less than 38 hours after his admission to Camp Bucca (see paragraph 22 above). 55. As regards the date and place of Tarek Hassan’s release, the principal evidence consists of entries from AP3-Ryan (see paragraph 28 above). One entry made on 4 May 2003 recorded that Tarek Hassan had been released on 2 May 2003, by coach, to Umm Qasr, on the ground of the “End of Hostilities”. Another entry on 12 May 2003 found that Tarek Hassan was not present in the Camp when a full check of detainees was made. The Court considers, on the basis of these entries, taken together with the decision made following the second screening interview not to continue to detain Tarek Hassan, that he was in all probability released early in May 2003. This view is further supported by the evidence provided by the Government concerning the policy decision taken by United Kingdom forces to release all detainees prior to or immediately following the cessation of hostilities announced on 1 May 2003, save those suspected of criminal offences or of activities posing a risk to security (see paragraph 27 above). As to the place of release, the Court notes that Camp Bucca was situated only about 2.5 kilometres from Umm Qasr. Although the main text of the relevant military order relating to the release of detainees from Camp Bucca did not list Umm Qasr as a drop-off point (listing only four towns to the north of the Camp), the annex to the order did describe Umm Qasr as a release area. It is impossible to be certain in the absence of more conclusive evidence, but given the town’s proximity to the Camp, its mention in the annex, the United Kingdom policy of releasing detainees following the end of hostilities and the computer entries concerning Tarek Hassan’s release, the Court finds that it is probable that Tarek Hassan was released in or near Umm Qasr on 2 May 2003. 56. The Court is of the view that, in this case, since the evidence concerning Tarek Hassan’s detention and release was, for the most part, accessible only to the Government, the onus is on them to provide a plausible and satisfactory explanation as to what happened to Tarek Hassan in the Camp and to show that he was released and that the release followed a safe procedure (see paragraph 49 above). The computer records show that by 22 May 2003 the United Kingdom had captured and processed some 3,738 detainees in Iraq since the start of hostilities and had released all but 361 (see paragraph 28 above). In the light of the time that had elapsed before the applicant lodged his claim and the large number of United Kingdom detainees that were released from Camp Bucca around the end of April and the beginning of May 2003, it is unsurprising that no eye witness able to remember Tarek Hassan’s release has been traced. In the circumstances of the present case, the Court finds that the evidence referred to above is sufficient to satisfy the burden of proof on the Government. 57. Finally, there is no evidence before the Court to suggest that Tarek Hassan was ill-treated while in detention. The interview records show that he was questioned on two occasions, shortly after having been admitted to the Camp, and found to be a civilian, of no intelligence value and not posing any threat to security. The witness statement submitted by the applicant, of Mr Al-Saadoon, who claimed to have seen Tarek Hassan in the civilian holding area in Camp Bucca in the period after he was questioned and before he was released, makes no mention of any sign of injury on Tarek Hassan or any complaint by him of ill-treatment. Moreover, apart from the applicant’s witness statement, there is no evidence before the Court as to the cause of Tarek Hassan’s death or the presence of marks of ill-treatment on his body, since the death certificate contains no information on either point. Assuming the applicant’s description of his brother’s body to be accurate, the lapse of four months between Tarek Hassan’s release and his death does not support the view that his injuries were caused during his time in detention. 58. Having established the facts of the case, the Court must next examine the applicant’s complaints under the Convention. | 0 |
test | 001-145017 | ENG | RUS | CHAMBER | 2,014 | CASE OF GABLISHVILI v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Georgia);Non-pecuniary damage - finding of violation sufficient | Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 6. The applicants are husband and wife. They were born in 1981 and 1987 respectively and live in Syktyvkar in the Komi Republic of Russia. 7. The first applicant, a Georgian national, arrived in Russia in 1999. On 4 May 2001 he received a first residence permit, which was subsequently extended at regular intervals. 8. The first applicant’s parents have lived in Syktyvkar since the early 2000s. His father and mother acquired Russian nationality in 2005 and 2008 respectively. 9. On 26 August 2011 the first applicant married the second applicant, a Russian national. 10. On 28 June 2012 the second applicant gave birth to a son. 11. On 14 November 2011 an operative officer of the Federal Service for Drug Control in the Komi Republic discovered that the first applicant had injected himself with desomorphine, a derivative of morphine known under the street name “krokodil”. An administrative case was instituted under Article 6.9 of the Code of Administrative Offences (“Use of narcotic substances without a medical prescription”) and the matter was referred to the Town Court. 12. On the following day the Syktyvkar Town Court found the first applicant guilty as charged and, pursuant to paragraph 2 of Article 6.9 concerning foreign nationals, fined him 4,000 Russian roubles (RUB) and ordered his administrative expulsion from Russia (the “expulsion order”). 13. Counsel for the first applicant appealed. He submitted that the penalty of expulsion was extremely severe given that the first applicant had lived in Russia for almost ten years, his wife, who was pregnant with their first child, was a Russian national and a majority of his relatives lived in Russia. In the lawyer’s opinion, the first applicant’s expulsion would destroy his family life. 14. On 1 December 2011 the Supreme Court of the Komi Republic rejected the appeal, upholding the first applicant’s conviction. On the alleged disruption of the first applicant’s family life, the Supreme Court pronounced as follows: “The representative’s argument to the effect that, in the light of Mr Gablishvili’s family situation, the Town Court had wrongly ordered his administrative expulsion from the Russian Federation cannot be taken into account as paragraph 2 of Article 6.9 of the Code of Administrative Offences provides for mandatory expulsion of the offender and is not an alternative to the main penalty which may take the form of either detention or a fine.” 15. On 24 April 2012 the first applicant paid the fine. 16. On 29 March 2008 the first applicant was issued with a five-year residence permit that was valid until 8 May 2013. 17. On 6 June 2011 the Komi Regional Centre for AIDS Prevention and Treatment notified the Komi division of the Federal Migration Service that the first applicant had been diagnosed with HIV. 18. On 10 June 2011 the Migration Service revoked the first applicant’s residence permit in accordance with section 9(1)(13) of the Foreign Nationals Act, which provided for the revocation of the residence permits of HIV-positive foreign nationals. The first applicant was informed of that decision on 9 November 2011 and ordered to leave Russia within fifteen days. 19. Counsel for the first applicant challenged the decision before a court, claiming that it amounted to a disproportionate interference with the first applicant’s family life and also put the first applicant’s life at risk. 20. On 28 February 2012 the Syktyvkar Town Court set aside the decision of 10 June 2011, observing that the first applicant had strong family ties in Russia and could receive medical treatment there with the assistance and under the supervision of his family. However, the Town Court declared itself incompetent to order the reinstatement of the residence permit. 21. On 31 May 2012 the Supreme Court of the Komi Republic heard an appeal against the Town Court’s judgment. It endorsed its reasons for setting aside the decision of 10 June 2011 and noted that the following logical step would be to reinstate the first applicant’s residence permit. It ordered the Migration Service to proceed accordingly. 22. On 28 June 2012 the Federal Migration Service complied with the judgment and reinstated the first applicant’s residence permit. 23. On the following day the Migration Service issued a new decision to revoke the permit, referring to the Town Court’s judgment of 15 November 2011 and section 9(1)(3) of the Foreign Nationals Act, which provided for the revocation of residence permits of foreign nationals who were liable to be expelled. 24. On 20 January 2012 the Federal Service for Drug Control issued a decision on the undesirability of the first applicant’s presence in Russia (the “exclusion order”) which read in its entirety as follows: “1. On the basis of the materials received from the Komi division of the Federal Service for Drug Control, and in accordance with section 25.10 of the Entry and Exit Procedures Act, to declare undesirable the presence in Russia of the Georgian national Mr Gablishvili ... 2. To notify the decision to the officers and employees of the drug control authorities ...” 25. Counsel for the first applicant challenged the exclusion order in court, claiming that it would disrupt the first applicant’s family life. 26. On 20 July 2012 the Syktyvkar Town Court found for the first applicant as follows: “The grounds for issuing the said decision were the following: use of drugs by the claimant, an offence of which he had been found guilty under Article 6.9 § 2 of the Code of Administrative Offences by the Town Court’s judgment of 15 November 2011 and fined RUB 4,000, and for which his administrative expulsion had been ordered; the discontinuation of the criminal proceedings on 29 November 2003 on non-exonerating grounds in connection with his active repentance; and his repeated convictions in administrative proceedings for breaches of public order. However, in the court’s view, these elements are not sufficient to reach the conclusion that Mr Gablishvili, who has lived in Russia for a long time and who has stable family connections and can undergo treatment under his family’s supervision, represents a real threat to national security, public order and health. In these circumstances, taking into account the provisions of the Russian Constitution ... according to which the rights and freedoms of man and citizen are directly operative and determine the essence, meaning and implementation of laws ... and may be restricted only to the extent necessary for the protection of the foundations of the constitutional system, morality, health, the rights and lawful interests of other people, national defence and security, the court considers that the said decision is unlawful and must be quashed.” 27. On an appeal by the Federal Service for Drug Control, the Supreme Court of the Komi Republic quashed, on 11 October 2012, the Town Court’s judgment and rejected the first applicant’s challenge to the exclusion order, finding as follows: “It was established by the Town Court and not disputed by the claimant that Mr Gablishvili was a drug user, that he had previously breached the criminal law and that he had been repeatedly charged with administrative offences in the period from 2003 to 2011. Those elements, taken cumulatively, indicate that, while living in the Russian Federation, Mr Gablishvili does not respect the applicable laws and lives an immoral lifestyle which – undoubtedly – is an imminent threat to public order and to the health and morals of Russian citizens. The [Supreme Court] considers that his stable family connections in Russia may not be a bar to deciding on the undesirability of his presence in Russia because the law provides that such a decision may be taken against a specific individual not as a punitive measure but as a means of upholding public order and if it pursues, as stated above, the aim of safeguarding the health and morals of the Russian population.” 28. In their submissions to the Court, the Government specified that the first applicant’s previous administrative convictions, referred to in the Supreme Court’s decision, had been in respect of the following offences: (a) non-medical use of heroin on 29 January 2009; (b) minor disorderly acts on 25 January and 18 June 2000, 28 October 2003, 19 April 2004 and 30 January 2011; (c) drunkenness in a public place on 26 February 2000; (d) failure to have his residence registered on 25 November 2004; and (e) “non-compliance with existing procedure” on 20 May 2010. 29. After the Town Court’s judgment dated 15 November 2011, the first applicant was found guilty of the following administrative offences: (a) breach of public order, public drunkenness and refusal to obey a police officer, all committed on 8 March 2012; (b) two cases of public drunkenness and a breach of public order on 27 and 28 May 2012; (c) breach of public order on 30 January 2013, for which the first applicant was sentenced to five-days’ detention; and (d) two driving offences on 31 March and 7 May 2013. 30. According to the Government, the first applicant’s current whereabouts are not known; he does not live at home. Nor is there any information showing that either the expulsion or the exclusion order has been executed. | 1 |
test | 001-145713 | ENG | MDA | CHAMBER | 2,014 | CASE OF GRAFESCOLO S.R.L. v. THE REPUBLIC OF MOLDOVA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall | 5. The applicant is a company incorporated in Moldova. 6. On 13 February 2003 the Vadul lui Voda local council adopted a decision concerning the sale of a plot of land with a greenhouse on it to the applicant company. Subsequently, in March 2003, a contract was entered into for that purpose between the local council and the applicant company. 7. On 15 June 2006 the local council adopted a decision revoking its previous decision. The applicant initiated proceedings against the local council. 8. On 25 December 2006 the Vadul lui Voda local council introduced a counter action seeking the termination of the contract of sale between it and the applicant company on the grounds that the price asked for the property had been too low and that the land had been sold unlawfully owing to its proximity to a river. The applicant company opposed this action and argued, inter alia, that it was time-barred under the provisions of the Civil Code in force at the time the contract was entered into. 9. On 13 April 2007 the Ciocana District Court rejected the applicant’s action but accepted that of the local council and declared the contract of sale null and void. The court held that the rules governing time limitation contained in the new Civil Code should apply. The court expressed of its own motion the opinion that the local council’s action had concerned the declaration of the absolute nullity of the contract of sale and that therefore, in accordance with the provisions of Article 217 of the new Civil Code, it could not be time-barred. The applicant appealed. 10. On 5 September 2007 the Chişinău Court of Appeal upheld the appeal lodged by the applicant company and quashed the judgment of the first-instance court. It upheld the applicant company’s action and dismissed the counter action lodged by the local council. The local council lodged an appeal on points of law. 11. On 16 January 2008 the Supreme Court of Justice upheld the appeal on points of law lodged by the local council. It quashed the judgment of the Court of Appeal and upheld the judgment of the Ciocana District Court of 13 April 2007. The Supreme Court did not state any position in respect of the applicant company’s initial defence concerning the statute of limitations. Only the representative of the local council was present at the Supreme Court hearing. The judgment of the Supreme Court was final. | 1 |
test | 001-172107 | ENG | RUS | CHAMBER | 2,017 | CASE OF Z.A. AND OTHERS v. RUSSIA | 3 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-f - Prevent unauthorised entry into country);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova | 5. The applicants found themselves staying in the transit zone of Sheremetyevo Airport of Moscow. The details of each application are set out below. 6. The applicant is an Iraqi national who was born in 1987. 7. The applicant moved from Iraq to Turkey in 2013 seeking employment. He later moved to China to look for a job. 8. On 24 July 2015 the applicant travelled by air from China to Turkey. The journey consisted of two legs: Shanghai to Moscow and Moscow to Ankara. The Turkish authorities denied him entry for reasons that the applicant did not specify in his application. The applicant was sent to Moscow on 27 July 2015. On arrival at Sheremetyevo Airport, he was not allowed to pass through passport control. 9. From 27 July 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. He sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area. 10. On 29 July 2015 the applicant applied for refugee status in Russia, arguing that in Iraq he would run the risk of persecution by militants belonging to the Islamic State of Iraq and al-Sham (ISIS – also known as Islamic State of Iraq and the Levant) because he had refused to join them, as well as by Iraqi government forces for the reason that he practiced the Sunni form of Islam. 11. On 19 September 2015 the applicant received a visit from the Moscow regional department of the Federal Migration Service (“the Moscow Region FMS”) and was interviewed in the transit zone. The Moscow Region FMS did not issue the applicant with a certificate to confirm that his refugee status application deserved to be examined on the merits (“examination certificate”). 12. On 10 November 2015 the Moscow Region FMS dismissed the applicant’s refugee status application. The applicant appealed to the higher migration authority (the Federal Migration Service of Russia – “the Russian FMS”), asking it to overrule the decision of 10 November 2015, to issue him with an examination certificate, and to allocate him to a centre for the temporary detention of aliens. 13. On 29 December 2015 the Russian FMS dismissed the applicant’s appeal on the grounds that he had not received any direct threats targeted against him personally and that “the applicant [had not submitted] convincing evidence that he might become a victim of persecution by ISIS militants or Iraqi authorities on the grounds contained in the definition of the term ‘refugee’, including his religion”. The issue of the applicant’s stay in Sheremetyevo Airport was not addressed in the decision. 14. The applicant’s lawyer was served with the decision of 29 December 2015 on 23 January 2016. 15. On 1 February 2016 the applicant lodged an appeal against the decisions of 10 November and 29 December 2015 with the Basmannyy District Court of Moscow. He specifically argued that the migration authorities had not complied with the procedural rules by failing to interview him speedily or to issue him with an examination certificate, and that he had spent more than six months in the transit zone of Sheremetyevo Airport in conditions contrary to the guarantees of Article 3 of the Convention, without access to shower and other amenities. 16. On 17 March 2016, having been resettled by UNHCR, the applicant left for Denmark. 17. On 12 May 2016 the Basmannyy District Court of Moscow upheld the Russian FMS’s decision. On the same date the applicant’s lawyer lodged a brief statement of appeal («краткая апелляционная жалоба»), pending receipt of a reasoned judgment in written form. By 5 July 2016 (the date on which the applicants submitted their written observations to the Court), no such reasoned judgment had been issued. 18. The applicant was born in 1988. He holds a passport issued by the Palestinian Authority. 19. Between April 2013 and August 2015 the applicant was in Irkutsk, Russia. It appears that initially he had held a valid entry visa but that he did not take steps to obtain permission to reside in Russia after its expiry. 20. In August 2015 the applicant travelled from Russia to the Palestinian territories via Egypt. For unknown reasons he took a flight from Cairo back to Moscow on 23 August 2015. Because the applicant did not have a valid visa for Russia, he was denied entry to the country by the border guard service. 21. From 23 August 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. The applicant sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area. 22. Three weeks after his arrival at Sheremetyevo Airport, the applicant lodged an application for refugee status. In the course of the ensuing proceedings he mentioned that he had left Palestine because of the ongoing hostilities in the Gaza Strip and the West Bank, as well as a lack of employment and the poor economic situation. 23. On 1 December 2015 the Moscow Region FMS dismissed the applicant’s refugee status application as ill-founded. The applicant’s lawyer appealed to the Russian FMS, arguing that the applicant did not have any possibility to return to his home in the Gaza Strip, that the Moscow Region FMS had failed to assess his personal situation and the risk he would face if returned to Palestine, and that the Moscow Region FMS, in breach of the Refugees Act (FZ-4528-1 of 19 February 1993), had not issued him with an examination certificate. 24. On 31 December 2015 the Russian FMS dismissed the appeal for the reason that the applicant had “failed to provide evidence confirming that he runs a higher risk of becoming a victim of the Palestine-Israel conflict than the rest of the population of the Palestinian National Autonomy”. The applicant’s lawyer was informed of that decision on 15 January 2016. 25. On 1 February 2016 the applicant lodged an appeal against the migration authorities’ decision with the Basmannyy District Court of Moscow. 26. On 13 February 2016 the Egyptian authorities opened the Rafah crossing point to Gaza. The applicant agreed to take a flight to Egypt and left the transit zone of Sheremetyevo Airport. 27. On 12 May 2016 the Basmannyy District Court of Moscow upheld the Russian FMS’s decision. The applicant’s lawyer lodged a brief statement of appeal on the same date, pending receipt of a reasoned judgment in written form. By 5 July 2016, no such reasoned judgment had been issued. 28. The applicant is a Somalian national who was born in 1981. 29. In 2005 the applicant moved from Somalia to Yemen, where he was granted refugee status. In 2015 he decided to leave Yemen. 30. The applicant travelled by air to Havana, Cuba, a journey that consisted of three legs: Sana’a to Istanbul, Istanbul to Moscow, and Moscow to Havana. On 13 March 2015 the applicant landed in Moscow for the first time; he then continued his journey to Havana. 31. On 9 April 2015 the applicant was deported from Cuba to Russia. The Russian border guard service did not allow him to pass through passport control. 32. From 9 April 2015 onwards, the applicant has been staying in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. He sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area. 33. On 10 April 2015 the applicant lodged an application for refugee status, arguing that he had fled Somalia in 2005 because he had received threats from members of a terrorist group. 34. On 1 July 2015 the Moscow Region FMS interviewed the applicant. However, they did not issue him with an examination certificate. 35. On 1 October 2015 the Moscow Region FMS dismissed the applicant’s refugee status application. 36. On 17 October 2015 the applicant’s brother was killed in Mogadishu, Somalia. 37. On 7 December 2015 the Russian FMS dismissed an appeal by the applicant against the decision of 1 October 2015. 38. On 22 December 2015 the Moscow Region FMS refused to grant the applicant temporary asylum. On 10 February 2016 the Russian FMS upheld that decision. 39. On 19 May 2016 the Basmannyy District Court of Moscow dismissed an appeal lodged by the applicant against the decisions by the Moscow Region FMS and the Russian FMS to dismiss his application for temporary asylum. It reasoned, in particular, that the applicant had not proved that the terrorists who had threatened him in 2005 represented any danger more than ten years later and that, should such threats persist, he “has not been deprived of an opportunity to avail himself of the protection of his State of nationality [– that is to say] to apply to the law-enforcement agencies of the Republic of Somalia [for protection].” On the same date the applicant’s lawyer appealed. On 20 September 2016 the Moscow City Court dismissed the appeal. On 6 February 2017 it dismissed in the final instance the applicant’s complaint about the refusals to grant him refugee status. 40. Having received the final rejections of his applications from the Russian authorities, the applicant decided that he did not have any chance of obtaining asylum in Russia. On 9 March 2017 he left for Mogadishu, Somalia. 41. The applicant, Hasan Yasien is a Syrian national who was born in 1975 in Aleppo. 42. On 4 July 2014 the applicant arrived in Moscow from Beirut, Lebanon, holding a business visa valid until 25 August 2014. 43. On 10 September 2014 he applied for temporary asylum to the Moscow City Department of the Federal Migration Service (“the Moscow City FMS”), claiming to have fled Syria because of the ongoing civil war there. That application was refused on 8 December 2014. 44. It appears that the applicant remained in Russia despite that refusal. 45. On 18 August 2015 the applicant took a flight from Moscow to Antalya, Turkey. The Russian border guard service seized his passport and handed it over to the aircraft crew. The Turkish authorities denied the applicant entry to the country and sent him back to Moscow on 20 August 2015. Upon the applicant’s arrival, the Russian authorities sent him back to Antalya. The Turkish authorities then returned the applicant to Moscow. 46. On 8 September 2015 the applicant took a flight to Beirut, but the Lebanese authorities denied him entry to the country and sent him back to Moscow. The Russian border guard service did not allow him to pass through passport control. 47. From 9 September 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. He described the conditions of his stay in the transit zone as follows. The applicant slept on a mattress on the floor in the waiting area of the airport, which was constantly lit, crowded and noisy. He received basic food, clothing and sanitary wipes once a week from the Russian office of UNHCR. Given the absence of any refrigerator or kitchen, his rations were extremely limited. Throughout the whole period of his stay in the transit zone the applicant did not have access to a shower. 48. The applicant applied to the Moscow Region FMS for temporary asylum. On 21 December 2015 the Moscow Region FMS dismissed the request. 49. On 4 February 2016 the Russian FMS dismissed an appeal by the applicant against its refusal of 21 December 2015 to grant him temporary asylum. It noted, in particular, that there were regular flights from Moscow to Damascus, from where Syrian nationals could travel to other parts of the country, and that “many Syrians wish to leave the country not only because of a fear for their lives but, in large part, because of the worsening economic and humanitarian situation”. 50. On 7 April 2016 the applicant once again tried to lodge an application for refugee status through the border guard service. He received no response. 51. On 11 April 2016 the applicant complained to the Zamoskvoretskiy District Court of Moscow about the refusal of the Moscow Region FMS and Russian FMS to grant him temporary asylum and about his allegedly unlawful detention in appalling conditions in the transit zone of Sheremetyevo Airport. 52. On 11 May 2016 the applicant was resettled by UNHCR and left for Sweden. 53. On 21 July 2016 the applicant’s lawyer submitted additional documents to the Zamoskvoretskiy District Court of Moscow in support of the applicant’s claims regarding the risks that he would face if returned to Syria. The outcome of the proceedings is unknown. | 1 |
test | 001-139996 | ENG | TUR | CHAMBER | 2,014 | CASE OF KASAP AND OTHERS v. TURKEY | 3 | 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);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić | 5. The applicants were born in 1958, 1974, 1979, 1982 and 1974 respectively and live in Adana and Mersin. 6. Murat Kasap was the first applicant’s son and the other applicants’ brother. 7. At around 8.30 p.m. on 29 September 2006, Murat Kasap and his friend R.S. were riding on a motorcycle in the Adana district. When they realised that two police officers wanted them to stop, they panicked because they did not have driving licences. They started driving away and the two officers, I.H.Y. and H.B., gave chase until Murat Kasap and R.S. crashed into a wall. 8. Immediately after the accident, H.B. arrested R.S. but Murat Kasap started to run away, followed by the officer I.H.Y. 9. Meanwhile, R.S. made an attempt to escape. In order to stop him from running away, the officer who stayed with him fired two shots in the air. R.S. told the officer that there was no need to open fire, and explained that Murat Kasap was running away because he had panicked. If he were to be allowed to telephone him, his friend would give himself up. He also stated that he knew where Murat Kasap lived. 10. I.H.Y. heard the shots fired by his colleague and thought that Murat Kasap might have a gun. According to his statement, he ordered Murat Kasap to stop and fired three shots in the air. While he was running after Murat Kasap, he lost his balance and his pistol went off. The bullet hit the ground, ricocheted, and entered the back of the body of Murat Kasap, who died on the way to hospital. 11. The incident was notified to the Ceyhan public prosecutor, who immediately gave instructions for security precautions to be taken. A crime scene examination team arrived at the site of the incident and encircled the crime scene with barrier tape. 12. At 9.15 p.m. on the same night, a prosecutor went to the site of the incident. The prosecutor questioned the eyewitness and prepared an incident report. 13. On the same night, R.S. was questioned by two police officers at the Ceyhan Police Headquarters. He described the incident but was not aware of the death of Murat Kasap. 14. On the same night at 10.50 p.m., the guns of the police officers were seized as evidence. 15. At 12.45 a.m. on the same night, a post-mortem examination was carried out on the body of Murat Kasap. The public prosecutor and the doctor observed a bullet entry wound on his back. The doctor was of the opinion that a full autopsy was needed to establish the cause of death. After the examination, Murat Kasap’s clothes were seized in order to be able to determine the exact shooting range. 16. At 2.15 a.m. on the same night, the public prosecutor questioned the officer H.B. at a police station. 17. According to a crime scene investigation report which was drawn up by two other police officers under the supervision of the public prosecutor, six bullet cases and a bullet jacket were found at the site of the incident. 18. On 30 September 2006 at 7.00 a.m. a complete examination of the motorcycle was carried out. 19. On 30 September 2006 a full autopsy was carried out on Murat Kasap’s body. The public prosecutor and the experts observed that the cause of death was internal bleeding caused by the entry of a deformed bullet. 20. On the same day, the officer I.H.Y. was questioned by the Ceyhan public prosecutor. According to his statement, the death of Murat Kasap was the result of an accident. He maintained that he had not shot Murat Kasap intentionally but that his pistol had gone off accidentally when he lost his balance. 21. Also the same day, and after having been questioned by the Ceyhan public prosecutor, the officer I.H.Y. was brought before the Ceyhan Magistrates’ Court (Sulh Ceza Mahkemesi), where he pleaded not guilty and reiterated the statement he had made before the public prosecutor earlier in the day. 22. Also on 30 September 2006, the Ceyhan Magistrates’ Court ordered I.H.Y.’s detention. 23. On 2 October 2006, the applicants found another bullet case at the site of the incident and handed it to the public prosecutor. 24. On 4 October 2006 the parents of Murat Kasap made an official complaint to the Ceyhan public prosecutor and asked for those responsible for the death of their son to be punished. 25. On 1 November 2006 the Ceyhan public prosecutor filed an indictment with the Ceyhan Criminal Court of First Instance and charged the officer I.H.Y. with the offence of causing death by negligence. 26. On an unspecified date, Murat Kasap’s parents joined the criminal proceedings against the officers as civil parties (müdahil). 27. On 29 November 2006 the Ceyhan Criminal Court of First Instance considered the possibility that the officer I.H.Y. might have acted with intent to kill and decided that that would necessitate a reclassification of the offence attributed to him. It therefore decided to forward the case file to the Ceyhan Assize Court, which has jurisdiction to deal with such offences. 28. Following an objection by the officer I.H.Y., on 30 November 2006 the Ceyhan Assize Court ordered I.H.Y.’s release pending trial. 29. On 19 January 2007 the Ceyhan Assize Court declined jurisdiction to examine the case on the grounds that the offence attributed to the officer I.H.Y. was causing death by negligence. It decided that the Ceyhan Criminal Court of First Instance had jurisdiction over this offence. The Assize Court also decided to transfer the case file to the governor’s office for authorisation to be granted in order to prosecute the officer. 30. The parents of Murat Kasap lodged an objection against the decision of non-jurisdiction and on 19 March 2007 their objection was accepted by Osmaniye Assize Court. 31. On 29 August 2007 the Ceyhan governor’s office decided not to grant authorisation for the prosecution of I.H.Y. 32. On 9 October 2007 Murat Kasap’s parents lodged an objection against the governor’s decision. 33. On 14 November 2007 the Adana Regional Administrative Court quashed the governor’s decision and forwarded the case file to the Ceyhan public prosecutor. 34. On 11 December 2007, the Ceyhan public prosecutor filed an indictment with the Ceyhan Assize Court and charged the officer I.H.Y. with the offence of murder with dolus eventualis (“olası kast”). 35. On an unspecified date, the Ceyhan Assize Court concluded that further ballistic examinations were necessary to establish how the trigger had been pulled. On 20 October 2008 the Forensic Medicine Institute issued a report, in which the experts noted that the pistol could only have been fired if pressure of between two and five kilograms had been applied to the trigger. 36. According to the Forensic Medicine Institute’s report dated 12 January 2009, both the bullet cases and the bullet jacket found at the crime scene came from the accused police officer’s pistol. 37. On 30 June 2009 the Ceyhan Assize Court found that, although the officer I.H.Y. had not attempted to kill Murat Kasap, he had used disproportionate force and caused his death by negligence. The Assize Court sentenced the officer to two years’ imprisonment but then reduced the sentence to one year and eight months’ imprisonment. Moreover, having regard to Article 231 of the Code of Criminal Procedure, it suspended the pronouncement of the judgment. 38. On an unspecified date, the first applicant submitted a petition to the High Disciplinary Council of the Ministry of the Interior asking for the officer I.H.Y. to be dismissed from his job as a civil servant. 39. By a letter dated 15 July 2009 the first applicant was informed that I.H.Y. had been suspended from his job for a period of ten months. 40. On 3 July 2009 the applicants lodged an objection against the Ceyhan Assize Court’s decision of 30 June 2009. 41. The objection was dismissed by the First Division of the Osmaniye Assize Court on 5 October 2009. 42. Meanwhile, on 20 July 2007 Murat Kasap’s parents had brought a case before the Adana Administrative Court against the Ministry of the Interior, requesting 200,000 Turkish liras (TRY) in compensation for the death of their son. 43. On 17 November 2009 the Adana Administrative Court allowed the claim in part and awarded Murat Kasap’s parents TRY 6,975 (approximately 3,150 euros (EUR) at the time) for pecuniary damage. The administrative court also awarded them TRY 20,000 (approximately EUR 9,000 at the time) in respect of non-pecuniary damage. 44. On an unspecified date, Murat Kasap’s parents lodged an appeal against the Adana Administrative Court’s decision. The examination of the appeal is still continuing before the Supreme Administrative Court. 45. After the Government had been notified of the present case, on 7 March 2013 the Human Rights Department of the Ministry of Justice applied to the General Directorate of Criminal Affairs of the Ministry of Justice requesting that a written order be issued pursuant to Article 309 of the Criminal Code to quash the judgment of the Ceyhan Assize Court dated 30 June 2009. As is apparent from the documents submitted to the Court, no such order was issued by the Ministry. 46. The suspension of the pronouncement of the judgment is regulated by Article 231 of the Code of Criminal Procedure, the relevant paragraphs of which read as follows: “... (5) If the accused, after being tried on the charges against him, is sentenced to a judicial fine or to imprisonment for less than two years, the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment means that the judgment does not have any legal consequences for the offender. (6) Suspension of the pronouncement of the judgment may be decided provided that; a) the offender has never been found guilty of a wilful offence; b) the court is convinced, taking into account the offender’s personality traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; and c) the damage caused to the victim or to society has been repaired by way of restitution or compensation. ... (8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years. ... (10) If the offender does not commit another wilful offence and abides by the obligations set out in the supervision order, the judgment of which the pronouncement has been suspended shall be annulled and the case discontinued. (11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may assess the offender’s situation and may decide that a certain part of the sentence, up to the half of the total sentence, will not be executed. If the conditions so permit, the court may also suspend the execution of a sentence of imprisonment or commute it to other optional measures. (12) An objection may be lodged against the decision to suspend the pronouncement of the judgment 47. Article 309 of the Code of Criminal Procedure, concerning references to the Court of Cassation by written order of the Ministry of Justice (Kanun yararına bozma), provides: “Where the Ministry of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, it may issue a formal order to the Chief Public Prosecutor requiring him to ask the Court of Cassation to set aside the judgment concerned ...” | 1 |
test | 001-156267 | ENG | LVA | CHAMBER | 2,015 | CASE OF MEIMANIS v. LATVIA | 3 | Remainder inadmissible (Article 35-3 - Manifestly ill-founded;Ratione personae);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | George Nicolaou;Guido Raimondi;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä | 5. The applicant was born in 1968 and lives in Riga. 6. He is currently on trial in criminal proceedings instituted on 30 December 2005 for an attempt to take a bribe, together with A.B. and A.S. At the time the applicant was the head of a division in the Economic Crime Bureau (Ekonomikas policijas birojs) in the Main Police Department in Riga (Rīgas galvenā policijas pārvalde). 7. According to the applicant, during his trial before the appellate court, he learned that an operational investigation (operatīvās uzskaites lieta) had been opened in respect of his co-defendant A.S. 8. According to the Government, on 27 December 2005 the operational investigation had been opened on the basis of information provided by a private person. On 28 December 2005 the relevant authority, the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs – the “KNAB”), had informed the prosecutor’s office about this. On the same date, a Supreme Court judge had authorised the interception of A.S.’s telephone conversations and the prosecutor’s office had authorised an undercover operation (operatīvais eksperiments). On 29 December 2005 the Head of the KNAB had authorised the interception of A.B.’s telephone conversations on the basis of section 7(5) of the Law on Operational Activities, and they included conversations with the applicant. On 30 December 2005 the KNAB had informed the prosecutor’s office about the operational measures under the same provision. The Government did not adduce any evidence in this connection. 9. On 22 January 2009 a judge of the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta), in the context of the criminal proceedings against the applicant, requested information about the operational investigation. 10. On 18 February 2009 a specialised prosecutor, having examined the material in accordance with section 35(1) of the Law on Operational Activities, replied that the operational investigation had been opened on 27 December 2005. In respect of the applicant, no interception of telephone conversations had been carried out in the context of that operational investigation. However, she noted that “his conversations were recorded if he was speaking to [a person], whose conversations were intercepted in accordance with the Law on Operational Activities”. According to the applicant, he learned about this information during the appellate court hearing on 22 October 2009. 11. On 22 October 2009 the applicant requested the prosecution authorities to review the lawfulness of the operational measures which had been carried out and asked specific questions concerning these measures. 12. On 4 November 2009 the specialised prosecutor replied, among other things, that on 28 December 2008 an undercover operation had been approved on the basis of section 15(3) of the Law on Operational Activities in the context of the operational investigation to record the manner in which the sworn attorney A.S. would proceed upon receipt of 19,500 Latvian lati (LVL), to be handed over to the officials of the economic crime police, to find out whether he would continue arranging for a bribe and to ascertain his possible accomplices. She also noted that the domestic law did not provide for independent judicial supervision of operational activities; such supervision was carried out by the Prosecutor General and specially authorised prosecutors in accordance with section 35(1) of the Law on Operational Activities. Finally, she noted that the operational investigation measures in respect of the applicant and his co-defendants had not been illegal and that there had been no breaches of the general principles governing operational activities contained in section 4 of that Law. 13. On 6 November 2009 the applicant lodged a complaint about the specialised prosecutor’s reply. 14. On 27 November 2009 a higher-ranking specialised prosecutor rejected the applicant’s complaint. She referred to section 35(1) and section 5 of the Law on Operational Activities. By reference to section 7(5) the prosecutor also explained that the authorities had learned during the interception of telephone conversations of A.S. that an offence was being planned for 30 December 2005 – the act of arranging for and taking a bribe – which would also involve officials from the State Police. In order to prevent further participation of officials in corruption-related offences, a decision was taken to intercept the telephone conversations of A.B. on the basis of section 7(5) of the Law on Operational Activities. The competence of the prosecution authorities did not include examination of whether that or other provisions were compatible with the Latvian Constitution; these issues could be determined by the Constitutional Court. 15. The applicant lodged a further complaint with the Prosecutor General, which was rejected by a final decision of 29 December 2009. With reference to sections 35(1) and 7(5) of the Law on Operational Activities, it was reiterated that no breaches of that Law had been found. 16. On 29 June 2010 the applicant lodged an individual constitutional complaint with the Constitutional Court (Satversmes tiesa). He alleged that (i) section 7(5) of the Law on Operational Activities was incompatible with Articles 89 (protection of human rights) and 96 (right to private life) of the Constitution (Satversme) and also with Articles 8 and 13 of the Convention, and (ii) the first and second sentence of section 35(1) of the Law on Operational Activities were incompatible with Article 89 and the first sentence of Article 92 (right to a fair trial) of the Constitution and also with Article 6 § 1 and Article 13 of the Convention. 17. On 16 July 2010 the Constitutional Court initiated proceedings in case no. 2010-55-0106 with regard to the compatibility of section 7(5) of the Law on Operational Activities with Article 96 of the Constitution and Article 13 of the Convention and the compatibility of the first sentence of section 35(1) of that Law with Article 92 of the Constitution alone. The Constitutional Court rejected the remainder of the applicant’s complaint. 18. On 6 September 2010 a judge dismissed the applicant’s request, among other things, to see the case materials, since it was contrary to the procedure laid down in the Law on the Constitutional Court. It was for the judge to take the necessary steps to prepare a case for adjudication (lietas sagatavošana izskatīšanai) in accordance with section 22 of the Law on the Constitutional Court. He also referred to section 22(9), section 24 and 22(2)(1) of the Law on the Constitutional Court (see paragraphs 34-35 below) to explain that the parties were entitled to see the case materials after the decision concerning adjudication had been taken and that it was for the judge to decide which institutions or officials were to be requested to submit additional information or documents. 19. On 5 November 2010 the judge dismissed the applicant’s request to see the written submissions filed by the Latvian Parliament (Saeima) in the proceedings on the grounds that such request had already been dismissed given that these submissions formed part of the case materials. 20. On 2 December 2010 the applicant requested permission to see at least the judge’s preliminary opinion (atzinums par lietas sagatavošanu izskatīšanai) before the preparation of the case was completed and before the preparatory meeting had taken place. The applicant sought the possibility of expressing his opinion on the proceedings and, in particular, on whether or not the case could be decided by means of an oral procedure, which was his preference. 21. On 17 December 2010 the President of the Constitutional Court replied to the applicant that the parties could see the case materials only after the decision concerning adjudication had been taken. That decision had been taken on 14 December 2010. Consequently, the applicant could see the case material. As regards the possibility of the proceedings being conducted orally or in accordance with a written procedure, he explained that this issue was to be determined by the Constitutional Court in accordance with section 22(8)-(10) of the Law on the Constitutional Court. This issue was first to be considered by the relevant judge, then by the President of the Constitutional Court and, subsequently, by all other judges in the preparatory meeting. The parties could express their opinion on this matter after they had seen the case materials. 22. On 21 January 2011 the applicant filed an opinion with the Constitutional Court and noted, among other things, that the case could not be decided through a written procedure and that an oral hearing should be held. He admitted that the written procedure before the Constitutional Court as such did not infringe his rights to be heard, but submitted that it had to be examined in each particular case and that the court was not allowed to reject a request in connection with the gathering of evidence without examining its necessity, significance or procedural legal grounds. 23. On 25 January 2011, in a closed preparatory meeting, the Constitutional Court examined the case materials and found that the documents contained therein were sufficient for the purposes of examining the case by means of a written procedure (sections 22(10) and 281 of the Law on the Constitutional Court). On 26 January 2011 the applicant was informed about this decision and was given 15 days to see the case materials and to give his opinion in connection with them (section 281(2) of the Law on the Constitutional Court). The applicant used this possibility. 24. On 11 May 2011 the Constitutional Court delivered its ruling in case no. 2010-55-0106 and held that the contested legal provisions complied with the Constitution and the Convention. The relevant part reads as follows: “11. ... It follows from the case materials that, on 27 December 2005, the KNAB opened an operational investigation. Interception of the Applicant’s telephone conversations was carried out from 29 to 31 December 2005, that is, for three days under section 7(5) of the Law on Operational Activities (see Case materials, Vol. 1, pp. 85 – 86). There is no dispute that the Applicant also participated in the telephone conversations which were intercepted. ... 13. The Applicant and the Ombudsman argue that the restriction of rights established in section 7(5) of the Law on Operational Activities is unclear. It is impossible to understand the meaning of ‘to prevent’. Nor can it be understood what preconditions need to be fulfilled in order to take operational measures under the special procedure where immediate action is required. Therefore, the restriction of rights established in the above-mentioned legal provision has not been provided for by a properly adopted law (see Case materials, Vol. 1, pp. 7 – 8, and Vol. 3, pp. 4648). ... 13.2. The Applicant argues that the provisions of section 7(5) of the Law on Operational Activities must be applied only when necessary to prevent serious or especially serious crimes. Consequently, the operational measures contained in this provision cannot be performed for the purpose of detecting (atklāt) a criminal offence. ... The first sentence of section 7(5) of the Law on Operational Activities provides that ... operational activities may be carried out to react immediately to threats of criminal offences as referred to in this provision and [that] corresponding operational measures [may be taken] to prevent these offences. However, the fact that detection of criminal offences has not been mentioned expressis verbis in section 7(5) of the Law on Operational Activities, does not exclude the obligation to observe the purpose of operational activities. [The Constitutional Court] can agree with the arguments of Parliament and the KNAB, namely, that when carrying out activities mentioned in section 7(5) of the Law on Operational Activities, a criminal offence can be prevented and detected as well. When taking operational measures to prevent criminal offences, some [other] criminal offence may also be detected. For instance, in the case of the taking of a bribe, operational measures may prevent a criminal offence, as well as identifying the persons involved in giving such a bribe. Therefore, it can be concluded that the term ‘to prevent’ in section 7(5) of the Law on Operational Activities includes not only prevention of crime, but also detection of other criminal offences. 13.3. ... [The Constitutional Court] does not agree with the opinion by the Ombudsman that section 7(5) of the Law on Operational Activities is unclear as it fails to establish preconditions which are necessary to allow immediate action to be taken in the form of operational measures under the special procedure. Section 7(5) of the Law on Operational Activities establishes two preconditions which allow ... operational measures. First, section 7(5) of the Law on Operational Activities enumerates specific circumstances ... Operational measures may be taken when required to prevent acts of terrorism, murder, banditry, riots, or other serious or especially serious offences. They are permissible also in circumstances of a real threat to the life, health or property of an individual. [The Constitutional Court considers that] this enumeration ... is exhaustive and sufficiently precise. Consequently, it excludes any possibility of operational measures under the special procedure in relation to the prevention of such criminal offences which are not indicated in the legal provision. Second, operational measures ... may be taken ... only when an immediate action is required. Interpreting this legal provision in conjunction with section 17(3) of the Law on Operational Activities, [the Constitutional Court] concludes that covert interception of non-public conversations is allowed only when [there is] reliable information (pamatotas ziņas) about persons’ involvement in a criminal offence, as well as a threat to important interests of the State, its security or defence. Consequently ... operational measures ... may be taken if [there is] reliable information regarding the involvement of an individual in a criminal offence. Section 7(5) of the Law on Operational Activities provides for an exceptional procedure, namely, it allows ... immediate operational measures to be taken because any delay might significantly influence their results. Taking into account the seriousness of the offences referred to in section 7(5) of the Law on Operational Activities, it is important to provide a timely and effective response to prevent all threats related to such crimes. Section 7(5) of the Law on Operational Activities establishes the preconditions for its application [with sufficient precision]; consequently, the restriction on the fundamental rights has been established by law. ... 17. The Applicant indicates that section 7(5) of the Law on Operational Activities does not provide an obligation ... to receive approval by a judge in cases where operational measures are terminated within ... 72 hours (see Case materials, Vol. 1, pp. 26 – 27). 17.1. Sections 7(2) and 7(3) of the Law on Operational Activities establish two procedures for taking operational measures, namely, under the general and special procedures. Such classification is closely related to the nature of operational measures and their impact on the fundamental rights of persons. In the cases established in section 7(5) of the Law on Operational Activities, operational measures must be taken under the special procedure as they significantly impinge on the fundamental rights of persons. The Constitutional Court considers that the grammatical wording of section 7(5) of the Law on Operational Activities [does not clearly indicate] whether it is necessary to obtain approval by the President of the Supreme Court or a specially authorised judge in cases when operational measures are terminated within ... 72 hours. 17.2. In order to determine the content of section 7(5) of the Law on Operational Activities, it must be interpreted in conjunction with other provisions of the same section regulating operational measures to be taken under the special procedure. Section 7(5) of the Law on Operational Activities contains a reference to section 7(4) setting out the operational measures to be taken under the special procedure. These measures, including monitoring of correspondence and covert interception of non-public conversations, must be taken with the approval of the President of the Supreme Court or a specially authorised judge. Although section 7(5) of the Law on Operational Activities provides for exceptional circumstances where ... immediate action may be taken, it also establishes the obligation ... to obtain the approval of the President of the Supreme Court or a specially authorised judge for operational measures under section 7(4). Already when the draft of the Law on Operational Activities was being drawn up ... the need to receive a judge’s approval was emphasised in cases where operational measures would be taken under the special procedure (see Case materials, Vol. 1, pp. 171 and 173). The third sentence of section 7(5) of the Law on Operational Activities indicated that the operational measures had to be discontinued where no approval by a judge was obtained. According to the KNAB, this indication confirms that a judge’s approval must be sought only in cases where operational measures have not been terminated within ... 72 hours (see Case materials, Vol. 3, pp. 45). However, the Ministry of Justice and the Ombudsman indicate that such an interpretation ... would not comply with the essence of the Constitution (see Case materials, Vol. 3, pp. 48 and 54 – 55). Section 7(5) of the Law on Operational Activities contains no reference to the fact that no approval by the President of the Supreme Court or a specially authorised judge is necessary for operational measures to be taken under section 7(4) in the event that it is planned to terminate them within ... 72 hours. Consequently, [the Constitutional Court] cannot agree with the opinion by the KNAB that a judge’s approval does not have to be obtained if operational measures are terminated within ... 72 hours. ... 17.3. ... Consequently, section 7(5) of the Law on Operational Activities provides that a prosecutor must always be informed of the operational measures taken; this provision also obliges ... [the seeking of] approval by the President of the Supreme Court or a specially authorised judge. The restriction established in section 7(5) of the Law on Operational Activities must be regarded as the most lenient measure for fulfilling the legitimate aim because monitoring by a prosecutor and subsequent judicial scrutiny of the lawfulness of operational measures ensures effective protection of the rights of persons. 18. ... It is not possible to agree with the Applicant’s statement to the effect that the infringement of his right is greater than the benefit gained by society. By means of a lawful restriction of a person’s right to respect for his or her private life, the State helps to combat crime and permits ... immediate reaction to threats of criminal offences that are particularly dangerous for society, serving to prevent them and identifying the persons involved. When intercepting non-public conversations in the cases established in section 7(5) of the Law on Operational Activities, the protection of public safety is ensured. Consequently, operational measures taken to prevent criminal offences referred to in section 7(5) of the Law on Operational Activities must be regarded as proportionate and compliant with Article 96 of the Constitution only if approval by the President of the Supreme Court or a specially authorised judge has been obtained irrespective of the time when the operational measures are terminated. 19. The Applicant indicates that the [prosecutor’s office] cannot be regarded as an effective remedy in respect of his rights within the meaning of Articles 8 and 13 of the Convention (see Case materials, Vol. 1, pp. 17 – 18). The Constitutional Court has already established in its case-law that [an application to] the prosecutor’s office in Latvia may be regarded as an effective and available remedy, because the status and the role of the prosecutor in the supervision of law secures independent and impartial review of cases in compliance with Article 13 of the Convention (see Judgment of 11 October 2004 by the Constitutional Court in the case No. 2004-06-01. Para 19). In the present case it is necessary to examine whether section 7(5) of the Law on Operational Activities provides a person with protection compliant with Article 13 of the Convention in cases where the right to the inviolability of private life and correspondence guaranteed in the Convention is infringed. The Constitutional Court concludes that section 7(5) of the Law on Operational Activities establishes circumstances ... where operational measures may be taken immediately, as well as the procedure in accordance with which this has to be notified to a prosecutor and approval by a judge is to be obtained. However, this provision is not related to the right to an effective remedy under Article 13 of the Convention. Consequently, the compliance of section 7(5) of the Law on Operational Activities with Article 13 of the Convention must be assessed in conjunction with the first sentence of section 35(1) of that Law, the latter establishing a mechanism for monitoring operational measures and being contested by the Applicant as to its compliance with Article 92 of the Constitution. 20. The Applicant indicates that the first sentence of section 35(1) of the Law on Operational Activities fails to comply with Article 92 of the Constitution because it has no legitimate aim and it is not necessary in a democratic society. The provision fails to establish a procedure according to which the supervision and monitoring of performance of operational measures would be carried out. In the monitoring of operational measures, the first sentence of section 35(1) of the Law on Operational Activities confers on the prosecutor’s office a broad margin of appreciation (see Case materials, Vol. 1, pp. 20 – 21). 21.1. ... The Constitutional Court has already concluded in paragraph 17 above that [there is] an obligation to request, in any event, the approval of the President of the Supreme Court or a specially authorised judge in relation to operational measures. Consequently, the legislature has established such a regulatory framework for operational measures that requires not only monitoring by a prosecutor but also judicial supervision or at least subsequent judicial scrutiny of the lawfulness of the measures taken and their compliance with the requirements of the law. 20.2. ... The Constitutional Court has already indicated in its case-law that the prosecutor’s office, as a judicial institution, has a twofold nature. On the one hand it is a single, centralised three-level institutional system, under the management of the Prosecutor General, but – on the other – prosecutorial functions are carried out independently and solely by officials of the prosecutor’s office, that is, the individual prosecutors (see Judgment of 20 December 2006 by the Constitutional Court in the case No. 2006-12-01, Para 12.2). ... As to the taking of operational measures referred to in section 7(4) of the Law on Operational Activities, in cases established in section 7(5), ... a prosecutor, that is, the Prosecutor General or specialised prosecutors, must be notified within ... 24 hours (see Kavalieris A. Operatīvās darbības likuma komentāri. Rīga: Raka, 2002, pp. 26). Consequently, the Prosecutor General or specialised prosecutors also supervise the lawfulness of operational measures. Pursuant to section 22(2) of the Law on Operational Activities, operational proceedings (operatīvā izstrāde) are opened by a decision approved by a head or deputy head of the operational activities authority and a prosecutor is informed about this. Consequently, operational measures established in section 7(5) of the Law on Operational Activities ... must be notified to the Prosecutor General or a specialised prosecutor. The Constitutional Court indicates that in the event of receipt of such notice, the public prosecutor must monitor the compliance of the investigative operational measures with the requirements of the law, thus ensuring the observance of the rights of the person concerned. 20.3. The Applicant indicates that the possibility of securing protection for one’s rights is limited in cases where one’s telephone calls are intercepted (see Case materials, Vol. 1, pp. 10, 13, 18 and 22). ... It follows from the afore-mentioned that the Prosecutor General and specialised prosecutors review operational activities and, based on the results of such review, provide an opinion on the lawfulness of operational activities ... Review is necessary for the Prosecutor General and specialised prosecutors to ensure that operational measures have been lawful. However, the effective regulatory framework also establishes judicial supervision, including subsequent scrutiny. Consequently, [the Constitutional Court does not] agree with the opinion that the effective regulatory framework fails to provide independent subsequent scrutiny in respect of operational measures. Pursuant to section 29(3) of the Law on Operational Activities, if in the course of operational activities the rights and interests of persons have been unlawfully infringed and damage has been caused, the obligation of the relevant officials (prosecutor or court) shall be to restore such rights and to compensate for or avert the inflicted pecuniary and non-pecuniary damage in accordance with the law. Consequently, it can be concluded that the Law on Operational Activities establishes the responsibility of the officials of [the relevant body] in the case of any infringement of fundamental rights. ... Consequently, the investigating authority and the court ensure the review of the admissibility of information obtained by means of operational measures. However, the Prosecutor General and specialised prosecutors, by monitoring the conformity of operational activities with the law, as well as the court in carrying out subsequent scrutiny, ensure effective protection of a person’s rights. ...” | 1 |
test | 001-175500 | ENG | HRV | COMMITTEE | 2,017 | CASE OF SAMARDŽIĆ v. CROATIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Kristina Pardalos;Ksenija Turković | 5. The applicant was born in 1955 and lives in Pula. 6. In 1985 the applicant was employed by the T. company of Pula. On 22 August 1992 he sustained a work-related injury. He continued working for the T. company in another post. 7. On 6 February 2004 the applicant was made redundant following organisational changes within the company. The following day he concluded an agreement with the T. company shortening the notice period for the termination of his employment. 8. On 19 February 2004 the applicant was given his redundancy notice and his employment was terminated on 23 February 2004. 9. On 9 April 2004 the applicant was granted a disability pension with effect from 24 February 2004 on the grounds of his inability to work. 10. On 28 June 2004 the applicant instituted civil proceedings against the T. company in the Pula Municipal Court (Općinski sud u Puli). He alleged that he would have received more income if he had not sustained the work-related injury in 1992. He claimed damages relating to the difference between his disability pension and the salary he had received until the termination of his employment. 11. On 20 February 2008 the Pula Municipal Court dismissed his claim as unfounded. 12. The applicant appealed against the first-instance judgment, challenging all the factual and legal aspects of the case. 13. On 12 September 2011 the Pula County Court (Županijski sud u Puli), relying on section 373a of the Civil Procedure Act, dismissed the applicant’s appeal as unfounded. It agreed with the outcome of the case but held that the first-instance court had failed to take into account all the facts from the proceedings that had supported the dismissal of the claim. The relevant part of the judgment reads as follows: “... this appellate court finds that although the first-instance court failed to take into account all the facts emerging from the first-instance proceedings which meant [the plaintiff’s] claim had to be dismissed, the decision on dismissing the claim as unfounded is in any event correct, therefore the first-instance judgment is upheld by application of section 373a of the Civil Procedure Act. ... This appellate court therefore holds that the plaintiff’s claim was certainly to be dismissed, but for the reasons set out in this appellate decision; that is, that the reasons the first-instance court stated in the reasoning of its decision would not suffice for the claim to be dismissed. Therefore the first-instance decision is upheld on the basis of section 373a of the Civil Procedure Act ...” 14. On 5 December 2011 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the lower courts’ judgments. He stated that the appellate court had relied expressly on section 373a of the Civil Procedure Act, and that therefore he was lodging his appeal on points of law on the basis of section 382(1)(3) of that Act. 15. On 14 May 2013 the Supreme Court declared the applicant’s appeal on points of law inadmissible on the grounds that the appellate court in fact had not applied section 373a of the Civil Procedure Act, and that therefore his appeal on points of law could not be allowed. The relevant part of the decision reads as follows: “The first-instance court and the appellate court found that the plaintiff had not been dismissed because of his inability to work caused by the work-related injury, but that his employment had been terminated by dismissal due to redundancy and that therefore there was no causal link between his dismissal and the granting of the disability pension, so his claim for damages ... was dismissed as unfounded. Therefore, in this court’s assessment, the requirements for the application of section 373a of the Civil Procedure Act were not met, given that the appellate court did not establish, in the manner prescribed by section 373a of the Civil Procedure Act, a different set of facts to the one established by the first-instance court, but based its decision on the same facts.” 16. The applicant subsequently complained to the Constitutional Court (Ustavni sud Republike Hrvatske) about the Supreme Court’s decision on his appeal on points of law. He made no allegations of any violation of his rights in respect of the proceedings before the first-instance court or the appellate court. 17. On 16 October 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. The decision was served on the applicant’s representative on 25 October 2013. | 0 |
test | 001-181197 | ENG | RUS | COMMITTEE | 2,018 | CASE OF SHATOKHIN v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Dmitry Dedov;Luis López Guerra | 4. The applicant was born in 1982 and lives in the Altay region. 5. At the material time the applicant was serving a sentence for robbery in correctional colony no. LIU-8 in the Altay region. 6. On 22 June, 12 July and 20 December 2004 he attempted suicide by opening his veins. 7. On 12 July 2004 a prison psychiatrist diagnosed the applicant as suffering from a slight mental retardation, psychopathy and claustrophobia with elements of self-aggression. An entry was made in his medical records that solitary confinement was contraindicated for mental health reasons. The correctional colony authorities were informed accordingly. The applicant was prescribed treatment. Since that time he had been examined by the prison psychiatrist at regular intervals. The prison psychiatrist’s diagnosis and recommendations were confirmed by the psychiatric unit of prison hospital no. 12 where the applicant was treated from 2 to 26 April 2005. 8. On 3 May 2005 the governor of the correctional colony ordered the applicant’s placement in a punishment cell for thirteen days as a punishment for the disorderly state of his bed and bedside table. 9. On 5 May 2005 the applicant was examined by the prison doctor on duty who found that his state of health permitted his placement in a punishment cell, provided that he was not held in solitary confinement. 10. The applicant was then placed in punishment cell no. 32 designed to accommodate two inmates. He was left alone in the cell, but the door was kept open. 11. On the same day the applicant went on a hunger strike in protest against his placement in solitary confinement. 12. At 8 p.m. on 8 May 2005 the applicant was visited by the prison doctor on duty who examined him and found that his health was satisfactory. He reiterated the recommendation that given the applicant’s mental condition solitary confinement was contraindicated. 13. After the doctor left, the door of the applicant’s cell was shut. About an hour later the applicant had a panic attack and attempted to open his veins with his teeth. The doctor was called back. He noted numerous lacerated wounds on the applicant’s forearms and made bandages. 14. By letters of 15 June, 8 August and 1 November 2005 the applicant asked the prosecutor’s office of the Altay Region to initiate criminal proceedings against the warders on duty. 15. On 15 December 2005 a deputy prosecutor of Barnaul refused to open criminal proceedings. He referred to statements by a warder, Mr Sh., that the applicant had himself asked him to shut the door. Moreover, the applicant’s health had not been seriously damaged as a result of the incident. 16. It follows from the letter of 16 December 2005 from the prosecutor of Barnaul that the prosecutor’s office had found that the applicant had been lawfully placed in a punishment cell. At the same time, the warders had disrespected the doctor’s recommendation by leaving the applicant alone in a closed cell. The governor of correctional colony no. LIU-8 had been warned against “permitting similar incidents to occur in future”. 17. Following to further complaints by the applicant, in which he stated in particular that he had never asked the warders to close the door, the prosecutor of Barnaul conducted an additional inquiry. He questioned the applicant and Mr Sh. He also questioned warders Mr K. and Mr S. who testified that the door to the applicant’s cell had been temporarily closed to prevent his communication with other inmates who were at that time receiving clean bedding in the storage room opposite to the applicant’s cell. 18. On 27 January 2006 the prosecutor of Baranaul refused to open criminal proceedings against the warders. He found that the warders had acted in compliance with the internal regulations and had had no intention of provoking the applicant to self-injury. 19. The applicant challenged the prosecutor’s decisions of 15 December 2005 and 27 January 2006 before the Tsentralniy District Court of Barnaul. 20. On 27 September 2006 the Tsentralniy District Court upheld the prosecutor’s decisions, finding that the inquiry had been thorough and the refusals to open criminal proceedings had been lawful and justified. 21. The applicant appealed. He submitted, in particular, that the warders had known that he suffered from claustrophobia and had closed the door to take vengeance on him for going on a hunger strike. 22. On 2 November 2006 the Altay Regional Court upheld the decision of 27 September 2006 on appeal. | 1 |
test | 001-154616 | ENG | NLD | ADMISSIBILITY | 2,015 | KASANGAKI v. THE NETHERLANDS | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Jude Kasangaki, is a Ugandan national, who was born in 1977 and lives in Dronten. He was represented before the Court by Mr G.J. Dijkman, a lawyer practising in Utrecht. 2. 3. On 19 February 2010 the applicant lodged a request for asylum. 4. On 12 October 2011 the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel) gave a decision rejecting the applicant’s request as lacking an established basis in fact. This constituted a return decision (terugkeerbesluit). 5. The applicant lodged an appeal (beroep). 6. The Regional Court held a hearing on 24 January 2012. It sat in a formation consisting of a single judge, Judge L. 7. On 30 October 2012 the Regional Court (rechtbank) of The Hague, sitting in Zwolle, gave a decision dismissing the appeal. The decision states that it was given by two judges, Judge L. and Judge S. It was signed by Judge S. and the registrar (griffier). 8. The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) (hereafter “the Administrative Jurisdiction Division”). In addition to challenging the decision of the Regional Court on substantive grounds, he submitted a ground of appeal to the effect that the Regional Court had given its decision in a different composition than that which had held the hearing, and an illegal two-judge composition at that. 9. On 26 March 2013 the Regional Court informed the Administrative Jurisdiction Division at its request that the hearing had been presided over by Judge L. and that Judge L. and the registrar had discussed the case together. However, circumstances had led to the decision that the case should be further dealt with by Judge S. Judge S. and the registrar had discussed the case in private. The parties had not been informed of this development except through the decision in issue. 10. The Administrative Jurisdiction Division gave its decision on 18 April 2013. Noting that neither party had assented to the replacement of Judge L. without a new hearing and the decision had been signed by a different judge than the one who had presided over the hearing, it allowed the appeal without going into any of the other grounds, quashed the decision of the Regional Court and remitted the case for rehearing. 11. The Court has not been informed of the outcome of any subsequent proceedings. 12. On 29 November 2012, the applicant’s appeal having been dismissed by the Regional Court, the applicant was questioned by a police officer. The official record drawn up by the latter includes the following: “I [the police officer] gave the alien the requisite information. He stated: I have had discussions with the Immigration and Naturalisation Service (Immigratie- en naturalisatiedienst; ‘IND’) and with my lawyer Mr Gerben Dijkman. I know that I am to leave the Netherlands. My lawyer has lodged an appeal. That was dismissed. I know that I should have left the Netherlands on 30 October 2012. My lawyer has told me that I had 28 days after 30 October 2012 to leave the Netherlands. I had an appointment yesterday to discuss this. I was collected today from the asylum seekers’ centre in Almere. I have no work. I have lived at the asylum seekers’ centre continuously. I had food and drink there and I could sleep there. I have no money. I have no residence permit for any other European country. I have no relatives in the Netherlands or any other European country. I receive medication against stress and nightmares. I have no business interests in the Netherlands or any other European country. I asked the alien whether he had understood me. He stated that he had understood me and understands what I have told him. I have told him that I am placing him in aliens’ detention (vreemdelingenbewaring) because I do not trust him to leave the Netherlands, considering that he had 28 days to leave the Netherlands after 30 October 2012 and today is Thursday 29 November 2012. The alien had no satisfactory explanation for this. He did not wish to contact the Ugandan embassy or consulate.” 13. The police officer, acting in the name of the Deputy Minister for Security and Justice (Staatssecretaris van Veiligheid en Justitie, by this time the successor to the Minister for Immigration, Integration and Asylum Policy), ordered the applicant taken into aliens’ detention pursuant to section 59(1), introductory sentence and sub a, of the Aliens Act 2000 ((Vreemdelingenwet 2000), see below). According to the decision (a tick-box form), the measure was required by: “the interests of public order because there is a danger that the person concerned will evade supervision the person concerned is evading or impeding the preparation of his departure or the expulsion procedure; which is borne out by the facts or circumstances that the alien has previously received a visa, decision, information note or order from which the duty to leave the Netherlands is apparent and he has not done so of his own accord within the time-limit implied therein or set for that purpose; has no fixed abode; has no adequate means of subsistence[.]” 14. On various occasions the applicant was invited to cooperate in obtaining the requisite Ugandan travel documents and leave the country voluntarily. Each time he refused. 15. The applicant lodged an appeal against the detention order with the Regional Court (section 94(1) of the Aliens Act 2000; see below), which, having held a hearing on 10 December 2012, gave a decision on 17 December 2012 finding that the applicant’s detention was lawful. The applicant lodged a further appeal against this decision with the Administrative Jurisdiction Division, which was dismissed on 25 January 2013. 16. The applicant lodged two more appeals with the Regional Court of The Hague challenging his continued detention. The applicant sought his release on the ground that there was no realistic prospect of his actually being expelled. Decisions continuing the applicant’s detention were given on 29 January 2013 and 12 March 2013. 17. The applicant lodged a fourth appeal, invoking the same ground, on 10 April 2013. 18. A hearing took place on 23 April 2013 before the Regional Court of The Hague, sitting in Utrecht. Neither the applicant nor the Deputy Minister attended. On the same day the Deputy Minister informed the Regional Court by fax that the detention measure had been lifted. 19. Invited to comment, the applicant’s representative replied by fax the following day that he wished to continue the proceedings in order to claim damages under section 106 of the Aliens Act 2000 (see below). He argued that the applicant’s detention had become retrospectively unlawful as a result of the Administrative Jurisdiction Division’s decision of 18 April 2013 (see above). 20. On 4 June 2013 the Regional Court gave a decision dismissing the appeal. Its reasoning included the following: “The Regional Court considers that the fact that the decision of the Regional Court, sitting in Zwolle, of 30 October 2012 was overturned by the Administrative Jurisdiction Division and [the case] was remitted to the Regional Court does not mean that the continuation of the detention was unlawful at the time. The circumstance that in retrospect the asylum proceedings were in the appeal stage at the time of the period of detention in issue and the effect of the decision of the [Deputy Minister] was suspended constitutes, in the opinion of the Regional Court, only a temporary impediment. Moreover, there appear to be no reasons to believe that the appeal will not be decided in the foreseeable future (binnen afzienbare tijd). Already for this reason the Regional Court cannot follow the [applicant]’s arguments on this point. [The Deputy Minister] has lifted the measure of detention because of the decision of the Administrative Jurisdiction Division of 19 April 2013 and after having consulted this Regional Court, sitting in Zwolle. The Regional Court takes the view that the Deputy Minister] should be allowed a little time to consider the follow-up steps to be taken. [Since the detention was terminated] five days (including three working days) after the [Administrative Jurisdiction Division]’s decision the Regional Court sees no reason to hold that the detention was unlawful before 23 April 2013.” 21. No further appeal lay against this decision. 22. Administrative cases brought before the Regional Court shall normally be dealt with by a single-judge chamber (enkelvoudige kamer, section 8:10(1) of the General Administrative Law Act (Algemene wet bestuursrecht)), which may refer them to the multi-judge chamber (meervoudige kamer, section 8:10(2)). 23. Save as otherwise provided, a multi-judge chamber of a jurisdictional body shall consist of three judges (section 6(2) of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie)). 24. The relevant substantive provisions are the following: “1. If necessary in the interests of public order, or if national security so requires, Our [competent] Minister may, for the purpose of expulsion (uitzetting), order the detention of an alien who: (a) is not lawfully resident; ... 3. An alien’s detention shall not occur, or shall be terminated, as soon as he expresses the wish to leave the Netherlands and the opportunity to do so exists. 5. ... detention pursuant to the first paragraph shall not be of longer duration than six months. 6. In derogation from the fifth paragraph ... detention pursuant to the first paragraph may be extended by no more than twelve months if it is apparent that despite all reasonable efforts expulsion will take longer because of the alien’s failure to cooperate in his expulsion or the documents from third countries necessary for that purpose are still missing. ...” “1. If the Regional Court orders the lifting of a measure entailing deprivation of liberty, or the deprivation of liberty is lifted before the request for its lifting is considered, it may award the alien compensation at the expense of the State. Damage shall include non-pecuniary damage. [Article 90] of the Code of Criminal Procedure (Wetboek van Strafvordering) shall apply by analogy. ... 2. The first paragraph shall apply by analogy if the Administrative Jurisdiction Division orders the lifting of the measure entailing deprivation of liberty.” “1. Compensation shall be awarded in each case if and to the extent that the court, taking all circumstances into account, is of the opinion that there are reasons in equity to do so. ...” 25. The relevant legal remedies are prescribed by the Aliens Act 2000, which, in its relevant parts, provide as follows: “In derogation from Article 37 § 1 of the Act on the Council of State (Wet op de Raad van State), no further appeal lies against a decision of the Regional Court a. about a decision or act based on ... Chapter 5 [i.e. including section 59]; ..: d. about the grant of compensation as referred to in section 106.” “1. Our [competent] Minister shall notify the Regional Court of a decision to impose deprivation of liberty as referred to in [section 59] no later than the twenty-eighth day after communication of the decision, unless the alien himself has lodged an appeal first. As soon as the Regional Court has received the notification, the alien shall be deemed to have lodged an appeal against the said decision imposing deprivation of liberty. The appeal shall also constitute a request for the award of damages. 2. The Regional Court shall set the date for the examination of the appeal at the hearing immediately. The hearing shall take place no later than the fourteenth day after the notice of appeal or the notification, as the case may be, is received. The Regional Court shall summon the alien to appear either in person or represented by an authorised representative, and the competent Minister to appear represented by an authorised representative, in order to be heard. In derogation of section 8:42 of the General Administrative Law Act, [this time-limit] cannot be extended. 3. The Regional Court shall give its decision orally or in writing. If in writing, the decision shall be given no later than seven days after the closure of the examination of the appeal. In derogation of section 8:66 of the General Administrative Law Act, [this time-limit] cannot be extended. 4. If the Regional Court finds on appeal that the application or implementation of the decision [to impose deprivation of liberty] is contrary to this Act or is – on consideration of all the interests involved – not reasonably justified, it shall accept the appeal. In such a case the Regional Court shall order that the deprivation of liberty be terminated or the manner of its implementation altered. 5. The first, third and fourth paragraphs shall apply by analogy to a decision extending a measure entailing deprivation of liberty as referred to in section 59(6). ...” “1. In derogation from section 84 under a., a further appeal against the decision of the Regional Court referred to in section 94(1) shall lie to the Administrative Jurisdiction Division. ...” “1. If the appeal referred to in section 94 has been dismissed and the alien appeals against the continuation of the deprivation of liberty, the Regional Court shall terminate its preliminary investigation (vooronderzoek) within one week after receiving the notice of appeal. In derogation from section 8:57 of the General Administrative Law Act, the Regional Court may decide even without the assent of the parties that there shall be no hearing. 2. The Regional Court shall give its decision orally or in writing. If in writing, the decision shall be given no later than seven days after the closure of the examination of the appeal. In derogation of section 8:66 of the General Administrative Law Act, [this time-limit] cannot be extended. 3. If the Regional Court in considering the appeal finds that the imposition or execution of the measure is contrary to this Act or not reasonably justified on a balance of all the interests involved, it shall declare the appeal well-founded. In that case the Regional Court shall order the lifting of the measure or a change in the way in which it is executed. ” 26. On 21 March 2011 the Administrative Jurisdiction Division gave a decision (no. 201100307/1/V3, ECLI:NL:RVS:2011:BP9280) in which it held inter alia that although there was a close interconnection between the return decision on the one hand and an order of aliens’ detention on the other, joint consideration of the two in a single appeal was possible only if both were included in a single decision. If the return decision was given separately, then the system of legal remedies provided by the Aliens Act 2000 prevented the competent administrative tribunal from considering the lawfulness of the return decision together with the order of aliens’ detention. In the latter event, it was only if the return decision was held to be unlawful in the dedicated proceedings that the tribunal called upon to consider the lawfulness of the aliens’ detention could be faced with the question what consequences might result for the lawfulness of aliens’ detention. This did not mean that the alien was denied a legal remedy in this respect, since the lawfulness of the return decision could be challenged in separate administrative proceedings and the possibility existed to seek an order for a provisional measure from the provisional measures judge (voorzieningenrechter) if need be. 27. On 14 May 2012 the Administrative Jurisdiction Division gave a decision (no. 201200935/1/V3, ECLI:NL:RVS:2012:BW6197) in which it held obiter dictum that if a return decision was annulled on the ground that it was unlawful, then any aliens’ detention ordered in pursuance of that decision became retrospectively unlawful and entitled the alien concerned to compensation under section 106 of the Alien’s Act notwithstanding any previous judicial decision finding the detention to be lawful. The actual case, however, was different in that the return decision had not been annulled on grounds of unlawfulness. | 0 |
test | 001-182451 | ENG | TUR | CHAMBER | 2,018 | CASE OF SADRETTİN GÜLER v. TURKEY | 4 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 13+11 - Right to an effective remedy (Article 13 - Effective remedy) (Article 11 - Freedom of assembly and association;Article 11-1 - Freedom of peaceful assembly) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström | 5. The applicant was born in 1962 and lives in Istanbul. 6. At the material time, the applicant was a civil servant in the Metropolitan Municipality of Istanbul and a member of the local branch of the Tümbel-Sen trade union, which is affiliated to the KESK (Kamu Emekçileri Sendikaları Konfederasyonu – the Confederation of Public Employees’ Trade Unions). 7. In April 2008 two of the largest trade unions, namely the DİSK (Devrimci İşçi Sendikaları Konfederasyonu – Confederation of Revolutionary Workers’ Trade Unions) and the KESK (Kamu Emekçileri Sendikaları Konfederasyonu – Confederation of Public Employees’ Trade Unions) announced that they were planning a large scale demonstration in Istanbul for 1 May 2008 and that their members would be gathering to celebrate the Labour Day and to commemorate their friends who had lost their lives during the demonstrations of 1 May 1977. 8. In May 2008 the applicant was informed that a disciplinary investigation had been initiated against him for being absent without leave on 1 May 2008 and he was asked to submit his defence submissions. The applicant explained that he had participated in a demonstration organised by his trade union on that day to celebrate International Labour Day. 9. Subsequently, the applicant was given a warning as a disciplinary sanction owing to his being absent without leave on 1 May 2008 pursuant to section 125 of the Civil Servants Act (Law no. 657). 10. On 13 May 2008 the applicant objected to the decision and requested its annulment. 11. On 16 May 2008 the Disciplinary Board of the Istanbul Municipality dismissed the applicant’s objection, finding that the contested decision was in accordance with the law and that there were no grounds to annul it. | 1 |
test | 001-144944 | ENG | RUS | CHAMBER | 2,014 | CASE OF SHEKHOV v. RUSSIA | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition) | Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicant was born in 1959 and is now serving his sentence in a correctional colony in the Chelyabinsk region. 6. On 14 March 2002 the applicant was arrested and charged with double murder and attempted murder. 7. During the trial the applicant was represented by State-appointed counsel, Mr A. 8. On 8 October 2003 the Chelyabinsk Regional Court, in a trial by jury, convicted the applicant as charged and sentenced him to twenty-five years and eleven months’ imprisonment. 9. The applicant appealed, unassisted by counsel. He submitted, in particular, that he had acted in self-defence and asked for reduction of the sentence from murder to manslaughter. 10. On 8 December 2003 the applicant was notified that the appeal hearing would be held on 23 January 2004. According to the Government, his counsel, Mr A., was also informed by telegram of the date of the appeal hearing. 11. On 23 January 2004 the Supreme Court of the Russian Federation held an appeal hearing. The applicant and the prosecutor were present. Counsel Mr A. did not attend. According to the applicant, he had asked for replacement counsel to be appointed for him. According to the Government, no such request had been made. On the same day the court upheld the conviction and reduced the sentence to twenty-five years and five months’ imprisonment. 12. In April 2004 the applicant was transferred to correctional colony no. 16/9 in Omsk, where he remained until January 2005. 13. On 8 April 2004 the Court sent the applicant at his request the text of the Convention, an application form together with the explanatory note, an authority form, and the notice to applicants. On 6 May 2004 the letter was received by the Chelyabinsk remand centre where the applicant had been previously held. It was opened, stamped, and then transferred to colony no. 16/9 in Omsk. 14. According to the applicant, on 6 July 2004 a deputy head of the Omsk Department of Execution of Sentences had summoned him and strongly advised him not to submit an application to the Court. Immediately after this conversation he had been put in a disciplinary cell for eight days. According to the Government’s account, it was the applicant who had asked for a meeting with the official. At the applicant’s request, the official had explained to him the procedure for applying to the Court. He had not made any threats. The applicant had then been put into a disciplinary cell for having sent a letter through informal channels instead of sending it via the detention facility’s administration. 15. On 10 July 2004 the Court’s letter of 8 April 2004 was received by the staff of colony no. 16/9 and was opened and stamped. According to the applicant, he had received the covering letter of 8 April 2004 and the text of the Convention on 15 July 2004. The other enclosures and the envelope had not been given to him. According to the Government, all the enclosures had been handed over to the applicant on 10 July 2004. 16. On 23 June 2004 the applicant sent an improvised application form to the Court. 17. The applicant stated that on 9 August 2004 he had been summoned by the head of correctional colony no. 10 in Omsk, who had issued the threat that if he did not stop complaining, he would regret it. According to the Government, it was the applicant who had asked for a meeting with the head of the correctional colony. No threats had been made to the applicant during the meeting. 18. On 18 August 2004 the applicant was temporarily transferred to medical correctional facility no. 10 in Omsk for anti-tuberculosis treatment. 19. The applicant stated that on 15 October 2004 he had handed a sealed envelope containing a letter to the Court to the medical correctional facility’s administration. The letter had been opened, stamped and dispatched to the addressee. The Government stated that the applicant had handed the letter to the detention facility staff unsealed. 20. According to the applicant, the detention facility’s administration had refused to dispatch many of his letters to the Court, and he had therefore had to send them through informal channels. The Government stated that all his letters had been dispatched. 21. The applicant complained to various State authorities about the opening of and the failure to dispatch his letters to the Court. In a letter dated 15 May 2006, the prosecutor’s office informed the applicant that there had been no evidence of any failure to dispatch his letters. 22. On 11 October 2007 the medical correctional facility’s administration received another letter from the Court addressed to the applicant acknowledging receipt of his correspondence. That letter was opened, stamped and then given to the applicant. The employee who had opened the letter was subsequently disciplined. | 1 |
test | 001-156078 | ENG | HUN | CHAMBER | 2,015 | CASE OF GÉGÉNY v. HUNGARY | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | András Sajó;Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano | 5. The applicant was born in 1966 and is currently detained at Sátoraljaújhely Prison. 6. On 19 October 2001 he started to serve a prison sentence at Szeged Prison, where he remained until 30 January 2006. According to the applicant, he spent 63 months with eleven other inmates in three different cells (nos. 356, 358 and 215) measuring 27 square metres each, including sanitary facilities. The cells were equipped only with one tap and a toilet, separated from the living area only by a curtain. The dining table was fixed to the floor just a metre away from the toilet. The applicant had a daily onehourlong outdoor activity. The yards were closed premises measuring 40 by 20 metres, about 100-150 persons being taken to the yard at a time. The applicant was also entitled to thirty minutes’ exercise in the gym three times a week. He attended secondary school classes three times a week, six hours on each occasion. 7. On 30 January 2006 the applicant was transferred to Budapest Prison Unit “B”, where his cells (nos. 316, 130, 325, 211, and 206) measured 27 square metres and were occupied by him and seven other men (that is, 3.4 square metres gross living space per inmate). The cells had no ventilation system and were infested with parasites. Detainees were permitted to take a shower once a week, according to the applicant, in unhygienic conditions and for no longer than 1-2 minutes. The applicant was entitled to a daily walk of about one hour in the prison yard measuring 20 by 20 metres. He indicated, however, that he was not able to go outdoors during the period between 20 June 2009 and 12 May 2010 on those days when he was employed as a librarian. 8. Between 12 May 2010 and 27 May 2011 the applicant continued to serve his sentence in Unit “A” of Budapest Prison. He was kept in five cells described as follows: cell nos. 8, 9 and 141 (8 square metres, three inmates), and cell nos. 3 and 252 (6.5 square metres, two inmates). Only a curtain was used as a partition between the toilet and the living area. Throughout his detention the applicant had no out-of-cell activities other than a daily one-hour walk in the yard of the prison facility, gym exercise twice a week for about 50 minutes each time and a weekly visit to the library for about 15 minutes. The inmates were allowed one shower per week. The shower room was equipped with four shower heads. There were about 25 inmates taken to have a shower at the same time, making it impossible to move around because of the sheer number of prisoners. 9. On 27 May 2011 the applicant was transferred back to Unit “B” of Budapest Prison, where he spent two years in five different cells. The size of those cells was 27 square metres. The occupancy rate varied between 8 persons (that is, 3.38 square metres gross living space per inmate) and 10 persons (that is 2.7 square metres gross living space per inmate). 10. Since 16 June 2013 the applicant has been detained at Sátoraljaújhely Prison with three other inmates in a cell measuring 8 square metres. | 1 |
test | 001-154619 | ENG | HRV | ADMISSIBILITY | 2,015 | Z AND OTHERS v. CROATIA | 4 | Inadmissible | Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 1. The President of the Chamber acceded to the applicants’ request not to have their names disclosed (Rule 47 § 3 of the Rules of Court), as well as to a request by the Government to grant confidentiality to the case (Rule 33 § 1 of the Rules of Court). The applicants were represented before the Court by Mr M. Cornell of Holmes and Hills Solicitors, a lawyer practising in Braintree, the United Kingdom. 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. At 6.55 a.m. on 24 November 1991 a dead body was found on the outskirts of city X. The police carried out an on-site inspection the same day. The crime scene was photographed, and biological samples and other evidence were collected from the dead body. The body was identified as A, the applicants’ respective husband and father. A tooth was found on the body. An autopsy was carried out and it was established that A had been struck several times on the back of his head with a hard object, and this had caused his death. On the same day the police lodged a criminal complaint with the X State Attorney’s Office in respect of the killing of A by unknown perpetrators. 5. The police interviewed the person who had found A’s body on 24 November 1991, but he knew nothing about the circumstances of the killing. 6. The investigation into A’s killing was opened on 24 November 1991 in the Zagreb County Court. 7. On 25 November 1991 the first applicant, A’s wife, was called to identify A’s body. On the same day the police interviewed B, who said that at 6.05 p.m. on 23 November he had seen a van going to the area where A’s body was subsequently discovered. The van had returned after about fifteen minutes and stopped. The driver had said that they were on their way to a wedding in restaurant Y. B had seen that the driver was wearing a camouflage uniform. There were three other men in the van. B. gave a detailed description of the van. 8. On the same day the police interviewed the first applicant, who told them that A had frequented restaurant Y on a daily basis. The police also interviewed the second applicant and her husband, some of A’s neighbours and the manager of restaurant Y, who confirmed that there had been a wedding reception in the restaurant on 23 November 1991 and that a number of Croatian soldiers had been present. 9. On 27 November 1991 an expert established that the tooth found on A’s body belonged to a younger person. 10. On 6 December 1991 the police interviewed C, a Croatian soldier who had been present at the wedding reception in Y on 23 November 1991. He said that he had spotted A next to the van in which he and some of his friends had come to the wedding, and had seen that A was noting down the licence plate numbers of the van and of another vehicle parked near-by. C had called his colleagues, D, E and F, and they had forced A into the van and driven to the outskirts of X, where they stopped under a bridge. They had taken A out of the van and D had told him to climb onto a river bank; A had refused. A commotion had ensued, in the course of which A had hit C in the mouth and kicked his tooth out. D, E and F had then continued to strike A. E had taken a metal implement from the van. C took it from him and struck A, killing him. C had pushed A’s body into the river and had then thrown the metal implement into the river. 11. On the same day the police interviewed D, E and F. D and E confirmed the events as described by C, and F said that all four of them had stayed at the wedding reception in restaurant Y throughout the entire night of 23 to 24 November. 12. On 7 December 1991 the X County State Attorney’s Office asked for an investigation to be opened in the X County Court. 13. On the same day an investigating judge of the X County Court heard evidence from C, D, E and F. C, accompanied by his defence lawyer, denied any involvement in the killing of A. D and E repeated the statements they had given to the police. F, accompanied by his defence lawyer, remained silent. The investigating judge opened an investigation in respect of C, D, E and F in connection with the killing of A. 14. During the investigation an opinion was commissioned from a dental expert. He established that the tooth found on A’s body did not belong to any of the suspects. In their further statements during the investigation C, D and E denied the charges against them while F remained silent. 15. On 17 January 1992 C, D, E and F, were indicted on charges of murdering A. The proceedings were conducted before the X Military Court. 16. On 25 September 1992 the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia (Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv Republike Hrvatske) was enacted. 17. On 24 November 1992, pursuant to the General Amnesty Act, the X Military Court terminated the proceedings. 18. On 1 July 1993 the State Attorney lodged a request for the protection of legality (zahtjev za zaštitu zakonitosti) with the Supreme Court, asking it to establish that the termination of proceedings was contrary to law. On 8 September 1993 the Supreme Court established that the request for the protection of legality was well-founded. However, this finding had no effect on the decision to grant the accused amnesty (see paragraph 28 below, Article 422 of the Code of Criminal Procedure). 19. On 5 October 1995 the X Military Court informed the applicants’ counsel about the results of the criminal proceedings, including the Supreme Court’s decision. 20. On 28 August 2003 the first applicant lodged a request with the W State Attorney’s Office for an investigation in respect of the same four individuals, alleging that they had committed a war crime against the civilian population. On 23 February 2005 the W State Attorney held a meeting with the first applicant and informed her orally about the results of the criminal proceedings that had ended in 1992 and told her that there was no possibility of instituting fresh criminal proceeding against the suspects. An official note was drafted about that meeting, but no formal decision was taken upon the first applicant’s request. 21. The first applicants’ request was forwarded to the X State Attorney’s Office, which dismissed it on 16 April 2010 on the basis that proceedings in respect of the same facts had already been terminated. The applicant was instructed that she could take over the proceedings and lodge within eight days a request for an investigation with a X County Court investigating judge. 22. The first applicant complied with the said instruction and on 27 April 2010 submitted the request for an investigation to the X County Court. It was dismissed on 15 December 2010 on the same ground as the one provided by the State Attorney’s Office, i.e. that it concerned the same facts as the indictment from 1992 in respect of which the proceedings had been terminated and that a fresh trial would be in violation of the ne bis in idem principle. 23. The first applicant lodged an appeal with the Supreme Court, which dismissed it on 4 October 2012. The Supreme Court endorsed the views of the County Court. 24. The first and second applicants then lodged a constitutional complaint, which was dismissed on 28 February 2013 on the grounds that the Constitutional Court did not have jurisdiction to examine the complaint. 25. On 4 September 2014 the State Attorney’s Office held a meeting in connection with the Court’s judgment in the Marguš case (see Marguš v. Croatia [GC], no. 4455/10, ECHR 2014 (extracts)), in which the Court held that the ne bis in idem principle did not apply to amnesties for war crimes. Inter alia on this basis the State Attorney’s Office decided to re-open the investigation into the killing of the applicants’ husband and father. 26. On 23 September 2014 the State Attorney’s Office retrieved the case-file concerning the investigation into A’s killing from its Archives. The tooth found on A’s dead body was sent for DNA tests. It was established that all other evidence and biological samples collected during the on-site inspection had been destroyed. 27. Between 23 and 29 September 2014 the State Attorney’s Office interviewed F and several witnesses. The investigation is still pending. 28. The relevant part of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette nos. 41/2001 and 55/2001) reads as follows: “... (2) No one shall be liable to be tried or punished again in criminal proceedings for an offence of which he has already been finally acquitted or convicted in accordance with the law. Only the law may, in accordance with the Constitution or an international agreement, prescribe the situations in which proceedings may be reopened under paragraph (2) of this Article and the grounds for reopening.” 29. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 62/2003, 178/2004 and 115/2006) provide as follows: “(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ... (2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor. (3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person. (4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.” Articles 47 to 61 regulate the rights and duties of a private prosecutor and of an injured party acting as a subsidiary prosecutor. The Criminal Code distinguishes between these two roles. A private prosecutor (privatni tužitelj) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (these are offences of a lesser degree). The injured party as a subsidiary prosecutor (oštećeni kao tužitelj) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities for whatever reason have decided not to prosecute. Pursuant to Article 55(1), the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of the party’s right to take over the proceedings, as well as to instruct that party on the steps to be taken. “Criminal proceedings concluded by a final ruling or a final judgment may be reopened at the request of an authorised person only in the circumstances and under the conditions set out in this Code.” “(1) Criminal proceedings concluded by a final judgment dismissing the charges may exceptionally be reopened to the detriment of the accused: ... (5) Where it has been established that amnesty, pardon, statutory limitation or other circumstances excluding criminal prosecution are not applicable to the criminal offence referred to in the judgment dismissing the charges. ...” “(1) The court competent to decide upon a request for the reopening of the proceedings shall be the court which adjudicated the case at first instance ... (2) The request for reopening shall contain the statutory basis for reopening and evidence in support of the request... ...” “(1) The State Attorney may lodge a request for the protection of legality against final judicial decisions, and court proceedings preceding such decisions, in which a law has been violated. (2) The State Attorney shall lodge a request for the protection of legality against a judicial decision adopted in proceedings in which fundamental human rights and freedoms guaranteed by the Constitution, statute or international law have been violated. ...” “(1) The Supreme Court of the Republic of Croatia shall determine requests for the protection of legality. ...” “(1) When determining a request for the protection of legality the [Supreme] Court shall assess only those violations of the law relied on by the State Attorney. ...” “(2) Where a request for the protection of legality has been lodged to the detriment of the accused and the [Supreme] Court establishes that it is well founded, it shall merely establish that there has been a violation of the law, without altering a final decision.” 30. The relevant part of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia of 25 September 1992 (Official Gazette no. 58/1992, Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv Republike Hrvatske) reads as follows: “Criminal prosecution of perpetrators of criminal offences [committed] during the armed conflicts, the war against the Republic of Croatia or in connection with these conflicts or war, committed between 17 August 1990 and the day when this Act comes into force, shall be discontinued. In respect of these offences no criminal prosecution or criminal proceedings shall be instituted. Where criminal proceedings have been instituted, a court shall terminate them of its own motion. Where a person concerned by the amnesty ... has been detained, he or she shall be released.” “No amnesty under section 1 of this Act shall be granted to perpetrators of the criminal offences in respect of which the Republic of Croatia is obliged to prosecute under international law.” “A state attorney may lodge an appeal within twenty-four hours from the service of a decision under section 1 ... of this Act, where she or he considers that the decision contravenes section 2 of this Act.” 31. The relevant part of the amendments to the above Act of 6 June 1995 reads as follows: “In section 1, paragraph 1 of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia (Official Gazette no. 58/92) the words ‘the day when this Act comes into force’ are to be replaced by the words ‘10 May 1995’.” 32. The relevant part of the General Amnesty Act of 24 September 1996 (Official Gazette no. 80/1996, Zakon o općem oprostu) reads as follows: “This Act grants general amnesty from criminal prosecution and proceedings to the perpetrators of criminal offences committed during the aggression, armed rebellion or armed conflicts and in connection with the aggression, armed rebellion or armed conflicts in the Republic of Croatia. No amnesty shall apply to the execution of final judgments in respect of perpetrators of the criminal offences under paragraph 1 of this section. Amnesty from criminal prosecution and proceedings shall apply to offences committed between 17 August 1990 and 23 August 1996.” “No criminal prosecution or criminal proceedings shall be instituted against the perpetrators of the criminal offences under section 1 of this Act. Where a criminal prosecution has already commenced it shall be discontinued and where criminal proceedings have been instituted a court shall issue a decision terminating the proceedings of its own motion. Where a person granted amnesty under paragraph 1 of this section has been detained, he or she shall be released.” “No amnesty under section 1 of this Act shall be granted to perpetrators of the gravest breaches of humanitarian law, which have the character of war crimes, namely, the criminal offence of genocide under Article 119 of the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996); war crimes against the civilian population under Article 120; war crimes against the wounded and sick under Article 121; war crimes against prisoners of war under Article 122; organising groups [with the purpose of committing] or aiding and abetting genocide and war crimes under Article 123; unlawful killing and wounding of the enemy under Article 124; unlawful taking of possessions from the dead or wounded on the battleground under Article 125; use of unlawful means of combat under Article 126; offences against negotiators under Article 127; cruel treatment of the wounded, sick and prisoners of war under Article 128; unjustified delay in repatriation of prisoners of war under Article 129; destruction of cultural and historical heritage under Article 130; inciting war of aggression under Article 131; abuse of international symbols under Article 132; racial and other discrimination under Article 133; establishing slavery and transferring slaves under Article 134; international terrorism under Article 135; putting at risk persons under international protection under Article 136; taking hostages under Article 137; and the criminal offence of terrorism under the provisions of international law. No amnesty shall be granted to perpetrators of other criminal offences under the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996) and the Criminal Code of the Republic of Croatia (Official Gazette no. 32/1993, consolidated text, nos. 38/1993, 28/1996 and 30/1996) which were not committed during the aggression, armed rebellion or armed conflicts and are not connected with the aggression, armed rebellion or armed conflicts in the Republic of Croatia. ...” “A state attorney may lodge an appeal against a court decision under section 2 of this Act where a court has granted amnesty in favour of the perpetrators of criminal offences in respect of which this Act grants amnesty within the legal classification of the criminal offence by a state attorney.” | 0 |
test | 001-158156 | ENG | ROU | CHAMBER | 2,015 | CASE OF BRÂNDUŞE v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote) | Armen Harutyunyan;Branko Lubarda;Carlo Ranzoni;Johannes Silvis;Kristina Pardalos;Luis López Guerra | 5. The applicant was born in 1951 and lives in Şomoşcheş, Arad County. 6. At the time of the events in the present case, the applicant was serving a prison sentence for fraud, imposed by two decisions of the Timişoara Court of Appeal on 14 August 2002 and 11 November 2004. He was held mainly in Arad and Timişoara Prisons. In 2008 he spent a few days in cell no. 309 of Jilava Prison. According to the applicant’s description, the cell was dirty and lacked access to warm water. 7. On several occasions the applicant was kept in the court’s detention rooms where the detainees and guards were allowed to smoke. According to the applicant, he was exposed to passive smoking in the Arad County Court detention room on 15 December 2008. 8. According to the information provided by the prison administration and forwarded to the Court by the Government, the applicant was held in cell no. 309 in Jilava Prison from 29 May to 1 June 2008 and from 16 to 18 June 2008. The personal space available to the applicant was 1.65 sq. m during the first period of detention and 1.93 sq. m during the second period of detention. Disinfection and pest control were carried out three times per year and the cell was cleaned daily by the inmates. The same rules of hygiene applied to the toilets and shower rooms. The cell benefitted from both natural and artificial light and had beds with mattresses, tables, shelves, and a television set. In an annex to the cell there was a toilet space, consisting of two partitioned toilet bowls and two wash basins. Access to warm water was possible in the common shower room, which contained eighteen showers and to which the inmates had access in privacy once a week. 9. On 30 November 2008 the applicant was not allowed to vote in the parliamentary elections and, despite his requests for clarifications, the prison authorities gave him no explanations as to whether he was entitled to vote or not. The next day, he informed the Court about what had happened. 10. On 21 December 2009 the applicant was released on probation. He was arrested again on 2 July 2010 and served the rest of his sentence until 28 March 2011. | 1 |
test | 001-168699 | ENG | UKR | CHAMBER | 2,016 | CASE OF LOBODA v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) | André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 5. The applicant, who was born in 1952, is a farmer and the head of a farming company, A. He lives in Borzna. 6. In the winter of 2001, S.Sh., the newly-appointed head of a private agricultural company, D., requested that the law-enforcement authorities investigate the suspected misappropriation of D.’s property. In particular, S.Sh. stated that in the autumn of 2000, K., another agricultural company, had written off a debt of 15,517 Ukrainian hryvnyas (UAH) owed to his company, although the latter had not received any payment. 7. On 17 and 21 March 2001 the applicant, interviewed in connection with the inquiry into the case, informed the police that in the autumn of 2000 he had received twenty concrete slabs from K. in settlement of a debt to D., of which he was a shareholder. The applicant said he had used the slabs to construct a trench for A., to which D. had also owed money. D.’s former director had been aware of that fact. The transaction had not been finalised on the books as there had been disagreements between the parties over the price of the slabs and on various procedural issues. 8. On 3 May 2001 the Borznyanskiy district prosecutor (the “district prosecutor”) instituted criminal proceedings against the applicant on suspicion of fraudulently appropriating slabs that he had received on D.’s behalf. 9. On 6 June 2001 a police investigator called the applicant in for questioning as a witness in connection with the case, but rejected his request to be assisted by a lawyer during the questioning. According to the applicant, his lawyer had accompanied him to the investigator’s office but had not been allowed to be present during the questioning. 10. In the course of the questioning the applicant again admitted to receiving the slabs and using them on his farm. He also explained that the transaction had not been finalised in the accounts because the parties had had debts to each other and had still been negotiating over how to write those debts off. In any event, the directors of K. and D. had been well aware that the applicant had used the slabs on his own farm and had never objected to that use. As can be seen from the copy of the record of the questioning submitted to the Court, it was apparently filed as pages 82 and 83 in the domestic case file. 11. On 5 July 2001 the applicant was officially indicted for the fraudulent appropriation of twenty concrete slabs transferred by the K. company to the D. company in payment of a debt. On the same date, the applicant was questioned as a defendant in the presence of his lawyer but he refused to testify and relied on his right to silence. 12. On 11 July 2001 the applicant was informed of the completion of the pre-trial investigation and committed to stand trial in the Borznyanskiy District Court (“the District Court”). 13. On an unspecified date the applicant presented the authorities with an agreement dated 14 April 2001 and signed by the directors of K., D. and himself. According to that document, the three parties had agreed that the value of the twenty slabs received by the applicant was UAH 2,000 and that the transfer of the slabs to the applicant covered the relevant portion of K.’s debt to D. and D.’s debt to the applicant’s farm. 14. By September 2001 the above agreement had been reflected in all three parties’ documents relating to accounting, tax and other matters. 15. In the course of the trial, the District Court questioned the applicant and numerous other individuals, including the directors and accountants of D. and K., and examined various documents. As can be seen in the minutes of the court hearings submitted by the Government, the documents examined in the course of the trial included “a letter from the farming company”, included as page 65 in the domestic case file. 16. During the trial, the applicant, represented by a lawyer of his own choice, reiterated that he had had no fraudulent intent in taking possession of the slabs and that the three parties had decided on all the details of the transaction in April 2001 (that is, before the criminal proceedings had been instituted against him). The transaction had also been properly accounted for in all the paperwork by September 2001 (that is, before the trial had commenced). The delay in finalising the papers had been due to various objective circumstances, including initial disagreements between the parties concerning the scope of the transaction and a fair price for the slabs, the replacement of D.’s director in November 2000, and a lengthy break in the functioning of D.’s accounts office. 17. On 13 August 2003 the District Court found the applicant guilty of the charges. It found that although the case had eventually been settled, there was sufficient evidence that the applicant’s initial intent had been fraudulent. In justifying that finding, the court noted, in particular, as follows: “As regards the arguments by the defendant Loboda G.I. that ... the three-party agreement had been concluded ... before the initiation of the criminal case, and that the managers of the three entities had agreed on the price and procedure for the transfer of the concrete slabs, the court cannot accept them, as they contradict the case file materials and the evidence examined in court. It appears from the case file materials that the above-mentioned agreement was submitted by Loboda G.I. at the end of the pre-trial investigation. It can be seen from the testimony of the witnesses ... that [K.’s debt to D.], amounting to UAH 15,517, had been reinstated after having been written off ... According to ... order no. 6 of August 2001 the slabs transferred were valued at UAH 2,000 and [K.’s] debt to D. as of 1 September 2001 remained at UAH 13,517. The aforementioned evidence shows that an understanding between the managers of [K.], [D.] and [A.] concerning the price and procedure for the transfer was reached after the criminal case had been instituted, in the course of the pre-trial investigation. These findings correspond to the declarations by the head of the farming company Loboda G.I. contained on pages 65 and 67 of volume 1 of the case, dated June 2001”. 18. The District Court then granted the applicant an amnesty and released him from any punishment. 19. On the same date the court issued a separate ruling (окрема постанова) in which it drew the attention of the district prosecutor to various procedural shortcomings in the preparation of the case for trial. It noted, in particular, as follows: “On 3 May 2001 the [district prosecutor] initiated criminal proceedings against [the applicant]. On 6 June 2001 the [police investigator] ... questioned [the applicant] as a witness, despite ... sufficient evidence ... for him to be questioned as a defendant, in compliance with all the requirements of the Code of Criminal Procedure of Ukraine ... With regard to the said breaches, the testimony [of the applicant] given ... during his questioning as a witness on 6 June 2001 was not taken into account by the court as evidence in the present case ....” 20. It appears from the case-file materials that on an unspecified date the applicant filed an appeal against his conviction, which was accepted for examination. No copy of this appeal has been provided to the Court. 21. On 27 August 2003 lawyer I. also filed a separate appeal in the applicant’s interests. In this appeal he challenged, primarily, the substantive conclusions of the trial court and contended that the applicant’s actions had not been criminal. 22. On 23 October 2003 the Chernigiv Regional Court of Appeal (“the Court of Appeal”) upheld the applicant’s conviction. Referring to statements by various witnesses and the documentary evidence on file, it concluded that the applicant had not made any reasonable and meaningful efforts to regularise his appropriation of the slabs until the criminal proceedings had been instituted. 23. The applicant lodged a cassation appeal, in which he complained, in particular, that his right to mount a defence had been breached on account of his being questioned without a lawyer on 6 June 2001. He argued that it was clear from the phrase, “These findings correspond to the declarations by the head of the farming company Loboda G.I. contained on pages 65 and 67 of volume 1 of the case, dated June 2001” in the District Court’s judgment of 13 August 2003, that the testimony he had given on 6 June 2001 had in fact been relied on for his conviction, in spite of the District Court’s formal decision to exclude the record of that questioning from the case file. 24. On 28 October 2004 the Supreme Court of Ukraine examined submissions by the applicant, in the absence of both the applicant and his lawyer. However, the prosecutor was present and advised the Panel to reject the applicant’s arguments. 25. On the same date the Supreme Court rejected the applicant’s cassation appeal, finding that the lower courts had correctly assessed the facts and applied the law. Without addressing directly the applicant’s complaint concerning the breach of his right to defence, it made the following general remark concerning the procedural fairness of the proceedings: “... no breaches of the provisions of the criminal-procedure law in the course of pre-trial investigation as well as during the court proceedings can be identified”. 26. A copy of the Supreme Court’s ruling of 28 October 2004 was sent to the applicant by post on 29 August 2005 and, according to him, was received on 29 September 2005. 27. At various times the applicant made unsuccessful attempts to institute criminal proceedings against the investigator who had questioned him on 6 June 2001, and to begin administrative and civil proceedings to challenge various purported procedural omissions on the part of the District Court judge in his case. | 1 |
test | 001-151006 | ENG | BGR | CHAMBER | 2,015 | CASE OF DIMITROVA v. BULGARIA | 4 | Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief);Violation of Article 13+9 - Right to an effective remedy (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Manifest religion or belief) | Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Pavlina Panova;Zdravka Kalaydjieva | 6. Word of Life is an international religious organisation based in Uppsala, Sweden. In the early 1990s, three non-profit organisations affiliated with Word of Life (Слово на живот) were registered by the Sofia City Court under the Persons and Family Act, and one of these organisations opened a Bible study centre in Sofia. However, on 1 April 1994 the Supreme Court reversed the Sofia City Court’s decision to register the three organisations, on the ground that they had not submitted the necessary applications to renew their registration within the three month time-limit which had been introduced on 18 February 1994 following amendment of the Persons and Family Act. Following the Supreme Court’s decision, the three organisations affiliated with Word of Life were deleted from the registry of non-profit organisations. Moreover, the organisations were not registered in accordance with the Religious Denominations Act and the Bible study centre was not registered with the Ministry of Education. Word of Life therefore had no legal status in Bulgaria at the time of the events in question. 7. On an unknown date in 1994 a complaint was submitted to the office of the Sofia City Public Prosecutor by the Directorate of Religious Denominations with the Council of Ministers, raising concerns about the activities of Word of Life in Bulgaria. On 13 May 1994, having carried out an investigation, the prosecutor’s office adopted a decision stating that the “sect” had an influence on its followers which increased the risk of suicide and other psychological problems. Membership might lead to the severance of family and social ties with the wider community; followers were prohibited from watching television or reading literature other than the Bible or from undergoing any form of surgical intervention. In conclusion, the prosecutor decided to order the restriction of the right of members of the three organisations linked to Word of Life from assembling to promote their beliefs and from continuing to operate the Bible study centre. Relying on Article 185 of the 1974 Code of Criminal Procedure (“the 1974 Code”), which allowed the prosecutor to take all measures necessary to prevent the commission of a criminal offence where there was a suspicion that an offence might be committed, the prosecutor ordered the police to take measures to restrict the organisation’s access to places where it could hold meetings and preach about its beliefs and convictions. Following an appeal by members of the community, the above decision was upheld by a higher prosecutor. 8. At all relevant times the applicant was a member of Word of Life. Following the prosecutor’s decision of 13 May 1994, groups of Word of Life members organised meetings in private homes, including that of the applicant. On 8 September 1995 a prosecutor granted permission for a search of the applicant’s flat. On 27 September 1995 the applicant was summonsed and interviewed by the police in relation to her religious beliefs and to meetings of members of Word of Life in her home. The police then accompanied the applicant to her flat and searched it. They seized a number of items, including audio tapes with religious content, notebooks with sermons, brochures, books, magazines and video tapes. 9. After the search the police issued a warning order (протокол за предупреждение) under the Public Education Act instructing the applicant not to host further meetings of members of the religious community. The order relied also on the decision of the prosecutor of 13 May 1994. 10. On 1 December 1995 the applicant brought an action against the Sofia police, seeking return of her chattels and damages under the 1988 State and Municipalities Responsibility for Damage Act (“the 1988 Act”) in respect of the above measures, which she claimed breached her right to freedom of religion and freedom of assembly. 11. In a judgment of 28 February 1998 the Sofia District Court partially allowed the action, finding that the applicant’s questioning by the police and the warning order had been lawful, but that the search and the seizure had been unlawful as they had not been undertaken in the framework of any criminal investigation and as the items seized had not been intended to be used in criminal proceedings. Making an assessment under the general law of tort rather than the 1988 Act, the court awarded the applicant 25,000 Bulgarian levs (the equivalent of about 13 euros (EUR) at current rates of exchange) for damages and ordered that the items seized on 27 September 1995 be returned. 12. Upon appeals by the parties, on 29 July 2002 the Sofia City Court upheld the District Court’s judgment insofar as it concerned the order for the police to return to the applicant the chattels seized. It remitted the remainder of the case concerning liability for damages for fresh consideration under the 1988 Act. 13. Following a new examination of the case, on 8 February 2005 the Sofia District Court dismissed the claim for damages. It found that the impugned actions of the police could not be qualified as administrative acts because the police had acted pursuant to the orders of the prosecution authorities. As to the prosecution authorities themselves, they could not be held liable under the 1988 Act for decisions of the type in question. 14. Upon an appeal by the applicant, in a final judgment of 2 October 2006 the Sofia City Court upheld the District Court’s findings under the 1988 Act. The Sofia City Court observed that the prosecution service had ordered the measures and that the police officers who were involved had merely assisted the prosecution authorities as they were obliged to do under Article 185 of the 1974 Code. 15. The relevant domestic law concerning freedom of religion, the activities of unregistered religious organisations, searches and seizures and the prosecution’s power to order measures for the prevention of crime was summarised in the Court’s judgment in Boychev and Others v. Bulgaria (no. 77185/01, §§ 25-26 and 31-38, 27 January 2011). 16. The relevant provisions of the 1988 Act on State responsibility are set out in Krasimir Yordanov v. Bulgaria, no. 50899/99, §§ 25-26, 15 February 2007. 17. The relevant domestic law regarding remedies for unreasonably long civil proceedings was set out in Balakchiev and Others v. Bulgaria (dec.), no. 65187/10, 18 June 2013. | 1 |
test | 001-178372 | ENG | LVA | COMMITTEE | 2,017 | CASE OF ĻUTOVA v. LATVIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | André Potocki;Mārtiņš Mits | 4. The applicant was born in 1964 and lives in Riga. 5. On 24 November 2005 a residential building maintenance services provider, Kurzemes Namu Apsaimniekotājs, a limited liability company (“the plaintiff”), brought a claim against the applicant for recovery of a debt for their services in the amount of 320 Latvian lati (LVL – approximately 455 euros (EUR)). The next day civil proceedings were instituted in that connection. The applicant disagreed; she argued that she did not owe any money to the plaintiff – they had not concluded an agreement for maintenance services and she was free to choose another service provider. In those proceedings the applicant was represented by Mr S. Seļezņovs, who was not a lawyer. 6. On 30 December 2005 a judge of the Riga City Kurzeme District Court (Rīgas pilsētas Kurzemes rajona tiesa – hereinafter “the City Court”) scheduled the first hearing to take place on 21 April 2006. During this hearing the applicant’s representative requested additional time to examine the relevant legal norms and to obtain the relevant documents from the plaintiff. The City Court postponed the hearing to allow both parties to “prepare documents”. The next hearing was scheduled for 9 August 2006. 7. On 9 August 2006 the plaintiff applied to have the hearing postponed because the applicant’s debt for services had in the meantime increased and the plaintiff had not yet settled the courts fees for the increased claim. The application was granted and the next hearing was scheduled for 17 October 2006. 8. On 17 October 2006 the plaintiff increased the amount of the claim and submitted the relevant documents. The applicant’s representative applied to have the hearing postponed so as to examine those documents. The application was granted and the next hearing was scheduled for 31 January 2007. 9. On 31 January 2007 the plaintiff increased the amount of the claim to LVL 426 (approximately EUR 606) and submitted more documents. The applicant’s representative submitted written observations and some documents showing some debts that had been paid. The City Court admitted them to the case file and scheduled the next hearing for 23 March 2007. 10. On 23 March 2007 the plaintiff increased the amount of the claim and submitted more documents. The applicant’s representative requested that more detailed information be provided in this connection. The City Court ordered the plaintiff to provide observations by 13 August 2007 and scheduled the next hearing for 12 September 2007. 11. On 11 September 2007 the City Court informed both parties that another judge was taking over the case; the next hearing was scheduled for 17 October 2007. 12. On 17 October 2007 both parties pleaded their case. The City Court ordered the plaintiff to provide more detailed information and scheduled the next hearing for 13 November 2007. 13. On 13 November 2007 the applicant’s representative applied to have the hearing postponed as he had only received the relevant documents on the previous day. The application was granted and the next hearing was scheduled for 14 February 2008. 14. On 14 February 2008 the applicant’s representative pleaded the case. He argued that the service charges which the applicant had been asked to settle had been unclear. The plaintiff did not have all the relevant documents at hand and thus requested time to submit additional information. The City Court ordered the plaintiff to submit the specific documents and scheduled the next hearing for 17 April 2008. 15. On 17 April 2008 the plaintiff submitted the relevant documents and the applicant’s representative applied to have the hearing postponed to examine them. His application was granted and the next hearing was scheduled for 4 June 2008. 16. The parties continued to plead their case in the hearing of 4 June 2008. The City Court imposed a monetary fine on the applicant’s representative for disobeying a judge’s order. Following an application by the plaintiff the hearing was postponed because the applicant’s debt for services had in the meantime increased; they had not prepared the documents for the increased amount of the debt. The plaintiff was ordered to submit the relevant documents by an unknown date in September 2008 and the next hearing was scheduled for 28 October 2008. 17. On 28 October 2008 the City Court held the last hearing in the case; it refused a fresh application by the plaintiff to postpone the hearing once again. On 6 November 2008 the City Court dismissed the plaintiff’s claim against the applicant as unsubstantiated – the plaintiff had not proved that the expenses had actually been incurred and that they had duly reflected the services provided. On 27 November 2008 the plaintiff appealed against the judgment. On 28 November 2008 a judge of the City Court gave the plaintiff additional time to comply with the procedural requirements for lodging an appeal. On 2 December 2008 the plaintiff rectified those deficiencies. On 3 December 2008 the appeal was admitted and sent to the Riga Regional Court (Rīgas apgabaltiesa – hereinafter “the Regional Court”). 18. The first hearing before the Regional Court was held on 13 September 2010. The plaintiff increased the amount of the claim because the applicant’s debt for services had in the meantime increased to LVL 3,173 (approximately EUR 4,515) and submitted the relevant documents. The applicant’s representative disagreed with the increase of the claim. The Regional Court admitted those documents to the case file and scheduled the next hearing for 8 December 2010. 19. On 8 December 2010 the Regional Court held the last hearing in the case. The plaintiff did not attend, nor did it inform the court of any reasons for its absence. The Regional Court decided to proceed with the case. On 22 December 2010 the Riga Regional Court partly allowed the plaintiff’s claim and ordered the applicant to settle the debt in the total amount of LVL 2,854 (approximately EUR 4,059). Although the parties had not concluded an agreement for maintenance services, the applicant was obliged to pay for those services in accordance with domestic law. She could contest bills provided by the plaintiff, however she had failed to do so. The applicant had selectively paid some bills, but not all of them. The Regional Court refused the plaintiff’s claim to receive contractual penalty (līgumsods) for late payment but awarded default interest of 6%. On 18 January 2011 the applicant lodged an appeal on points of law. On 3 February 2012 the Senate of the Supreme Court (Augstākās tiesas Senāts) remitted it to the Regional Court as the applicant had not paid the security deposit for lodging it. Those deficiencies were rectified. 20. On 3 April 2012 the Senate of the Supreme Court, following a preparatory meeting, refused to institute proceedings on points of law. | 1 |
test | 001-171088 | ENG | ROU | CHAMBER | 2,017 | CASE OF PĂTRAŞCU v. ROMANIA | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1986 and lives in Botârlău. 6. On 23 February 2007 X, a plain-clothes police officer from the Buzău County police organised crime unit, approached the applicant in a nightclub. According to a report drafted on 1 March 2007, the meeting had been planned in order to verify information received by the police that the applicant might have been dealing drugs. The report mentioned that X had discussed with the applicant, who claimed that he could get drugs and promised to call with more details. In a second report drafted on 14 April 2007 it was stated that the applicant had called X to ask whether he was interested in buying 2,000 ecstasy tablets at a cost of 10 euros (EUR) each. 7. On 18 April 2007 a prosecutor from the Buzău County department for the investigation of organised crime (“the organised crime department”) opened a criminal investigation against the applicant on suspicion of drug trafficking. A request to intercept his telephone conversations and make ambient voice recordings was authorised by a judge of the Buzău County Court. 8. On the same date the prosecutor from the organised crime department authorised the use of X as undercover police agent in order to determine the facts of the case, identify the offenders and obtain evidence. The prosecutor justified the issuing of the authorisation on the basis that there was reason to believe that the applicant was about to commit a drug trafficking offence. 9. In a report dated 17 May 2007 the chief of the Buzău County police organised crime unit stated that X had called the applicant several times in April and May in order to enquire when the transaction might take place. The report also mentioned that the applicant had replied on several occasions that he was not in possession of the drugs, which were to be brought into the country by friends of his who had not yet returned from abroad. 10. In the early evening of 19 July 2007 the applicant called X and set up a meeting for later that evening. He and a friend, G.G., picked up X by car. X was accompanied by Y, a colleague in plain clothes. The four of them drove to a petrol station where a meeting had been arranged with C.A.O. to buy drugs. The applicant and Y went inside the petrol station while X remained outside and talked to C.A.O. As the deal got underway in the car park of the petrol station, the case prosecutor and ten police officers suddenly intervened and arrested the applicant, C.A.O. and G.G. In the car driven by C.A.O. the police found 742 ecstasy tablets. The offence report drafted on the spot by the police was signed by everyone, including the applicant, without any objection. The police operation was recorded on video. 11. On 25 October 2007 the applicant was indicted with C.A.O. and G.G. for trafficking “high risk” drugs. 12. On 17 January 2008 the applicant and C.A.O. testified before the Buzău County Court. The applicant averred that he had acted as an intermediary for the meeting and subsequent deal between C.A.O. and X because the latter had asked him whether he could get drugs for him. Moreover, X had set the price for the drugs. C.A.O. stated that the drugs found on him had been for his own personal use and that he had had no intention of selling them. 13. The applicant’s lawyer argued before the court that the applicant had in fact been incited by X to act as an intermediary in the drug deal and requested that X be called to give evidence, along with two witnesses in the applicant’s defence. The court allowed the request. 14. On 14 February 2008 the court heard evidence from X, G.C. and one of the witnesses proposed by the applicant who appeared in court. X stated that the applicant had called him in order to arrange the drug deal without any incitement on his part. The applicant’s lawyer had the opportunity to cross-examine X. He asked whether the reports of 1 March and 14 April 2007 had been signed by him and whether the criminal investigation had already been open when he had been authorised to investigate undercover. The two questions were disallowed by the court because they were considered an attempt to disclose X’s identity. 15. The Buzău County Court gave judgment on 22 February 2008. It convicted the applicant of drug trafficking and sentenced him to six years’ imprisonment. The conviction was based on the reports of 1 March and 14 April 2007 and the offence report of 19 July 2007 (see paragraphs 6 and 10 above), as well as on transcripts of the applicant’s telephone conversations with X, ambient recordings of discussions between X and C.A.O. and the in-court testimonies given by the applicant, the codefendants and X. The court considered that the applicant’s allegations that he had been incited by X were clearly disproved by the abovementioned evidence taken as a whole. 16. The applicant appealed against the judgment. He alleged that X had exceeded his authority and that Y should have also been called to testify in court. He also claimed that X had incited him to commit the offence under coercion and that the first-instance court had failed to respond appropriately to his arguments on that issue. 17. On 26 May 2008 the Ploieşti Court of Appeal rejected the appeal. In reply to the applicant’s arguments, the court held that the authorisation and actions of the undercover police officer had been in accordance with the law. The statement of Y was irrelevant to the case since he had not directly witnessed the deal. The court considered that the applicant had not been incited by X since it was apparent from the evidence in the file that he had called the officer on several occasions and had planned the meeting of 19 July 2007 (see paragraph 10 above). 18. The applicant lodged an appeal on points of law (recurs), reiterating his previous arguments. 19. In a final judgment of 22 October 2008 the High Court of Cassation and Justice dismissed the appeal on points of law. Basing its findings on the reports of 1 March and 14 April 2007 (see paragraph 6 above), the court considered that there had been serious reason to suspect that the applicant would commit a criminal offence at the time of authorisation of the covert operation. It further noted that it was apparent from the documents in the file that X had acted lawfully. In addition, the information collected by X and the applicant’s active participation in the crime in question were supported not only by the police reports, but also by transcripts of the telephone conversations that the applicant had with C.A.O. and X. The court stated that it was clearly apparent from those transcripts that the applicant had initiated calls to X on two occasions in order to act as an intermediary in the drug deal. It also noted on this point that the applicant and the other co-defendants had signed the offence report without any objection (see paragraph 10 above). The applicant’s allegations concerning the unlawfulness of the covert operation and the police incitement were therefore considered to be ill-founded. | 1 |
test | 001-147885 | ENG | SVN | COMMITTEE | 2,014 | CASE OF KARIŽ v. SLOVENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing) | Aleš Pejchal;Helena Jäderblom | 4. The applicant was born in 1966 and lives in Portorož. 5. On 13 March 2010 the police issued a payment order fining the applicant 540 euros (EUR) for two traffic offences under Section 27(1) and (3) and Section 135(3) and (5) of the Road Traffic Safety Act. From the police’s description of the facts and evidence it appears that on 13 March 2010 at 9:45 am while trying to overtake X’s car, which had been improperly parked, the applicant failed to make sure that he could do so without endangering X’s car and with the rear right end of his car he hit the rear left end of X’s car. Allegedly, after the collision the applicant left the scene of the accident without submitting his personal data to X who was not present during the accident or notifying the police that he had been involved in an accident. X stated to the police that an unknown witness told him that the person responsible for the accident was driving a dark car with the number plate LJ 37-33. On the basis of this information the police checked two vehicles with number plates LJ 37-33V and LJ 37-33L. These vehicles did not show any sign of damage. On 14 March 2010 X informed the police that he had found a dark car with the number plate KP L3-733. The police established that the owner of the car was the applicant. On the same day the police interviewed the applicant and checked his car. They found that the damage on the applicant’s car corresponded to that of X’s car. They further found that Y was present in the applicant’s car during the accident. 6. On 31 March 2010 the applicant lodged an objection. He argued that he did not detect any collision between the two cars and that, accordingly, he had not informed X or the police of the accident; that there had been many passers-by on the road who had witnessed how he had been manoeuvring the car but nobody had warned him of any kind of abrasion or dent caused to X’s car; that he lived at the address of the scene of the accident and would have never left the scene even if he had caused the damage; that he had been informed of the accident only the following day when called by the police, and that together with the police he had checked his car visually and discovered a scratch of 10 to 15 cm in length for which he did not know when it appeared. According to the applicant, due to X’s improper parking any vehicle could have hit his car; from the damage on X’s car it was clear that the applicant could not have caused the damage with his car. The applicant reiterated that if he had detected the accident he would have reported it and this fact could have been proved by witness Y which was present in his car. He described in detail the events of 13 March 2010, namely approximately at 9.30 am he drove out of the parking spaces, he wanted to turn to the right but two cars prevented him from doing so because they were actually parked on the road; the cars parked posed a threat to road traffic safety because the space between them would have not allowed an ambulance or any other emergency vehicle to pass; in such a situation the applicant was forced to position his car at an appropriate angle to enable him to pass safely between the cars; he had to fold both side mirrors; otherwise he would not have been able to pass the two parked vehicles without collision; he manoeuvred his car at almost zero speed and was not aware that he had caused an abrasion or damage to any other vehicle. 7. On 14 April 2010 the police issued a reasoned decision finding the applicant guilty of the abovementioned minor offences. 8. On 29 April 2010 the applicant lodged a request for judicial review. He complained that the police had not sufficiently established the facts; he had not left or escaped the scene of the accident; he had not been aware of any collision and, consequently, he did not inform X and the police thereof in accordance with Section 135(3) of the Road Traffic Safety Act. He further stated that he wanted to turn right onto the carriageway but he was prevented from doing so by two cars parked on the carriageway – on the left and on the right sides of the road. One of the cars was X’s car. When he wanted to drive out of the garage he could not do so and was forced to manoeuvre for quite some time to position the car at an appropriate angle and had to straighten the car almost completely to be able to pass freely between the two cars. In order to do it safely he had to fold in both side mirrors because otherwise he would have not been able to pass the parked cars without colliding with them. During the manoeuvring he was not aware that he had caused an abrasion or damage to the cars. The manoeuvring speed was minimal. There were many passers-by who witnessed the manoeuvring but did not warn him of any accident. In order to prove these allegations the applicant proposed that he and Y be heard. He further stated that police had not considered the fact that he lived at the address of the scene of the accident and therefore he had no interest in leaving the scene. He drove to a filling station, went shopping and visited his parents. As evidence he submitted a fuel purchase receipt and a shop receipt and proposed the hearing of his parents. He further argued that if he had left the scene of the accident intentionally he would have concealed the scratches on his car. Even if he had collided with X’s car he would not have been aware of it since his car was a diesel-fuelled car which tended to vibrate heavily. Moreover, his radio was always turned on which reduced the likelihood of noticing the collision. In order to prove this he proposed that he and Y be heard. He argued that he was not aware of the date when the scratch appeared on his car since the car was seven years old and had many other scratches. Since X’s car had been improperly parked any vehicle could have collided with it. The police did not clarify on the basis of which fact they had concluded that the scratch on his car corresponded to the damage on X’s car. In the applicant’s view X had been frenetically searching for the culprit and as soon as he found a black car 9. On 12 September 2011 the Ljubljana Local Court rejected the request for judicial review without holding a hearing. The Local Court held that it had no reason to doubt the findings of the police who conducted an interview with the applicant and a visual inspection of his car during which they noticed damage which corresponded to the damage on X’s car. According to the court, it was clear from the documents of the case-file, in particular the photographs of X’s car, that the damage had been caused by the applicant’s car and the applicant’s complaints in this respect remained general and subjective. In particular, the allegations that the accident would have been reported by passers-by or that the applicant would not have left the scene of the accident if he had noticed it were subjective and could not be verified. The applicant could not be released from his responsibility for the minor offence by stating that he had not been aware of the collision because this was, again, a subjective allegation. Every participant in road traffic, in the circumstances described by the applicant, was expected to be particularly alert and to detect the collision. Regarding the allegation that X’s car was parked on the road and that it had endangered the traffic safety the court stressed that only the applicant’s behaviour was at issue. It held that according to Section 135(5) of the Road Traffic Safety Act a traffic offender who had left the scene of the accident should have immediately notified the injured party or the police the information referred to in that Section. The court therefore did not have to reply to the applicant’s allegations that he had not left the scene to an unknown place as they were legally irrelevant. Finally, the evidence submitted by the applicant could not change the conclusions of the police and it was only an attempt to delay the proceedings since the motions for evidence did not comply with the required legal standards regarding the subject-matter about which the witnesses proposed might have testified. 10. On 9 November 2011 the applicant lodged a constitutional appeal. 11. On 26 March 2012 the Constitutional Court rejected the appeal as inadmissible. | 1 |
test | 001-159922 | ENG | PRT | COMMITTEE | 2,016 | CASE OF FREITAS v. PORTUGAL | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Paulo Pinto De Albuquerque | 4. The applicants was born in 1976 and lives in Porto. 5. On 28 August 1996 the applicant instituted an action for the settlement of accounts in inventory proceedings (ação especial de prestação de contas em inventário) before the Penafiel Court. 6. From 20 December 1996 to 24 April 1997 the administrator of the estate (cabeça de casal) was notified, challenged the action and submitted the relevant accounts, which were contested by the applicant. 7. On 23 February 1998 the judge gave instructions setting out the matters that had already been established and those that remained outstanding (despacho saneador). On 17 June 1998 the evidence submitted by the parties was admitted by the Penafiel Court. 8. On 17 September 1998 the applicant revoked the power of attorney given to her lawyer in the proceedings and on 6 November 1998 requested legal aid, which was granted by the State’s Attorney’s Office on 5 February 1999. On 22 February 1999 a lawyer was appointed to represent the applicant. 9. On 19 March 1999, following a request of the applicant’s representative, the hearing scheduled to 24 March 1999 was adjourned. 10. On 19 October 1999 the hearing was adjourned because the representative of the administrator of the estate failed to appear. The hearing was adjourned to 9 May 2000. 11. On 2 May 2000 the applicant requested to represent herself in the proceedings. 12. On 9 May 2000 the applicant’s request was granted and the first hearing was held. The hearing continued on 24 May 2000. 13. On 5 June 2000 the Penafiel Court adopted a decision with regard to the factual basis (matéria de facto) and on 14 September 2000 it delivered its judgment in which it ruled against the applicant. 14. On 25 September 2000 the applicant appealed against the decision before the Porto Court of Appeal, which delivered a decision remitting the case to the first-instance court on 5 June 2001. 15. Between 5 June 2001 and 23 June 2010 the proceedings were again analysed by the first-instance court to which they were remitted twice. On 23 June 2010 the Penafiel Court adopted its fourth judgment in the proceedings. 16. Between 7 July 2010 and March 2013 the applicant lodged different appeals before the Porto Court of Appeal, the Supreme Court of Justice and the Constitutional Court. 17. On 10 May 2013 the Constitutional Court adopted the final decision in the proceedings. 18. On 23 November 1995 the applicant instituted inventory proceedings (processo especial de inventário) before the Porto Court. 19. Between 13 December 1995 and 14 November 1996 several procedural steps took place, namely, the appointment of the administrator of the estate (cabeça de casal) and declarations from the parties. 20. On 23 May 1997 a conference between the parties (conferência de interessados) started. The conference was adjourned to 25 June 1997 at the request of the parties who argued they would try to reach an agreement. 21. On 25 June 1997, at the request of the parties, the proceedings were stayed for ten days. 22. On 8 September 1997 the applicant requested information to the administrator of the estate with regard to certain amounts which had allegedly been received by her. On 20 October 1997 the administrator of the estate replied. 23. On 27 November 1997 the conference of the parties continued and the representative of administrator of the estate requested the suspension of the proceedings due to the death of the latter. 24. Between 4 December 1997 and 23 June 1998 procedural steps were taken in view of the continuation of the proceedings against the heirs of the deceased administrator of the estate (incidente de habilitação de herdeiros). In this period a second administrator of the estate was appointed. 25. Between 18 September 1998 and 7 January 1999 the applicant revoked the power of attorney given to her lawyer in the proceedings and requested legal aid, which was granted. 26. On 19 March 1999 the conference of the parties was scheduled to 26 May 1999. 27. On 21 April 1999 the administrator of the estate requested a second set of proceedings against the heirs of her father. On 10 December 1999 the Porto Court admitted the heirs as parties to the proceedings. 28. Between 17 February 2000 and 21 June 2000 the Porto Court attempted to notify one of the heirs. 29. On 14 December 2000 the conference of the parties was adjourned due to the death of a J.L.E, party to the proceedings. On 13 March 2001 proceedings were initiated against the heirs of J.L.E, seeking their intervention in the proceedings. 30. On 13 December 2001 the conference of the parties was adjourned at the request of the parties who sought to reach an agreement. The agreement between the parties failed. 31. Between 30 January 2002 and 5 June 2006 the parties lodged several requests with the Porto Court, to which it promptly replied. 32. On 21 November 2002 a third set of proceedings against the heirs of M.P.E., party to the proceedings, was initiated; having ended on 16 January 2003. 33. On 11 June 2003 the Porto Court adopted a decision with regard to the partition of the estate (sentença de partilha). 34. On 29 September 2003 the applicant appealed against the decision before the Porto Court of Appeal. By a decision of 7 April 2004 the Porto Court of Appeal quashed the first-instance decision, annulled all the procedural steps taken and remitted the case to the Porto Court. 35. Between 13 October 2004 and 5 January 2005 several procedural steps took place, in particular, notifications, a request made by the applicant and delivering of declarations. 36. On 25 January 2005 the Porto Court ordered the suspension of the proceedings in order to determine the legal standing of one of the parties. Between 9 February 2005 and 22 November 2005, the applicant appealed against this decision before the Porto Court of Appeal – which was dismissed – and the administrator of the estate requested the continuing of the proceedings, which was determined by the Porto Court. 37. On 31 January 2007 the conference of the parties was adjourned to 3 May 2007, which continued on 6 June 2007. 38. Between 11 June 2007 and 14 June 2011 several applications were made and challenged by the parties, different appeals were lodged by the applicant and several notifications were made by the Porto Court, which promptly replied to all requests. 39. On 14 June 2011 the Porto Court adopted a decision with regard to the partition of the estate. On 30 June 2011 the applicant appealed against the decision, which was dismissed by the Porto Court of Appeal on 24 April 2012. 40. Between May 2012 and June 2013 the applicant lodged three appeals before the Supreme Court of Justice and two appeals before the Constitutional Court. The appeals were dismissed, the last decision being adopted by the Constitutional Court on 22 October 2013. 41. On 2 February 2014 the applicant started proceedings seeking the enforcement of the decision with regard to the partition of the estate (processo especial de execução de inventário), which is still pending before the Porto Court. | 1 |
test | 001-144110 | ENG | FIN | CHAMBER | 2,014 | CASE OF HÄKKÄ v. FINLAND | 3 | No violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Conviction;Criminal offence) | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicant was born in 1952 and lives in Helsinki. 6. The tax inspector conducted a tax inspection in three different companies in 2006 and 2007. 7. On 26 March 2007, concerning the first company, the tax authorities considered that the applicant had received, in 2004, 175,433.07 euros (EUR) and in 2005, EUR 10,351.79 as disguised dividends. They imposed on the applicant an additional tax and tax surcharges (veronkorotus, skatteförhöjning), amounting to EUR 8,100 in respect of the tax year 2004 and to EUR 510 in respect of the tax year 2005. 8. On 2 May 2007 the tax authorities found in respect of the second company that the applicant had received in 2004 EUR 78,690 as disguised dividends and imposed EUR 3,900 as tax surcharges. Moreover, the applicant had received in 2005 EUR 86,936 as disguised dividends and EUR 4,300 were imposed as tax surcharges. 9. On 11 November 2007 the tax authorities considered that the applicant had received, in respect of the third company, EUR 227,994 as disguised dividends in 2005 for which a tax surcharge of EUR 11,000 was made. 10. The applicant apparently did not seek rectification of any of these decisions. Nor were there any appeal proceedings pending. The time-limits for seeking rectification and lodging an appeal ran until 31 December 2010 and 31 December 2011 respectively. 11. On 3 April 2008 the public prosecutor brought charges against the applicant on, inter alia, four counts of aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) and one count of tax fraud (veropetos, skattebedrägeri) concerning the tax years 2004 and 2005. According to the last count, the applicant was accused of aggravated tax fraud as he had under-declared his income. The undeclared income amounted to EUR 240,953 for the tax year 2004 and EUR 318,676 for the tax year 2005. Consequently, the tax imposed in 2004 had been EUR 108,851 too low and in 2005 EUR 117,036 too low. The tax imposed on the applicant had thus been in total EUR 225,887 too low. 12. On 27 June 2008 the Helsinki District Court (käräjäoikeus, tingsrätten) convicted the applicant as charged and imposed a prison sentence of 2 years and 7 months. He was ordered to pay the taxation authority EUR 225,887 plus interest in respect of the last count. 13. By letter dated 18 August 2008 the applicant appealed to the Appeal Court (hovioikeus, hovrätten), requesting that the charges be dismissed or at least, as far as aggravated tax fraud was concerned, that he be convicted of tax fraud. He also requested that the sentence be mitigated. 14. On 12 February 2010 the Helsinki Appeal Court upheld the District Court judgment. 15. By letter dated 8 April 2010 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen) requesting, inter alia, that as concerned the last count of aggravated tax fraud, the charges be dismissed without examining the merits and that the compensation for damages be rejected. He claimed that in this respect the ne bis in idem principle had been violated as tax surcharges had already been imposed for the same acts. That count concerned at the earliest the tax year 2004, in respect of which the time-limit for an appeal in the taxation proceedings was still running until 30 December 2010, meaning that those proceedings had not yet been finalised. An effective use of the ne bis in idem principle would require a lis pendens effect preventing the pressing of charges if an administrative tax surcharge matter was still pending. Otherwise two separate sets of proceedings concerning the same facts could be pending. Moreover, applicants would be treated unequally if the possibility of pressing charges depended on the finality of the taxation proceedings. 16. On 23 April 2010 the applicant was granted leave to appeal as far as the last count was concerned. 17. On 29 June 2010 the Supreme Court upheld the Appeal Court judgment. It found, after a detailed analysis of Article 4 of Protocol No. 7 to the Convention and the Court’s case-law, that it was clear since the Jussila judgment that the imposition of a tax surcharge rendered the case criminal and that the ne bis in idem principle applied to such a case even though, under the domestic law, it fell within the domain of administrative law. Both the taxation and the criminal proceedings concerned the same facts, namely the failure to declare the same income. For the ne bis in idem principle it was relevant whether the proceedings had become final. The principle did not prohibit a situation in which two sets of proceedings concerning the same matter were pending at the same time. There was thus no lis pendens effect attached to this principle. Even if this lack of lis pendens effect was problematic in the sense that it might result in unequal treatment of applicants due to the fact that the point of time when taxation decisions became final varied, its acceptance might create even more profound problems. As the taxation decisions in the present case concerned the tax years 2004 and 2005, the time-limits for seeking rectification ran until 31 December 2010 and 31 December 2011 respectively. The charges had been pressed on 3 April 2008. The taxation proceedings had thus not become final before the criminal proceedings started. Therefore, there were no impediments to examining the charge concerning aggravated tax fraud. This judgment became a published leading case KKO:2010:46. | 0 |
test | 001-156262 | ENG | CYP | CHAMBER | 2,015 | CASE OF H.S. AND OTHERS v. CYPRUS | 3 | Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law;Article 5-1-f - Expulsion);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion) (Syria);No violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);No violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev | 8. The applicant, who is a Syrian national of Kurdish origin, was born in 1982 in Syria. 9. In his application form to the Court the applicant stated that following the events in Qamishli in March 2004 (see paragraph 242 above; paragraph 3.13 of the United Kingdom Border Agency’s Country of Origin Information Report on Syria) he had participated in demonstrations that took place at his university. He was arrested in July the same year by the civil police and was detained for four days. During this period he was ill-treated and his health was adversely affected by the physical violence he was subjected to. The applicant was arrested again in March 2005 for three days and once again subjected to physical violence. Following his release, he was not able to find any employment as his police file remained open. He also submitted that he had not served compulsory military service. 10. The applicant left Syria on 10 February 2006 and entered Cyprus illegally on 5 March 2006 after travelling from Turkey. He submitted that he secured a visa for Turkey after bribing officials. 11. He applied for asylum in Cyprus on 12 March 2006. 12. The Asylum Service discontinued the examination of his application and closed his file on 29 August 2007 by virtue of section 16A (1) (a) of the Refugee Law of 2000-2004 (as amended up to 2004; Law no. 6(I)/2000; see paragraphs 236 below and M.A. v. Cyprus, no. 41872/10, § 74, ECHR 2013 (extracts)) as the applicant had not complied with the obligation deriving from section 8 of that Law, according to which, in the event of a change of address, the applicant had to inform the Asylum Service either directly or through the local Aliens and Immigration Police Department, within three days (see paragraph 236 below). According to the note in his file the applicant had not attended the interview arranged for 6 July 2007. In the note it is stated that a letter had been sent to him on 7 June 2007 by the Asylum Service requesting him to attend the interview. The applicant, however, had not received this letter as he had changed address in the meantime without notifying the authorities. Furthermore, it had not been possible to make telephone contact with him as he had given a wrong number. 13. The applicant did not lodge an appeal with the Reviewing Authority for Refugees (hereafter “the Reviewing Authority”). 14. The applicant submitted that he never received a letter asking him to attend an interview nor had he received notification of the decision of the Asylum Service to close his file so as to be able to appeal against it. 15. The applicant, who is a Syrian national of Kurdish origin, was born in 1985 in Syria. 16. The applicant left Syria on 25 September 2008 and entered Cyprus illegally on 12 November 2008 after travelling from Turkey. 17. In his application form to the Court the applicant stated that he had left Syria because he had been harassed and ill-treated by the Syria Security Police due to his origin and his connections to the Yekiti party. He stated that he had left Syria illegally. 18. The applicant applied for asylum in Cyprus on 13 November 2008. In his application for asylum, the applicant claimed that he had left Syria for two reasons. First of all, he had been beaten up by members of the Security Forces as he had complained about having to repair their cars at his car repair garage without payment. Secondly, his business had suffered setbacks by rising oil prices. He stated that he had left Syria legally. 19. The Asylum Service held an interview with him on 15 May 2009. In his interview the applicant claimed that he had been arrested and beaten up by the Security Forces on a number of occasions in connection with their demands to have their cars repaired for free and that the Head of the Security Forces had threatened to imprison him for a very long period. He also claimed that after he had left Syria he had found out that the Security Forces as well as the Syrian authorities were looking for him on the pretext that he had participated in the Qamishli events in 2004. He therefore faced imprisonment if he returned to Syria. 20. His application was dismissed on 29 May 2009 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 (as amended up to 2007), and the 1951 Geneva Convention relating to the Status of Refugees (hereafter “the 1951 Geneva Convention”) in that he had not shown that he had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion or a well-founded fear of serious and unjustified harm for other reasons. The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. The Asylum Service noted that there had been significant discrepancies and inaccuracies in his account of the facts on which his allegations of persecution were based. It held that the applicant’s allegations had been unfounded and had not been credible. 21. On 9 July 2009 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 22. In the copies of the records of the Civil Registry and Migration Department it was noted on 3 March 2010 that in accordance with instructions given by Minister of the Interior on 9 February 2010, if the applicant was traced, the possibility of granting him a special residence permit should be examined before deporting him. Deportation should take place only if the applicant was involved in illegal activities. 23. On 23 April 2010 the Asylum Service’s decision was upheld and the appeal dismissed. 24. The Reviewing Authority pointed to contradictions in the applicant’s claims and held, having regard to all the information and evidence available, that they were unsubstantiated. It noted that the applicant had given two different reasons for which the Head of Security Forces had allegedly threated him with imprisonment. Furthermore, although he initially claimed that the Security forces and the authorities were falsely accusing him of participating in the Qamishli events, he then stated that he had actually participated but was not able to give accurate information concerning these events. Furthermore, the events complained of had happened in 2004 whereas he had left Syria legally in 2008 and he did not allege that during this period he was persecuted by the authorities because of his alleged participation. He was also able to leave Syria legally. The Reviewing Authority further stressed that his claims concerning ill-treatment were incoherent and that the applicant had not been able to describe in any detail the treatment he had been allegedly subjected to. Lastly, in reply to the applicant’s claims before it that he had been subjected to persecution because of his Kurdish origin, the Reviewing Authority observed that the applicant had not applied for asylum on this basis. In any event, it stressed that there was no indication that he had been subjected to any kind of discrimination on the ground of his origin. 25. The Reviewing Authority concluded by observing that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 26. The applicant submitted that he did not receive the decision of the Reviewing Authority but had only heard that his asylum file had been closed. He was therefore not able to appeal. 27. The Government submitted that a letter was sent on 10 May 2010 by double registered mail (registered mail with proof of delivery) to the address given by the applicant. The letter had been returned. They provided a copy of the receipt on which it was noted “insufficient address.” 28. The applicant, who is a Syrian national of Kurdish origin, was born in 1972 in Syria. 29. In his application form to the Court the applicant submitted that he had converted to Christianity. In 2003 he was detained by the Syrian police and was accused of organising a church congregation (organising people for church). During his detention, which lasted two days, he was tortured by police officers. He did not confess that he had changed religion but told them that he had been going to church to give music lessons. He was arrested again on 12 March 2004 and detained for five days during which he was subjected to torture. After he was released he was told that he would be contacted again. For this reason he started travelling around Syria but never staying in places where too many Kurds lived. 30. The applicant left Syria on an unspecified date in 2005. Although he had left legally, he had bribed a police officer at the border to let him go through. The applicant entered Cyprus illegally after travelling from Turkey. 31. He applied for asylum in Cyprus on 11 May 2005. 32. Following an interview on an unspecified date, his application was dismissed on 16 August 2008 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2005 (as amended up to 2005; see paragraph 20 above). The Asylum Service held that the applicant’s claims and his alleged fear of persecution on return to Syria were not credible. It noted in this respect that the applicant had been able to obtain a passport lawfully and to leave Syria, that there had been discrepancies between his asylum application and his interview, concerning the grounds for which he had alleged left Syria, and that the applicant lacked basic knowledge of the Christian religion. 33. On 12 September 2006 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 34. It appears that on 17 October 2006 the applicant applied for a temporary residence permit. 35. On 20 March 2007 the decision was upheld and the appeal dismissed. 36. The Reviewing Authority, referring to the Asylum Service’s decision, held that there had been discrepancies in the applicant’s account of the facts and reasons for his departure from Syria which undermined his credibility. The Reviewing Authority noted, inter alia, that although the applicant had claimed that he had left Syria because he had been persecuted by the Security Forces he had been able to obtain a passport lawfully and to leave the country. The applicant had also stated in his interview that he had not faced any difficulties going through passport control as he did not have any problems with the Syrian authorities. Moreover, although the applicant alleged that he had been persecuted and harassed for participating in Kurdish festivities, when requested he did not give any details concerning the alleged persecution. To the extent that the applicant claimed that he had been detained twice following the Qamishli events, the Reviewing Authority observed that the applicant had been released without conditions and had never been charged with any offence. Lastly, the applicant in his interview had claimed that he had converted to Christianity while in Syria in 2002 and that he had left Syria for this reason. He had not, however, mentioned this in his application form on which it was stated that he was a Muslim. In any event, the applicant lacked basic knowledge of the Christian religion and had not been baptised. 37. The Reviewing Authority concluded that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 38. On 25 April 2007 the applicant was put on a stop-list but it was noted that he was not to be deported until further instructions were received from the Ministry of Interior. 39. The applicant did not lodge a recourse against the Reviewing Authority’s decision. He submitted that this was because of the costs of such proceedings and also due to the fact that he was subsequently given a temporary residence permit by the authorities (see paragraph 40 below). 40. On 6 July 2007, the Minister of Interior, following a meeting with the Cyprus-Kurdish Friendship Association on 5 July 2007, decided to grant the applicant a temporary residence permit for one year on the condition that he found a local employer who had authorisation to employ third country nationals. The applicant submitted that he was not able to find such an employer and that the Labour Office was not willing to approve a contract with other employers. 41. Following the expiry of his permit the applicant remained irregularly in Cyprus. 42. The Government submitted a copy of a letter dated 11 March 2009 which the Civil Registry and Migration Department had addressed to the applicant, informing him that following the negative decision of the Reviewing Authority, his application of 17 October 2006 for a residence permit (see paragraph 34 above) had been rejected and that he was requested to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. 43. In the copies of the records of the Civil Registry and Migration Department it was noted on 3 March 2010 that in accordance with instructions given by the Minister of the Interior on 9 February 2010, if the applicant was traced, the possibility of granting him a special residence permit should be examined before deporting him. Deportation should take place only if the applicant was involved in illegal activities. 44. The applicant is an Ajanib (registered stateless) Kurd born in 1978 in Syria. 45. In his application form to the Court the applicant stated that he was a musician and as he was stateless he was unable to get a licence in Syria in order to practise his profession. Furthermore, a decree by the Governor of Al-Hasakah province in 1988 reportedly prohibited the singing of non-Arabic songs at wedding or festivals (Order No. 1865/sad/24; Human Rights Watch, Syria: The Silenced Kurds, 1 October 1996, E804, page 28). The applicant feared that he would be subjected to arbitrary detention and possibly torture because he was singing Kurdish songs. 46. For this reason he left Syria illegally on 20 January 2007 and entered Cyprus illegally on 28 January 2007 after travelling from Turkey. 47. He applied for asylum on 1 February 2007. 48. The Asylum Service held an interview with him on 9 March 2009. In his interview the applicant alleged, firstly, that his human rights had been violated as he was an Ajanib Kurd; in particular, his rights to education, work and property. Secondly, the applicant stated that he did not want his children to be Ajanib. Thirdly, he claimed that he would be imprisoned if he returned to Syria, as he had left the country illegally. He, however, stated that he had never been arrested and detained, harassed or persecuted by the Syrian authorities. 49. His application was dismissed on 17 March 2009 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 (see paragraph 20 above). In particular, the Asylum Service held that the mere fact that the applicant was an Ajanib Kurd from the Al-Hasakah area did not mean that the applicant was in danger of persecution. In particular, the Asylum Service held that the applicant could not claim to be in danger of persecution and entitled to refugee status simply by reason of being an Ajanib Kurd from the Al-Hasakah area. Furthermore, it considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if he returned to Syria. 50. On 30 March 2009 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 51. It appears from the documents submitted by the Government that, on 25 August 2009, the applicant was put on the authorities’ “stop list”. 52. On 31 December 2009 the Reviewing Authority upheld the Asylum Service’s decision and dismissed the appeal. 53. The Reviewing Authority stressed, inter alia, that Ajanib Kurds were not persecuted on the basis of their ethnicity when they were not involved in anti-regime activities. The applicant had neither alleged that he had been harassed by the Syrian authorities nor that he had been persecuted by them. Furthermore, the Reviewing Authority observed that unless a person was an opponent of the regime, there was no real risk that leaving Syria illegally would result in persecution on their return. It also noted that according to its own research, Ajanib Kurds were entitled to, among other things, work in the public and private sector, receive an education and register their property. Furthermore, the applicant had given a document which belonged to his father and on which his personal details and family situation were registered such as births, death and divorce. The applicant could thus register his children under his name. Lastly, the applicant’s claim that he could not work as a musician did not constitute persecution or discrimination. 54. The Reviewing Authority concluded by observing that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 55. The applicant submitted that he did not lodge a recourse against this decision as he could not afford to do so. 56. The applicant submitted an attestation from the “Civata Demokratik a Kurd” (“CDK”) in Cyprus dated 26 March 2009 stating that he was a compatriot and participated in the movement of the Kurdish peoples for national and human rights and that he was also a member of the party in Cyprus. It stated that, as many other Kurds and being a stateless Kurd, the applicant was deprived of his rights and had no identity card. He was therefore not able to obtain a licence to work as a musician and that if he was returned to Syria he would be subjected to long term imprisonment, torture and ill treatment. 57. The applicant is an Ajanib (registered stateless) Kurd born in 1982 in Syria. 58. In his application form to the Court the applicant stated that he was a member of the Yekiti party in Syria and that he was involved in the Qamishli events. Following these events he was too scared to return to his village which had been closed for three months. During that period many people from his village were arrested and tortured by the authorities. Some disappeared. He decided to leave Syria as he was a stateless Kurd and given his political involvement in the Yekiti party and the Qamishli events. 59. The applicant left Syria illegally on 30 November 2006 and entered Cyprus illegally on 1 December 2006 after travelling from Turkey. 60. He applied for asylum on 18 December 2006. 61. The Asylum Service, however, discontinued the examination of his application and closed his file on 6 September 2007 by virtue of sections 8 and 16A (1) (a) of the Refugee Law of 2000-2007 as the applicant had not informed the Asylum Service or the local Aliens and Immigration Police Branch of his change of address (see paragraph 236 below). It was noted in the file that the Asylum Service had received a letter dated 19 March 2007 from the Nicosia District Immigration Office informing them that the applicant had not showed up at their offices within reasonable time and remained illegally in Cyprus. On 26 March 2007 he was put on the authorities’ “stop-list” as a wanted person. Subsequently, by letter dated 4 July 2007 the applicant was asked to attend an interview at the Asylum Service on 22 August 2007. The applicant did not show up and the authorities had not been able to locate him. The letter was returned by the postal service with a note that the applicant had moved. It had not been possible to make telephone contact as he had given a wrong number. 62. On 10 June 2008 the applicant lodged an appeal with the Reviewing Authority which was dismissed on 3 September 2008. The Reviewing Authority observed that the appeal concerned the applicant’s asylum claim and its substance and not the decision of the Asylum Service to close the file. As the substance of his claim had not been examined his appeal should have been directed against the decision to discontinue the examination of his application and not the merits of his case. 63. The applicant submitted that the Asylum Service had never called on him to attend an interview and that he had informed the Immigration Police about his change of address. He had only found out later from his lawyer that his file had been closed because he had not attended the interview. (He submitted an affidavit to this effect dated 24 November 2009 he made at the Paphos District Court.) 64. The applicant, who is a Syrian national of Kurdish origin, was born in 1982 in Syria. 65. In his application form to the Court the applicant claimed that on 8 March 2005, some police officials approached him while he was working in his field. A fight ensued when the officers wanted to take his fingerprints and he resisted. He beat up one of the officers and managed to escape. He went into hiding as the Syrian police were looking for him. 66. He then left Syria on 25 August 2005 and entered Cyprus illegally on 29 August 2005 after travelling from Turkey. 67. He applied for asylum on 30 August 2005. 68. The Asylum Service held an interview with him on 26 June 2008. 69. His application was dismissed on 10 July 2008 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 and the 1951 Geneva Convention (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It observed in this respect that it transpired during the interview that the applicant had left Syria for financial reasons. Furthermore, to the extent that the applicant alleged that if returned to Syria he would be arrested, convicted and sentenced to long-term imprisonment because he had lodged an asylum application, this was unfounded. On the basis of the information before it, the Syrian authorities did not persecute persons just because they had applied for asylum. 70. On 25 July 2008 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 71. On 26 January 2009 the decision was upheld and the appeal dismissed. 72. The Reviewing Authority observed that in his application form the applicant claimed that he had left Syria because of fear following the Qamishli events. In his interview with the Asylum Service, however, he claimed that he had left Syria for financial reasons and that although he had taken part in the Qamishli events and had been arrested, arrests had been a general phenomenon and this had not been the reason he had left Syria. In his appeal he stated that he had left for financial and political reasons. He had not however, substantiated that he would be subjected to prosecution on political grounds. The applicant was not involved in any political parties and did not carry out any anti-regime activities. Lastly, it found that the applicant’s allegation that he ran the risk of being imprisoned if returned to Syria because the authorities knew he had sought asylum was also unfounded as, on the basis of the information before it, the Syrian authorities did not persecute failed asylum seekers upon their return unless they were opponents of the regime. 73. The applicant submitted that he did not lodge a recourse against this decision as he could not afford to do so. 74. The Government submitted a copy of a letter dated 5 May 2009 which the Civil Registry and Migration Department had addressed to the applicant, informing him that following the negative decision of the Reviewing Authority and the expiry of his temporary residence permit, he was requested to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. 75. On 29 May 2009 the applicant was put on the authorities’ “stop list”. 76. The applicant submitted that the Syrian authorities were still looking for him. 77. The applicant, who is a Syrian national of Kurdish origin, was born in 1984 in Syria. 78. In his application form to the Court the applicant claims that on 20 March 2005, while he was serving in the Syrian army, he was arrested and taken into detention by the Syrian authorities along with other Kurds because of Nowruz (the Iranian New Year, Nowruz or Newroz marks the first day of spring or Equinox and the beginning of the year in the Persian calendar). He was tortured for ten days along with his co-detainees. They were put into a car tyre and were subjected to bastinado. They were accused of conspiring against the State. Military proceedings were brought against him but after completion of his military service the charges were dropped. During this time the military police collected information on him and his friends and he was entered on a database as a dangerous individual. He was arrested again on 21 March 2006 because he attended the Nowruz celebrations and was a member of Yekiti party. He was detained for a week and was released after bribing the District Officer. He was then re-arrested on 15 August 2006 at his house after attending a Yekiti party meeting. He was released after bribing the same official. He then decided to leave Syria and managed to obtain a Turkish visa after bribing a Syrian security official working at the Turkish embassy. 79. The applicant left Syria in August 2006 and entered Cyprus illegally after travelling from Turkey. 80. He applied for asylum on 25 August 2006. He claimed that he had left Syria because as a Kurd he had been subjected to discrimination. Kurds were persecuted and did not enjoy any rights. He had therefore left for fear of his life. 81. The Asylum Service held an interview with him on 27 February 2009. The applicant claimed, inter alia, that he was a follower/supporter of the Yekiti Party, he had left Syria due to the injustice that Kurds suffered, and in particular, although he had a passport he had no other rights and he could not buy a house or land or work. He claimed that he was known to the Syrian authorities and he had been taken at the police station and beaten up on several occasions. He had been arrested and detained on a number of occasions. In particular, in 2005 he had been arrested and detained for four or five days for participating in the Nowruz festivities. He had been arrested on another occasion for problems he had in the army. In May 2006 he was detained for a week and in August 2006 for four days. The latter two times he had been released after paying a sum of money. He also stated that he was not wanted by the authorities and no other member of his family had ever been arrested. He claimed that he feared arrest if returned to Syria. 82. Subsequently, the Asylum Service called the applicant for a second interview and asked him to provide any documents he had concerning his application. The second interview was held on 10 April 2009. In this the applicant claimed, inter alia, that certain members of his family worked and that although the job market was not good, he would be able to work if he managed to find something. The applicant stated that he had been arrested on 20/21 March 2005 when he was in the army following a dispute with another soldier on 21 March 2006 for participating in the Nowruz festivities, and on 25 May 2006 and 2 August 2008 when demonstrations took place even though he was not involved. He was not, however, wanted by the authorities nor did he have any problems by reason of the fact that he was a follower of the Yekiti party. 83. His application was dismissed on 13 May 2009 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It therefore held that his asylum application had not been substantiated. In particular, the Asylum Service pointed out that during his interview he had claimed that he had left Syria for two reasons: because of his Kurdish origin he could not work and buy a house or land and secondly due to his arrests by the Syrian authorities. With regard to the first claim, they noted that he had not substantiated that he had been subjected to any form of discrimination due to his origin. As regards the arrests the applicant’s allegations remained unfounded as he had not given any specific answers to questions that had been put to him. Furthermore, during the interview the Asylum Service had spotted a number of significant untruths/falsehoods concerning his claim. 84. On 3 June 2009 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 85. On 28 April 2010 the decision was upheld and the appeal dismissed. 86. The Reviewing Authority observed that the applicant had not been subjected to persecution and had claimed that he was not wanted by the Syrian authorities. In its decision it observed that the applicant’s claims had not been credible and had been vague and unsubstantiated. Although he claimed that he could not buy a house or land, he then stated that his parents owned a house which they lived in. Further, although he initially claimed that he could not work due to the fact that he was Kurdish he then stated that his family worked and he also was able to. The information he gave concerning his arrest and reasons was equally general and vague. He was not in a position to give specific replies to questions given concerning these matters. The Reviewing Authority observed that the applicant had not been able to reply satisfactorily and with precision to certain questions and give information concerning his claims. 87. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 88. The applicant submitted that he did not lodge a recourse against this decision as he could not afford to do so and at that time no legal aid was granted in such cases. 89. The applicant, who is a Syrian national of Kurdish origin, was born in 1979 in Syria. 90. In his application form to the Court the applicant claimed that he and his family are members of the Azadi Kurdish party in Syria which was banned by the authorities. In early September 2006 the applicant was driving his motorbike in his village carrying Azadi party papers. The civil police in Aleppo ordered him to stop but he fled as he was scared that they would find the papers. The police pursued him but he managed to escape. The next day the police went to his house. The same day he got a visa on his passport. 91. The applicant left Syria on 19 September 2006 and entered Cyprus illegally on 23 September 2006 after travelling from Turkey. 92. He applied for asylum on 26 September 2006. 93. The Asylum Service, however, discontinued the examination of his application and closed his file on 3 April 2009 by virtue of section 16A (1) (c) of the Refugee Law of 2000-2007 (see paragraph 236 below) as the applicant had not come to the interview which had been fixed for 27 March 2009 despite having received the letter requesting him to attend. It was noted in the file that the letter had been sent to him by double registered mail and there was indication he had received it. It was also noted that the applicant, on 19 March 2009, had confirmed on the telephone after receiving a call by the Asylum Service that he would come to the interview. Despite this he had not shown up. Lastly, there was no indication that the applicant had departed from the country. 94. The applicant did not lodge an appeal with the Reviewing Authority. 95. The applicant submitted that he never received a letter asking him to attend an interview and that he had not received notification of the decision of the Asylum Service to close his file. He was subsequently informed of the closure of his file but he did not appeal against the decision as he did not know the procedure to follow and the steps to take so he could appeal against it. He was also scared to approach the authorities. 96. In the copies of the records of the Civil Registry and Migration Department it was noted on 3 March 2010 that in accordance with the instructions of the Minister of the Interior given on 9 February 2010, if the applicant was traced, the possibility of granting him a special residence permit should be examined before deporting him. Deportation should take place only if the applicant was involved in illegal activities. 97. The applicant submitted that the Syrian police were still looking for him. 98. The applicant, who is a Syrian national of Kurdish origin, was born in 1979 in Syria. 99. In his application form to the Court the applicant stated that on 13 March 2004 he participated in a demonstration in his village concerning the Qamishli uprising. He had a camera and was taking photographs of the event when the civil police arrested him. He was blindfolded, placed in a police vehicle and transferred to the central detention centre of the village. There he was continuously tortured and ill-treated for one month. After his release, he was obliged to report to the police every two days. On 2 January 2005, nine months after his release, the applicant decided to leave Syria as he was no longer able to handle the feeling of insecurity. He applied to get a passport from the authorities but this was refused. He succeeded in getting one after bribing officials. 100. The applicant left Syria on 14 March 2005 and entered Cyprus illegally travelling from Turkey. 101. He applied for asylum on 30 March 2005. 102. The Asylum Service held an interview with him on 12 June 2008. 103. His application was dismissed on 8 July 2008 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It noted that no form of discrimination or persecution transpired from the applicant’s claims. There had been discrepancies between his application and the allegations made during his interview, which undermined his credibility. It held that the applicant’s claims and his alleged fear of persecution on return to Syria were not credible. 104. On 21 July 2008 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 105. On 29 September 2008 the decision was upheld and the appeal dismissed. 106. The Reviewing Authority noted that there were serious discrepancies between what he stated in his asylum application form and during his interview. For example, in his application he stated that he had left Syria because he was Kurdish and he had problems with the Syrian authorities. During the interview he had alleged that he had not left Syria for political reasons but because his family had reached an agreement with another family to marry against his wishes. The applicant had also claimed that he had to move about in the country in order to avoid being caught by the authorities but then stated that he did not face any serious problems. Further, he initially claimed during the interview that even though he had signed his application form he did not know the contents as this had been filled in by another person. He subsequently, stated, however, that the contents were of a political nature and that he had told the person filling in the form to write whatever he wanted. This undermined the applicant’s credibility. 107. The Reviewing Authority concluded that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. The letter of notification addressed to the applicant by the Reviewing Authority dated 29 September 2008 stated that its decision was subject to adjudication before the Supreme Court within seventy-five days from the date he was informed of the decision. 108. The applicant submitted that he did not lodge a recourse against the Reviewing Authority’s decision as he did not know he had the right to do so. 109. The Government submitted a copy of a letter dated 24 March 2009 which the Civil Registry and Migration Department had addressed to the applicant, informing him that following the negative decision of the Reviewing Authority as well as the expiry of his temporary residence permit, he was requested to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. 110. On 10 August 2009 the applicant was put on the authorities’ “stop- list”. 111. The applicant, who is a Syrian national of Kurdish origin, was born in 1985 in Syria. 112. In his application form to the Court the applicant claimed that on 20 March 2007 he lit a fire with some friends to celebrate Nowruz. When the police came he managed to flee but his friends were arrested. He later found out from his family that the police were looking for him. He left Syria on 29 September 2007 through the border with Turkey after the taxi driver bribed the officials. 113. The applicant entered Cyprus illegally in October or beginning of November 2011 after travelling from Turkey. 114. He applied for asylum on 7 November 2007. He claimed that he had left Syria because he had participated in a demonstration concerning Kurdish rights and that for this reason he was sought after by the Syrian authorities. 115. The Asylum Service held an interview with him on 4 November 2008. The applicant claimed, that following the demonstration the authorities had asked certain of the persons that had been arrested information about him. He had left Syria for this reason. He also claimed that if he returned to Syria he might not be allowed entry or he ran the risk of being arrested. Furthermore, he stated that he had never been detained, harassed or persecuted by the Syrian authorities and that he or his family did not belong to any, inter alia, political, religious or military group/organisation. 116. His application was dismissed on 23 April 2009 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 and the 1951 Geneva Convention (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It observed that the applicant’s allegations were general and vague. In particular, it noted that the applicant had failed to give any information/details about the demonstration he had allegedly participated in despite being asked during the interview. It concluded that his allegations had been unfounded and had not been credible. 117. On 20 May 2009 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 118. On 19 March 2010 the decision was upheld and the appeal dismissed. 119. The Reviewing Authority observed that the applicant had admitted that he had not been subjected to any harassment or persecution. His allegations concerning his fears of arrest were vague and general. He was not in a position to specify when and which demonstration he had taken part despite being asked specific questions on this during the interview. Furthermore, he had been able to leave the country legally without any problems. There was no indication that the Syrian authorities were searching for him. 120. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 121. The applicant submitted that he did not lodge a recourse against this decision as he was advised by a lawyer that it would be a waste of time and effort as the Supreme Court dismissed all such cases. 122. The applicant, who is a Syrian national of Kurdish origin, was born in 1985 in Syria. 123. In his application form to the Court the applicant claimed that when he was in the Syrian army he was detained for forty days on the basis of his ethnic identity. During that period he was subjected to ill-treatment such as standing still under the sun for long periods. There were also other Kurds detained with the applicant and they were all told that this was a preparation for what was going to happen to all the Kurds in the future. The applicant was also involved in cultural (folklore) activities of the Yekiti party. Participation in cultural groups such as dance, drama or folkloric groups that wear Kurdish traditional dress and participate in funerals or other social rites was considered by the authorities to be political and thus repressed. The Syrian government and authorities tended to politicise ordinary people who participated in these activities and therefore they ran a risk of being criminalised and exposed to persecution by the authorities. 124. The applicant left Syria in June 2006 legally but only after bribing officials at the border with Turkey. 125. The applicant entered Cyprus illegally on 20 June 2006 after travelling from Turkey. 126. He applied for asylum on 28 June 2006. 127. The Asylum Service held an interview with him on 18 July 2008. 128. His application was dismissed on 8 August 2008 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 and the 1951 Geneva Convention (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It noted that the applicant, during the interview, had claimed that he had left Syria due to a long standing property dispute between his family and another family. Although the Asylum Service did not question the credibility of his allegations concerning the existence of this dispute as such it did not find the applicant’s claims as to his involvement in this dispute credible and that his departure from Syria was justified on this ground. The statements made in his interview were contradictory and he had stated that his life was not in danger. Eventually, the applicant had admitted that he had left Syria for financial reasons and faced no danger if he returned. 129. On 8 September 2008 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 130. On 16 June 2009 the decision was upheld and the appeal dismissed. 131. The Reviewing Authority observed that the applicant’s account of facts concerning the alleged family dispute were contradictory. Furthermore, in his asylum application form he had stated that he his life was not in danger and that he had left Syria lawfully and for financial reasons. It had also become clear during the interview that the applicant had not left Syria for the reasons he had initially claimed but for financial reasons; he could not find work with an adequate salary. He was therefore using the asylum procedure to extend his stay in Cyprus. New claims put forward by the applicant in his appeal that he was wanted by the Syrian authorities because he had taken part in the Nowruz celebrations and that had been detained for three months had not been substantiated and had not been raised by the applicant in his asylum application form or his interview with the Asylum Service. Lastly, the applicant had admitted that his life would not be in danger if he returned nor would he be punished. 132. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 133. The applicant submitted that he did not lodge a recourse against this decision as he could not afford to pay a lawyer. 134. The Government submitted a copy of a letter dated 30 July 2009 which the Civil Registry and Migration Department had addressed to the applicant, informing him that following the negative decision of the Reviewing Authority, he was requested to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. 135. The applicant, who is a Syrian national of Kurdish origin, was born in 1984 in Syria. 136. In his application form to the Court the applicant claimed that on 20 March 2006 he and his mother lit a small fire to celebrate Nowruz. They also had the Kurdistan flag on their roof. The police raided their house during which they hit the applicant’s mother. She fell and had a minor head injury. They arrested the applicant and put him in detention. There were no formal legal proceedings and the applicant was released after his family bribed the police. In 2007 he was arrested once again but was released with the help of his family who bribed the officers. He managed to obtain a passport through bribery and left Syria on 15 July 2007. 137. The applicant entered Cyprus illegally on an unspecified date after travelling from Turkey. 138. He applied for asylum on 30 September 2007. 139. The Asylum Service held an interview with him on 8 January 2009. 140. His application was dismissed on 10 February 2009 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 and the 1951 Geneva Convention (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It noted that the applicant, during the interview, had claimed that he had left Syria because he had been persecuted by the Syrian authorities for being a member of the PKK (the Kurdistan Workers Party, an illegal organisation). It held that the applicant’s claims were not credible as he had not been able to reply satisfactorily to basic questions concerning the party. He was not therefore able to establish that his was a member of the party and therefore substantiate that this was the ground for which he was allegedly persecuted. 141. On 24 February 2009 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 142. On 25 August 2009 the decision was upheld and the appeal dismissed. 143. The Reviewing Authority in its decision observed that the applicant’s claims had not been credible and had been unsubstantiated. It noted that although the applicant claimed that he had been persecuted for being a member of the PKK and participating in activities and had fled for this reason, he was not able to give any information about the party. For example, he did not know who was the leader of the PKK, he was not able to draw the flag or to explain what the initials meant. Furthermore, he had a passport and had left the country legally without any problems. 144. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 145. The applicant did not lodge a recourse against this decision. 146. By a letter dated 26 January 2010 the Civil Registry and Migration Department asked the applicant, following the negative decision of the Reviewing Authority, to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. 147. On 3 March 2010 the applicant was put on the authorities’ “stop-list”. 148. The applicant, who is a Syrian national of Kurdish origin, was born in 1981 in Syria. He is married and has one child. 149. In his application form to the Court the applicant stated that he was a member of the banned Azadi Kurdish party. On 7 August 2003 he completed his military service and then went back to his village where he discovered that the Syrian authorities had changed the name of his village into an Arabic one. Along with four other persons they rewrote the original name over the Arabic one on the road signs. After this, the intelligence service detained two of his friends. The applicant and the others fled to Aleppo. From the two persons arrested, the one disappeared in the hands of the authorities and the second one was released after spending two years in detention and after disclosing the identities of the ones who managed to escape. After getting help from members of the Azadi party, the applicant managed to get a passport. 150. The applicant left Syria on 23 September 2003 and came to Cyprus on 27 September 2003 with a tourist visa after travelling from Lebanon. 151. He applied for asylum on 23 September 2004, about a year later. In his form he claimed that he had left Syria because of the inhuman treatment Kurds were subjected to and their difficult living conditions. 152. The Asylum Service held an interview with him on 20 May 2008. During this he stated that he had left Syria because the Kurds had no rights and that a photograph had been taken of him during a demonstration of the Azadi party. He stated that he feared arrest and imprisonment upon his retrun. 153. His application was dismissed on 30 May 2008 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 (see paragraph 20 above). The Asylum Service found that the asylum application had not been substantiated. It noted that there had been discrepancies in his account of the facts which undermined his credibility in so far as he claimed that he had taken part in a demonstration during which his photo had been taken by the Syrian authorities. Further, it considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. 154. On 11 June 2008 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 155. On 12 September 2008 the decision was upheld and the appeal dismissed. 156. The Reviewing Authority in its decision observed that the applicant in his application had claimed that he had left Syria because of the conditions of living and human rights violations of Kurds. In his interview he also claimed that he had left as the authorities had taken a photo of him during a demonstration of the Azadi party in 2001 and if he returned he would be imprisoned as this is normally the case. The applicant was not able to give a more specific time frame for the demonstration The Reviewing Authority noted that the applicant had not had any problems with the authorities following that demonstration. At the same time he had claimed that he worked on and off in Lebanon for a period of two years and occasionally returned to Syria without any problems. He alleged that only on one occasion did the authorities force him and some friends to break up a meeting for Nowruz. The applicant’s account of facts and claims were full of discrepancies and unsubstantiated, undermining his credibility. 157. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 158. The applicant submitted that he did not lodge a recourse against this decision as he was advised by a lawyer that it would be a waste of time and effort as the Supreme Court dismissed all such cases. 159. It appears that the applicant’s wife also applied for asylum. Her application was rejected on 24 July 2008 and her appeal on 25 September 2008. She was then asked, in a letter dated 23 June 2009 sent by the Civil Registry and Migration Department, to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. 160. On 27 August 2009 she was put on the authorities’ “stop-list”. 161. The applicant, who is a Syrian national of Kurdish origin, was born in 1981 in Syria. He is married and has a child. 162. In his application form to the Court the applicant stated that on 12 March 2004 during the events at the football match in Qamishli, he got scared and left the town. He went to his home village, Amer Capi, where he stayed for seven months. When the situation improved he returned to Qamishli. On 1 June 2005 the civil police killed a prominent Kurdish religious leader. During the demonstration at the mosque the police officers took pictures of the demonstrators and two days later went to the applicant’s house searching for him. On 14 June 2005 the applicant left Syria. He travelled from Qamishli to Aleppo and then obtained a visa after bribing someone to issue a visa for Turkey. 163. The applicant entered Cyprus illegally on 16 June 2005 after travelling from Turkey. 164. He applied for asylum in June or July 2005. He claimed that he had left Syria legally in order to find work. 165. The Asylum Service held an interview with him on 1 August 2008. 166. His application was dismissed on 23 October 2008 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 and the 1951 Geneva Convention (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It noted that the applicant, during the interview, had claimed that he had left Syria because he was wanted by the Syrian authorities for participating in an illegal demonstration. His allegations, however, were unfounded and not credible, as during the interview his account of facts was full of discrepancies, contradictions and untruths. Furthermore, there were discrepancies between his written application form and the allegations made during the interview. In particular, the grounds he gave in his interview for leaving Syria where not the same as those he had given in his application. This undermined his overall credibility. 167. The applicant claims that he was not informed of the decision and in August 2009 he asked a non-governmental organisation to follow up his case. It was then that he discovered that his application had been dismissed. 168. In the meantime it appears that his temporary residence permit granted to him on the ground that he was an asylum seeker expired. 169. On 3 December 2009 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 170. On 3 March 2010 his appeal was dismissed under Section 28 F (2) of the Refugee Law 2000-2009 (as amended up to 2009) on the ground that it had been filed out of time. The Reviewing Authority observed that the letter informing the applicant of the dismissal of his asylum application dated 23 October 2008 was served through a private messenger and that the delivery slip was signed by his fellow lodger. It noted that on 10 August 2009 a letter had been sent by a non-governmental organisation requesting information about the stage of proceedings of the applicant’s application. A letter was sent dated 17 August 2009 informing the NGO that the applicant’s claim had been examined, the decision had been sent to the applicant by registered post and according to the file it had been received. The appeal deadline was twenty days from the date the applicant was notified of the decision on the basis of section 28 F (2) of the Refugee Law (see paragraph 237 below). The appeal was filed on 9 December 2009, more than thirteen months following the date he had been notified of the decision. 171. The Government submitted that a letter was sent on 19 March 2010 informing him of this decision by double registered mail to the address given by the applicant. The letter had been returned. They provided a copy of the receipt on which it was noted “unclaimed”. 172. The applicant did not lodge a recourse against the Reviewing Authority’s decision. 173. The Government submitted a copy of a letter dated 27 May 2010 which the Civil Registry and Migration Department had addressed to the applicant, informing him that following the negative decision of the Reviewing Authority he was requested to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. 174. On 17 May 2010 the Yekiti Party and other Kurds from Syria organised a demonstration in Nicosia, near the Representation of the European Commission, the Ministry of Labour and Social Insurance and the Government Printing Office. They were protesting against the restrictive policies of the Cypriot Asylum Service in granting international protection. About 150 Kurds from Syria, including the applicants, remained in the area around the clock, having set up about eighty tents on the pavement. According to the Government, the encampment conditions were unsanitary and protesters were obstructing road and pedestrian traffic. The encampment had become a hazard to public health and created a public nuisance. The protesters performed their daily chores on the pavement, including cooking and washing in unsanitary conditions. The sewage pits had overflown, causing a nuisance and offensive odours. The public lavatories were dirty and the rubbish bins of the Government buildings were being used and, as a result, were continuously overflowing. Furthermore, the protesters were unlawfully obtaining electricity from the Printing Office. Members of the public who lived or worked in the area had complained to the authorities. The Government submitted that efforts had been made by the authorities to persuade the protesters to leave, but to no avail. As a result, the authorities had decided to take action to remove the protesters from the area. 175. On 28 May 2010 instructions were given by the Minister of the Interior to proceed with the deportation of Syrian-Kurdish failed asylum seekers in the normal way. According to the Government these instructions superseded the ones given by the Minister of the Interior on 9 February 2010 (see paragraphs 22, 43 and 96 above). 176. On 31 May 2010 the Minister requested the Chief of Police, among others, to take action in order to implement his instructions. Further, he endorsed suggestions made by the competent authorities that deportation and detention orders be issued against Syrian-Kurdish failed asylum seekers who had passports and did not have Ajanib or Maktoumeen status and that the police execute the orders starting with the ones issued against the leaders of the protesters. The police were also directed to take into account the policy guidelines and to use discreet methods of arrest. 177. According to the Government, letters were sent by the Civil Registry and Migration Department to a number of failed Syrian-Kurdish asylum-seekers informing them that they had to make arrangements to leave Cyprus in view of their asylum applications being turned down (see M.A. v. Cyprus, no. 41872/10, § 32, ECHR 2013 (extracts)). The letter sent to H.Sw. was dated 27 May 2010, in thirteen cases, including those of H.S., A.T., M.S, A. Hu, H.H. and M.Y the letters were dated 1 June 2010, in respect of AM, the letter was dated 9 June 2010 and in respect of M.K., the letter was dated 28 June 2010. Another letter was dated 16 June 2010 (the asylum procedures having been completed in early 2008) and one letter was dated 5 February 2011 in a case where the asylum procedure had been completed on 22 April 2010 and the person in question had voluntarily agreed and did return to Syria on 24 September 2010. Letters had been sent out to the remaining applicants much earlier (see paragraphs 42, 74, 109 and 134 above). 178. From documents submitted by the Government it appears that from 31 May until 7 June 2010 the authorities kept the area under surveillance and kept a record of the protesters’ daily activities and of all comings and goings. In the relevant records it is noted that invariably, between 1.30 a.m. and 5.30 a.m., things were, in general, quiet, and everyone was sleeping apart from those keeping guard. During the above-mentioned period a large-scale operation was organised by the Police Emergency Response Unit, “ERU” (“ΜΜΑΔ”), and a number of other authorities, including the Police Aliens and Immigration Unit, for the removal of the protesters and their transfer to the ERU headquarters for the purpose of ascertaining their status on a case-by-case basis. 179. In the meantime, between 28 May 2010 and 2 June 2010 orders for the detention and deportation of forty-five failed asylum seekers were issued following background checks. These included applicants A.T., F.T. and H.H. in respect of whom the orders were issued on 2 June 2010 pursuant to section 14 (6) of the Aliens and Immigration Law on the ground that they were “prohibited immigrants” within the meaning of section 6(1)(k) of that Law. Letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, containing a short paragraph with information as to the immigration status of each person. This information included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service, the date of dismissal of the appeal by the Reviewing Authority, where lodged, and the date some of those concerned had been included on the authorities’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring). The letters recommended the issuance of deportation and detention orders. The Government submitted copies of two such letters with information concerning thirteen people. 180. The letter that included information on F.T. and another four of the persons detained stated that they all appeared to lead the political group, YEKITI, which was active in Cyprus and that they organised demonstrations complaining about their rights in Cyprus. It was considered that if the opportunity was given to them to organise themselves they could constitute a future threat to the security of Cyprus. 181. On 2 June 2010, letters were also prepared in English by the Civil Registry and Migration Department informing those concerned of the decision to detain and deport them. These included applicants A.T.., F.T. and H.H. The Government submitted that, at the time, the authorities did not know whether the individuals concerned by the decisions were among the protesters. 182. The removal operation was carried out on 11 June 2010, between approximately 3 a.m. and 5 a.m. with the participation of about 250 officers from the Police Aliens and Immigration Unit, the ERU, the Nicosia District Police Division, the Traffic Division, the Fire Service and the Office for Combating Discrimination of the Cyprus Police Headquarters. The protesters, including the applicants, were led to buses, apparently without any reaction or resistance on their part. At 3.22 a.m. the mini buses carrying the male protesters left. The women, children and babies followed at 3.35 a.m. A total of 149 people were located at the place of protest and were transferred to the ERU headquarters: eighty-seven men, twenty-two women and forty children. Upon arrival, registration took place and the status of each person was examined using computers which had been specially installed the day before. The Government submitted that during this period the protesters had not been handcuffed or put in cells but had been assembled in rooms and given food and drink. It appears from the documents submitted by the Government that by 6.40 a.m. the identification of approximately half of the group had been completed and that the whole operation had ended by 4.30 p.m. The applicants do not contest the Government’s account. 183. It was ascertained that seventy-six of the adults, along with their thirty children, were in the Republic unlawfully. Their asylum applications had either been dismissed or their files closed for failure to attend interviews. Those who had appealed to the Reviewing Authority had had their appeals dismissed. Some final decisions dated back to 2006. A number of people had also been included on the authorities’ “stop list”. Deportation orders had already been issued for twenty-three of them (see paragraph 34 above). 184. The authorities deported twenty-two people on the same day at around 6.30 p.m. (nineteen adults and three children). Forty-four people (forty-two men and two women), including the applicants, were arrested. Applicants A.T., F.T.. and H.H were detained under the deportation and detention orders that had been issued on 2 June 2010 (see paragraph 181 above). The remaining applicants were charged with the criminal offence of unlawful stay in the Republic under section 19(2) of the Aliens and Immigration Law (see M.A., cited above, § 65). The applicants, along with the other detainees, were transferred to various detention centres in Cyprus. H.S., A.T., F.T., and M.S. were placed in the Limassol Police Station Detention Facility; A.M. in the Larnaca Police Station Detention facility; M.J. and H.Sw. in the Paphos Police station Detention facility; A.Hu., H.H., A.Ab., I.K. and M.Y. in the immigration detention facilities in the Nicosia Central Prisons (Block 10); M.K. in the Paralimni Police Station Detention facility and H.M. in the Xilofagou Police Station Facility. All those detained who were found to be legally resident in the Republic returned to their homes. Further, on humanitarian grounds, thirteen women whose husbands were detained pending deportation and who had a total of twenty-seven children between them were not arrested themselves. This included M.Y’s wife (see paragraphs 159-160 above). 185. According to the Government, the applicants and their co-detainees were informed orally that they had been arrested and detained on the basis that they had been staying in the Republic unlawfully and were thus “prohibited immigrants” (see M.A., cited above, § 62). They were also informed of their rights pursuant to the Rights of Persons Arrested and Detained Law 2005 (Law no. 163(I)/of 2005) (see M.A., cited above, § 93) and, in particular, of their right to contact by phone, in person and in private, a lawyer of their own choice. The applicants submitted that they had not been informed of the reasons for their arrest and detention on that date. 186. On the same day letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, recommending the issuance of deportation and detention orders. The letters contained a short paragraph in respect of each person with information as to his or her immigration status. This included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service and the date of dismissal of the appeal by the Reviewing Authority where lodged. Some letters also referred to the date the asylum application had been lodged and the date some of the individuals concerned had been included on the authorities’ “stop list”. The Government submitted copies of letters concerning thirty-seven people (most of these letters referred to groups of people). 187. Deportation and detention orders were also issued in Greek on the same day in respect of the remaining fifty-three people detained (see paragraph 183 above), including the remaining eleven applicants (see paragraph 179 above), pursuant to section 14 (6) of the Aliens and Immigration Law on the ground that they were “prohibited immigrants” within the meaning of section 6(1)(k) of that Law. These were couched in identical terms. The order issued in respect of A.Ab. also referred to 6(1)(l) of the Law. In respect of one more person the order mentioned sections 6(1)(i) (see M.A., cited above, § 41). 188. Subsequently, on the same date, letters were prepared in English by the Civil Registry and Migration Department informing all the detainees individually, including the remaining applicants (see paragraph 187 above), of the decision to detain and deport them. The Government submitted thirty-seven copies of these letters, including those addressed to the applicants, the text of which was virtually identical, a standard template having been used. The text of the letter reads as follows: “You are hereby informed that you are an illegal immigrant by virtue of paragraph (k). section 1, Article 6 of the Aliens and Immigration law, Chapter 105, as amended until 2009, because you of illegal entry [sic] Consequently your temporary residence permit/migration permit has been revoked and I have proceeded with the issue of deportation orders and detention orders dated 11th June 2010 against you. You have the right to be represented before me, or before any other Authority of the Republic and express possible objections against your deportation and seek the services of an interpreter.” 189. The only differences was that some letters referred to illegal stay rather than illegal entry and that the letters issued earlier referred to 2 June 2010 as the date of issuance of the deportation and detention orders (see paragraph 181 above). 190. On the copy of the letters to the applicants provided by the Government, there is a handwritten signed note by a police officer stating that the letters were served on the applicants on 18 June 2010 but that they refused to receive and sign for them. The other letters had a similar note or stamp on them with the same date, stating that the person concerned had refused to sign for and/or receive the letter. In a letter dated 7 September 2010 the Government stated that the applicants had been served on 18 June 2010. In their subsequent observations the Government submitted, however, that this was the second attempt to serve the letters, the first attempt having been made on 11 June 2010, that is, the day of the arrest. 191. The applicants submitted that they had never refused to receive any kind of information in writing. They claimed that it had only been on 14 June 2010 that they had been informed orally that they would be deported to Syria on the same day but that the deportation and detention orders were not served on them on that date or subsequently. They submitted that they had eventually been informed by their lawyer, following the receipt of information submitted by the Government to the Court in the context of the application of Rule 39 of the Rules of Court, that deportation and detention orders had been issued against them. 192. From the documents submitted by the Government, it appears that at least another fourteen of the detainees were to be deported on 14 June 2010 (this figure is stated in documents submitted by the Government with no further details). 193. On Saturday, 12 June 2010, the applicants, along with twenty-nine other persons of Kurdish origin, submitted a Rule 39 request in order to prevent their imminent deportation to Syria. 194. On 14 June 2010 the President of the First Section decided to apply Rule 39, indicating to the respondent Government that the detainees should not be deported to Syria until the Court had had the opportunity to receive and examine all the documents pertaining to their claim. The parties were requested under Rule 54 § 2 (a) of the Rules of Court to submit information and documents concerning the asylum applications and the deportation. 195. On 21 September 2010 the President of the First Section reconsidered the application of Rule 39 in the light of information provided by the parties. He decided to lift Rule 39 in thirty-nine applications, including the present ones. He decided to maintain the interim measure in respect of five applications (for further details see M.A., cited above, § 58). Rule 39 was subsequently lifted with regard to three of the applications. 196. Following this decision the applicants who were not covered by Rule 39 were deported to Syria on various dates (see section D below). 197. The applicant was deported on 14 December 2010. 198. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from the Kurdish Organization for the Defence of Human Rights and Public Freedoms in Syria (“DAD”) that the applicant had been arrested and detained in Adra prison in Damascus. 199. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant was living in the Kurdish area of Northern Iraq. 200. The applicant was deported on 14 December 2010. 201. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from DAD that the applicant had been arrested and detained in Adra prison in Damascus. 202. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant was still in Syria. 203. The applicant was deported on 25 September 2010. 204. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from DAD that the applicant upon his arrival in Syria had been requested by the authorities to present himself to the civil police on two different occasions. He had then been arrested in November 2010 and detained in Damascus on unknown grounds. 205. By a letter dated 5 December 2012 the applicant’s representative informed the Court that on 2 March 2011 the applicant had been sentenced to six months’ imprisonment. Following his release from prison he left Syria and went to Austria. 206. The applicant was deported on 14 December 2010. 207. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from DAD that upon his return to Syria the applicant had been arrested and detained in Adra prison in Damascus. 208. By a letter dated 5 December 2012 the applicant’s representative informed the Court that on 2 March 2011 the applicant had been sentenced to six months’ imprisonment. Following his release from prison he left Syria and went to Northern Iraq. 209. The applicant was deported on 14 December 2010. 210. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from DAD that upon his return to Syria the applicant had been arrested and detained in Adra prison in Damascus for two months. 211. By a letter dated 5 December 2012 the applicant’s representative informed the Court that the applicant, following his release from prison, had left Syria and gone to Northern Iraq. 212. The applicant was deported on 25 September 2010. 213. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from DAD that the applicant had been arrested upon his arrival at Damasucs airport. 214. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant had been detained in Damascus for two days during which he had been interrogated and had revealed that he had sought asylum in Cyprus. He was then taken by the police to Al-Hasakah where he was detained by the civil police for fifteen days. He was detained in a cell measuring 1.6 square meters and he was subjected to torture and ill-treatment. In particular, he was beaten on various parts of his body with wooden sticks. During his detention he was interrogated in relation to his affiliation to political parties. Subsequently he was transferred to Al-Hasakah Central Prison where he was detained for about a month and eight days. After that he was brought before a court in Qamishli without having been informed of the charges brought against him. He was questioned as to his affiliation to political parties. He was then taken back to Al-Hasakah Central Prison. He was subsequently transferred to the Devik Central Prison in his hometown where he was detained for a night and the next day he was taken to court again. He was released after his family bribed officials and he immediately went into hiding. He hid in friends’ and relatives houses and subsequently in a bakery in Damascus, until he could find a way to leave from Syria again. While in Damascus, his cousin informed him that he had received a letter requesting the applicant to present himself at the Aleppo Police. He was told by members of his family that he was still wanted from the military and civil police. After a failed attempt to leave Syria he managed to leave through Northern Iraq. He returned to Cyprus after travelling from Turkey and was in the process of submitting a new asylum application. The applicant stated that he was still wanted by the military police in Syria and that his family was still trying to find out the reason why he was a wanted person. 215. The applicant was deported on 25 September 2010. 216. By a letter dated 5 December 2012 the applicant’s representative informed the Court that the applicant had been arrested and detained upon his arrival in Syria and that on 2 March 2011 he had been sentenced to six months’ imprisonment. Following his release, the applicant left Syria and went to Greece. 217. The applicant was deported on 25 September 2010. 218. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from DAD that the applicant upon his arrival in Syria had his passport retained by the authorities and had been asked to show up for checks at the civil police on different occasions. His passport was eventually returned to him. 219. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant was still in Syria. 220. By a letter dated 27 December 2010 the applicant’s representative informed the Court that the applicant had agreed to return voluntarily to Syria on 24 September 2010. 221. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant was still in Syria. 222. The applicant was deported on 25 September 2010. 223. By a letter dated 4 July 2012 the applicant’s representative informed the Court that the applicant had been arrested a week after he returned to Syria and was still detained in Aleppo prison. He had been accused of acting against the Syrian Government while he was in Cyprus and had been sentenced to imprisonment for one year and eight months. She stated in the letter that it was expected that he would be released soon. 224. The applicant was deported on 25 September 2010. 225. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from the DAD that when the applicant, upon his arrival in Syria, had his passport retained by the authorities and was asked to present himself to the political police on different occasions. After bribing the authorities 1000 United States dollars (USD) he was given back his passport. They authorities put a written warning in his passport that he was forbidden to travel to Greece. 226. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant was still in Syria. 227. The applicant was deported on 25 September 2010. 228. By a letter dated 12 December 2012 the applicant’s representative informed the Court that the applicant had to serve compulsory military service once he returned to Syria. He fled, however, to Northern Iraq, before completing it. 229. The applicant returned to Syria voluntarily on 1 October 2010. No information has been given as to whether the applicant’s wife and child were eventually deported with him as planned by the authorities. 230. By a letter dated 5 December 2012 the applicant’s representative informed the Court that according to information she had received from members of the Kurdish community in Cyprus the applicant was living in Aleppo in Syria. 231. The applicant was deported on 14 December 2010. No information has been given as to whether the applicant’s wife and child were also deported. 232. By a letter dated 27 December 2010 the applicant’s representative informed the Court that the applicant’s representative informed the Court that she had received information from DAD that the applicant upon his arrival in Syria had been arrested and detained in Adra prison in Damascus. 233. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant had been detained for six months, during which he had been ill-treated. After his release he remained in Syria. | 1 |
test | 001-168934 | ENG | DNK | CHAMBER | 2,016 | CASE OF SALEM v. DENMARK | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1969 in Lebanon. 6. On 12 January 1993, at the age of 23, he entered Denmark and requested asylum, which was refused by a final decision of 31 October 1994. 7. On 17 November 1994 he applied for a residence permit based on his marriage to a Danish national of Lebanese origin. She had entered Denmark as a child in 1985. His request was granted temporarily, until August 1996. Subsequently it was granted permanently. In 2000 he was also granted asylum under section 7 of the Aliens Act (Udlændingloven). 8. The couple have eight children, all Danish nationals, who at the beginning of 2010 were 14, 13, 12, 10, 9, 7, 6 and 4 years old, respectively. 9. The applicant never went to school in Lebanon and he has never had a job, either in Lebanon or in Denmark. In Denmark he received social benefits until 16 November 2004, when he was granted an early retirement pension by the State due to his poor health: he suffered in particular from post-traumatic stress disorder. His wife was granted an early retirement pension due to back problems. 10. The applicant speaks and understands Danish but he cannot read or write the language. He also speaks and understands Arabic, but cannot read or write it. The same applies to his wife. They speak Arabic between themselves and with their children. 11. The applicant’s wife has eighteen siblings living in Denmark. 12. The applicant has no other family in Denmark. His mother and sister live in Lebanon. He also has a sister in Syria. 13. The applicant has a criminal record which includes, inter alia, a conviction in 2000 for grave disturbance of public order and a suspended sentence of twenty days’ imprisonment, a conviction in June 2005 sentencing him to twenty days for committing violence against a public servant in the performance of his office, and a conviction in February 2007 for the same kind of offence, for which he was sentenced to three months’ imprisonment. 14. On 9 September 2009 the applicant was arrested and detained on remand charged with, inter alia, various counts of drug trafficking and dealing. 15. By a judgment of 10 June 2010 the City Court in Odense (retten i Odense) found him guilty, in part jointly with others, of 18 counts of offences including drug trafficking and drug dealing contrary to Article 191 of the Criminal Code with regard to a significant amount of hashish (more than 100 kg in total, in addition to an attempt to import a large supply from Holland) and an attempt to buy 200 g of cocaine, all committed in the period from 2006 until 9 September 2009. In addition he was convicted of coercion by violence and threats, blackmail, theft, handling stolen property, escaping while under arrest and possession of weapons. 16. When sentencing the applicant to five years’ imprisonment the City Court took into account, in particular, the significant amount of hashish and cocaine; that the latter was a “hard drug”; the huge profit that the applicant had obtained from the resale; the long period concerned; the applicant’s absolute leading role, notably in relation to the drug dealers under him, whom he had subjected to violence and threats; and that as a member of a gang, he had delivered hashish for resale to various towns in the region. It was also noted that the applicant had previous convictions. Finally, the sentence was determined partially as a supplementary penalty because some of the offences had been committed before the applicant’s previous conviction. 17. The amount of 404,500 Danish kroner (DKK), equivalent to approximately 54,000 euros (EUR), and gold jewellery found in the applicant’s home during a search were confiscated as profit from the crimes. It was noted that the applicant and his wife, who both received State benefits and who, when calculating their expenses, apparently had a deficit in their household budget for 2007, 2008 and 2009 amounting to a total of at least DKK 2.5 million (approximately EUR 335,600) could not substantiate that they had obtained the goods legally. For example, the applicant’s wife denied knowledge of a receipt dated 20 October 2008 for 255.6 g of gold jewellery bought in her name in Dubai for DKK 43,000. 18. Moreover, pursuant to section 24b of the Aliens Act, the City Court ordered the applicant’s expulsion, suspended and with two years’ probation. The City Court noted that the seriousness of the crimes spoke heavily for his expulsion without suspension, but having regard to his wife, who stated that she could not follow her husband to Lebanon, and his eight children in the country, the court did not find that there was sufficient basis for an unsuspended expulsion order. 19. On appeal, by a judgment of 30 March 2011 the conviction was upheld in part by the High Court of Eastern Denmark (Østre Landsret) and the sentence was increased to six years’ imprisonment due notably to the nature and quantity of the drugs, the extent of the drug offences committed and the applicant’s leading role. By three votes to three, with the more beneficial outcome in the applicant’s favour, the expulsion order remained suspended. 20. The public prosecution appealed to the Supreme Court (Højesteret) against the judgment as regards the suspended expulsion order. New evidence was adduced in this respect, notably as regards the applicant’s and his wife’s ties to Denmark, Lebanon and Syria. They were both heard. 21. The applicant explained that he had been in Lebanon for thirty days during the summer of 2009. He had no contacts there but his mother and sister. His other sister lived with her husband and their five children in a refugee camp in Syria. He had stayed there for twenty or twenty-two days during the summer of 2007, for fourteen days during the summer of 2008 and for sixteen days in December 2008. 22. The applicant’s wife and children had been to Syria two or three times in 2009 to visit the applicant’s sister there. Since the applicant’s arrest in September 2009, she and the children had spent one and a half months in Syria in 2010, and two months in 2011. During the spring of 2011 she had gone alone to Syria for seven or ten days because the sister had fallen ill. 23. During the summer of 2009 the applicant began negotiations to buy an apartment in Syria because his wife and children went there quite often. He also wanted to buy a shop in the same building. Twice he transferred money via Western Union to his sister to buy the apartment, but it was given up when he was arrested. 24. The applicant’s wife stated that she could not follow her husband if he were expelled to Lebanon or Syria. She and the children would not be able to stand living in either of those countries, and the children could not live outside Denmark. 25. Statements obtained from the Children’s Department at the municipality and the children’s schools and day-care institutions recounted that several of the eight children had serious problems, including of a psychological and educational nature. Four of the children received special education and several of the children needed extra support and supervision in their schools and institutions. Massive public support measures had been provided due to a significant need to teach them normal social behaviour. Finally, the placement of some of the sons in public care was under consideration. 26. According to a police report of 9 August 2011, based on interceptions carried out during the criminal proceedings against the applicant, it was established that in the period from 21 April 2009 to 10 September 2009, thus a period of less than 5 months, there had been nine hundred and sixtyseven calls to and from overseas numbers on the applicant’s and his wife’s home telephone. These concerned eighty different foreign telephone numbers, including thirty-eight in Lebanon and nine in Syria. To the numbers in Lebanon there had been in total four hundred and thirty-three calls, and to the numbers in Syria there had been three hundred and six calls. The applicant explained in this connection that the calls to Lebanon had mainly been to people from Denmark who had been on vacation in Lebanon and that the calls to Syria had been to his sister. The applicant’s wife explained that she often talked to her sister-in-law in Syria. She also had family in Lebanon. Nevertheless she did have difficulties understanding why there had been calls to thirty-eight different numbers in Lebanon. 27. According to a police report of 18 August 2011, it appeared that in the period from 18 January 2006 to 15 June 2011 the applicant, his wife and their children had made various transfers of money to Syria and Lebanon. Sixteen of those concerned a total of DKK 71,471 and were made in the applicant’s name. After the applicant’s arrest in September 2009, his wife had transferred money to the applicant’s sisters in Lebanon and Syria. 28. In its judgment of 12 October 2011, by a majority of six votes to one, the Supreme Court decided to expel the applicant with a life-long ban on his return. 29. It observed that the applicant had been convicted of drug trafficking offences under Article 191 of the Penal Code and attempt thereof on five counts for 59.5 kg of hashish for resale (count 53a); 23 kg for resale (count 56); not less than 15 kg for resale (count 58); entering a deal to buy 200 g of cocaine for resale, which failed (count 60); and an attempt to smuggle in a large amount of hashish from Holland, which failed (count 61). He had also been convicted of offences under the Stimulants Act for having possessed and transferred not less than 10.6 kg of hashish, which failed as to 6 kg (count 59); and for having possessed 1.632 kg of hashish for resale. 30. In addition he was convicted of coercion by use of violence or threats of violence (counts 54 and 57a); extortion (count 57); theft (count 64); six counts of handling stolen goods (counts 66, 67, 68, 69, 70 and 71); under the Act on Weapons (count 65); and under Article 124 of the Penal Code for having fled as a detainee (count 74). 31. The Supreme Court went on to analyse the case in the light of the Court’s case-law, notably Maslov v. Austria [GC], no. 1638/03, ECHR 2008 and took the following into account. 32. The applicant was a stateless Palestinian who had entered Denmark in 1993 at the age of 23. He had been sentenced to six years’ imprisonment for comprehensive and organised resale of large amounts of hashish, for attempting to buy 200 g of cocaine, and for attempting to smuggle in hashish. Moreover, the drug trafficking had taken place over more than two and a half years and the applicant had had a leading and central role. 33. In addition he had committed coercion by use of violence or threat of violence against his drug dealers to maintain them as sellers and against clients who could not pay for the drugs. He claimed to have been among the top five members of the “Black Ghost” gang in Odense. He had also been convicted of extortion for having demanded so-called “protectionmoney” for “Black Ghost”. Moreover, he had previously been convicted under Article 119 of the Penal Code for violence against a public servant and sentenced to three months’ imprisonment. 34. The Supreme Court also emphasised that although the applicant had been in Denmark since 1993, he was not well integrated into Danish society and he had limited Danish language skills. He had no ties to Denmark via work or education. He had been receiving State early retirement pension since 2004. 35. The applicant’s spouse was a Danish citizen. She was born a Palestinian national and had lived briefly in Lebanon, arriving in Denmark at the age of nine. The couple’s children, who at the relevant time were between five and sixteen years old, were also Danish citizens. They were born in Denmark and went to school and institutions in the country. 36. The applicant and his family spoke Arabic. 37. The Supreme Court further noted that the applicant still had ties to Lebanon, where his mother and sister lived and where the applicant had lived until he entered Denmark at the age of 23. He also had ties to Syria, where a sister and her family lived, and where the applicant had stayed for three weeks in 2007, for four weeks in 2008, and in 2009. Before his arrest, the applicant had set about buying an apartment in Syria for the family to use during stays there. 38. The applicant’s spouse had family in Lebanon. Moreover, she had regular contact with the applicant’s sister and family in Syria, and she had spent several vacations there, for instance in 2008 and 2009 as well as one and a half months in 2010 and two months in 2011. She had eighteen siblings in Denmark. She had stated that she would be unable to follow the applicant if he were deported from Denmark to Lebanon or Syria, and that the children would not manage outside Denmark. 39. The majority of six judges concluded: “[the applicant] has had a leading and central role in the commission of persistent, organised and aggravated drug crimes. Despite regard for his spouse and children in Denmark, we therefore find that he should be expelled with a permanent ban on his entry, see section 32, subsection 2 (V), of the Aliens Act.” 40. The minority of one judge found “As found by the majority, [the applicant] is guilty of drug offences of particular gravity. However, I find that regard for his eight minor children makes expulsion conclusively inappropriate, see section 26, subsection 2, of the Aliens Act.” 41. On 11 January 2012 the applicant was convicted for having possessed a mobile phone while in prison. He was sentenced to imprisonment for seven days. 42. It transpires from the Danish Civil Registration System that the applicant and his wife divorced with effect from 21 November 2012. 43. According to the Prison and Probation Service, the applicant had served two-thirds of his sentence on 22 September 2013. 44. In the meantime, on 13 August 2013, the National Police had submitted the applicant’s case to the Danish Immigration Service (Udlændingestyrelsen) for a decision as to whether, upon return, the applicant would risk treatment as described in section 31 of the Aliens Act. 45. Having found, inter alia, that the applicant would not be at risk of being subjected to the death penalty, or to torture, or inhuman or degrading treatment or punishment upon return, on 11 July 2014 the Danish Immigration Service found that the applicant could be returned to Lebanon. That decision was upheld on appeal on 19 November 2014 by the Refugee Appeals Board (Flygtningenævnet). 46. The applicant’s request that the Court apply Rule 39 of the Rules of Court was refused on 23 December 2014 by the Acting President of the Second Section. 47. It appears that the applicant was deported to Lebanon shortly thereafter. | 0 |
test | 001-154399 | ENG | GBR | CHAMBER | 2,015 | CASE OF MAGEE AND OTHERS v. THE UNITED KINGDOM | 1 | Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer;Conditional release) | George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 4. The first applicant was born in 1972 and lives in Belfast. The second applicant was born in 1967 and lives in Lurgan. The third applicant was born in 1978 and lives in Craigavon. 5. On 14 March 2009 the first and third applicants were arrested under section 41 of the Terrorism Act 2000 (“the 2000 Act”) on suspicion of involvement in the murder of a police officer on 9 March 2009. They were detained at Antrim police station on the same day. The first applicant was interviewed twice on 15 March 2009 and once on 16 March 2009; the third applicant was interviewed three times on 15 March 2009 and once on 16 March 2009. 6. On 16 March 2009 the Director of Public Prosecutions (“DPP”) made applications to the County Court under paragraph 29 of Schedule 8 to the 2000 Act for warrants of further detention in respect of both applicants in order to carry out questioning and to conduct forensic examinations. The first applicant gave evidence on oath in the course of the hearing. Following the hearing, the County Court Judge granted warrants authorising a five-day extension of detention. 7. Each of the applicants was interviewed on twelve occasions in the following five days. 8. On 21 March 2009 the DPP made applications to the County Court under paragraph 36 of Schedule 8 to the 2000 Act for seven-day extensions to the periods specified in the warrants for further detention. The extensions were sought in order to facilitate further questioning of the applicants once the results of additional forensic tests were obtained. At separate hearings on 22 March 2009 a police Superintendent gave evidence on oath as to the necessity of the extensions and arguments were heard on behalf of the first and third applicants. 9. Following the hearings Her Honour Judge Philpott QC delivered a written judgment in respect of the first applicant and an ex tempore decision in respect of the third applicant. She granted both applications, authorising the first applicant’s continued detention until 7.20 on 28 March 2009 and the third applicant’s continued detention until 5.52 on 28 March 2009. In her reasoning, Judge Philpott noted that the relevant forensic evidence was central to the investigation and that the investigation was being carried out diligently and expeditiously. 10. In the rulings Judge Philpott considered whether the 2000 Act or Article 5 of the Convention gave the court deciding whether or not to grant an extension of detention an express or implied power to examine the lawfulness of the arrest or to grant bail. She concluded that it did not as the 2000 Act only gave the judge the power to decide whether or not an extension of detention was necessary. Consequently, she had to confine herself to the issue of whether or not it was necessary to extend detention beyond forty-eight hours for investigative purposes and any issue as to the lawfulness of the arrest would have to be determined by the High Court in either Habeas Corpus or judicial review proceedings. 11. On 14 March 2009 the second applicant was arrested under section 41 of the 2000 Act on suspicion of involvement in the murder of two soldiers at Masserene Barracks, Antrim, on 7 March 2009. He was detained at Antrim Police Station on the same day. 12. On 15 March 2009 the DPP made an application to the County Court under paragraph 29 of Schedule 8 to the 2000 Act for a warrant extending the second applicant’s detention as the results of a number of forensic tests were pending. 13. Following a hearing on 16 March 2009 a County Court Judge granted a warrant authorising a five-day extension to his detention. 14. The second applicant was interviewed on twelve occasions in the following five days. However, neither the interviews nor the results of the forensic tests provided any evidence linking the second applicant to the murders of the two soldiers. 15. On 21 March 2009 the DPP made an application to the County Court under paragraph 36 of Schedule 8 to the 2000 Act for a seven-day extension to the period specified in the warrant for further detention. The extension was sought as the results of further forensic tests which had been sent for analysis to a laboratory in Great Britain were expected to become available within the following seven days and detention was considered necessary to ensure that further questioning could take place and, if there was sufficient evidence, charges could be brought. 16. On 21 March 2009 Judge Philpott granted the application, authorising the second applicant’s continued detention until 7.20 on 28 March 2009. 17. The applicants sought permission to apply for judicial review of Judge Philpott’s decisions of 21 and 22 March 2009 granting further extensions to the warrants authorising their detention. They submitted first, that Judge Philpott had been wrong to conclude that a court, in deciding whether or not to grant an extension of detention, was precluded from investigating the lawfulness of the arrest; secondly, that the judge had failed to address the question of whether the detention of the applicants was required while the results of the forensic examinations were expected; thirdly that the judge had failed to give reasons for her decision that detention was required; and finally, that Schedule 8 of the 2000 Act was incompatible with Article 5 of the Convention. 18. Permission to apply for judicial review was granted by the High Court of Northern Ireland on 24 March 2009 and the High Court heard the applications on 25 March 2009. 19. In respect of the applicants’ first submission, the High Court held that paragraphs 5 and 32 of Schedule 8 to the 2000 Act had to be read in conformity with the requirements of Article 5 § 3 of the Convention as explained in the jurisprudence of the Court. Thus, the review of the lawfulness of the detention had to embrace an examination of the basis of the arrest, otherwise a person could be detained under the 2000 Act for up to twenty-eight days without there having been any judicial review of the lawfulness of the original arrest and that could not be Convention compliant. The High Court therefore found that Judge Philpott had been wrong to disavow any review of the lawfulness of the applicants’ arrest and, as a consequence, her decision to grant extensions had to be quashed. The court accepted, however, that a review of the lawfulness of the arrest need not involve a detailed analysis of the basis for the decision to arrest and should reflect the constraints that necessarily apply in many arrests for terrorist offences. 20. With regard to the applicants’ second and third submissions, the High Court found that although the judge had not focused directly on whether the applicants had to be detained rather than released pending the outcome of the remaining forensic examinations, she had not failed to have regard to the need for detention as the basis for the grant of the warrant. Moreover, although her reasons were pithily stated, they were sufficient to convey to the applicants the basis of her decision. 21. Consideration of the applicants’ fourth submission, namely the compatibility of Schedule 8 to the 2000 Act with Article 5 of the Convention, was adjourned. In a judgment delivered on 24 February 2011, the High Court of Northern Ireland found no basis for the submission that Schedule 8 was incompatible with Article 5 of the Convention. In particular, the court held that although there was no doubt that the “competent legal authority” referred to in Article 5 § 1(c) was the authority having competence to deal with a criminal charge (the Magistrate in the United Kingdom), in Schiesser v. Switzerland, 4 December 1979, § 29, Series A no. 34 and McKay v. the United Kingdom [GC], no. 543/03, ECHR 2006X the Court had made it clear that the function of “a judge or other officer” for the purposes of Article 5 § 3 of the Convention could be carried out by an officer authorised by law to exercise judicial power and did not necessarily have to be a person with power to conduct the trial of any eventual criminal charge; that, although there was no express power to order release in the 2000 Act as required by Article 5 § 3 of the Convention, such a power must be implied; that, as paragraph 32 of Schedule 8 to the 2000 Act provided that there must be reasonable grounds for believing that the further detention of a person was necessary, it therefore contained a requirement of proportionality; that, there was no provision for conditional release on bail within the statutory scheme, an issue which did not arise in the present case but would need to be addressed in any future case in which it arose; that, although paragraph 33(3) of Schedule 8 enabled a judicial authority to exclude an applicant or anyone representing him from any part of the hearing and paragraph 34 permitted information to be withheld from the applicant or anyone representing him, there were a range of tools available to the court to preserve to the necessary extent an adversarial procedure and equality of arms; and, finally, that there was no authority which supported the applicants’ contention that Article 5 required that a detained person should be charged well before the expiry of the twentyeight day period contemplated in the 2000 Act. 22. On 4 April 2011 the High Court of Northern Ireland certified that it was satisfied that the decision given on 24 February 2011 involved the following points of law of general public importance: “(a) Whether paragraphs 29(3) and 36(3)(b) of Part III of Schedule 8 to the Terrorism Act 2000 (“the Act”) permitting extended detention for more than four days are compatible with the Applicant’s rights under Article 5(1)(c), 5(2) and 5(3) of the European Convention on Human Rights (“the Convention”) If compliance with Article 5(3) of the Convention can only be achieved by providing for a detainee to be brought before a judicial authority (i) other than the Magistrate’s Court and (ii) without any charges having been preferred against him; If Articles 5(1)(c) and 5(3) of the Convention are required to be read together as linked provisions and understood as creating a scheme so that the “judge or other officer authorised by law to exercise judicial power” referred to in Article 5(3) and “the competent legal authority” referred to in Article 5(1)(c) are one and the same; If the “judicial authority” provided for in Schedule 8 to the Act is the “judge or other officer authorised by law to exercise judicial power” within the meaning of Article 5(3) of the Convention; If Articles 5(1)(c) and 5(3) of the Convention cannot be interpreted in such a way as to permit the detention of a suspect without charge for any period specified by Parliament, subject only to the requirement of periodic judicial approval of the kind specified in Article 8 to the Act. (b) Whether the absence of a power to allow for conditional release on bail rendered the scheme for extending detention set out in Part III of Schedule 8 incompatible with Article 5 ECHR; and (c) Whether the procedure for granting an extension of detention, in circumstances where the suspect and legal representative have been excluded by the judge for a part of the hearing (as per Schedule 8, para 33(3)) and by reason of same information is made available to the judge but withheld from the suspect and his legal representative, (Schedule 8, para 34(1) and (2)(f) is incompatible with the request for an adversarial hearing as required by Article 5 in light of Secretary of State for the Home Department v AF (FC) & Anor [2010] 2 AC 269.” 23. However, the High Court refused leave to appeal to the Supreme Court. 24. Permission to appeal was refused by the Supreme Court on 14 November 2011 on the basis that the applications did not raise an arguable point of law of general public importance. 25. The applicants were released without charge on 25 March 2009. The first and third applicants were not subsequently charged with any offence related to the murder of the police officer. 26. The second applicant was immediately re-arrested and interviewed over the following two days. On 27 March 2009 he was charged with the murder of the two soldiers, five attempted murders and possession of a firearm and ammunition. He was produced before a District Judge sitting at Larne Magistrates’ Court on 27 March 2009. His application for bail was refused. Following a hearing which took place on 6 and 23 November 2009, bail was refused by the High Court on the ground that there was a real risk of re-offending on account of his suspected involvement with a dissident republican organisation. The High Court again declined to grant bail on 8 October 2010. 27. On 7 November 2011 the second applicant stood trial before a judge sitting without a jury. On 20 January 2012 he was acquitted on all counts on the indictment. | 0 |
test | 001-152598 | ENG | UKR | CHAMBER | 2,015 | CASE OF ZAICHENKO v. UKRAINE (No. 2) | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1956 and lives in Dnipropetrovsk. 6. He instituted numerous sets of proceedings before the domestic courts at various times. 7. In July 2009 the Dnipropetrovsk Regional Administrative Court received several letters from the applicant, which contained extremely rude remarks about the judges involved in his cases (including calling one of the judges “a louse [whose recusal was] warranted by his basic knowledge of parasitology”). 8. On 23 July 2009 the court drew up an administrative offence report in respect of the letters, stating that the applicant was in contempt of court. The case was sent to the Krasnogvardiyskyy District Court of Dnipropetrovsk (“the Krasnogvardiyskyy Court”) for examination. 9. On the same day the Krasnogvardiyskyy Court, sitting in a single-judge formation, held a hearing with the applicant’s participation. According to the minutes of the hearing, the applicant insisted on his vision of the situation as presented in his letters, which he did not consider to be rude. Having studied the case file and heard the applicant, the court ordered an in-patient forensic psychiatric examination of the applicant with a view to establishing whether he could be held legally accountable. The examination in question was to be carried out by the Forensic Psychiatric Examinations Department of the Dnipropetrovsk Regional Psychiatric Hospital (“the psychiatric hospital”). The judge relied on Article 20 of the Code of Administrative Offences and section 21 of the Psychiatric Assistance Act (see paragraphs 60 and 63 below). The ruling stated that it was not amenable to appeal. 10. The applicant was taken by the police from the hearing room to the Krasnogvardiyskyy District police station, where he was held for about three hours. He was then taken to the psychiatric hospital. 11. On the following day, 24 July 2009, the psychiatric hospital informed the Krasnogvardiyskyy Court that it would be unable to conduct a forensic psychiatric examination of the applicant, as ordered by the court, because there were no documents about his collateral history or personality in the case file. The applicant was discharged from the hospital without any documents having been issued concerning his psychiatric condition. 12. On 31 July 2009 the applicant lodged an appeal against the ruling of 23 July 2009. He submitted, in particular, that it had been in breach of his right to the presumption of good mental health and that such a ruling was not mentioned in the list of rulings a court was entitled to deliver under the Code of Administrative Offences. The applicant also referred to the statement contained in the impugned ruling that it was not amenable to appeal as another indication of its unlawfulness and arbitrariness. 13. On 4 August 2009 the President of the Krasnogvardiyskyy Court instructed the police to collect information on the applicant’s personality, which was required for the psychiatric hospital to establish his mental state. The police were instructed, in particular, to collect any documentation relating to psychiatric treatment or drug therapy received by the applicant, as well as character references for him from his relatives, neighbours and colleagues. 14. On the same day two of the applicant’s neighbours wrote quite positive character references about him for the police. 15. On 6 August 2009 the local hospital informed the police that the applicant had no psychiatric medical history and was not under psychiatric monitoring. 16. On 14 August 2009 the Dnipropetrovsk Regional Court of Appeal dismissed the applicant’s appeal against the ruling of 23 July 2009 without examining it on the merits. It noted that the contested ruling concerned a procedural issue and was not amenable to appeal. 17. On 2 September 2009 the Krasnogvardiyskyy Court requested the police to ensure that the applicant attended for his in-patient forensic psychiatric examination. 18. On 14 September 2009 the police took the applicant back to the psychiatric hospital. The circumstances of the apprehension are unclear. 19. On 21 September 2009 a senior expert at the forensic psychiatric examinations department of the psychiatric hospital wrote a letter to the Krasnogvardiyskyy Court in which he noted that some additional documents were required in connection with the applicant’s examination: a character reference from his former employer and detailed information about his mental state from his cousin and ex-wife. Without that information it was considered impossible to carry out his examination. 20. On 2 October 2009 the applicant’s cousin explained the applicant’s character and behaviour, without noting any particularities. He also stated that the applicant had never been married. 21. On 8 October 2009 the board of experts delivered its report, according to which, “given the complexity of the case and lack of clarity of the clinical picture”, it was impossible to establish a diagnosis and to give an expert conclusion regarding the applicant’s mental state. It was therefore recommended that he undergo another examination. 22. On the same date the applicant was discharged from the hospital without having received the expert report. According to him, one of the experts had assured him that he was in good mental health. 23. On 6 November 2009 an official from the psychiatric hospital wrote to the applicant, in reply to his request for a copy of the report of 8 October 2009, stating that he should ask the Krasnogvardiyskyy Court for a copy of the report, as it had been sent there. 24. On the basis of the material in the case file, on 19 November 2009 the Krasnogvardiyskyy Court ordered that the applicant undergo another in-patient forensic psychiatric examination. The applicant attempted to challenge that decision on appeal but was unsuccessful. 25. On 1 December 2009 the psychiatric hospital returned the case file to the Krasnogvardiyskyy Court without having conducted the psychiatric examination in question. Referring to the respective order of the Public Health Ministry, it said that the Kyiv City Centre of Forensic Psychiatric Examinations or the Ukrainian Research Institute of Social and Forensic Psychiatrics should carry out any further forensic psychiatric examinations required in such complex cases. 26. On 18 January 2010 the Krasnogvardiyskyy Court adjourned its hearing with a view to organising the applicant’s further psychiatric examination and its financing. 27. On 20 January 2010 the Deputy President of the Krasnogvardiyskyy Court enquired with the local Territorial Department of the State Judicial Administration whether the latter could pay for the applicant’s further psychiatric examination. The reply sent on 22 January 2010 was that no such payment would be possible until the annual budget had been approved. 28. On 25 January 2010 the court ordered the applicant’s outpatient psychiatric examination to be carried out by the Zaporizhzhya Regional Psychiatric Hospital. 29. Following numerous unsuccessful attempts to ensure the applicant’s attendance, on 16 July 2010 the hospital returned the case file to the Krasnogvardiyskyy Court without having complied with its order. 30. On 9 August 2010 the Krasnogvardiyskyy Court discontinued the administrative offence proceedings against the applicant as time-barred. 31. The applicant appealed against that ruling. He sought the termination of the proceedings on the ground that no administrative offence had been committed. 32. On 17 September 2010 the Dnipropetrovsk Regional Court of Appeal, following a hearing with the applicant’s participation, rejected his appeal by a final ruling. 33. It appears from the case-file materials that on 9 November 2009 the applicant instituted administrative proceedings in the Zhovtnevyy District Court of Dnipropetrovsk (“the Zhovtnevyy Court”) against the psychiatric hospital. He sought that his hospitalisation and confinement in that hospital be declared unlawful and claimed 500,000 Ukrainian hryvnias (UAH, at the time equivalent to about 41,000 euros) in respect of non-pecuniary damage. The applicant has not submitted a copy of that claim to the Court. 34. On 7 June 2011 the Zhovtnevyy Court allowed the applicant’s claim in part. Relying, in particular, on Article 5 of the Convention, the court concluded that the applicant’s admission to hospital on 23 July and 14 September 2009, as well as his psychiatric confinement from 23 to 24 July and from 14 September to 8 October 2009, had been unlawful. More specifically, the court considered that the defendant had acted in breach of the presumption of the good mental health of the applicant. Furthermore, the hospital in question was only entitled to conduct forensic psychiatric examinations of detainees, whereas the applicant had not been in detention at the time of the events. The court also noted that, even though the applicant’s examination had been ordered by a judicial decision, the hospital could have refused to carry it out. The applicant’s claim for compensation in respect of non-pecuniary damage was, however, rejected. 35. On 1 September 2011 the Dnipropetrovsk Administrative Court of Appeal quashed the aforementioned judgment and terminated the proceedings on the ground that the case did not fall to be examined under the administrative procedure. 36. On 11 October 2011 the Higher Administrative Court dismissed the applicant’s appeal on points of law against the ruling of 1 September 2011 as belated. 37. On 14 November 2011 the Higher Administrative Court informed the applicant that it remained open for him to lodge a new appeal on points of law together with a request for renewal of the time-limit. 38. The case file before the Court does not contain copies of the applicant’s appeals on points of law or his requests for renewal of the time-limits for lodging those appeals. 39. It appears from the case file that on 25 January 2010 the applicant brought another administrative claim against the psychiatric hospital before the Zhovtnevyy Court. He requested that the court recognise as unlawful the hospital’s refusal to provide him with a copy of the examination report of 8 October 2009 (see paragraphs 21-23 above). The applicant also claimed UAH 10,000 (at the material time equivalent to about EUR 880) in respect of non-pecuniary damage. The applicant has not provided the Court with a copy of that claim. 40. On 5 July 2011 the Zhovtnevyy Court allowed the applicant’s claim in part. It recognised as unlawful the hospital’s refusal to provide him with a copy of the examination report of 8 October 2009 and awarded him UAH 500 (equivalent of about EUR 40) in respect of non-pecuniary damage. 41. Both the applicant and the defendant appealed. The applicant claimed a higher award. The hospital argued, in particular, that the case did not fall to be examined in the administrative courts. 42. On 17 October 2011 the Dnipropetrovsk Administrative Court of Appeal upheld the ruling of the first-instance court. It noted that the hospital was a public health establishment and that the administrative courts were thus competent to deal with the case. The appellate court also stated that its ruling could be challenged on points of law before the Higher Administrative Court. 43. The applicant has not informed the Court whether he appealed on points of law against the ruling. 44. On 25 January 2010 the applicant brought a civil claim against the psychiatric hospital before the Zhovtnevyy Court, seeking compensation for non-pecuniary damage. He has not submitted a copy of his claim to the Court. 45. On 12 February 2010 the Zhovtnevyy Court returned that claim to the applicant on the ground that it had no territorial jurisdiction to deal with it. It informed the applicant that he should lodge his claim with the Samarskyy District Court of Dnipropetrovsk, the district in which the respondent hospital was located. 46. The applicant appealed against the above ruling. He has not submitted to the Court a copy of his appeal. 47. On 25 May 2010 the Dnipropetrovsk Regional Court of Appeal upheld the ruling of 12 February 2010. 48. The applicant lodged an appeal on points of law. 49. On 22 June 2010 the Supreme Court noted that the applicant had failed to pay the court fees and gave him until 29 July 2010 to rectify that omission. 50. On an unspecified date in July 2010 the applicant requested that the Supreme Court exempt him from the court fees. He has not submitted a copy of his request to the Court. According to a summary of the request in the respective ruling of the Supreme Court (see below), the applicant referred to the Court’s judgment on his earlier case (no. 29875/02, 22 November 2007), in which a violation of Articles 6 and 13 of the Convention, as well as Article 1 of Protocol No. 1, had been found on account of the lengthy non-enforcement of an unrelated final domestic judgment in his favour. 51. On 10 August 2010 the Supreme Court rejected the aforementioned request and dismissed the applicant’s appeals on points of law. 52. On 30 November 2009 the applicant complained to the Krasnogvardiyskyy District Prosecutor’s Office against some judicial officials involved in his cases and against the police officers involved in his taking him to hospital for psychiatric examination. The applicant did not provide the Court with a copy of the complaint. 53. On 29 December 2009 the prosecutor refused to open a criminal case in respect of the applicant’s complaint. The case file does not contain a copy of that ruling. 54. On 23 March 2010 the Dnipropetrvosk Regional Prosecutor’s Office quashed the prosecutor’s refusal and ordered an additional investigation. 55. On 9 April 2010 the Krasnogvardiyskyy Prosecutor’s Office once again refused to open a criminal investigation into the matter. It was noted in its ruling, in particular, that the applicant had disregarded numerous written summonses and telephone calls by the investigator. 56. The applicant alleged that while he had been in hospital, some money had been stolen from his flat. When he had returned home he had allegedly discovered a briefcase there containing personal documents belonging to a person unknown to him. The applicant complained to the police. 57. On 16 December 2009 the police opened a criminal case in respect of the alleged theft of the applicant’s property. 58. There is no further information on that investigation in the case file. | 1 |
test | 001-165568 | ENG | NLD | ADMISSIBILITY | 2,016 | T.M. AND Y.A. v. THE NETHERLANDS | 4 | Inadmissible | Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 1. The applicants, Ms T.M. and Mr Y.A., are a mother and son of Iranian nationality. They were born in 1961 and 1988 respectively and are currently living in the Netherlands. The duty judge decided that the applicants’ identities should not be disclosed to the public (Rule 47 § 4 of the Rules of Court). They were represented before the Court by Mr P.C.M. Schijndel, a lawyer practising in The Hague. 2. 3. The applicants entered the Netherlands on 23 March 2014 holding a Schengen visa issued by the Netherlands consulate in Tehran, Iran for the purpose of visiting a family member. Their visa expired on 28 April 2014. On 27 May 2014 the applicants applied for asylum in the Netherlands. The applicants were interviewed individually by the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst, “the IND”) on 19 August 2014 and 22 September 2014. 4. Both applicants submitted that three or four days prior to their scheduled return to Iran from the Netherlands, the first applicant, who had been staying at a family member’s house, had been called by her daughter, E. The daughter had warned the applicants not to return to Iran as they were in danger because the house church which they attended had been raided by the Iranian authorities. Several people, including E.’s husband, had been arrested. The applicants had not been able to get in touch with E. since. They stated that that was the direct reason for their asylum application. 5. In her interviews the first applicant stated that a colleague in Iran, with whom she had worked since July or August 2013, had proselytised her. The colleague held house church meetings which the first applicant had attended for the first time in October or November 2013. During that visit, which the first applicant later confirmed had taken place on 24 November 2013, she had said a prayer in order to convert to Christianity. She had then informed her son, the second applicant, about her conversion after which the latter had joined her at the next house church meeting a week later. Prior to her visit to the house church she had been provided with a Bible by her colleague, which she had shared with her son and had kept on the open shelves of a bookcase in her house. She had chosen Christianity because she had been suffering because of Islam and therefore resented that religion, especially after she had been raped by a local mullah. She had taken the Bible with her to the Netherlands, despite being aware of possible negative repercussions if it had been discovered by the Iranian authorities at the airport. She had covered it with the outside of an Iranian newspaper and had hidden it among her clothes in her suitcase. 6. The second applicant stated in his interviews that at a certain point in time he had been introduced to Christianity by his mother, that this had triggered his curiosity about that religion, and that he had gone to the house church meetings with her. He had started to read more about Christianity on the Internet while in Iran and as a result his beliefs had strengthened. Also, he resented Islam, which he considered a violent religion, in contrast to the Christian faith, which appealed to him because of the precepts of forgiveness and love. The second applicant also stated that house church meetings had often been held at his mother’s colleague’s house and that no security measures had been taken to prevent their activities being discovered by the authorities. During such meetings the attendees would read the Bible or extracts from it and then hold a discussion. The second applicant added that he had shared a Bible with his mother and that it had been placed in different rooms in their house, including in a bookcase that could be partly closed. He added that although he said prayers during the house church meetings he had not said a prayer specifically for his conversion, which had been a process that had happened over the course of several meetings. 7. The applicants also stated that they had converted E. and her husband in December 2013. They added that they had been attending church services in the Netherlands and that their baptism was scheduled for October 2014. 8. The applicants were baptised at the Tilburg Evangelical Baptist Church (Evangelische Baptisten Gemeente Tilburg) on 19 October 2014. 9. On 20 November 2014 the applicants were notified of the intention of the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) to reject their asylum applications as their asylum statements had not been believed. The Deputy Minister stated that the applicant’s delay in lodging an asylum application raised doubts about the reasons for their application. The reasons they had given, that they had had difficulties in informing their family member in the Netherlands about the problems in Iran and that the first applicant had needed time to recover from an injury, did not excuse such a delay. As to the applicants’ conversion to Christianity, the Deputy Minister held that it did not appear that there had been a deep internal belief and a corresponding process of conversion, and that all of the activities they said they had been involved in Iran seemed very informal, especially considering the short length of time that had gone into their alleged conversion and for the first applicant to convert her son, daughter and son-in-law. The Deputy Minister held that the applicants’ statements about the house church meetings detracted from the credibility of their account as they had seemingly gained easy access to those meetings and because no security measures had been taken to ensure that they would not be discovered by the authorities, which was strange considering the situation for Christians in Iran. The Deputy Minister also held that both applicants had only given a superficial account of the conversion process, especially the timeline of the various events leading up to and following that process, the contacts with the first applicant’s colleague and about the people who had attended the house church meetings. Furthermore, the Deputy Minister noted that the applicants had made contradictory statements about where in their house the Bible had been kept, had also been unable to explain where the first applicant’s colleague had been able to get a copy of the Bible, and why they had taken the risk of travelling to the Netherlands with a Bible when they knew what the consequences would be if it was discovered by the Iranian authorities when leaving or returning to Iran. The Deputy Minister also noted that it was strange that the applicants had not been able to provide details about the telephone call from E., such as the information she had given about the raid at the house church, and why she had called the applicants’ relative rather than one of them directly. 10. On 10 December 2014, counsel for the applicants submitted their comments on the notification. 11. By decisions taken on 8 January 2015 the Deputy Minister, confirming the assessment in his notice of intent, rejected the applicants’ asylum applications. He added that the applicants’ baptism did not in itself constitute a fact that confirmed the sincerity of their conversion, as it was relatively easy to join a church and register oneself as a convert at a church. The fact that the applicants had demonstrated that they had some knowledge of the Bible did not invalidate the finding that their conversion lacked credibility as such knowledge was easily acquired. Furthermore, a letter of 7 August 2014 from a Mr H.W. of the Tilburg Evangelical Baptist Church, confirming the sincerity of the applicants’ conversion, was insufficient to lead to a different finding as it had still been incumbent on the applicants to make a plausible case for the genuineness of their conversion. The Deputy Minister held in that connection that the first applicant had been unable to name the church where she had intended to be, and had later been, baptised; she had only known the first name of the minister at that church, and had stated that she had only had one conversation prior to her scheduled baptism. That contradicted Mr H.W.’s letter, which referred to discussions about baptism prior to the actual ceremony. The Deputy Minister held that neither applicant had demonstrated a deep-rooted, inner conviction of being a Christian and therefore a sincere conversion had not taken place. 12. The applicants lodged an appeal against the Deputy Minister’s rejection of their application with the Regional Court (rechtbank) of The Hague. They argued, inter alia, that their statements could not have led the Deputy Minister to conclude that because there had not been a lengthy process leading up to their conversion then that conversion was improbable. The applicants submitted a joint letter from Mr K.J.D. and Mr A.P. of 11 January 2015 from the Appingedam Evangelical Baptist Church, and a separate letter of 19 February 2015 from Mr A.P. The first letter confirmed that the applicants had attended Bible studies and weekly church services and that they were sincere in their beliefs. The second letter stated that the applicants demonstrated that they had gone through an internal process of conversion. 13. Following a hearing held on 29 July 2015 in the presence of the applicants and their counsel, the Regional Court of The Hague on 25 August 2015 dismissed their appeal. As to the assessment of an asylum claim based on religious grounds, the court held: “... the Deputy Minister applies a fixed policy in the assessment of religious grounds put forward by an alien in an asylum application. That policy involves the Deputy Minister putting questions to an alien which – in so far [as these] are applicable in a particular situation – can generally be divided into questions about the motivation for and the process of conversion, including the meaning and practical performing of baptism and a baptism ceremony, and about the personal meaning of the conversion or of the religion for an alien. Furthermore, those questions concern the general, basic knowledge about the religion’s doctrine and practices. Finally, the Deputy Minister expects that an alien who submits that attendance at church is part of his religion, is able to answer questions about that, for example, where the church he attends is located, what time the service or mass takes place, and what happens during the service or mass. Similar questions are put by the Deputy Minister to an alien about other ways in which he exercises his professed religion, such as evangelisation activities. ... the Deputy Minister rightly takes as a point of departure the fact that conversion by an alien who is from a country where conversion to another religion than the predominant one in that country is socially unacceptable should be based on a deliberate and conscious decision, which an alien should be able to explain.” 14. The Regional Court proceeded to uphold the Deputy Minister’s view that the applicants had failed to demonstrate that their decision to convert to Christianity and the process of conversion had been deliberate and conscious. The Regional Court referred in that regard to, inter alia, the alleged conversion of the first applicant which, she stated, had occurred at her very first house church meeting after saying a prayer; the relatively short time in which trust had been built up between the applicants and the first applicant’s colleague; the absence of measures to prevent the discovery of the house church; the contradictory statements about where the applicants kept their Bible; and the applicants’ failure to provide information about how the first applicant’s colleague had been able to obtain a copy of the Bible and to provide details about E.’s telephone call. As regards the applicants’ argument that even if it was assumed that they had not converted in Iran then they had done so in the Netherlands, the Regional Court agreed with the Deputy Minister that it was relatively easy to join a church, study the Bible and get baptised, but that such circumstances could not be decisive. A certain amount of knowledge of the Christian religion could not, in and of itself, lead to the conclusion that a conversion had been sincere. Although the letters from H.W., K.J.D. and A.P. might be capable of corroborating a conversion, it was nevertheless incumbent on the applicants themselves to provide convincing statements about their alleged conversion and the process leading up to it. The Regional Court noted that the applicants had not been able to state the names of the churches they had attended in the Netherlands and had known only the first names of the ministers at those churches. The Regional Court concluded that the applicants had failed to make a plausible case that they feared persecution or inhuman treatment in Iran. 15. On 29 September 2015 a further appeal lodged by the applicants was dismissed by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). 16. An application to the Court was lodged on 24 December 2015. On 7 January 2016 the duty judge decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to deport the applicants to Iran for the duration of the proceedings before it (Rule 39 of the Rules of Court). 17. The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000 (Vreemdelingenwet 2000). Further rules are laid down in the Aliens Decree 2000 (Vreemdelingenbesluit 2000), the Regulation on Aliens 2000 (Voorschrift Vreemdelingen 2000) and the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000). 18. Article 3.37b of the Regulation on Aliens 2000 provides as follows: “1. A well-founded fear of persecution within the meaning of the Refugee Convention or a real risk of serious harm can be based on events which have taken place since the alien left the country of origin. 2. A well-founded fear of persecution within the meaning of the Refugee Convention or a real risk of serious harm can be based on activities which have been engaged in by the alien since he left the country of origin, in particular where it is established that the activities relied on constitute the expression and continuation of convictions or orientations held by the alien in the country of origin.” 19. Article C2/3.2 of the Aliens Act Implementation Guidelines 2000 reads, in so far as relevant: “The IND will grant the alien who complies with Article 3.37b of the Regulation on Aliens a temporary residence permit for the purpose of asylum. This alien will be designated as ‘refugié sur place’. Even if the activities which the alien has been engaged in after his departure from the country of origin do not follow on from the activities in which he had already been engaged in the country of origin prior to his departure, the IND can designate the alien as a ‘refugié sur place’. This may be the case when the alien complies with the following conditions: • the authorities in the country of origin are aware, or the alien has made a plausible case for believing that the authorities in the country of origin will become aware, of those activities; and • the activities entail a well-founded fear of persecution within the meaning of Article 1A of the Refugee Convention.” 20. The section entitled “Refugees ‘sur place’” in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees provides, in so far as relevant, as follows: “94. The requirement that a person must be outside his country to be a refugee does not mean that he must necessarily have left that country illegally, or even that he must have left it on account of well-founded fear. ... A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee ‘sur place’. 95. A person becomes a refugee ‘sur place’ due to circumstances arising in his country of origin during his absence. ... 96. A person may become a refugee ‘sur place’ as a result of his own actions, ... Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person’s country of origin and how they are likely to be viewed by those authorities.” | 0 |
test | 001-141914 | ENG | ROU | CHAMBER | 2,014 | CASE OF CONTOLORU v. ROMANIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant was born in 1957 and lives in Târgu-Jiu. 6. On 25 August 2003 the applicant, who was the director of a local bank branch, was arrested and charged with several economic crimes, namely approving loans without respecting the legal requirements, abuse of office, fraud, forgery and conspiracy to commit crimes. Seven other individuals were also charged with various bank frauds allegedly committed in association with the applicant between January 2002 and April 2003. 7. On 27 July 2007 the Sibiu County Court acquitted the applicant of all the charges against him. The court held that the applicant was not guilty of the crimes of abuse of office, fraud, forgery and conspiracy to commit crimes. As regards the crime of approving loans without respecting the legal requirements, the court held that from 26 March 2007 this was no longer an offence in law and therefore acquitted the applicant of this offence too. On 2 November 2011 the applicant’s acquittal was finally upheld by a judgment of the High Court of Cassation and Justice. 8. Following the applicant’s arrest on 25 August 2003 for a period of three days, the investigating prosecutor requested the Gorj County Court to confirm the applicant’s pre-trial detention for a total period of thirty days. The prosecutor reasoned the request by quoting the text of Article 148 (1) of the Code of Criminal Procedure which provided for the cases in which a defendant may be arrested, namely that the defendant had made preparations to abscond from the authorities; that there was sufficient evidence that the defendant had tried to obstruct the investigation by influencing witnesses and destroying evidence; that the defendant had committed crimes for which the punishment was imprisonment for more than four years; that there was evidence that if released the defendant would pose a danger to public order and that there were sufficient data to justify the concern that the defendant would exert pressure on the victim or that he would try to make a fraudulent settlement of the case with the latter. No specific reference was made to the applicant’s situation or to the application of the legislation quoted in his particular case. 9. On 26 August 2003, on the basis of the reasons advanced by the prosecutor, the Gorj County Court granted this request and remanded the applicant in pre-trial custody for twenty-seven days. By the same judgment and with the same reasoning the court remanded the other three co-defendants who were arrested at the same time as he applicant in pre-trial custody. 10. On 29 August 2003 the Craiova Court of Appeal rejected an appeal by the applicant on points of law against the above-mentioned interlocutory judgment as ill-founded. The court held “In the current case the applicant has committed the above-mentioned offences and their nature leads to the conclusion that the defendant’s release would constitute an actual danger to public order.” 11. The applicant’s and his co-defendants’ pre-trial detention was subsequently extended on 10 September 2003, with the reasoning that the motives which had justified their arrest still existed. In taking this decision the court also held relevant the fact that two more suspects had been arrested since the beginning of the investigation. An appeal by the applicant on points of law against this judgment was rejected by the Craiova Court of Appeal on 12 September 2003; the court held that the applicant’s release had been correctly deemed by the lower court to be a threat to public order. 12. Between 10 September and 2 December 2003 the applicant’s and his co-defendants’ pre-trial detention was extended each month by the Gorj County Court with the same reasoning, namely that there was sufficient evidence for the conclusion that the defendants had committed the offences for which they were on trial, and that therefore their release would constitute a danger to public order. On 2 December 2003 the Gorj County Court additionally held that the defendants’ pre-trial detention was also justified by the fact that new crimes had been discovered by the investigators to have been committed at the same bank branch. No details were given about these crimes or about the defendants’ personal situation in this connection. 13. From 23 December 2003 to 24 June 2004 the Gorj County Court extended the applicant’s and his co-defendants’ pre-trial detention jointly, with the reasoning that there were no new facts capable of justifying a revocation of the remand in custody, the defendants had not yet been heard in court, and the financial losses caused by the crimes had not yet been recovered. 14. On 24 June 2004 the Gorj County Court decided to allow the applicant’s request for the replacement of his pre-trial detention with a prohibition on leaving the town. The court noted that the applicant had already been held in pre-trial detention for approximately one year, and there was no evidence that he had tried to obstruct the investigation during this period. An appeal by the prosecution on points of law against this decision was allowed on 28 June 2004 by the Craiova Court of Appeal. The court of appeal held that pre-trial detention continued to be justified for all the defendants because of the high number of offences involved, the severity of the punishment provided by law for these offences, and the fact that the defendants had rendered the investigation more difficult by requesting expert reports as well as submitting documents in their defence for the first time before the court and not during the investigation phase. 15. Between 8 July and 9 November 2004 the applicant’s pre-trial detention was extended a number of times, on the basis of the same reasoning, relying on the severity of the offence and the implied danger to public order. On 30 September 2004 the Gorj County Court additionally held that the defendants’ pre-trial detention was also justified by the fact that new accusations had been made against three of them including the applicant. 16. The applicant appealed against all the decisions extending his pre-trial detention, alleging that there was not enough evidence from which to acquire a reasonable suspicion that he had committed the offences, and there was no proof that if released he would present a danger to public order. The applicant also emphasised to the courts that the investigation was based mainly on bank documents which had all already been seized, and therefore it would not be possible for him to obstruct the investigation if released from prison. He further mentioned that he was a respected person in his local community, with a family and three minor children for whom he was responsible. He made numerous requests to the courts for his pre-trial detention to be replaced with a prohibition on leaving the town. However, his appeals were rejected as ill-founded, the courts considering that the reasons for his initial pre-trial detention still existed, without analysing the applicant’s specific allegations or his personal situation. 17. On 11 November 2004 the Gorj County Court again decided to revoke the applicant’s pre-trial detention, but that decision was quashed by the Craiova Court of Appeal on 15 November 2004, with the reasoning that not all the evidence gathered by the prosecutor had been produced before the court. 18. On 6 December 2004 the High Court of Cassation and Justice decided to grant a request made by one of the defendants and changed the location of the trial to the Sibiu County Court. 19. At the time he was placed in pre-trial detention the applicant was suffering, among others, from chronic coronary heart disease. 20. On 15 September 2003 the applicant submitted a request to the Gorj County Court for the revocation of his pre-trial detention for medical reasons. He requested a forensic medical expert report and enclosed medical documents attesting to his state of health. 21. At a hearing on 13 January 2004 the court ordered that the applicant be examined by the Gorj Forensic Medicine Service. 22. On 11 February 2004 the Gorj Forensic Medicine Service submitted to the court a forensic report concluding that the applicant was suffering from several diseases. The report estimated that the applicant’s conditions required treatment under strict medical supervision and further cardiology, neurology and orthopaedic tests, hence making him unable to cope with the detention regime. The report also suggested that the suspension of the applicant’s detention was necessary for a period of three months in order for him to seek treatment in a civil hospital. Finally, the report concluded that a failure to undertake the treatment recommended by a specialist doctor might endanger the applicant’s life. 23. The court requested on 12 February 2004 that the forensic report be supplemented with specific medical recommendations for the applicant’s health problems. A new amended report was submitted on 25 February 2004. 24. On 4 March 2004, at the request of the prosecutor, the court ordered the revision of the amended report by the Craiova County Control Commission (Comisia de avizare si control a actelor medico-legale) for more clarifications. 25. At the hearing of 25 March 2004 the court took note that the Craiova County Control Commission had confirmed the forensic report drafted by the Gorj Forensic Medicine Service, but had recommended the suspension of the applicant’s pre-trial detention for only one month instead of three. Again at the request of the prosecutor, the court ordered clarifications from the Control Commission, given that the suspension of the pre-trial detention was not provided by law. 26. In view of the lack of response from the Control Commission, on 13 May 2004 the court ordered a new forensic report to be drawn up by the Bucharest National Institute of Forensic Medicine. 27. On 16 September 2004, the court took note of the receipt of the opinion from the Bucharest Control Commission, which concluded that the applicant’s condition required a coronarography procedure, which could be done in detention and did not require him to be released for one month as previously recommended. Therefore, the court decided that the applicant could be treated within the prison health system, and refused his request for revocation of his pre-trial detention for medical reasons. An appeal by the applicant on points of law against this decision was rejected as ill-founded on 22 September 2004 by the Craiova Court of Appeal. 28. On 30 November 2004 the applicant complained to the court that his state of health had worsened during his detention, and requested a new forensic expert report to establish whether he could be treated within the prison health system. The court granted the applicant’s request and ordered the report to be carried out by the Gorj Forensic Medicine Service. No such report was ever submitted to the court. 29. On 5 January 2005, on the basis of the medical documents available in the file, the Sibiu County Court ordered the revocation of the applicant’s pre-trial detention for medical reasons. The applicant was ordered not to leave his town of residence without authorisation. An appeal by the prosecutor against this judgment on points of law was rejected on 10 January 2005 by the Alba Iulia Court of Appeal. The applicant was released the same day. 30. In 2012, after his final acquittal by the judgment of the High Court of Cassation and Justice of 2 November 2011, the applicant brought a civil action before the domestic courts which was based on the provisions of Article 504 of the Code of Criminal Procedure. He requested pecuniary damages, alleging that his pre-trial detention had been unlawfully ordered by the prosecutor and excessively and unlawfully extended by the courts, an issue which had caused him material losses and also caused his state of health to worsen. 31. On 4 February 2013 the Craiova Court of Appeal finally refused the applicant’s request. The court held that the applicant was acquitted of one of the offences he had been charged with because it was no longer punishable by law. Therefore, given that he was not held in detention once the new law entered into force, his pre-trial detention was lawful and he was not entitled to receive any kind of damages. | 1 |
test | 001-169021 | ENG | NLD | ADMISSIBILITY | 2,016 | AKDAĞ v. THE NETHERLANDS | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 1. The applicant, Ms Rabiya Akdağ, is a dual Dutch and Turkish national who was born in 1990 and lives in Vlaardingen. She was represented before the Court by Ms Y.M. Schrevelius, a lawyer practising in Rotterdam. 2. 3. The applicant, who was born and grew up in the Netherlands, had a relationship in that country with Mr S., who is a Dutch national and who was born in Suriname. A son was born to them on 10 January 2012. Initially the child was given up for adoption. However, after three months the son was placed back with the applicant as the latter no longer wished to continue the adoption process. Mr S. then also got involved in the upbringing of the son. Mr S. acknowledged paternity on 16 April 2012. He obtained joint parental authority on 11 June 2012. 4. On 26 June 2012 the applicant and her son, who, like the applicant, has both Dutch and Turkish nationality, emigrated to Suriname to settle there with Mr S. The applicant, Mr S., and their son lived there with the parents of Mr S. 5. On 6 July 2013 the applicant returned to the Netherlands with her son. She initially stayed with Mr S.’s grandmother. Two weeks later, Mr S. followed the applicant back to the Netherlands. Their relationship ended soon after. 6. On 26 September 2013 the applicant lodged a criminal complaint against Mr S., as he was planning to take their son back to Suriname, allegedly without her permission. Mr S. was arrested at the airport on the same day and the son was returned to the applicant. 7. On 31 October 2013 Mr S. applied to the Regional Court (rechtbank) of The Hague for an order requiring the applicant, pursuant to Article 12 of the Hague Convention (see paragraph 22 below), to either return the son to Suriname or to hand in the son’s valid travel documents so that he could take the child back to Suriname. 8. On 1 November 2013 the Regional Court ruled that the Rotterdam Youth Care Office (Stichting Bureau Jeugdzorg) should have temporary guardianship over the applicant’s son until 22 November 2013. At the same time, the assessment of the application made by Mr S. was adjourned. 9. A preparatory hearing (regiezitting) was held on 14 November 2013. At this meeting, in the presence of the guardian (voogd) of the Rotterdam Youth Care Office, who submitted that it would be better if the parents mutually reached a solution and that the son was seemingly developing well, the applicant and Mr S. agreed to start a mediation process. However, on 18 November 2013 the Regional Court was informed that mediation had failed. 10. The Regional Court decided on 22 November 2013 to extend the temporary guardianship of the Rotterdam Youth Care Office until a decision was put into effect on the return of the son. 11. Another hearing was held on 5 December 2013 to obtain further statements from the applicant and Mr S. The applicant stated that she and Mr S. had intended to return to the Netherlands to resettle there, that she was the primary carer of her son, and that it was impossible for her to return to Suriname. Mr S. stated that he had not agreed to return to the Netherlands to settle there permanently, and added that the applicant had a residence permit in Suriname which allowed her to live and work there and, should she choose not to return to Suriname, he could take care of their son. 12. On 19 December 2013 the Regional Court refused Mr S.’s application for an order for the son to be returned to Suriname. At the outset the Regional Court noted that by virtue of section 11(1) of the International Child Abduction Implementation Act (Uitvoeringswet internationale kinderontvoering; hereafter “the Implementation Act”) it had jurisdiction to deal with all cases concerning the forced return of an abducted child to the person who had parental authority over said child and the repatriation of that child from the Netherlands. It further noted that Mr S. had based his request for the son’s return on the Hague Convention, and although Suriname was not a Contracting State, it observed that the Implementation Act also applied to situations of international abduction of children that were not covered by a convention. It also noted that section 13(3) of the Implementation Act provided that in situations which were not covered by a convention the judge could refuse the return request on the grounds set out in Article 12 paragraph 2, Article 13 and Article 20 of the Hague Convention. Therefore the Regional Court found that the Implementation Act allowed it to apply the Hague Convention by analogy in the case before it. 13. As regards the assessment of Mr S.’s application, the Regional Court held that it was undisputed that the son had been habitually resident in Suriname before his retention in the Netherlands and that joint parental authority was, or would have been, exercised during that period had this not been the case. The Regional Court noted that, contrary to her submissions in the proceedings at issue, the applicant had not said, in the statements given by her to the police on 26 September 2013 in relation to the criminal complaint she had made against Mr S., that the latter had consented to the child moving to, and living permanently in, the Netherlands. Having failed to explain her contradictory statements regarding any permission given by Mr S. for their son’s resettlement in the Netherlands, the Regional Court found that documentary evidence introduced by the applicant, including an email reply from a company in the Netherlands to a job application made by Mr S. and a letter from a social housing cooperation, also in the Netherlands, about an outstanding payment, were insufficient to conclude that Mr S. had indeed given his prior permission to the applicant to take their son to the Netherlands. The Regional Court concluded that the son’s retention by the applicant violated the parental authority of Mr S. and was wrongful within the meaning of Article 3 of the Hague Convention (see paragraph 22 below). 14. With reference to Article 12 of the Hague Convention, the Regional Court noted that this provision required the immediate return of the child when a period of less than a year had lapsed between the child’s retention and the submission of the return application, and that even in cases where more than a year had lapsed an immediate return may be ordered unless it was demonstrated that the child was rooted in its new environment. The Regional Court held that in the present case, where the period between the retention and the return application was less than a year, it did not have to assess whether the son was rooted in the Netherlands, and that his immediate return should be ordered, unless an exception as provided in Article 13 of the Hague Convention (see paragraph 22 below) applied. 15. Accordingly, the Regional Court next examined whether Article 13 of the Hague Convention stood in the way of an order being issued for the son’s immediate return. It held, firstly, that it had not been established that Mr S. had subsequently acquiesced in the retention of his son (Article 13 (a) of the Hague Convention). Secondly, as to the question whether the return of the son would expose him to physical or psychological harm or otherwise place him in an intolerable situation (Article 13 (b) of the Hague Convention), the Regional Court observed that the applicant and Mr S. were young adults and that the pregnancy had not been planned, but that after the first three months of their son’s life they had both assumed their parental roles. As the birth of their son had changed their study and work plans and there had been problems between, on the one hand, the applicant and Mr S. and, on the other, the couple and the applicant’s family, they had decided to start a new life in Suriname, where the family of Mr S. were residing. The Regional Court noted that the applicant and Mr S. had not been able to build up an independent life in Suriname, where they depended on Mr S.’s family for both their income and housing. The applicant’s return to Suriname would entail a return to the same situation of dependency. The Regional Court also noted that Mr S. had acknowledged that the applicant did not have independent accommodation and for the time being also no means of subsistence in Suriname. While the applicant would be able to obtain work in Suriname, it remained unclear if and when she would succeed in doing so and how she would be able to fend for herself in the meantime. The Regional Court further noted that Mr S. had not offered to contribute to the applicant’s residence in Suriname, other than to propose that she return to live in his parents’ house, which could not be expected of her as her relationship with Mr S. had ended. The Regional Court therefore concluded that it was impossible for the applicant to return with her son to Suriname. Accordingly, were the return of the son to be ordered, the son would be separated from his mother. The Regional Court held that it was generally known that children of the son’s age, who was at that time two years old, were going through a crucial phase of the process of forming an attachment bond. The son had primarily formed such a bond with his mother, given that she had been his main carer in Suriname as Mr S. was employed full-time in his family’s company. Also, it took into account that the son was even more vulnerable given his early history. The Regional Court concluded that the son would be placed in an intolerable situation by separation from the applicant. 16. On 2 January 2014 Mr S. lodged an appeal with the Court of Appeal (gerechtshof) of The Hague disputing the conclusion of the Regional Court that the son would be put in an intolerable situation in the event of a return to Suriname. He argued that the applicant had not provided any evidence to that end, that the exceptions provided in Article 13 of the Hague Convention should be interpreted restrictively, and that he was also able to take care of his son, with the support of his family when necessary. Mr S. further submitted a statement from his father in which the latter pledged to provide the applicant with housing in Suriname, within a maximum distance of 15 km of her son’s place of residence and for a period of six months and with a financial allowance for the same period of time, as well as to make the necessary effort to help find a job for the applicant. 17. The applicant argued that it could not be expected of her to return to Suriname, where she lacked social and family ties. She added that she could not rely on the guarantees provided by the family of Mr S. and that in any event these were insufficient and only valid for a period of six months, after which she would most likely either have to live below the poverty line or be separated from her son because she would need to work many hours per week in order to make a living. The applicant further added that a child of her son’s age forms an attachment bond with one person only and, with reference to a scientific publication and the website of the Netherlands Youth Institute (Nederlands Jeugdinstituut), that a disruption of a secure attachment bond could have serious repercussions and lead to behavioural problems at a later stage in a child’s life. Given that her son had formed such an attachment bond primarily with her, as his main carer, she submitted that a separation from his mother would place her son in an intolerable situation. 18. A hearing was held before the Court of Appeal on 13 January 2014. Mr S. submitted that he would pay for the applicant’s ticket, and that his father’s offer to provide housing for the applicant for the first six months after her return to Suriname also applied regardless of whether the son lived with the applicant or with him (Mr S.); it would be for a Surinamese court to decide with which of his parents the son would live. The applicant stated that she could not rely on the statements made by Mr S. or his father. The son’s guardian had been unable to attend the hearing. At the end of the hearing, the presiding judge informed the parties that the guardian would be contacted by telephone prior to the Court of Appeal issuing its decision, and that the parties would be given an opportunity to respond to the contents of that telephone conversation. 19. On 15 January 2014 the presiding judge telephoned the guardian, who stated, inter alia, that the son would be in good hands with either the father or the mother, that there was no risk of abuse (mishandeling), that the son was developing age-appropriately, that he recognised the family in Suriname from photographs, and that he had in the meantime also become acquainted with his mother’s family. However, he did not understand the situation very well and clarity was needed. The following day the presiding judge contacted the representatives of the applicant and Mr S. to allow them to respond to the findings of the guardian. Mr S. submitted that if the son were to remain in the Netherlands he foresaw problems in connection with the fact that the applicant’s family did not accept him (Mr S.). The applicant stated that nothing had been said about the bonding of the son or about how he might react to being separated from one of his parents. 20. In its decision of 27 January 2014, the Court of Appeal upheld Mr S.’s appeal, quashed the Regional Court’s decision in so far as it concerned its rejection of the request submitted by Mr S., and ordered that the son be returned to Suriname. While the Court of Appeal agreed with the Regional Court that the son’s retention was wrongful within the meaning of Article 3 of the Hague Convention, it found in contrast to the lower court that the applicant had made an insufficiently plausible case for believing that the son would be exposed to physical or mental harm or put in an intolerable situation upon his return to Suriname. Although the child was only two years old, had changed his place of residence multiple times and had been separated from his parents for the first three months of his life, it was undisputed that he was doing well, that he was developing age-appropriately, and that he was attached to both parents. It considered that both parents were involved in their son’s life and were able to take good care of him. The appellate court found that the applicant had insufficiently substantiated her argument that she would be unable to fend for herself in Suriname and take care of her son due to a lack of financial means, as a result of which her son would be put in an intolerable situation. The Court of Appeal referred in this regard to the undertaking given by Mr S.’s father to the effect that he would provide the applicant with accommodation and an income for the first six months of her stay in Suriname, and the further explanation of that undertaking provided by Mr S. at the hearing, including the additional undertaking that Mr S. would cover the cost of a flight ticket for the applicant. 21. Provisions of the Implementation Act relevant to the case are the following: “1. Without prejudice to the competence of the provisional measures judge of the Regional Court of The Hague in interim injunction proceedings, the juvenile judge of the Regional Court of The Hague has exclusive first-instance jurisdiction to hear all cases relating to the forced return of an internationally abducted child to the person who holds parental authority [over that child] and the repatriation of such a child across the Netherlands border ...” “The cases referred to in section 11 are introduced by an application.” “... 3. In cases where no convention applies the judge may refuse the application on the grounds set out in Articles 12, paragraph 2, 13 and 20 of the Hague Convention ...” 22. The Hague Convention, ratified by the Netherlands, in its relevant parts reads as follows: “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” “The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.” “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.” “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” 23. The Explanatory Report on the Hague Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982 (“the Pérez-Vera Report”), provides the following comments on the notion of “the best interest of the child”: “... one fact has rightly been highlighted, viz. that ‘the legal standard “the best interest of the child” is at first view of such vagueness that it seems to resemble more closely a sociological paradigm than a concrete juridical standard ... the general statement of the standard does not make it clear whether “the interests” of the child to be served are those of the immediate aftermath of the decision, of the adolescence of the child, of young adulthood, maturity, senescence or old age’ ...” (§ 21, p. 431) and “... [the philosophy of the Convention] can be defined as follows: the struggle against the great increase in international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests. Now, the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests of the child. ... In fact, ... in the literature devoted to a study of this problem, ‘the presumption generally stated is that the true victim of the “childnapping” is the child himself, who suffers from the sudden upsetting of his stability, the traumatic loss of contact with the parent who has been in charge of his upbringing, the uncertainty and frustration which come with the necessity to adapt to a strange language, unfamiliar cultural conditions and unknown teachers and relatives’.” (§ 24, pp. 431 and 432) and “It is thus legitimate to assert that the two objects of the Convention – one preventive, the other designed to secure the immediate reintegration of the child into his habitual environment – both correspond to a specific idea of what constitutes the ‘best interests of the child’ ... However ... it has to be admitted that the removal of the child can sometimes be justified by objective reasons which have to do either with its person, or with the environment with which it is most closely connected. ...” (§ 25, p. 432)” 24. The Pérez-Vera Report contains the following general comments about the exceptions to the principle of the child’s prompt return: “... [the exceptions] to the rule concerning the return of the child must be applied only as far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them – those of the child’s habitual residence – are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child’s residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration.” (§ 34, pp. 434 and 435) and “... the exceptions [in Articles 13 and 20] do not apply automatically, in that they do not invariably result in the child’s retention; nevertheless, the very nature of these exceptions gives judges a discretion – and does not impose upon them a duty – to refuse to return a child in certain circumstances.” (§ 113 p. 460) and “With regard to article 13, the introductory part of the first paragraph highlights the fact that the burden of proving the facts stated in sub-paragraphs a and b is imposed on the person who opposes the return of the child, ...” (§ 114, p. 460; [italics in original]) and “The exceptions contained in [Article 13] b deal with situations ... where the return of the child would be contrary to its interests, ... Each of the terms used in this provision is the result of a fragile compromise reached during the deliberations of the Special Commission [of the Hague Conference on Private International Law] and has been kept unaltered. Thus it cannot be inferred, a contrario, from the rejection during the Fourteenth Session of proposals favouring the inclusion of an express provision stating that this exception could not be invoked if the return of the child might harm its economic or educational prospects, that the exceptions are to receive a wide interpretation.” (§ 116, p. 461) | 0 |
test | 001-147022 | ENG | MKD | COMMITTEE | 2,014 | CASE OF GORESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicants were born in 1929, 1952, 1956 and 1949 respectively. The second and third applicants live in Prilep. 6. On 12 September 2000 the applicants initiated restitution proceedings. On 20 July 2001 they lodged a “silence of administration” appeal. After one remittal, on 5 October 2005 the Restitution Commission dismissed their claim to have the property restored into their possession and awarded them compensation instead. The type of compensation (видот на надоместокот) was to be decided with a separate decision (дополнително решение). On 12 December 2008 the Administrative Court finally upheld the restitution order. On 23 February 2008 the applicants were requested to specify the type of compensation, which on 3 March 2009 they refused to do until, according to them, the Court would decide their case. | 1 |
test | 001-145411 | ENG | POL | ADMISSIBILITY | 2,014 | R.A. v. POLAND | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The applicant, Ms R.A., is a Polish national, who was born in 1973. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 3). She is represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warszawa. The Polish Government (“the Government”) are represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In July 2010 the applicant filed with the Warszawa-Praga Regional Court a claim for the protection of her personal rights against the company S. which publishes the newspaper “Nasz Dziennik”, its editor-in-chief E.S. and journalist M.S. She referred to an article published in this newspaper in January 2008 which, in the applicant’s submission, had breached her rights protected by Articles 23 and 24 of the Civil Code. She sought compensation in the amount of 60,000 Polish zlotys (PLN) in respect of non-pecuniary damage caused by disclosing information about her private life accompanied by denigrating and untrue statements and views about the applicant published in the newspaper in an article written by M.S. She further requested that all three defendants publish apologies, on the newspaper’s website for seven consecutive days and in a Sunday edition of a countrywide daily newspaper Gazeta wyborcza, for damage caused by describing her in a mendacious and wrongful manner (w sposób nieprawdziwy i krzywdzący). 4. By a decision of 22 July 2010 the court ordered the applicant to provide the court with the private addresses (miejsce zamieszkania) of E.S. and M.S. within seven days, referring to Article 126 para. 1 of the Code of Civil Procedure. 5. In her pleadings of 4 August 2010 the applicant submitted that it was impossible for her to establish the defendants’ private addresses and even less so within seven days. It was true that it was possible for her to ask the Ministry of Internal Affairs for the addresses of private persons, but such a request had to be accompanied by the statistical numbers (PESEL) of the persons concerned. The applicant did not know these numbers and had no way of obtaining them. She argued that in her statement of claim (pozew) she had provided the court with the newspaper’s publisher’s official address which should be sufficient for effective service of the court correspondence both on the journalist and the editor-in-chief working there. She submitted ’ private addresses amounted to an undue restriction of her right of access to court. 6. On 27 September 2010 the applicant requested the court to lift the order of 22 July 2010, referring to the Court’s judgment in the case of Nowiński v. Poland (no. 25924/06, 20 October 2009). She submitted that the domestic court’s approach was unduly formalistic as no proper regard had been had to the practicalities of the situation, in particular to the difficulties in establishing the defendants’ private addresses. She argued that it was in fact possible to ensure effective service of the court correspondence on the editor and journalist at the newspaper’s official address. 7. By a decision of 29 September 2010 the court, referring to Article 130 of the Code of Civil Procedure, returned the statement of claim to the applicant (zwrot pozwu) in so far as it concerned the editor-in-chief and the journalist. The court referred to the applicant’s failure to give their private addresses and refused to entertain her claim. The court referred to the Supreme Court’s decision given in 1989 to the effect that in the protection of personal rights cases in the context of press publications the requirements of Article 126 of the Code of Civil Procedure were to be understood as imposing on plaintiffs an obligation to submit private addresses of journalists to the court in the statement of claim (II CZ 167/89). Article 135 of the CCP providing for service of court pleadings at the employer’s address (doręczenie zastępcze) could not be applied. 8. The applicant appealed. She reiterated that she had indicated the publisher’s address in her statement of claim and that both the editor and journalist could easily be contacted at that address and the court correspondence served on them. Hence, it was possible for the court to establish an effective channel of communication with the two defendants and to ensure effective protection of their rights without the need for their private addresses being indicated to the court. 9. By a decision of 10 May 2011 the Court of Appeal dismissed the applicant’s appeal. It was of the view that the contested decision was lawful given that Article 126 para. 1 of the Code of Civil Procedure required that the private address (miejsce zamieszkania) of a defendant who was a natural person was indicated in the statement of claim and in the pleadings. The court observed that the Court’s judgment in the case of Nowiński v. Poland was irrelevant to the circumstances of the present case. The Court had found a violation of Article 6 of the Convention in respect of a situation where the court obliged the plaintiff who did not have a permanent private address to give such an address for the purposes of judicial proceedings. The present case was different in that it concerned private addresses of defendants who had permanent addresses. 10. On 28 September 2010 the applicant requested the newspaper’s publisher, S. company, to provide her with E.S.’s and M.S.’s private addresses, referring to the civil claim lodged with the WarszawaPraga Regional Court. There was no reply to this letter. 11. On 19 October 2010 the applicant submitted a request to the General Inspector for Personal Data Protection (Generalny Inspektor Ochrony Danych Osobowych) to oblige the publisher to provide her with the addresses concerned. She argued that the courts in the Warsaw region had developed an unduly restrictive practice requiring plaintiffs to give the personal addresses of defendants in all cases and had regard neither to practical difficulties in establishing these addresses, nor to the fact that in many cases, like in her case, it was in fact possible to proceed with the case as other addresses of the defendants, such as their employer’s permanent addresses, were available. Establishing effective communication between the court and the plaintiff was therefore feasible. 12. On 24 March 2011 the Inspector allowed her request. 13. The S. company appealed, submitting that the addresses were not necessary for the purposes relied on by the applicant. The applicant could find the necessary data in the press titles register run by the WarszawaPraga Regional Court. The publisher was further of the view that disclosure of the personal addresses of the journalist and the editor without their consent would have amounted to a breach of the legislation on the protection of personal data. 14. Following the publisher’s appeal, on 27 May 2011 the Inspector reexamined the case and upheld the contested decision. He noted that the lack of consent on the part of persons whose personal data were to be disclosed was not a single or decisive factor determining the lawfulness of such a disclosure. Personal data could be disclosed also when it was necessary for the protection of legally protected interests of third parties. In the present case the personal addresses of the journalists were necessary for the applicant to pursue her civil case against them. Hence, the publisher, in its capacity of administrator of its employees’ personal data, was obliged to disclose them. 15. On 20 February 2012 the Warsaw Regional Administrative Court dismissed the appeal brought to it by the publishing company, essentially reiterating the reasoning of the administrative authority. 16. On 10 April 2012 the publisher’s lawyer lodged a cassation appeal with the Supreme Administrative Court against that judgment. It was argued, inter alia, that there was no legitimate aim that would justify the disclosure of the journalist’s and editor’s addresses to the applicant, regard being had to the fact that the WarszawaPraga Regional Court had already returned the applicant’s statement of claim (see paragraph 7 above). In the absence of any pending case between the applicant on the one hand and E.S. (who had in the meantime married and her new name was E.N. – K.) and M.C. on the other, the disclosure would not serve any practical purpose. 17. On 5 December 2013 the Supreme Administrative Court dismissed the publisher’s appeal. It shared the reasoning and conclusions reached by the administrative authority and by the first-instance court. 18. On 25 July 2012 the Warszawa-Praga Regional Court allowed the applicant’s claim in so far as it was directed against the publisher company. It ordered it to publish apologies in their newspaper, for seven consecutive days, for having breached her personal rights by disclosing and publishing details of her personal life and describing them in a mendacious and wrongful manner (w sposób nieprawdziwy i krzywdzacy). It further ordered that the article should be removed from the newspaper’s website within 14 days from the judgment becoming final. The applicant was awarded compensation in the amount of PLN 30,000. Article 25 of the Civil Code of 23 April 1964 provides: “The personal address of a natural person shall be the town where that person resides with the intention of remaining permanently.” 19. Article 126 of the Code of Civil Procedure specifies the information that pleadings in civil cases should contain. Paragraph 2 provides, in particular, that the first pleading submitted to a court in a case directed against a natural person should indicate the parties’ personal addresses. | 0 |
test | 001-146403 | ENG | TUR | CHAMBER | 2,014 | CASE OF CEVAT SOYSAL v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses) | András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 4. The applicant was born in 1962 and lives in Germany. 5. On 7 July 1999 the Ankara Magistrates’ Court ordered the applicant’s arrest in absentia on suspicion of membership of the PKK, an illegal organisation. 6. On 13 July 1999 the applicant was captured in Chisinau, Moldova, and taken to Turkey on the same day. He was interrogated by MIT (the National Intelligence Organisation of Turkey) agents until 21 July 1999. 7. In July 1999, shortly after being taken to Turkey, the applicant was described by a number of media outlets as the “second man of the PKK”, the “European representative of the PKK”, “a terrorist” and “a traitor to the country”. According to an article published in Turkish Daily News of 22 July 1999, the National Intelligence Agency of Turkey (MIT) issued a press statement in which it stated that the applicant had worked to increase terrorist activities and incited the PKK supporters in Turkey to use violence. 8. On 21 July 1999 the applicant was handed over to the Ankara Security Directorate for further questioning. At the time of transfer, a hand-written delivery report was produced. It is not known who drafted the report. 9. On 23 July 1999 the applicant was brought first before the public prosecutor at the Ankara State Security Court and subsequently before a judge at the Ankara State Security Court, who ordered that the applicant be remanded in custody. 10. On 9 August 1999 the public prosecutor at the Ankara State Security Court filed a bill of indictment against the applicant and two other persons. The applicant was charged with being a leading member of the PKK, whose aim was to bring about the secession of part of the national territory. The charges against the applicant were brought under Article 125 of the former Criminal Code. 11. The public prosecutor accused the applicant of being one of the leaders of the PKK in Europe and of having been involved in the training of PKK members in Romania. According to the indictment, the applicant had been in contact with Mr Abdullah Öcalan, the leader of the PKK, and had provided him with information about the persons who had been trained. The public prosecutor further noted that when he had questioned Mr Öcalan on 22 February 1999, the latter had maintained that he had given instructions to the applicant regarding that training. Moreover, the leader of the PKK had confirmed the veracity of that statement during his trial on 1 June 1999. 12. The public prosecutor at the Ankara State Security Court further claimed that during telephone conversations with a number of people in Turkey, the applicant had issued instructions to perpetrate acts of violence following the arrest of Mr Öcalan. In the indictment, the public prosecutor quoted the transcripts of eight of the applicant’s alleged telephone conversations dated 4, 18 and 22 February 1999 and 1, 5, 7, 15 and 19 March 1999. The public prosecutor also noted that the applicant had referred to the State of Turkey as “the enemy” in his conversations. Furthermore, according to the indictment, a number of PKK members – A.G., K.O., Ş.Ö., H.K., N.Y., M.Ş. and A.Y. – had maintained in their statements that the applicant had been involved in the activities mentioned in the indictment. As a result, the public prosecutor alleged that the applicant had issued instructions for hundreds of bombings, fires, hunger strikes, suicide attacks and massacres, including the killing of thirteen people as a result of an attack on Mavi Çarşı, a shopping centre, on 13 March 1999 and that he had trained members of the PKK in his capacity as one of the leaders of the organisation. 13. On 16 September 1999 the Ankara State Security Court held the first hearing on the merits of the case. At the end of the hearing, the court decided to enquire whether the persons who had made statements regarding the accused had been prosecuted and, if so, to request copies of all the statements given during the criminal proceedings against them. 14. During the second hearing on 14 October 1999 the applicant’s lawyer asked the court, inter alia, to remove the transcripts of the applicant’s alleged telephone conversations from the case file. The public prosecutor demanded that the request be refused, and the court duly dismissed it. 15. On an unspecified date the police sent the prosecution a document containing the statement of an alleged member of the PKK, C.P., taken by the police. During the hearing of 11 November 1999 the statement was read out in court. According to the document, C.P. had testified against the applicant. The applicant denied the veracity of the statement, claiming that he did not know C.P. At the end of the hearing, the court decided to enquire whether criminal proceedings had been instituted against C.P. and, if so, to request all of his statements given during those criminal proceedings. 16. During the fourth hearing in the case, held on 9 December 1999, the applicant’s lawyer maintained that only the indictments concerning A.G., K.O., Ş.Ö., H.K., N.Y., M.Ş., A.Y. and C.P. had been included in the file and asked the court to include all the statements they had given during the criminal proceedings against them. The court postponed its decision on the request of the applicant’s lawyer to a forthcoming hearing. 17. On 18 January 2000, at the end of the fifth hearing, the Ankara State Security Court decided to request a copy of the case file in the proceedings against C.P. 18. The Ankara State Security Court repeated its request seven times between 8 February and 27 June 2000, as it had not received the aforementioned case file. During the same period the court also asked a number of other courts to send a copy of the statements made by A.G., K.O., Ş.Ö., H.K., N.Y., M.Ş. and A.Y. during the criminal proceedings against them. 19. At the eleventh hearing in the case, on 27 June 2000, the applicant’s lawyer asked the Ankara State Security Court to summon everyone who had allegedly made statements against the applicant to testify before the court. The court did not respond to his request. 20. Six more hearings were held between 27 June and 21 November 2000. During that period the Ankara State Security Court received the documents that it had requested from the other courts. In the course of the hearings, the applicant’s lawyer maintained before the court that the statements of the persons who had allegedly testified against the applicant did not contain any reference to the applicant. At the end of the hearing on 21 November 2000, the court instructed the public prosecutor to prepare his observations on the merits of the case. 21. On 12 December 2000 the public prosecutor’s observations on the merits of the case were read out before the court. 22. At the hearing of 21 December 2000, the applicant’s lawyer filed a petition with the first-instance court in response to the public prosecutor’s observations. In his petition, the applicant’s lawyer contended that the public prosecutor’s observations had referred to recordings of telephone conversations which were in the case file. He submitted that he had already asked the court to remove the transcripts of the recordings from the case file as they could not be used as evidence. He further noted that the applicant had denied that he was the person whose conversations had been recorded. The lawyer requested the court to order a comparative voice analysis and to enquire whether the phone tapping had been conducted in accordance with the legal procedure and on the basis of a court order. He also asked the court to find out the identities of the persons with whom the applicant had allegedly spoken (designated as “X” in the documents in the case file) and to take statements from them about those conversations. 23. On the same day the Ankara State Security Court accepted the request for a comparative voice analysis and dismissed the remaining requests without providing any reasons. 24. At the next hearing, on 6 February 2001, the applicant’s lawyer complained that two police officers had been assigned to conduct the voice analysis. He argued that police officers could not be impartial given the involvement of the police in the case. He therefore asked the court to appoint impartial experts. The court allowed his request and asked TRT (Radio and Television Corporation of Turkey), the national public broadcaster, to assign impartial experts to conduct the analysis and to prepare a report. 25. In April 2001 TRT informed the first-instance court that no appropriate expert could be found. Following receipt of that information, the applicant’s lawyer filed a petition with the first-instance court on 26 April 2011 repeating his requests contained in the petition of 21 December 2000. In his petition, the applicant’s lawyer also requested that a copy of the audiotapes be provided to him and his client. 26. At the hearing of 26 April 2001 the Ankara State Security Court decided to ask the criminal departments of the gendarmerie and the police to assign appropriate experts for the voice analysis. The court dismissed the applicant’s requests in the petition of the same date, holding that it had already ruled on them. 27. On 22 May 2001 the applicant’s lawyer filed a further petition with the court repeating the requests contained in his petitions of 21 December 2000 and 26 April 2001. He further maintained that any experts assigned in the case should be impartial. At the hearing held on the same date, the first-instance court once again dismissed the requests of the applicant’s lawyer. The court noted that the objection to the experts was groundless and that it had already dismissed the other requests. 28. On 29 May 2001 the applicant’s lawyer filed a petition with the court objecting to the court dismissing his requests. No decision was taken in respect of this petition. 29. On 19 June 2001 the applicant’s lawyer filed a further petition repeating his previous requests. At the hearing held on the same day, the first-instance court dismissed those requests without providing any reason. The court also decided to deliver the audiotapes to the designated expert, Mr L.B., a police officer from the criminal laboratory at the General Security Directorate. 30. On 3 July 2001 the expert submitted the transcripts of the recordings of the telephone conversations to the first-instance court. 31. On 10 July 2001 the applicant’s lawyer made written submissions to the court in which he maintained his objections to the expert’s work. He further contended that the defence did not know whether all the conversations had been transcribed, since the court had refused to deliver a copy of the audiotapes to the applicant and his lawyer. The lawyer claimed that the court’s refusal to do so was in violation of Article 6 of the Convention. In his petition, the applicant’s lawyer once again asked the court to conduct an inquiry into the legal procedure concerning the phone tapping, to give a copy of the recordings to the defence, to designate an independent and impartial expert to conduct a comparative voice analysis, and to find out the identities of the persons with whom the applicant had allegedly spoken. Lastly, he asked the court to request a copy of the case file of the criminal proceedings concerning the bombing of Mavi Çarşı. 32. On 10 July 2001, at the twenty-fourth hearing in the case, the first-instance court asked the applicant’s lawyer whether his client would provide a vocal sample for the voice identification analysis. The applicant’s lawyer replied that he and his client would inform the court of their position on that point once the court had responded to their requests contained in his petition submitted on that day. At the end of the hearing, the court dismissed the requests of the applicant’s lawyer, holding that those requests had already been refused. It designated a judge and two police officers, Mr L.B. and Mr C.Y., as experts to conduct the comparative voice analysis on the same day and invited the applicant to participate in the voice identification process if he so wished. 33. On the same date as the voice identification process started in the presence of the applicant, the applicant’s lawyer maintained that his client would not provide a voice sample until the discrepancies between the transcripts prepared by the public prosecutor’s office and those prepared by Mr L.B. had been resolved. He further contended that as Mr L.B. had already been involved in the preparation of the transcripts, another expert should have been designated. The public prosecutor submitted, in reply, that there was no reason to believe that officers from the criminal laboratory at the General Security Directorate were partial and that the applicant’s behaviour had been unlawful. The judge decided to end the examination in view of the applicant’s unwillingness to participate. 34. In a petition dated 23 July 2001, the applicant’s lawyer asked the first-instance court to accept the withdrawal of their request for a comparative voice analysis. The lawyer contended that the applicant had not made those telephone conversations and that it was the defence who had asked for that examination in the first place. However, in view of the court’s refusal of their other requests, he believed that it was not possible to have a fair trial in the applicant’s case. 35. At the end of the hearing held on 21 August 2001 the Ankara State Security Court decided to consider the applicant’s request contained in the petition dated 23 July 2001 at the same time as it considered the case on the merits. On the same day the court decided to request a copy of the case file of proceedings before the Istanbul State Security Court following a request by the representative of one of the applicant’s co-accused. 36. The first-instance court adjourned the hearings four times between 21 August and 30 October 2001, as the Istanbul State Security Court had not sent the documents requested. 37. At the twenty-eighth hearing held on 30 October 2001, following receipt of the aforementioned documents, the first-instance court asked the public prosecutor to submit his observations on the merits of the case. 38. At the next hearing on 27 November 2001 the public prosecutor asked the court to take his observations of 12 December 2000 into consideration. 39. In a petition dated 27 December 2001 filed with the first-instance court, the applicant’s lawyer maintained that the refusal of his requests that the court hear the persons who had allegedly made statements against the applicant and those who had allegedly had telephone conversations with him, and of his requests for a copy of the recordings of the telephone conversations and regarding the designation of the experts, had been in breach of Article 6 §§ 1 and 3(d) of the Convention. He further contended that the statements that State officials had made to the press referring to the applicant as a “terrorist” had been in violation of Article 6 § 2 of the Convention. No decision was taken in respect of that petition. 40. During the thirty-first and thirty-second hearings held on 24 January and 5 February 2002 the applicant and his co-accused responded to the public prosecutor’s observations on the merits of the case. 41. On 5 March 2002 the Ankara State Security Court decided to ask the Diyarbakır courts for another judgment rendered by the Diyarbakır Military Court in the 1980’s, convicting the applicant of membership of an illegal organisation. Between 5 March and 23 May 2002 the court adjourned three hearings awaiting a copy of the aforementioned judgment. 42. At the thirty-sixth hearing on 23 May 2002 the court received the judgment that it had requested on 5 March 2002 and decided to adjourn the trial pending examination of the case file. 43. On 30 May 2002 the first-instance court asked the applicant to make additional defence submissions given that he might be convicted of membership of an illegal organisation under Article 168 of the former Criminal Code, instead of Article 125 of the same Code. 44. On 20 June 2002 the applicant’s lawyer filed a petition with the court, requesting that the latter take into account their previous submissions, in the context of the application of Article 168 of the former Criminal Code. The applicant’s lawyer also repeated his previous requests. 45. At the thirty-eighth and thirty-ninth hearings held on 11 and 20 June 2002, the first-instance court decided to adjourn the trial as the composition of the court had changed and there was a new president. 46. On 25 June 2002 the Ankara State Security Court rendered its judgment in the case. The applicant was convicted of membership of the PKK under Article 168 § 1 of the former Criminal Code and sentenced to eighteen years and nine months’ imprisonment. 47. In its judgment, the first-instance court cited the following evidence contained in the case file: the statements that A.G., K.O., Ş.Ö., H.K., N.Y., M.Ş., A.Y., C.P. and V.T. had made to the police within the context of the proceedings against them; the indictments in the cases against the aforementioned persons; the statements made by Abdullah Öcalan to the police, the public prosecutor and during his own trial; a document prepared by the anti-terrorism branch of the General Security Directorate regarding the acts of terrorism that had occurred between 1 January and 4 August 1999; and the transcripts, prepared by experts, of the telephone conversations between the applicant and a number of persons designated as “X”. 48. The first-instance court noted that A.G., K.O., Ş.Ö., H.K., N.Y., M.Ş., A.Y., C.P. and V.T. had asserted in their statements that the applicant was a member of the PKK and the leader of the organisation in Europe. As to the content of the transcripts, the court noted that it documented that the applicant had given instructions and orders on the carrying out of the acts of violence that had occurred following the arrest of Mr Öcalan. 49. In the light of the aforementioned evidence, the Ankara State Security Court found it established that the applicant was a member of the PKK and the leader of the organisation in Europe. Its judgment stated that he had been involved in the training of PKK members in Romania and had been in contact with Mr Öcalan. In this connection, the court quoted Mr Öcalan’s statements to the public prosecutor after his arrest, in which he claimed that the applicant had trained PKK members in Romania. 50. The court further quoted the transcripts of eight telephone conversations and concluded that in the course of those conversations the applicant had issued instructions for the carrying out of acts of terrorism in Turkey. It noted, however, that the applicant had not been directly involved in those acts. The court also noted that the applicant’s instructions had been of a general nature. As a result, according to the court, a direct link between the acts of terrorism, in particular the attack on Mavi Çarşı on 13 March 1999, and the applicant’s instructions could not be established. The Ankara State Security Court therefore did not convict the applicant under Article 125 of the former Criminal Code. Nevertheless, noting that the PKK had given the applicant the specific task of inciting violent acts in Turkey after the arrest of Mr Öcalan, the court convicted the applicant of membership of the PKK under Article 168 of the former Criminal Code. 51. Both the prosecution and the applicant appealed against the decision. 52. In his petitions dated 18 October and 19 November 2002, the applicant’s lawyer objected to the court’s having cited as evidence the statements of Mr Öcalan, A.G., K.O., Ş.Ö., H.K., N.Y., M.Ş., A.Y., C.P. and V.T. and the transcripts of the applicant’s alleged telephone conversations. He submitted in particular that all those persons had denied the veracity of the statements taken from them by the police and that M.Ş., A.Y. and Ş.Ö. had been acquitted of the charges brought against them. Moreover, the investigation against K.O. had been concluded with a decision not to prosecute. The applicant’s lawyer noted that the firstinstance court had not cited the accusations against the applicant contained in their statements in the reasoning of its judgment, which demonstrated that there had been no reason to convict his client. He complained, inter alia, that the first-instance court had failed to investigate whether a court order had been issued prior to the recording of the telephone conversations used as evidence in the trial. The court had also failed to provide the defence with a copy of the audiotapes and to hear those individuals designated as “X” in the transcripts of the telephone conversations. The applicant’s lawyer submitted that those deficiencies in the proceedings constituted a violation of Article 6 of the Convention. 53. The Chief Public Prosecutor at the Court of Cassation submitted his opinion on the merits of both parties’ appeals. In his written opinion (tebliğname) to the 9th Chamber of the Court of Cassation for Criminal Law Matters, the Chief Public Prosecutor advised that the appeals be rejected and that the first-instance judgment be upheld, as it was in compliance with procedural rules and law. That opinion was not submitted to the applicant, despite the fact that in his petition of 19 November 2002 he had asked to be notified. According to the applicant’s submissions, his lawyer was not aware of the written opinion until it was read out during the hearing before the Court of Cassation. 54. On 12 December 2002 the Court of Cassation upheld the judgment of the Ankara State Security Court. The Chief Public Prosecutor at the Court of Cassation applied for an exceptional appeal procedure before the Joint Criminal Chambers of the Court of Cassation, requesting that the applicant be sentenced under Article 125 of the former Criminal Code. His request was dismissed. 55. On 30 November 2008 the applicant was released from prison on probation and returned to Germany, where his family were living. | 1 |
test | 001-145259 | ENG | UKR | ADMISSIBILITY | 2,014 | KOLESNYK AND OTHERS v. UKRAINE | 4 | Inadmissible | Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 1. The applications were lodged by three Ukrainian nationals, Mrs Ganna Kostyantynivna Kolesnyk (“the first applicant”), Mrs Larysa Oleksandrivna Navrotska (“the second applicant”) and Mrs Svetlana Vyacheslavovna Fil (“the third applicant”, collectively “the applicants”). The applicants were born in 1978, 1977 and 1982, respectively, and live in Simeyiz, Vinnytsya and Donetsk, Ukraine. 2. The applicants, who had been granted legal aid, were represented by Mr E. Leontyev, a lawyer practising in the town of Gorlivka, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Ms Nataly Sevostianova of the Ministry of Justice of Ukraine. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 5 April 2007 the first applicant gave birth to a child. She took three years of maternity leave, ending on 5 April 2010. 5. On 10 July 2007 the first applicant applied to the relevant State authorities for a monthly allowance, to be paid to her in accordance with section 42 of the Law of Ukraine on Compulsory State Social Insurance in Case of Temporary Loss of Ability to Work and Childbirth and Funeral Expenses (Закон України “Про загальнообов’язкове державне соціальне страхування у зв’язку з тимчасовою втратою працездатності та витратами, зумовленими народженням та похованням” – hereafter “the Compulsory State Social Insurance Act” - see paragraph 30 below). The allowance was awarded to her with effect from 21 June 2007 (the first day after the end of the initial period of maternity leave). Between June and November 2007 the first applicant received the following amounts: 43.01 Ukrainian hryvnias (UAH) in June 2007; UAH 129.03 in July 2007; UAH 132.64 in August 2007; UAH 134.45 in September 2007; UAH 136.13 in October 2007; and UAH 140.05 in November 2007. Between December 2007 and April 2010 the first applicant was receiving UAH 144.10 (around 16-18 euros (EUR)) per month. 6. In 2007-2009 the laws which set the amount of the allowance in question were modified by the State Budget Acts. On 9 July 2007 and 22 May 2008 the Constitutional Court of Ukraine found that the State Budget Acts for the years 2007 - 2008 could not validly amend the scope of rights and obligations set up in other legislation (see paragraph 46 below). 7. In December 2008 the first applicant asked for her allowance to be recalculated in the light of the Constitutional Court decisions of 9 July 2007 and 22 May 2008. In reply the Yalta Town Council informed the first applicant that since “the Cabinet of Ministers of Ukraine had not adopted a mechanism for recalculation of the child allowance, to make it compatible with the decision of the Constitutional Court of Ukraine”, the recalculation could not be carried out. At the same time it noted that, according to the decision no. 1751 of the Cabinet of Ministers of Ukraine (see paragraph 34 below), the monthly child allowance was UAH 425 for the period between 1 May 2007 and 30 April 2008. 8. On 12 February 2009 the Labour and Social Policy Ministry of the Autonomous Republic of Crimea informed the first applicant that she was entitled to a child allowance in accordance with the State Assistance (Families with Children) Act (Закон України «Про державну допомогу сім’ям з дітьми») (see paragraph 32 below) to be paid between 21 June 2007 and 5 April 2010. The Ministry noted that as of 1 January 2009 the amount of allowance was UAH 144.10 whilst, "pursuant to the decision of the Constitutional Court of 9 July 2007 the applicant would have received monthly payments of UAH 463 in July-September 2007 and UAH 470 in October-December 2007 which corresponds to the amount of the minimum subsistence level (прожитковий мінімум) for a child aged six". However, for the years 2007-09 the necessary financial provisions for these payments had not been not made, with the result that the applicant would continue to receive the sums provided by the State Assistance (Families with Children) act, as amended by the respective State Budget Acts. 9. In April 2009 the first applicant instituted proceedings in the Yaltynsky Town Court against the Labour and Social Protection Department of the Yalta Town Council claiming, inter alia, UAH 10,878.99 in allegedly unpaid child allowance due to her for the period between 21 June 2007 and 30 April 2009 and requesting that an allowance in an amount not lower than the minimum subsistence level established by law for an able-bodied person (see paragraph 36 below) be paid to her until 5 April 2010. The first applicant indicated that she was insured under the obligatory social insurance scheme and was entitled to child allowance under sections 42 and 43 of the Compulsory State Social Insurance Act. However, decision no. 1751 of the Cabinet of Ministers of Ukraine which had been applied in her case, contradicted the above Act, even though the latter had higher legal force. The first applicant further noted that she had learned about the allegedly erroneous calculation of the amount of her child allowance from the media only in September 2008. 10. On 9 June 2009 the court found that the first applicant was insured under the Compulsory State Social Insurance Act. Under section 43 of the Act the amount of child allowance paid could not be less than the amount of the minimum subsistence level established by law. The changes introduced by the State Budget Acts in 2007 and 2008, which provided for a reduction in the amount of the benefit, had been declared unconstitutional by the Constitutional Court of Ukraine on 9 July 2007 and 22 May 2008. Therefore, these changes were not applicable in the first applicant’s case. 11. The court further held that the first applicant had lodged before the court her claim for payment of the child allowance due to her in 2007 only in 2009, while the decision of the Constitutional Court of Ukraine of 9 July 2007 had been published on 27 July 2007. The first applicant should have learned about the breach of her rights on the latter date. As the first applicant requested recalculation of her child allowance in May 2009 only, she had missed the one-year time-limit provided for by the Code of Administrative Justice Procedure. The court allowed the first applicant’s claims related to the period between May 2008 and May 2009 and awarded her UAH 5,278.70. 12. On 24 March 2010 the Sevastopol Administrative Court of Appeal amended the decision of 9 June 2009. It found that the first applicant had had good reasons for missing the time-limit for lodging her claim. In particular, she had correctly tried to settle the dispute out of court by lodging her request for recalculation directly with the defendant first. 13. The court held that the relevant provisions of the State Budget Acts for 2007 and 2008, which suspended (for 2007) and then revoked (with effect from 2008) section 43 of the Compulsory State Social Insurance Act, had been found to be unconstitutional on 9 July 2007 and 22 May 2008. The first applicant was insured and thus was entitled to a monthly child allowance in accordance with section 43 of the Compulsory State Social Insurance Act, which provided that the amount of the child allowance should not be lowers than the minimum subsistence level. The court found that the State Budget Act for 2007 set the minimum subsistence level for children aged up to six years as UAH 463 (between April 2007 and September 2007) and UAH 470 (between October and December 2007). In June-December 2007 the first applicant was paid UAH 859.41. Consequently, the first applicant was to be paid “the remaining UAH 2,714.59” in child allowance for the period between 21 June 2007 and 31 December 2007. 14. As for 2008 the court found that the first applicant’s claims for the period between May and December 2008 (i.e. after the Constitutional Court decision of 22 May 2008) should be also granted. The State Budget Act for 2008 set for the minimum subsistence level for children aged up to six years as UAH 538 (between April and June 2008), UAH 540 (between July and September 2008) and UAH 557 (between October and December 2008). The first applicant received UAH 1,152 – UAH 144,10 x 8 months. The court awarded her the remaining UAH 3,215 for the period between 22 May and 31 December 2008 (538 x 2 + 540 x 3 + 557 x 3 – 1,152). 15. As for the first applicant’s claims related to the 2009 payments, the court held that section 46 of the State Budget Act 2009 provided that the amount of child allowance provided for by the Compulsory State Social Insurance Act and by the State Assistance (Families with Children) Act had to be fixed by the Cabinet of Ministers of Ukraine. As the relevant provisions of the State Budget Act 2009 had not been declared unconstitutional and the allowance in question had paid to the first applicant in the amount determined by the Cabinet of Ministers’ decision no. 57 (see paragraph 41 below), the court dismissed the first applicant’s claim relating to the 2009 payments. The court held that the first applicant’s claim for payment of an allowance up to 5 April 2010 could not be allowed, since it concerned future payments. 16. The first applicant appealed in cassation, stating that she was insured and thus entitled to child allowance in an amount no lower than the minimum subsistence level for an able-bodied person as of 21 June 2007. She also noted that the Constitutional Court of Ukraine had already declared on numerous occasions that the State Budget Act could not introduce changes to other legal acts. 17. On 19 July 2010 the Supreme Court of Ukraine found that there were no grounds to grant the first applicant leave to appeal on points of law. 18. On 7 February 2008 the second applicant gave birth to a child. From 8 April 2008 she received UAH 130 a month in child allowance. 19. On 3 March 2009 the second applicant lodged a claim before the Zamostyansky District Court. Relying on section 15 of the State Assistance (Families with Children) Act, the second applicant claimed that child allowance in an amount not less than the minimum subsistence level established by law was due to her for the period between 8 April 2008 and 7 February 2011. The second applicant also referred to Article 22 of the Constitution of Ukraine and the Constitutional Court decisions of 9 September 2007 and 22 May 2008, and argued that it was unconstitutional to amend an existing provision of the State Assistance (Families with Children) Act by virtue of the State Budget Act. 20. On 13 April 2009 the Zamostyansky District Court found that the second applicant was insured, and therefore the Compulsory State Social Insurance Act was applicable to her. Despite this conclusion, the court relied on section 15 of the State Assistance (Families with Children) Act, which was modified by the State Budget Act 2008, and also, referring to the State Budget Act 2007, held that resources for financing child allowance payments had to be allocated by the State Budget. On these grounds, it dismissed the applicant’s claims. 21. On 17 June 2010 the Vinnyatsya Regional Court of Appeal upheld that decision. It held, however, that in the second applicant’s case it was not the Compulsory State Social Insurance Act, which applied “to temporarily disabled persons or in cases of birth or death”, but the State Assistance (Families with Children) Act which was applicable, and that therefore the amount of child allowance had been calculated correctly. 22. On 16 August 2010 the second applicant appealed in cassation. 23. By letter of 19 November 2010 the Supreme Court informed the second applicant that since 9 September 2010 it had had no jurisdiction to examine administrative cases and that her appeal would be considered after the introduction of the necessary changes to the law. 24. By letter of 6 March 2012 the Higher Administrative Court of Ukraine informed the second applicant that her case (no. K/9991/75865/11) was pending before that court. 25. The second applicant’s lawyer informed the Court that the Higher Administrative Court of Ukraine had rejected the second applicant’s appeal in cassation on 31 May 2012. He submitted a copy of the decision, which was published in the General State Court Decisions Registry of Ukraine (Єдиний державний реєстр судових рішень України). The copy contains no mention of the second applicant’s name (all personal information was replaced by the reference “Person 4”) but makes reference to her case number (no. K/9991/75865/11). 26. The Higher Administrative Court of Ukraine found, without any particular specification, that the second applicant was entitled to a child allowance under the State Assistance (Families with Children) Act and had been paid it in accordance with decision no. 1751 of the Cabinet of Ministers of Ukraine. 27. On 9 May 2009 the third applicant gave birth to a child. From 29 June 2009 she received UAH 130 a month in child allowance, payable until the child reached the age of three. 28. On 11 June 2010 the Kirovsky District Court of Donetsk rejected the third applicant’s claim against the Labour and Social Protection Department of the Kirovskiy District Council of Donetsk for payment of child allowance in an amount equal to the minimum subsistence level. It held that the amount of the allowance paid to her had been calculated correctly in accordance with the State Assistance (Families with Children) Act. 29. On 13 August 2010 the Donetsk Regional Court of Appeal upheld that decision. It held that although section 43 of the Compulsory State Social Insurance Act was in force and applicable in the present case, the State Budget Acts of 2009 and 2010 provided that the amount of the allowance in question had to be agreed by the Cabinet of Ministers of Ukraine. The amount of the child allowance due to the third applicant had been calculated correctly, in accordance with the relevant decision of the Cabinet of Ministers. This court decision was not subject to appeal. 30. The relevant provisions of the Act read as follows: Section 42. Right to a child allowance payable until the child attains the age of three “An insured person (a parent, an adoptive parent, a grandmother, a grandfather, another relative or a guardian) who has a child under his or her care has the right to child allowance payable until the child attains the age of three. Child allowance payable until the child attains the age of three is provided to an insured person in the form of an allowance during their three-year period of maternity leave and partially compensates the loss of salary (income) during this time.” Section 43. Amount of allowance payable until the child attains the age of three “Child allowance shall be paid to an insured person in the amount set by the board of the [Social Insurance] Fund but it shall be not lower than the amount of the minimum subsistence level established by law.” 31. The Transitional Provisions of this Act, adopted in 2001, stipulated that until the economic situation had stabilised the amount of the allowance would be determined every year by the Verkhovna Rada of Ukraine until it gradually reached the minimum subsistence level. 32. The relevant provisions of the Act read as follows: Section 13. Right [to receive] child allowance until the child attains the age of three “A person who is not insured under the obligatory State social insurance scheme, who has a child under his or her care has the right [to receive] child allowance until the child attains the age of three.” Section 15. Amount of allowance payable until the child attains the age of three “Child allowance shall be paid in an amount which shall be equal to the minimum subsistence level for a child aged up to six years.” 33. The Transitional Provisions of this Act, amended in 2005, provided that the allowance in question should amount to 50% (from 1 January 2008), 75% (from 1 January 2009) and 100% (from 1 January 2010) of the difference between the minimum subsistence level for an able-bodied person and the average monthly family income for one person for the previous six months. 34. This decision established the amounts and methods of payments under the State Assistance (Families with Children) Act and, in particular, of child allowance payable to children under the age of three. 35. The monthly subsistence level for children aged up to six years was gradually increased by the relevant laws from UAH 463 (around EUR 67) in June 2007 to UAH 911 (around EUR 89.51) in June 2012. 36. The monthly minimum subsistence level for an able-bodied person changed from UAH 561 (around EUR 81.21) in June 2007 to UAH 1,094 (around EUR 107.49) in June 2012. 37. By the State Budget Act 2007 section 43 of the Compulsory State Social Insurance Act and section 15 of the State Assistance (Families with Children) Act were suspended. Part 2 of section 56 of the State Budget Act 2007 provided that the allowance in question should not be less than UAH 90 for non-insured persons and not less than 23% of the minimum subsistence level for insured persons. 38. On 9 July 2007 the Constitutional Court of Ukraine declared that part 2 of section 56 of the State Budget Act and the suspension of section 43 of the Compulsory State Social Insurance Act and of section 15 of the State Assistance (Families with Children) Act were unconstitutional. 39. By the Law “On the State Budget 2008 and on the Introduction of Changes to Certain Laws” (“the State Budget Act 2008”) sections 42 and 43 of the Compulsory State Social Insurance Act were revoked. The Act also introduced changes to the State Assistance (Families with Children) Act. These changes provided that a person raising a child had the right to child allowance until the child attained the age of three. This allowance was paid in an amount equal to the difference between the minimum subsistence level and the average family income for the previous six months, but not less than UAH 130. 40. At the same time the State Budget Act 2008 also provided that child allowance should amount to 50% (from 1 January 2008), 75% (from 1 January 2009) and 100% (from 1 January 2010) of the difference between the minimum subsistence level and the monthly average family income for one person for the previous six months, but should not be less than UAH 130. 41. On 22 February 2008 decision no. 1751 of the Cabinet of Ministers of Ukraine was amended by decision no. 57. The latter decision provided that the allowance in question had to amount to the difference between 75% (from 1 January 2009) and 100% (from 1 January 2010) of the minimum subsistence level and the monthly average family income for one person for the previous six months, but should not be less than UAH 130. 42. On 22 May 2008 the revocation of sections 42 and 43 of the Compulsory State Social Insurance Act was found unconstitutional by the Constitutional Court of Ukraine. The question of the constitutionality of amendments to the State Assistance (Families with Children) Act made by the State Budget Act 2008 was not raised before the Constitutional Court. 43. The State Budget Acts 2009 and 2010 provided that the amount of the allowance in question should be established by the Cabinet of Ministers of Ukraine. 44. The decision of 20 March 2002 concerned limitations on some social security payments introduced by the State Budget Act 2001. The Constitutional Court held that: “... since for a considerable number of citizens of Ukraine privileges, compensation and safeguards, the right to which is provided by laws in force, are an addition to their main sources of support and a necessary component of the constitutional right to maintain a standard of living (Article 48 of the Constitution of Ukraine) no lower than the minimum subsistence level established by law (part 3 of Article 46 of the Constitution of Ukraine), any limitation of the content and ambit of this right by adoption of new laws or amendment of current laws is forbidden by Article 22 of the Constitution of Ukraine.” 45. The Constitutional Court of Ukraine reiterated this position in its decision of 1 December 2004 “On discontinuing or limiting privileges, compensation and guarantees”. 46. By its decisions of 9 July 2007 and 22 May 2008 the Constitutional Court stated as follows: Decision of 9 July 2007 (citizens’ social protection case) “... The analysis of the legislative activity of the Verkhovna Rada of Ukraine confirms that laws of Ukraine on granting privileges, compensation and guarantees, which form part of the constitutional right of citizens to social protection and to maintain a sufficient standard of living (Article 46 of the Constitution of Ukraine), are systematically suspended following the adoption of State Budget Acts. The suspension of laws [...] is to be done in accordance with the Constitution of Ukraine. [...] Therefore, the State Budget Act suspends, for a certain period of time, the functioning of the mechanism for implementing constitutional socio-economic rights, which leads to a limitation of the right to social protection. Systematic suspension by the State Budget Acts of the laws of Ukraine on granting privileges, compensations and guarantees in practice invalidates them. Suspension of laws which establish the rights and freedoms of citizens [...] is a limitation of those rights and freedoms and can take place only in cases provided for by the Constitution of Ukraine. [...] As a result of the temporary suspension of the valid laws of Ukraine on granting privileges, compensation and other forms of social guarantee, citizens’ income, which should not be lower than the minimum subsistence level established by law (part 3 of Article 46 of the Constitution of Ukraine), falls and thus the right of everybody to a decent standard of living under Article 48 of the Constitution of Ukraine is breached. Therefore, in accordance with part 3 of Article 22 and Article 64 of the Constitution of Ukraine, the right of citizens to social protection and other socio-economic rights can be limited, including by way of suspension of laws or their parts, only in a military state or state of emergency for a limited period of time. This legal position has already been expressed by the Constitutional Court of Ukraine in its decision of 20 March 2002. 3.2 [...]Failure of the State to comply with its social obligations with respect to certain persons puts those citizens in an unequal position and undermines the principle of an individual’s trust in the State, which leads to a violation of the principles of the Welfare State and the rule of law ... . [...] The Constitutional Court of Ukraine has on numerous occasions [...] found that certain provisions of the State Budget Acts which suspend or limit privileges, compensation and guarantees contradicted the Constitution of Ukraine (decision of 20 March 2002 (case about privileges, compensation and guarantees); decision of 17 March 2004 (case about social protection of military personnel and employees of law enforcement bodies); decision of 1 December 2004 (case about suspension or limitation of privileges, compensation and guarantees); decision of 11 October 2005 (case about amount of pension and monthly living allowance). However, despite the above-mentioned decisions of the Constitutional Court of Ukraine, the revision of privileges, compensation and guarantees by the State Budget Acts, which started in 1995, has become systematic. [...] It follows from the above-mentioned provisions of the Constitution of Ukraine and the [Budget] Code of Ukraine that the State Budget Act [...] has a specific subject matter – the determination of the State revenues and expenditure for society-wide needs, in particular, expenditure for social protection and social security – therefore, this Act cannot introduce changes to or suspend the laws of Ukraine, or set up different (additional) statutory regulation of areas which are subject to regulation by other laws. This is also confirmed by part 3 of section 27 of the [Budget] Code. [...] Since the subject-matter of the State Budget Act is clearly determined by the Constitution of Ukraine, and in the [Budget] Code, this Act cannot repeal or change the scope of rights and obligations, privileges, compensation and guarantees provided for by other laws of Ukraine.” Decision of 22 May 2008 (case on subject-matter and content of the State Budget Act) “The Constitution of Ukraine does not give the State Budget Act higher legal force in comparison to other laws. For this reason, the Constitutional Court of Ukraine has concluded that the State Budget Act cannot introduce changes to other laws, suspend their effect or revoke them, since for objective reasons it creates contradictions in legislation, and as a result, abrogation and limitation of human and citizens’ rights and freedoms. In the event that operation of laws is to be ceased, it is for separate laws to introduce changes or amend them, or declare them void.” 47. Following a request by the Cabinet of Ministers for the interpretation of part 2 of Article 95 of the Constitution of Ukraine, which provides that any State expenditure must be determined exclusively by the State Budget Act, in its decision of 27 November 2008 no. 1-37/2008 “On budget balancing” the Constitutional Court referred to its previous decisions of 9 July 2007 and 22 May 2008 and decided that there was “no practical necessity” for such an interpretation since the above-mentioned decisions had already addressed the issue. 48. The Constitutional Court was not seized of a complaint in respect of the State Budget Act 2009. 49. In its decision of 30 November 2010 no. 1-47/2010 “On the constitutionality of certain provisions of the State Budget Act 2010” the Court held: “2.2 The Constitutional Court of Ukraine has on many occasions [...] examined cases and taken decisions on the compliance of the State Budget Acts or specific provisions thereof with the Constitution of Ukraine (constitutionality). In particular, in decision no. 6-рп/2007 of 9 July 2007 (citizens’ social protection case) the Constitutional Court of Ukraine established that the subject matter of the State Budget Act was foreseen in part 2 of Article 95 of the Constitution of Ukraine [...], the list of legal matters which formed the subject matter of the State Budget Act was exhaustive; according to the Constitution of Ukraine [...] it follows that the State Budget Act, as a legal act, was to be interpreted through the notion of a budget as a plan for the gathering and distribution of financial resources; it had a special subject matter, different from other laws of Ukraine – it concerned exclusively the determination of the income and expenditure of the State, and therefore this Act could not introduce changes, suspend the effect of other laws, or set up a different (additional) legal regulation of areas covered by other laws of Ukraine [...]. By declaring certain provisions of the State Budget Act 2007 unconstitutional, the Constitutional Court of Ukraine drew the attention of the Verhovna Rada, the President of Ukraine and the Cabinet of Ministers of Ukraine to the necessity to comply with provisions [...], 22, 95 [...] of the Constitution of Ukraine [...] in the preparation, adoption and implementation of the State Budget Act. The same provisions of the Constitution of Ukraine [...] and the above-mentioned legal position served as the basis for the decision of the Constitutional Court of Ukraine of 22 May 2008 in the case on the subject matter and content of the State Budget Act [...]. 2.3 Despite the constitutional requirements as to the subject matter of the State Budget Act and the legal positions expressed by the Constitutional Court of Ukraine in the decisions of 9 July 2007 and 22 May 2008, the State Budget Act 2010 introduced changes and amendments to a number of laws [...]. 50. In its decision of 26 December 2011 no. 1-42/2011 “On the constitutionality of certain provisions of the State Budget Act 2011” the Court stated: “... The amounts of social payments depend on the social situation and financial capacity of the State, but they should secure the constitutional right of every person to a decent standard of living for himself and for his family, granted by Article 48 of the Constitution of Ukraine. ... In addition, in its decision of 8 October 2008 on insurance payments the Constitutional Court of Ukraine pointed out that the mechanisms and amounts of social services and payments to victims [...] were set by the State according to its financial capacity. When examining this issue the Constitutional Court of Ukraine also took into account the provisions of international law. Thus, according to Article 22 of the Universal Declaration of Human Rights, the amounts of social payments and assistance are determined in accordance with the financial capacity of the State. The European Court of Human Rights in its decision of 9 October 1979 in Airey v. Ireland considered that social and economic rights are largely dependent on the situation - notably financial - reigning in the State. This conclusion also concerns the reduction of social payments, which is noted in the decision of 12 October 2004 in the case of Kjartans Ásmundssonar v. Iceland. Therefore, one of the main elements in the regulation of relations in the social sphere is the principle of proportionality between the social protection of citizens and the financial capacity of the State, as well as guaranteeing the right of everybody to a sufficient standard of living. ... ... the social and economic rights provided for by laws are not absolute. The mechanism of implementation of these rights can be changed by the State, in particular, in the event that they cannot be guaranteed financially, by way of redistribution of costs with the aim of protecting the interests of society in whole. Moreover, these [changes] can be made in response to the need to prevent or remove a real threat to the economic security of Ukraine, which, according to Article 17 of the Constitution of Ukraine, is the most important function of the State. [...] It is unacceptable to establish a legal mechanism which would lead to the amount of a person’s pension, other social payments or allowance falling below the amount indicated in part 3 of Article 46 of the Constitution of Ukraine and [thus failing to] guarantee an appropriate standard of living and preserve his or her human dignity, which would be contrary to Article 21 of the Constitution of Ukraine. Therefore, a change to the method of calculation of certain types of social payment will be compatible with the Constitution until it reaches a point at which the very essence of the right to social protection is compromised.” | 0 |
test | 001-148227 | ENG | UKR | CHAMBER | 2,014 | CASE OF ADNARALOV v. UKRAINE | 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) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano | 4. The applicant was born in 1955 and lives in Kharkiv. 5. On 5 May 2004 the applicant was arrested by four police officers on suspicion of bribe-taking. The police officers took him to the Kharkiv Dzerzhynskyy District Police Station, where he was held overnight. According to the applicant, the police officers beat him for several hours, forcing him to confess. 6. On 6 May 2004 the applicant was taken to the Kharkiv City Prosecutor’s Office. He complained of ill-treatment to a senior prosecutor from the above office. The prosecutor referred the applicant for a forensic medical examination. 7. On 7 May 2004 the applicant was diagnosed with concussion and admitted to hospital. 8. On 8 May 2004 the applicant underwent a forensic medical examination, which established that he had numerous bruises on his face, chest, legs and arms, as well as a damaged tooth. 9. On 11 May 2004 criminal proceedings were instituted against the applicant on charges of bribe-taking. They were eventually terminated on 27 April 2007 for lack of corpus delicti. 10. On 2 June 2004 the applicant lodged another complaint of ill-treatment with the Kharkiv City Prosecutor’s Office. 11. On 23 June 2004 the applicant lodged a complaint with the Kharkiv Regional Prosecutor’s Office about the failure to examine his complaint of 2 June 2004. 12. On 12 August 2004 the Kharkiv Dzerzhynskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. That decision was quashed by the higher prosecutor on 7 October 2004 and an additional inquiry was ordered. 13. On 28 October 2004 the Kharkiv Dzerzhynskyy District Prosecutor’s Office ordered a forensic medical examination of the applicant, which was conducted between 28 December 2004 and 13 January 2005. The experts’ opinion confirmed the previous medical findings (see paragraphs 7 and 8 above) and concluded that the injuries had been the result of blows with blunt objects and had been inflicted during the period indicated by the applicant. The experts further opined that it could not be excluded that the injuries had originated in the circumstances indicated by the applicant, as they could all have been inflicted by fists. 14. On 23 September 2005 the Kharkiv Frunzenskyy District Prosecutor’s Office refused to institute criminal proceedings concerning the applicant’s allegations of ill-treatment. That refusal was quashed by the Kharkiv Regional Prosecutor’s Office on 31 May 2006. 15. On 15 June 2006 the Kharkiv Frunzenskyy District Prosecutor’s Office again refused to institute criminal proceedings concerning the applicant’s allegations of ill-treatment. In a letter dated 10 August 2008, the Kharkiv Regional Prosecutor’s Office informed the applicant that the decision of 15 June 2006 had been quashed and that the prosecutor who had conducted the inquiry would be subjected to disciplinary sanctions for the improper performance of his duties. 16. On 29 March 2007 the Kharkiv City Prosecutor’s Office issued a decision refusing to institute criminal proceedings concerning the applicant’s allegations. That decision was subsequently quashed. 17. On 8 January 2008 the Kharkiv City Prosecutor’s Office again refused to institute criminal proceedings concerning the applicant’s allegations of ill-treatment. That decision was quashed by the Kharkiv Kyivskyy District Court on 17 October 2011 and the case was remitted for further inquiries. 18. On 17 February 2012 the Kharkiv City Prosecutor’s Office once again refused to institute criminal proceedings concerning the applicant’s allegations of ill-treatment. 19. On 19 June 2012 the above decision was quashed by the Kharkiv Kyivskyy District Court, which sent the case file back to the prosecutor for further inquiries. The court noted, inter alia, that it had previously remitted the case for further inquiries, but that its instructions had not been followed. Furthermore, the applicant had not been questioned and the medical evidence had not been assessed. The first-instance court’s decision was upheld on appeal by the Kharkiv Regional Court of Appeal on 9 July 2012. 20. On 31 August 2012 the Kharkiv City Prosecutor’s Office refused to institute criminal proceedings concerning the applicant’s allegations of ill-treatment. The applicant challenged that decision in the Kharkiv Kyivskyy District Court on 20 September 2012. 21. On 19 November 2012 a new Code of Criminal Procedure came into force. On 12 December 2012, in accordance with the provisions of the new Code, the Kharkiv Dzerzhynskyy District Prosecutor’s Office entered the relevant information in the newly established “Integrated Register of pre-trial investigations” and started criminal proceedings in respect of the applicant’s allegations of ill-treatment. 22. On 6 February 2013 the prosecutor issued a decision to terminate the above-mentioned criminal proceedings. 23. On 4 March 2013 the Kharkiv Dzerzhynskyy District Court rejected the applicant’s complaint against the decision of 6 February 2013. 24. On 4 April 2013 the Kharkiv Regional Court of Appeal quashed the prosecutor’s decision of 6 February 2013. 25. On 7 June 2013 the applicant asked the Kharkiv Regional Prosecutor’s Office to supervise the investigation into his allegations of ill-treatment. 26. On 14 July 2013 the Kharkiv Dzerzhynskyy District Prosecutor’s Office issued a decision to terminate the criminal proceedings for lack of corpus delicti in the actions of the police officers. 27. On 30 September 2013 the Kharkiv Regional Prosecutor’s Office informed the applicant about the decision of 14 July 2013. 28. On 8 October and 3 December 2013 the applicant asked the Kharkiv Dzerzhynskyy District Prosecutor’s Office to send him a copy of the decision of 14 July 2013. 29. On 12 February 2014 the prosecutor sent the applicant a copy of the decision of 14 July 2013. 30. On 21 February 2014 the applicant challenged the decision of 14 July 2013 before the investigating judge of the Kharkiv Dzerzhynskyy District Court. 31. On 15 April 2014 the Kharkiv Dzerzhynskyy District Court quashed the decision of 14 July 2013 and remitted the case to the prosecutor for further investigation. The court concluded that the investigator had not followed the instructions of the appellate court indicated in its decision of 4 April 2013 on remittal of the case for further investigation, and had terminated the criminal proceedings without conducting the necessary inquiries or carrying out a . | 1 |
test | 001-170590 | ENG | RUS | CHAMBER | 2,017 | CASE OF ROZHKOV v. RUSSIA (No. 2) | 3 | Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1966 and lives in Belgorod. 6. The applicant had a university degree in law; he did not seek admission to the Bar as an advocate (адвокат). He made his living as a registered private entrepreneur providing legal services. He worked for and later managed Vityaz Arbitration Bureau (арбитражное бюро «Витязь»), a private legal entity in the town of Belgorod. In April 2005 the applicant undertook to provide legal services to a private company in relation to administrative-offence proceedings against it. The company issued two originals of an authority form for the applicant. 7. According to the applicant, one original was inserted in the file of a then pending case before a commercial court; the other one was used in submissions before the Chief Fire Protection Inspector. 8. In June 2005 criminal proceedings were instituted against the applicant on suspicion of forgery of the administrative-offence record (“the offence record”) in the above case. According to the authorities, the applicant had added a handwritten note to the record which said, “We want counsel to be present during the compiling of the offence record”, and modified the date on which a copy of the record had been handed over to the defence. 9. Up until 21 June 2005 the official database had Vokzalnaya Street as the applicant’s registered residential address. It appears that before or after that date, the applicant moved from his flat (on Vokzalnaya Street) to reside in his mother’s flat in the same town (on Kostyukova Street). He notified the residence registration office about that change. 10. The investigator dealing with the case issued a summons (sent to the applicant’s address on Vokzalnaya Street) requiring his attendance at her office on 11 July 2005 in order to carry out investigative measures. On 8 July 2005 a police officer reported that he had not delivered the summons since nobody had answered the door at that address. 11. On 13 July 2005 the applicant was informed of the decision to institute criminal proceedings against him. On the same date, Investigator T. interviewed the applicant, who added handwritten comments to the interview record. It was mentioned in the interview record that the applicant was (temporarily) residing in Shagarovka village; the address on Vokzalnaya Street was mentioned as his official residence; the record also contained a note of the telephone number provided by the applicant. 12. Further interviews were scheduled for 15 and 19 July 2005, when the applicant refused the services of a legal-aid lawyer, Y. He also refused to sign an undertaking to appear at subsequent interviews when requested by the investigator. 13. Subsequently, the case was reassigned. On 12 September 2005 a new investigator in charge of the case made telephone calls to the number which had been previously given by the applicant. The applicant abruptly put an end to the conversations. 14. On 13 September 2005 the investigator called again and talked to the applicant’s wife, who refused to assist the authorities in delivering the summons to the applicant. However, she clarified that the applicant was residing at his mother’s flat (on Kostyukova Street). According to the Government, this address was different from the one he had previously given to the investigating authority. 15. On 21 September 2005 the investigator interviewed the applicant’s wife, who stated that the applicant was living on Kostyukova Street and had been residing in Shagarovka during the summer. 16. On 27 September 2005 the investigator issued a decision, under Article 113 of the Code of Criminal Procedure (“the CCrP”) (see paragraph 50 below), ordering that the applicant be brought before her on 3 October 2005 at 10 a.m. It was noted that the applicant resided at his mother’s address and had previously failed to comply with summonses. 17. A similar decision was then issued on 3 October 2005, apparently, because the decision of 27 September 2005 had not been enforced. 18. On 21 October 2005 the chief officer of the investigating authority issued a decision, under Article 210 of the CCrP (see paragraph 52 below), requiring that measures be taken to locate the applicant. The decision read as follows: “On several occasions the suspect was summoned for the purpose of investigative measures ... but failed to appear, without reference to any valid excuse. The measures for establishing his current whereabouts have not produced any positive results. The investigating authority has reason to consider that the suspect is taking action to flee prosecution ...” 19. On 25 January 2006 the police talked to the applicant’s mother, who provided information about the applicant’s office address. At around 10.30 a.m. the police arrived there. The applicant was informed that his name was on the list of wanted persons and that he was to follow the police officer in order to be taken before the investigator with a view to enforcing the decision of 21 October 2005. 20. According to the applicant, despite having requested it, he was not shown any official authorisation for such an order. In reply to his refusal to comply, the officers warned him that they would employ force. Thus, he was compelled to follow them to the police station to be taken before the investigator. The latter explained that she was not in possession of the case file at that time. At the investigator’s request, the applicant gave a written undertaking to appear before her on 6 February 2006. No other investigative measures were taken on 25 January 2006 in relation to the criminal case. The applicant left the Investigations Unit at around 1 p.m. 21. It is unclear whether the interview on 6 February 2006 took place. 22. Subsequently, the applicant brought proceedings under Article 125 of the CCrP complaining of having been deprived of his liberty on 25 January 2006 and also about the decision of 21 October 2005. By a judgment of 21 August 2006, the Sverdlovskiy District Court of Belgorod rejected his claim. It held as follows: “The court dismissed as having no legal basis [the applicant’s] allegation that the circumstances of the case required the drawing up of an arrest record under Article 92 of the CCrP. Such a record ‘may be’ drawn up (that is to say it is not an obligation) if there are grounds cited in Article 91 of the Code ... Article 92 of the Code contains strict rules concerning arrest and detention of a suspect. Following escorting to the competent official, it is necessary to draw up, within three hours, an arrest record. It should indicate the dates and that notification of the procedural rights has been made. [The applicant] was present in the police station and the Department of the Interior offices for two and a half hours to clarify some details relating to the investigation of the criminal case and to take a decision concerning the pending request regarding [the applicant’s] whereabouts. After this he was free to go. Thus, the court does not accept that the applicant was held within the meaning of Article 91 of the Code. Therefore, it was not incumbent on the escorting officer or the investigator to provide counsel, to apprise [the applicant] of his rights or to compile an arrest record. Under Article 5 of the CCrP, arrest is defined as a measure of procedural compulsion used by an enquiring or investigating officer for a period not exceeding forty-eight hours after the actual taking of the person into custody on suspicion of a criminal offence ... [The arresting officer] was a law-enforcement officer and thus the court has no doubts that his actions concerning [the applicant’s] escorting to the police station and then to the Department of the Interior were within the scope of his functional responsibilities.” 23. The applicant appealed, arguing as follows. While agreeing with the court that the situation did not fall within the ambit of “escorting” under Article 113 of the CCrP, he insisted that the court, in substance, had denied the fact of his “deprivation of liberty” and had failed to cite another applicable statutory basis for it. In particular, the Police Act could not supply a valid basis since it only concerned escorting for identification purposes. In the applicant’s view, Article 92 was applicable and thus the non-observance of its requirements (namely, the drawing up of an arrest record and notification of procedural rights) disclosed unlawfulness. The reference to three hours for drawing up the record did not imply that there had not been “deprivation of liberty” if a person was held for less than three hours, or that Article 92 of the CCrP would not apply. 24. On 4 October 2006 the Belgorod Regional Court upheld the judgment in the following terms: “The available material and testimonies do not disclose that the applicant was restricted in his right to liberty and personal security. The court rightly concluded that the investigator had lawfully issued the decision to determine the applicant’s whereabouts. The police had acted on the basis of the investigator’s decision, the enforcement of which required [the applicant’s] escorting to the police. Thus, the police’s actions could not be declared unlawful ... [The applicant] was kept in the police station and before the investigator for less than three hours, which means that he was not ‘arrested’ [or] ‘detained’ within the meaning of Article 92 of the CCrP.” 25. On an unspecified date in February or March 2006, the investigation was suspended. It was resumed on 31 March 2006. The applicant was summoned for an interview with Investigator R. “on 7 March 2006 at 3 p.m”. According to the applicant, he received the summons only on 7 April 2006. It turned out later on that there had been a mistake in the summons: the interview was planned for 7 April 2006. 26. On 14 April, 23 May and 1 June 2006 the investigator issued orders for the applicant to be taken to the investigating authority (Article 113 of the CCrP). According to the Government, the police did not enforce these orders since the applicant was not present at his residential and office addresses. 27. On 28 June 2006 Investigator U. ordered that the applicant be brought before him on 5 July 2006 at 11 a.m. 28. On 1 July 2006 Investigator B. ordered that the applicant be brought before him on 7 August 2006 at 10 a.m. It was indicated that the applicant had previously failed to comply with summonses (on unspecified date(s)), most recently by referring to an illness but failing to submit any related document. 29. On 27 July 2006 the chief investigating officer came to the applicant’s office and interviewed him. The applicant made a written statement concerning the criminal case. It appears that the investigating officer issued summonses for further interviews to be held on 28 and 31 July 2006. 30. According to the applicant, on the same day he gave a written note to the officer indicating that he would not be able to attend on account of his state of health. The applicant did not attend the interview on 28 July 2006. It also appears that the applicant did not attend the interview on 31 July 2006. 31. A further decision to bring the applicant in for interview was issued on 1 November 2006. 32. On 2 November 2006 Investigator B. issued a decision ordering the authorities to determine the applicant’s whereabouts and suspending the investigation. 33. A further decision to bring the applicant in for interview was issued on 7 November 2006. 34. On 30 November 2006 the deputy town prosecutor ordered the resumption of the investigation. 35. On 22 December 2006 the chief investigating officer issued an order indicating that the applicant had failed on several occasions without a valid excuse to attend interviews with the investigator(s). Thus, he ordered that the applicant be brought before him on 25 December 2006 at 3 p.m. 36. On 25 December 2006 the police arrived at the applicant’s office at around 2.45 p.m. and compelled him to follow them to the police station instead of the Investigations Department, which was situated elsewhere. At the police station, the applicant was locked in a room and then provided with a copy of the order of 22 December 2006. The applicant was again informed, in the presence of counsel, of his rights and the decision to carry out a forensic examination. The applicant was interviewed and stated that he had received the summons for an interview scheduled in September or October 2006, but could not come on account of his illness and had informed the investigating authority accordingly; he had not submitted any medical certificate because, according to him, “it [had been] his constitutional right not to do so”. It is unclear whether the applicant left the police station at 5 or 7 p.m. 37. According to the Government (who referred to the police station’s logbook), the applicant was kept in the police station without being locked up between 3 and 4 p.m. and was then taken before the investigator. The Government submit that the applicant was in one of the offices and that the building entrance door was equipped with an electronic lock for security measures. 38. The applicant brought proceedings under Article 125 of the CCrP complaining about his arrest on 25 December 2006. By a judgment of 15 January 2007, the District Court rejected his claim. The court held that the applicant had not been arrested, only compelled to appear before the investigator. The court also indicated that it was not possible to challenge the police actions under Article 125 of the Code. On 21 February 2007 the Regional Court upheld that judgment. 39. On 30 May 2007 the authorities discontinued the criminal proceedings against the applicant due to the expiry of the statutory prosecution period. Apparently, on an unspecified date this decision was quashed. On 1 November 2010 the case against the applicant was discontinued due to the absence of corpus delicti. The applicant was informed that he was entitled to claim compensation from the State (Chapter 18 of the CCrP). 40. It appears that the applicant’s wife was a private entrepreneur and managed the Vityaz Arbitration Bureau. In October 2005 she employed the applicant as a legal consultant. It appears that on an unspecified date he was appointed as the managing director of the firm. 41. According to the applicant, following a strained situation at home vis-à-vis his mother and wife on account of the pending criminal investigation against him, he temporarily moved into his office, using part of it as a dwelling. The office had electricity and heating facilities; it was accessible between 6 a.m. and 10 p.m. Apparently, the applicant did not notify the investigating authority of this change in his personal situation. 42. On 13 October 2006 the investigator in charge of the criminal case against the applicant issued a warrant authorising the search of Vityaz’s offices, referring to Article 182 of the CCrP (see paragraph 57 below). The investigator indicated that a forensic examination of the applicant’s handwriting was necessary. For this, it was necessary to seize handwriting samples of the applicant and the original of the authority form issued to him by the client private company (see paragraph 6 above). In the investigator’s view, these documents could be found at the premises of Vityaz Arbitration Bureau. 43. According to the applicant, on 13 October 2006 several officers, including the investigator, arrived in the office. They allowed the applicant to read the search-and-seizure order. He made no request for a lawyer to be present during the search. The officers then carried out the search in the presence of attesting witnesses and examined the applicant’s medical file and asked him questions about the information contained therein. 44. The applicant sought judicial review of the search-and-seizure order and the manner in which it was implemented. 45. By a judgment of 23 October 2006 the Sverdlovskiy District Court of Belgorod dismissed the claims. The court held as follows: “Under Article 50 of the CCrP a suspect, accused or another person on his or her instructions may retain counsel. When requested, an [officer involved in a preinvestigation inquiry], investigator, prosecutor or a court shall appoint counsel. Before the beginning of the search [the applicant] made no request for counsel while having had access to the search order ... Under [Articles 38 and 182 of the CCrP] it is within the investigator’s purview to decide whether a search is opportune and, if so, to issue the relevant order, except for a search of residential premises. It is also up to the investigator to decide which documents or other evidence are important for the case ... [The applicant’s] allegation that the office ... was his ‘abode’ is unsubstantiated, within the meaning of Article 139 of the CCrP ... Thus there was no legal requirement to obtain a court order for the search.” 46. On 29 November 2006, following an appeal by the applicant, the Belgorod Regional Court upheld the judgment, endorsing its reasoning. | 1 |
test | 001-179848 | ENG | ARM | CHAMBER | 2,018 | CASE OF ARZUMANYAN v. ARMENIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention) | Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković | 5. The applicant was born in 1959 and lives in Yerevan. He is a former Minister of Foreign Affairs and at the material time he headed a political movement called “Civil Disobedience”. 6. On 5 May 2007 criminal proceedings were instituted under Article 190 § 3 (1) of the Criminal Code (money laundering) in respect of the applicant. 7. On 7 May 2007 the applicant was arrested and on 10 May 2007 the Kentron and Nork-Marash District Court of Yerevan ordered the applicant’s detention for a period of two months, upon an application by the investigator, taking into account the nature and the dangerousness of the imputed offence and the fact that the applicant, if remaining at large, could abscond and obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings. The applicant objected to that application, arguing that the investigator had failed to submit any wellfounded arguments in support of the allegation that he would abscond or obstruct justice, whereas he had no previous convictions, was known to be of good character, had a permanent place of residence and stable social life, and was a well-known public figure. The District Court’s decision stated that it could be contested before the Criminal Court of Appeal within fifteen days. 8. On 11 May 2007 the applicant lodged an appeal, raising similar arguments. 9. On 24 May 2007 the Criminal Court of Appeal decided to uphold the decision of the District Court, finding that the nature and the dangerousness of the imputed offence, sufficient reasons to believe that the applicant could obstruct the investigation. 10. On 2 July 2007 the Kentron and Nork-Marash District Court of Yerevan extended the applicant’s detention by two months, upon an application by the investigator, finding that the applicant, if remaining at large, could obstruct the investigation, abscond, exert unlawful influence on the persons involved in the proceedings and commit another offence. The District Court’s decision stated that it could be contested before the Criminal Court of Appeal. 11. On 3 July and 3 September 2007 the applicant lodged an appeal, raising arguments similar to those previously raised. 12. On 24 July 2007 the Criminal Court of Appeal decided to uphold the decision of the District Court, finding that the nature and the dangerousness of the imputed offence, the particular circumstances and complexity of the case; the investigative measures to be carried out and the applicant’s behaviour, namely his refusal to give any testimony, which was a factor slowing down the investigation, gave sufficient reasons to believe that the applicant could obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings and also abscond. 13. On 31 August 2007 the Kentron and Nork-Marash District Court of Yerevan extended the applicant’s detention by two months, upon an application of the investigator, on the same grounds as before. The District Court’s decision stated that it could be contested before the Criminal Court of Appeal. 14. On 3 September 2007 the applicant lodged an appeal, raising arguments similar to those previously raised 15. On 6 September 2007 the investigator decided to replace the applicant’s detention with a written undertaking not to leave his residence and to release him in view of the fact that the investigative measures would take some time and it was no longer necessary to keep the applicant in detention. 16. On 17 September 2007 the Criminal Court of Appeal decided to leave the applicant’s appeal of 3 September 2007 unexamined in view of the fact that he had been released. | 1 |
test | 001-148234 | ENG | DEU | ADMISSIBILITY | 2,014 | BÄCKER v. GERMANY | 4 | Inadmissible | Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 1. The applicant, Mr Heinz-Werner Bäcker, is a German national, who was born in 1963 and lives in Lippstadt. He is currently confined in a psychiatric hospital in Eickelborn Lippstadt. He was represented before the Court by Mr C. Ernst, a lawyer practising in Bielefeld. 2. 3. On 29 January 1981 the Hamm Juvenile Court (Jugendschöffengericht) charged the applicant with rape and attempted rape, committed on 5 August and 19 September 1980 respectively. In the first case the applicant ran into a 16-year old girl and knocked her down. He then suffocated and threatened to kill her, and raped her. In the second case he had followed a girl and wanted to rape her. As his bike was jammed, he gave up the chase and masturbated in a field. He apprehended a 25-year old woman who was walking, choked her and threatened to strangle her. As she fought him off and cried for help, some passers-by noticed them and he could not penetrate her. The court sentenced him to a year and ten months imprisonment and placed him on probation because he and his mother had consented to him being given medication and placed in a young offender’s institution. 4. On 24 September 1981 the applicant knocked down a 24-year old cyclist, dragged her into a ditch, suffocated her until she lost consciousness and raped her. When she regained consciousness and made an attempt to flee, he abused her and left her senseless and badly injured in a field while he drove off. The victim was hospitalised for a month, and suffered from paralysis of the eye muscle until the beginning of 1982, and was, a year after the attack, still in a terrible psychological state with suicidal and depressive tendencies. 5. On 17 September 1982 the Münster Regional Court convicted the applicant of rape in two cases, in one case in combination with grievous bodily harm, and in the other case with attempted rape. He received a global youth sentence of five years, which included the previous sentence of the Juvenile Court. It based its decision on the opinion, dated 19 April 1982, of an external psychiatric expert, who had examined the applicant and had seen medical, social and school reports about the applicant and his family from 1970 until 1980, which all stated that the applicant had a difficult family situation and had physical and learning difficulties. The expert found that the applicant suffered from a psychopathic personality disorder with an increased sex drive and lack of willpower. The Regional Court further held that the applicant had acted with diminished responsibility when committing the offences because of a mental disorder (pursuant to Article 21 of the Criminal Code, see Relevant domestic law below). It consequently ordered that the applicant be placed in a psychiatric hospital in accordance with the relevant provisions of German law before starting the youth sentence. At the time of committing the offences, the applicant was 16 and 17 years old respectively. He has been in a psychiatric facility since 15 October 1982. 6. Since 1987 the applicant has been examined regularly every three years by different external psychiatric experts, who had not treated the applicant before and who did not belong to the psychiatric facility in which the applicant is placed. 7. On 6 December 2010 the external expert K., a psychologist, psychotherapist and professor at a university of applied science, issued a statement after examining the applicant on 19 and 27 October 2010. In his assessment of the applicant’s legal prognosis the expert took into account the previous opinions of eight different external psychiatric experts on the applicant’s state of health dating from 1987, 1991, 1993, 1995, 1998, 2001, 2004 and 2008 as well as his medical file containing statements by attending doctors regarding the applicant’s conduct in hospital and the therapy implemented since his confinement in 1982. 8. The expert found that the applicant was suffering from a histrionic, narcissistic and antisocial disorder with impulsive and aggressive tendencies, that had developed as a result of him being neglected and abused at home in the past. He was easy to provoke and irritate, emotionally instable and his threshold for aggressive behaviour was low. In the course of his stay in hospital the applicant had, on a few occasions, shown aggressive and somewhat violent reactions towards fellow patients after being provoked or in situations where he had felt harassed. However, in none of these cases had the applicant tried to strangle someone or injure them badly, and there was nothing to suggest that his aggressive behaviour had increased in frequency or intensity over the years. The expert emphasised that the applicant was trusted with looking after the ward’s petting zoo and always carried out his everyday tasks. 9. In the expert’s view, it had to be expected that outside the hospital the applicant would commit offences similar to those which had been the reason for his confinement. When examined by the expert, the applicant had indicated that he had seen no need to continue his therapy. Further treatment and medication were however necessary with a view to minimising the risk of him reoffending. For the time being, the applicant’s release from hospital could not therefore be recommended. The expert specified in this connection that his assessment was based on the assumption that the Regional Court would come to the conclusion that the offences the applicant might commit were so serious that for the safety of the general public his continued placement was required. The expert concluded that the applicant could not be regarded as a treated sex offender. 10. In March 2011 the applicant, represented by a lawyer, requested that his further placement be declared disproportionate or, alternatively, that an additional psychiatric assessment be carried out. He submitted that his continued detention for the past twenty eight and a half years had violated his human rights. 11. On 22 March 2011, without hearing the applicant orally, the Paderborn Regional Court rejected the applicant’s request. It took into consideration a report by the psychiatric facility of 1 September 2010, which concluded that despite the applicant’s mostly satisfactory behaviour in the daily routine on the ward, it could not issue a positive legal prognosis, owing to the stagnating progress of his therapy. 12. On 28 April 2011 the Hamm Court of Appeal overruled the Regional Court’s decision because the external expert opinion dated 6 December 2010 had not been included in the decision-making, and neither the expert nor the applicant had been heard. The Court of Appeal referred the case back to the Regional Court for a new decision. 13. On 10 June 2011 the Paderborn Regional Court again ordered that the applicant’s placement in hospital be continued. Relying on written statements by the Lippstadt Psychiatric Hospital, where he was held, see paragraph 1, of 6 June 2011 and the prosecution authorities, the independent expert opinion of 6 December 2010, the applicant’s oral testimony and the applicant’s lawyer’s statement, the court found it established that the applicant’s legal prognosis was still negative. The expert had stated that the applicant was suffering from a combined personality disorder including affective instability, lack of willpower, an inability to create relationships, and denial of the crimes. According to the expert, the applicant needed the protective environment and care of an institution for a fairly long time, as he still had not shown any insight into his illness or empathy with the victims, and obstinately refused to consider any proposals by the attending doctors to adjust his psychotherapy, as was required for the long-term treatment of his disorder. 14. On 1 September 2011 the Court of Appeal, endorsing the Regional Court’s reasoning, dismissed the applicant’s appeal as ill-founded. It added that as long as there remained a serious risk that he could commit similar offences, and as long as he refused treatment, his continued placement in a psychiatric facility was vital and proportionate. 15. On 1 June 2012 the Federal Constitutional Court rejected the applicant’s constitutional complaint without giving further reasons (file no. 2 BvR 2120/11). 16. The applicant’s further detention was subject to annual review. On 13 June 2012 the Paderborn Regional Court ordered that the applicant’s placement be continued after hearing the applicant and taking into consideration the psychiatric facility’s report of 13 April 2012. The report asserted that the applicant continued to suffer, without any change, from a combined personality disorder including histrionic, narcissistic and antisocial aspects with an undifferentiated perception of other people, a high level of egocentrism and rigid and inflexible behaviour and thinking. The report emphasised that despite the fact that in the psychiatric hospital the applicant was well integrated into everyday life and assumed responsibility for his behaviour, he had difficulties with change. The court considered that the applicant adhered to the accompanied relaxation of his detention but he considered the medical report and a supplementary opinion as “brashness” (Frechheit) and demanded his release. The court considered that the applicant’s placement had to be continued, as his demanding and impulsive behaviour gave grounds for suspecting that he would reoffend once outside a structured environment. 17. On 31 July 2012 the Hamm Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision. 18. On 5 June 2013 the Paderborn Regional Court on the basis of a fresh report of the psychiatric facility of 15 March 2013, ruled that the applicant’s detention should be continued as the applicant continued to lack social skills and showed a high level of egocentrism which was contrary to a positive social and legal prognosis. The court found that no progress in his treatment could be established as he continued to refuse proper treatment. 19. On 23 July 2013 the Hamm Court of Appeal confirmed the Regional Court’s decision and specified that since the applicant had refused any offers of therapy, there was still a risk of him reoffending. 20. On 18 November 2013 the Federal Constitutional Court (file nos. 2 BvR 2180/13 and 2 BvR 2200/13) declared inadmissible constitutional complaints lodged by the applicant against the Hamm Court of Appeal’s decisions of 31 July 2012 and 23 July 2013. It found that the applicant had not sufficiently substantiated his complaints, as he had simply alleged that his confinement was disproportionate, that medical opinion was lacking, and that he had formulated controversial allegations against the courts without dealing with their arguments and reasoning. The Federal Constitutional Court added that it was not its task to identify the relevant legal points among the documents submitted. Even applicants who were not represented by a lawyer had to – so far as possible – substantiate their complaints. 21. The pertinent domestic law is reproduced in the case of Klouten v. Germany ((dec.), no. 48057/10, 19 March 2013, §§ 38-43). 22. In accordance with Article 21 of the Criminal Code, if an offender is only partially capable of appreciating the unlawfulness of his actions or of acting in accordance with any such appreciation because of a pathological mental disorder, a profound consciousness disorder, mental incapacity or any other serious mental abnormality, he is said to have acted with diminished responsibility. | 0 |
test | 001-156251 | ENG | RUS | CHAMBER | 2,015 | CASE OF PATRANIN v. RUSSIA | 4 | Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 6. The applicant was born in 1976 and is detained in correctional colony no. 2 in the Tatarstan Republic. 7. Since 1999 the applicant has been suffering from progressive multiple sclerosis. He was designated with Category 1 disability as a result of that condition. 8. On 22 February 2012 the applicant was arrested on suspicion of active membership of an organised criminal group between 1995 and 2005 and the murder or attempted murder of several people in 1999. 9. The applicant’s health deteriorated significantly and rapidly in the detention facility, where his health complaints were not addressed in any way, as the facility did not have any medical specialists. In August 2012 the prison authorities recorded that the applicant’s movement was impaired and that he was unable to walk without a cane. 10. In September 2012 the applicant suffered an epileptic seizure which resulted in paralysis of the left side of his body. Several days later an investigator authorised a forensic medical examination of the applicant to determine whether he was fit to stay in a detention facility. A medical examination, based, inter alia, on the results of an MRI exam performed by civilian experts from the Tatarstan Republic medical institute, led to the conclusion that the applicant was suffering from “a serious condition preventing his detention”. In particular, experts diagnosed him with progressive multiple sclerosis, left-sided hemiplegia (paralysis) in the cerebral spinal form, acute right-sided hemiparesis (muscle weakness of the right side of the body) with the persistent astheno-depressive syndrome, memory deterioration, partial atrophy of the visual nerves, symptomatic epilepsy with polymorphic partial motor and generalised attacks three to four times a month, arterial hypertension of the first degree, and light myopathy of both eyes. On 25 September 2012 the applicant was released from detention. 11. On 29 May 2013 the Supreme Court of the Tatarstan Republic found the applicant guilty as charged and sentenced him to ten years’ imprisonment, to be served in a correctional facility under a strict regime. The trial court, however, decided that the applicant should not be placed in custody pending appeal proceedings. On 3 September 2013 the Supreme Court of the Russian Federation upheld the judgment on appeal. 12. On 17 September 2013 the applicant asked the Supreme Court of the Tatarstan Republic to order a medical examination for him with a view to confirming that he was not fit for detention. The request was not processed. 13. The applicant was taken into custody on 8 October 2013. He was placed in a prison hospital in correctional colony no. 2 in the Tatarstan Republic. 14. In November 2013 the applicant underwent an MRI test and was examined by several doctors, including by a neurologist, from the prison hospital in correctional colony no. 2. Their decision issued on 23 November 2013 indicated that given the negative prognosis for and the severity of the applicant’s condition, he should be sent for a forensic medical examination to determine whether he could be released early on health grounds. The doctors relied, inter alia, on the results of the MRI examination, which had shown that in comparison to the results of the previous MRI exam in September 2012 the applicant’s illness had progressed significantly and demonstrated further negative dynamic. The applicant was informed by the prison administration that they would seek his immediate release on health grounds. 15. However, a week later the applicant was notified that an additional expert examination was to be performed. Two medical experts visited the applicant, spoke with him and informed him that his condition did not warrant release. On 20 January 2014 the applicant was served with a copy of an opinion by the two medical experts who had concluded that he did not suffer from any condition listed in Government Decree no. 54 of 6 February 2004 on illnesses warranting release on health grounds, as his condition had not yet reached the crucial stage which required early release. 16. Relying on a number of medical certificates and reports issued by medical specialists from civilian medical facilities, who had either treated him following his release from detention in September 2012 or had studied his medical history in 2013, the applicant argued that he was unable to care for himself and that he required constant assistance, care and medical treatment which the Russian penal system was not able to provide. In particular, a report issued in September 2013 by a neurologist from the Tatarstan Republican hospital indicated that the applicant had no movement on the left side of his body and could only partly move the fingers of his right hand and his right leg; he could not walk or sit without assistance; and he required assistance even if placed in a wheelchair. Another report indicated that the applicant was suffering from urethral dysfunction leading to involuntary urination, an additional element calling for constant care. The civilian doctors concluded that the stage of development of the applicant’s illness was 9 (with death expected to occur according to that scale at stage 10). 17. Having provided copies of his complaints to various Russian authorities, the applicant submitted that his requests for an independent medical examination to determine whether he could remain in detention, as well as his complaints about the lack of proper medical assistance, had gone unanswered. 18. The applicant argued that he spent his entire day in bed. Prison doctors, who had no proper training to deal with patients in his condition, came to see him only once every few days. He had not been bathed for months. He could not eat or drink unaided, so he received food once a day. He suffered from severe pain, as he could not defecate and the medical personnel only gave him an enema once every two weeks. He did not receive any treatment, and had not been seen in detention by specialists such as a neurologist. 19. On 12 February 2014 the Court, in response to the applicant’s request under Rule 39 of the Rules of Court, decided to indicate to the Government that the applicant should be examined immediately by medical experts independent of the penal system, including by a neurologist and an epileptologist. The experts were to be asked whether the treatment and physical care the applicant was receiving was adequate for his condition, whether his current state of health was compatible with detention in the conditions of a correctional colony or a prison hospital, and lastly whether the applicant’s current condition required him to be admitted to a specialised hospital or released. The Russian Government were also asked to ensure the applicant’s immediate transfer to a specialised hospital if the medical experts concluded that he required to be admitted to such a hospital. 20. In response to the Court’s request, the Government provided the Court with a typed copy of the applicant’s medical history prepared by the detention authorities; certificates issued by the head of the applicant’s correctional colony and the head of the Service for the Execution of Sentences in the Tatarstan Republic; and a copy of the report drawn up on 25 December 2013 by a medical panel comprising the head, deputy head and senior inspector of the medical unit of the Service for the Execution of Sentences in the Tatarstan Republic and a deputy head of the prison hospital of correctional colony no. 2, where the applicant was detained. Relying on those documents, the Government argued that the applicant was receiving adequate medical assistance and that the medical panel of the Service for the Execution of Sentences in the Tatarstan Republic had concluded that “the degree of the manifestation of the applicant’s condition (multiple sclerosis) did not [reach the level] which could be described as bodily function impairment” warranting release in compliance with the Government’s decree of 6 February 2004 which laid down a list of illnesses calling for inmates’ early release. 21. The applicant commented on the Government’s information, insisting that the medical assistance afforded to him was virtually nonexistent. He relied on his medical record, and stated that prior to the application of the interim measure under Rule 39 of the Rules of Court he had been prescribed over twenty different drugs, of which, as indicated in the record, he had only received five. At the same time the applicant argued that the medical record was a forgery, as he had in fact only received one drug. Following the application of the interim measure he had been allowed to obtain certain medication from his wife to treat the epilepsy. He further submitted that the prison hospital where he was an inmate did not have the necessary medical equipment. He had usually been taken to another hospital for examinations, or a specialist with the proper equipment had been allowed to visit him in the prison hospital. The prison hospital only employed a neurologist, a specialist who, according to her own assessment, did not have the skill to treat the applicant’s complex condition. Despite the fact that the applicant’s condition was progressing and that the prognosis for him was negative, the authorities had not taken any steps to alleviate his sufferings and safeguard his life and limb. 22. The applicant submitted that since March 2014 he had developed new health problems, but the medical staff of the prison hospital had failed to address the ongoing deterioration of his health. In particular, he had begun suffering from kidney pain, but no nephrologist was available in the prison hospital. On 18 March 2014 the applicant was diagnosed with urinary tract infection, but no appropriate treatment followed. Several days later the applicant complained to an otolaryngologist of a purulent discharge from his left ear and severe pain. However, medical staff failed to comply with the otolaryngologist’s recommendations. 23. At the request of the applicant’s wife, on 18 April 2014 he was examined by a panel consisting of the deputy head of the prison hospital and several prison doctors. The commission found that the applicant did not suffer from bodily function impairment warranting his release. 24. On several occasions the applicant’s wife complained to the Prosecutor General and to the prison authorities, requesting an independent medical assessment. In their replies the authorities informed her that allegations of lack of adequate medical assistance had not been confirmed, and thus there were no grounds to order the applicant’s medical examination. 25. However, on 29 July 2014 a medical panel of the prison hospital, having confirmed the applicant’s earlier diagnosis, recommended his early release. In August 2014 the applicant’s wife lodged a motion for his release before the Privolzhskiy District Court of Kazan. 26. At the hearing held on 14 November 2014 the District Court heard the applicant’s attending prison doctor who stated that he had not and could not receive adequate treatment in respect of his multiple sclerosis in detention and that such treatment could only be provided in a specialised hospital, in particular in the Republican diagnostic centre of demyelinised illnesses. On the same day the District Court dismissed the motion for release. The applicant’s lawyer appealed. 27. In the meantime, on 15 December 2014 the applicant was transferred to correctional colony no. 9 in the Chuvashia Republic to continue serving his sentence. Three days later, following a visual medical examination, he was admitted to medical unit no. 21 in the colony which was to determine the issue whether the applicant’s condition called for his early release. According to the applicant, colony no. 9 did not employ a neurologist and had no means to deal with a patient of his health. 28. On 13 January 2015 the Supreme Court of the Tatarstan Republic quashed the decision of 14 November 2014 and sent the matter for a new examination to the District Court. 29. During the re-hearing on 19 February 2015 the Povolzhskiy District Court took note of the applicant’s transfer to a new colony and decided that it no longer had territorial jurisdiction to examine the applicant’s motion for release. The case was sent to the Tsivilsk Town Court in the Chuvashia Republic for further examination. 30. On 13 January 2015 a medical commission comprising three specialists from medical unit no. 21 issued a report finding that the applicant’s condition made him eligible for an early release. That report was filed with the Tsivilsk Town Court which on 26 February 2015 authorised the applicant’s release, having relied on the report of 13 January 2015 and statements by the head of medical unit no. 21. The latter had testified to the gravity of the applicant’s condition and the impossibility to provide him with adequate treatment or permanent general care and assistance in detention. The applicant was released on 11 March 2015 and taken by an ambulance to a hospital in Kazan. 31. The applicant provided the Court with expert opinions issued on 21 March and 5 August 2014 by neurologist M. from the Republican Medical Institute. Having examined the applicant and studied his medical file, the expert recorded negative dynamics in the applicant’s neurological condition, and found that he had not received the drugs necessary to treat his multiple sclerosis. The doctor recommended that the applicant undergo specific treatment in the Institute or in foreign hospitals, and noted that the lack of such treatment could lead to irreversible deterioration of the applicant’s health and eventually to his death. 32. The Government produced, in addition to the documents submitted by them in response to the Court’s Rule 39 request, a number of certificates signed by the staff and administration of the prison hospital, as well as by a fellow inmate. According to those certificates, the applicant was provided with the necessary care in the hospital. Medical staff fed him three times a day, washed his face and ears every morning, cut his hair and nails, changed his bedding, and showered him once a week. Nurses gave him enemas and changed his catheter bag as often as necessary. | 1 |
test | 001-157755 | ENG | TUR | CHAMBER | 2,015 | CASE OF AKKOYUNLU v. TURKEY | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Positive obligations);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Egidijus Kūris;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano;Ksenija Turković | 5. The applicant was born in 1981 and lives in Istanbul. 6. On 24 May 2001 the applicant started his compulsory military service in Şırnak. On 25 July 2001 he contacted the infirmary of his regiment, complaining of severe pain in his left eye. According to the applicant, the military doctor was absent and he was given eye drops by a soldier who had no medical qualifications. According to the Government, the records of the infirmary (which were not made available to the Court) showed that the applicant had been examined by a military doctor and given eye drops by that doctor and not by a soldier. 7. The following day the pain became persistent, so the applicant contacted the infirmary once again. He was told that he should go to his dormitory and rest. According to the applicant, despite the pain he was in, he was not relieved of his sentry duties during that period. On 2 August 2001 he was referred to the Cizre State Hospital, where he was diagnosed with a corneal ulcer. 8. On 6 August 2001 the applicant was transferred to the Diyarbakır Military Hospital, where his treatment started. However, he completely lost the sight in his left eye. According to the applicant, the doctors informed him that he had lost his eyesight because of the delay in starting the treatment, as in corneal ulcer cases it was essential to start treatment immediately. 9. On 13 August 2001 the applicant was transferred to Ankara GATA Military Hospital for further treatment. He stayed there until 25 September 2001, during which time he underwent several operations. He returned to the hospital for a number of additional operations from 9 November 2001 to 7 February 2002, 10 to 21 March 2002, 2 to 10 May 2002, and lastly, 15 to 18 July 2002. 10. A medical report issued on 17 July 2002 concluded that the applicant was no longer medically fit for military service and that he was eligible for an ocular prosthesis. On the basis of that report, the applicant was formally discharged from the army. 11. On 15 October 2002 the applicant instituted proceedings before the Supreme Military Administrative Court, seeking compensation from the Ministry of the Interior for the damage he had suffered to his eye during his compulsory military service as a result of the delay in his treatment. He claimed 30,000,000,000 Turkish liras (TRL; approximately 19,000 euros (EUR)) in respect of pecuniary damage and TRL 30,000,000,000 in respect of non-pecuniary damage. He argued that for a period of one week after the start of his eye problem, he had been unable to see a doctor because there had been no doctor present at his regiment infirmary during that time. He gave the administrative court the names of a number of his fellow conscripts who had witnessed the fact that he had not been provided with medical treatment by a doctor in the first week but had instead been told to rest and use eye drops, and asked the court to question them. 12. In the written defence submissions that it sent to the administrative court, the Gendarmerie High Command argued that on 25 and 26 July 2001 the applicant had been examined at the infirmary of his regiment by military doctor İ.H.Ş., who had prescribed medication for him. 13. In his observations submitted to the administrative court on 6 January 2003 in response to those of the Gendarmerie High Command, the applicant maintained his allegation that on his first visit to the infirmary he had been examined by a soldier because the military doctor, İ.H.Ş., had been temporarily dispatched to another regiment. He repeated his request that witnesses be summoned to testify before the administrative court and asked the administrative court also to summon and question Dr İ.H.Ş. 14. During the proceedings the administrative court appointed three university professors from the ophthalmology department of Gazi University’s Faculty of Medicine as experts with a view to clarifying whether there had been any medical malpractice in the applicant’s case. Their expert report drawn up on 6 April 2005 concluded: “Our medical opinion, based on our examination of the plaintiff’s allegations, is as follows: 1. It is understood that, although the problem in the patient’s eye is described in the medical reports as a ‘corneal ulcer’, the cause of the corneal ulcer (Herpes virus? Fungal infection? Bacterial infection?) is not known. Furthermore, it is considered that it was not possible to establish with certainty the infection factor at the hospitals where the patient was observed and treated. For this reason, it is not possible to decide whether the eye problem was related to his military service or whether it was idiosyncratic. 2. Similarly, because the problem could not be fully diagnosed, it was not possible to determine the outcome [of the applicant’s symptoms] within one to two weeks. 3. [We are of the opinion that] there were no delays, shortcomings, mistakes or negligence in the steps taken in transferring the patient to the hospital, diagnosing the problem, treating the problem or treating the patient.” 15. The applicant submitted a written statement to the administrative court on 29 April 2005, arguing that the medical report contained contradictory conclusions. He pointed out that, although the experts had indicated in the report that the problem had not been fully diagnosed, they had then gone on to conclude that there had been no shortcomings in the diagnosis of the problem. He further argued that the conclusion reached by the experts, namely that “because the problem could not be fully diagnosed, it was not possible to determine the outcome [of the applicant’s symptoms] within one to two weeks”, fully supported his allegations. His contention was also that, precisely because the problem had not been diagnosed properly, the treatment had not started in a timely manner. The applicant asked the administrative court to take steps to eliminate the inconsistencies by requesting and obtaining additional reports from a different set of experts. 16. In his written opinion submitted to the Supreme Military Administrative Court, the public prosecutor stated that the applicant should be awarded compensation either for the authorities’ negligence if such negligence was established, or on the basis of the no-fault strict liability of the military administration. 17. On 18 May 2005 the Supreme Military Administrative Court, on the basis of the expert report of 6 April 2005 (see paragraph 14 above), dismissed the applicant’s claim by a majority of four to one and held that no fault could be attributed to the military authorities in the treatment of the applicant. 18. In its decision the Supreme Military Administrative Court did not deal with the applicant’s allegation that between 25 July and 2 August 2001 he had been unable to see a doctor in the regiment infirmary because there had not been a doctor there during that time, other than stating that the applicant had “contacted the infirmary of the regiment on 25 and 26 July 2001 and started receiving medical treatment there”. Nor did the administrative court respond to the applicant’s requests to have his witnesses heard. 19. A dissenting judge stated in his separate opinion that issues such as the cause of the problem, whether or not it had been as a result of the applicant’s military activities, and what bearing the one-to-two week delay had had on the outcome had not been established in the expert report of 6 April 2005. The dissenting judge thus considered that the administrative court should not have decided the case without having obtained a new report and clarified those points. 20. The applicant requested a rectification of the administrative court’s decision. He claimed, in particular, that his arguments had not been examined adequately by the court and repeated his arguments regarding the contradictions in the expert report of 6 April 2005. 21. On 21 September 2005 the Supreme Military Administrative Court refused the applicant’s rectification request by a majority of four to one. 22. According to a medical report of 9 October 2009 issued by the Haseki Hospital, the applicant was deemed to be suffering from a permanent disability as a result of the loss of sight in his left eye. It was indicated that his ability to work had been reduced by 41% as a result of the disability, and that the applicant was entitled to receive a disability pension. | 1 |
test | 001-172660 | ENG | RUS | CHAMBER | 2,017 | CASE OF TAGAYEVA AND OTHERS v. RUSSIA | 1 | Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione personae;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);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life);Respondent State to take individual measures (Article 46-2 - Individual measures);Pecuniary damage - claim dismissed (Article 41 - Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Respondent State to take measures of a general character (Article 46-2 - General measures) | Dmitry Dedov;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicants raised various issues related to the terrorist attack, siege and storming of school no. 1 in Beslan, North Ossetia, Russia, from 1 to 3 September 2004. Some applicants were held hostage and/or injured, while others had family members among those taken hostage, killed or injured. Information in respect of each applicant is summarised in the Appendix. 6. While most events are relevant for all the applicants, their position in the domestic proceedings differed somewhat. However, given the number of applicants, the extent of the domestic procedures and the difficulties associated with establishing each applicant’s procedural role, the present judgment refers to them collectively as “the applicants”. This is based on the assumption that their position in the domestic proceedings was relatively similar, whether or not each of them participated in a given procedural step, either directly or through their representatives (see Abuyeva and Others v. Russia, no. 27065/05, § 181, 2 December 2010). 7. The anti-terrorist operation mounted from 1 to 4 September 2004 involved a number of State agencies. The documents in the case file refer to the police, internal troops of the Ministry of the Interior, army servicemen of the Ministry of the Defence and officers of the Federal Security Service (Федеральная Служба Безопасности (ФСБ) – hereinafter “the FSB”). Unless otherwise specified, the terms “security personnel” or “security forces” used in the present judgment apply to any of those State agents. Equally, the terms “anti-terrorist” or “security operation” are used to describe the operation of 1 to 4 September 2004. 8. The voluminous material in the case files lodged by the applicants and submitted by the Government include documents from four criminal investigations, three criminal trials, two sets of civil proceedings for compensation, two reports by parliamentary groups and one dissenting opinion thereon, books and articles written in the aftermath, copies of forensic and expert reports in respect of each applicant and/or their relatives, the applicants’ own statements to the Court and independent expert reports. The statement of facts below is a succinct summary of the documents mentioned above and other publicly available information. 9. The year 2004 saw a surge of terrorist acts in Russia involving numerous civilian victims. Mr Shamil Basayev, the underground leader of the Chechen separatist movement, either claimed responsibility or was held responsible for these acts. 10. On 6 February a suicide bomber killed over forty people and wounded over 250 on an underground train in Moscow. 11. In February and March several explosions in the Moscow Region damaged gas pipelines, a heating station and electricity pylons. 12. On 9 May the President of Chechnya, Mr Akhmat Kadyrov, and several senior officials were killed by a bomb in a stadium in Grozny. 13. On 21 and 22 June a large group of armed rebel fighters attacked Nazran, Ingushetia’s largest town. They primarily targeted police stations and other security offices; over ninety people were killed and an ammunition warehouse was looted. 14. On 24 August two civilian aeroplanes which had departed from Moscow Domodedovo Airport simultaneously exploded in mid-air; ninety people lost their lives. 15. On 31 August a suicide bomber blew himself up at the entrance to an underground station in Moscow, killing ten and wounding about fifty others. 16. On 18 August 2004 the North Ossetian Ministry of the Interior issued the following telex (no. 1751) to all local departments of the interior: “[The North Ossetian Ministry of the Interior] has received information indicating the movement of participants of [illegal armed groups] from the plains of [Ingushetia] and [Chechnya] to the mountainous and forested area along the border of [Ingushetia] and [North Ossetia]. A meeting of the fighters is presumably planned for mid-August of this year, following which they are intending to commit a terrorist act in [North Ossetia] similar to that in Budennovsk. According to the available information, the fighters plan to capture a civilian object with hostages in the territory of [North Ossetia], and then submit demands to the country’s leadership for the withdrawal of troops from [Chechnya]. A large sum of money in [a foreign] currency has apparently been transferred from Turkey. [This information is being] transmitted in order for preventive measures to be taken.” 17. On 27 August 2004 the North Ossetian Ministry of the Interior issued Decree no. 500 on the protection of public order and security during the Day of Knowledge in the educational facilities of North Ossetia, which was sent to all district police stations. The plan provided for heightened security awareness and an increase in the number of mobile posts and police officers near public gatherings, and contained a series of measures aimed at the prevention of terrorist acts and hostage-taking during public gatherings on the Day of Knowledge in the settlements situated along the administrative border with Ingushetia. The plan further stipulated that each head of the district departments of the Interior should inform the administrations of educational facilities accordingly, put in place working plans for every such gathering and personally inform police staff of their functions, carry out hourly updates of the situation at public gatherings, give immediate feedback to the North Ossetian Ministry of the Interior and provide contingency staff in each police department. 18. On 25, 27 and 28 August 2004 the North Ossetian Ministry of the Interior issued three other telexes to the local departments concerning security measures to be taken during the Day of Knowledge, heightened terrorist threats in the region and the prevention of possible attacks. The personnel of the Ministry of the Interior were put on high alert (усиленный режим несения службы). 19. As revealed by subsequent investigations, towards the end of August 2004 a sizeable group of terrorists (at least thirty people) were camping and training between the villages of Psedakh and Sagopshi in the Malgobek District of Ingushetia. In the early hours of 1 September 2004 the group crossed the administrative border between Ingushetia and North Ossetia, driving a GAZ-66 utility truck. 20. At 7.30 a.m. on 1 September 2004 Major S.G. from the North Ossetian Ministry of the Interior stopped the vehicle for an inspection at the administrative border with Khurikau. The terrorists disarmed him, placed him in the back seat of his own white VAZ-2107 and drove to Beslan. Major S.G. escaped and later testified about these events. 21. At 9 a.m. on 1 September 2004 school no. 1 in Beslan, North Ossetia, held a traditional Day of Knowledge ceremony to mark the opening of the academic year. Over 1,200 people gathered in the courtyard of the Eshaped two-storey building located on Kominterna Street in the centre of the town, whose population was approximately 35,000. The school was situated next door to the district police station of Pravoberezhny (Правобережный районный отдел внутренних дел (РОВД) – hereinafter “the Pravoberezhny ROVD”). The gathering included 859 schoolchildren, sixty teachers and staff of the school and members of their families. Dozens of children below the age of six were in the crowd with their parents, since several kindergartens in Beslan were closed on that day for various reasons. One unarmed police officer, Ms Fatima D., was at the ceremony. 22. According to some sources, on the morning of 1 September 2004 the Beslan traffic police were called to secure the passage of Mr Dzasokhov, the North Ossetian President, through the town. The applicants referred to the testimony of the traffic policemen and servicemen of the Pravoberezhny ROVD, saying that they had been instructed to take various positions along the route of Mr Dzasokhov’s convoy, and thus leave the school unprotected. 23. During the first few minutes of the ceremony, at about 9.05 a.m., a group of at least thirty-two people (the number of terrorists is disputed – see below) armed with various weapons, including machine guns, explosives and handguns, surrounded the people in the school courtyard and, shooting in the air, ordered them to enter the school through the main door and through smashed windows on the ground floor. A GAZ-66 vehicle entered the yard through the main gates and a group of terrorists jumped out. According to some witnesses, some other terrorists came from behind the school and another group was already in the building. 24. The terrorists in the main courtyard fired into the air and there was an exchange of fire with local residents and the police. At least two local residents were killed (Mr R. Gappoyev and Mr F. Frayev) and some were wounded during the shooting. It also appears that two terrorists were wounded. About one hundred people, mostly adults and senior students, managed to escape. Another fifteen people hid in the boiler building, from where they were rescued later in the day. 25. Despite the initial chaos, the terrorists managed to round up the majority of those in the courtyard – 1,128 people (the exact figure is disputed by some sources), including about 800 children aged between several months and eighteen years. Several groups of hostages initially tried to hide inside the school or escape through fire exits, but the terrorists were in firm control of the building and escorted everyone to the gymnasium. 26. The hostages were assembled in a gymnasium located on the ground floor in the central part of the building and measuring about 250 square metres. The terrorists informed them that it was a terrorist act and that they had to obey their orders. The hostages’ personal belongings, mobile telephones and cameras were confiscated, and they were ordered to sit on the floor. 27. The attackers then proceeded to arrange a system of improvised explosive devices (IEDs) around the gymnasium, using basketball hoops and gymnasium ladders for support. Male hostages were forced to assist them in this task, which was completed within about two hours. A single chain connected several smaller IEDs hanging above the hostages’ heads, two large IEDs attached to basketball hoops on the opposite walls of the gymnasium and several heavier ones placed on the floor. Some IEDs were filled with parts such as metal pellets, screws and bolts. They were connected by wire to pedal detonators (“dead man’s switches”), which two of the terrorists took turns to hold. Two women wearing ample black clothes with explosive belts underneath – suicide bombers – remained in the gymnasium among the hostages. 28. The attackers smashed the windows of the gymnasium, to allow air and probably avoid the use of gas as a means of attack. Several rooms around the school building were turned into firing points, with windows smashed and stocks of food, water and ammunition set out. During the course of the day the terrorists kept shooting out of the school windows in the direction of the security personnel and civilians gathered outside. 29. At 9.25 a.m. the Ministry of the Interior in Vladikavkaz received information about the seizure of the school. It was immediately transmitted to Mr Dzasokhov and the FSB. 30. The hostages were forced to sit in very cramped conditions on the floor of the gymnasium. During the first few hours of captivity some families remained separated, but they were allowed to reunite later during the day. 31. The hostages were ordered to keep quiet and not to speak in languages other than Russian. Mr Ruslan Betrozov, whose two sons were in the gymnasium, repeated the captors’ orders in Ossetian. One of the terrorists walked up to him and executed him in full view of everyone in the gymnasium by shooting him from close range; his body was not removed until several hours later. Mr Betrozov’s sons Alan (born in 1988) and Aslan (born in 1990) witnessed the execution; both boys died on 3 September 2004 during the storming. Another father of three, Mr Vadim Bolloyev, was shot in the shoulder during the first few hours of the crisis for apparently refusing to obey the terrorists’ orders. By the end of 1 September he had died in the gymnasium. His younger son Sarmat (born in 1998) survived the attack, but his two daughters Zarina (born in 1993) and Madina (born in 1995) died during the storming. 32. During the course of the day on 1 September 2004 the attackers allowed groups of children, under their escort and accompanied by adults, to access the toilets outside the sports hall to drink tap water. They also ordered senior students to bring water into the hall in buckets and distribute it among the hostages in small quantities. The terrorists also took a large television into the gymnasium and on several occasions turned on the radio so that some of the hostages could hear about the events on the news. 33. On 1 September the terrorists allowed the elderly and sick hostages and some mothers with nursing babies to stay in a smaller adjacent weights room, where they could stretch out on the floor. They were later taken into the sports hall. 34. From 2 September the terrorists refused to allow the hostages water and ordered them to use buckets to relieve themselves and to drink their own urine. They announced to the hostages that the tap water had been poisoned and that they would be undergoing a “dry hunger strike” in support of their captors’ demands. Some chewed the leaves of interior plants in order to relieve their thirst. Survivors later complained of severe thirst and heat on 2 and especially 3 September 2004. 35. From the outset the terrorists separated most of the men and forced them to perform various tasks in order to fortify the building, or put in place IEDs. They were told that their disobedience would lead to the execution of women and children in the hall. 36. On the morning of 1 September two men were ordered to lift up floorboards from the library floor. Floorboards were also lifted from the corners of the gymnasium. Others were ordered to move furniture and blackboards to the windows of various classrooms and corridors. 37. On the afternoon of 1 September several men were lined up in the corridor of the ground floor. An explosion occurred there at 4.05 p.m., as a result of which several male hostages were killed or injured. One (or two) women suicide bombers and one terrorist of Arab descent were killed by this blast. Several explanations for that explosion were put forward; the criminal investigation accepted that the terrorist in charge of the operation, Mr Khuchbarov, “Polkovnik” (Colonel), had executed the male hostages whom the terrorists had no longer needed and at the same time had activated the explosive belt of one of the suicide bombers because she had objected to the treatment of the children. Some of the surviving hostages testified that there had been an attack from the outside, as a result of which the explosive belt had detonated killing the female bomber, the Arab terrorist and several hostages. 38. Men who survived the explosion in the corridor were finished off with automatic rifles. Karen Mdinaradze survived the explosion and the ensuing execution. When the terrorists discovered that he was still alive, he was allowed to return to the gymnasium, where he fainted. He later testified about these events. At about 4.30 p.m. on 1 September the terrorists forced two men to throw bodies out of a window on the first floor. One of them, Aslan Kudzayev, jumped out the window and was wounded but survived. His wife, one of the applicants, was released on 2 September with their infant daughter; their other daughter remained in the gymnasium and received injuries during the storming. 39. According to the investigation, sixteen men were killed by the terrorists on 1 September. Another sixteen people were wounded that day as a result of shots fired by the terrorists. 40. At about 3 p.m. on 2 September the terrorists fired several rounds from automatic weapons from the windows of the school, although it appears that no one was hurt and there was no return fire. 41. At around 11 a.m. on 1 September the terrorists passed a note to the authorities via one of the hostages. Mrs Larisa Mamitova, an ambulance doctor, walked to the school gates, handed the note to a man who approached her and walked back; in the meantime her young son was being held at gunpoint inside the building. The note contained a mobile telephone number and the names of the people with whom the terrorists wanted to negotiate: the North Ossetian President Mr Dzasokhov, the Ingushetian President Mr Zyazikov and a paediatrician, Dr Roshal. The note also stated that the school building had been mined and would be blown up in the event of an attempt to storm it, and that the terrorists would shoot fifty hostages for any one of them killed. However, it appears that the mobile telephone number had either been wrongly noted or was switched off, as no telephone contact could be established at that time. 42. At 1 p.m. on 1 September the Russian State television programme “Vesti” announced that the attackers had transmitted a videotape to the authorities, containing their demands and images filmed inside the school. One hour later it was announced that the videotape was empty. Later, the very existence of this videotape remained disputed. 43. Around 4 p.m. on 1 September Mrs Mamitova took out a second note, containing a corrected mobile telephone number and the name of another possible negotiator, Mr Aslakhanov, an aide to the Russian President. She also told the person who collected the note that there were over 1,000 hostages inside the building. 44. The authorities contacted the terrorists through a professional negotiator, the FSB officer Mr Z. His attempts to discuss proposals aimed at alleviating the hostages’ conditions and the possibility of exiting or surrendering or removing bodies from the school courtyard remained futile. 45. Dr Roshal arrived in Beslan on the afternoon of 1 September 2004. When he called the hostage takers, on 1 and 2 September, they were hostile and told him that they would only enter into negotiations if all four people requested by them came to the school. They told him that if he attempted to enter alone, he would be killed. They also refused to accept food, water or medicine, and forbade him from entering the building to examine the sick and wounded. 46. On 2 September the former President of Ingushetia, Mr Ruslan Aushev, arrived in Beslan at the request of the operative headquarters (“the OH”). It appears that at about 3 p.m. he, for the first time, telephoned Mr Akhmed Zakayev, the head of the self-proclaimed Chechen separatist government who was living in London. He told Mr Zakayev about the siege and said that the number of hostages exceeded 1,000. 47. Following telephone contact with the terrorists, at 3.30 p.m. on 2 September, Mr Aushev was allowed to enter the school. He was the only person whom the terrorists agreed to let inside during the siege. Mr Aushev was led to the gymnasium and had a meeting with the leader of the terrorists, Mr Khuchbarov (“Polkovnik”). 48. Following negotiations, Mr Aushev was permitted to leave with twentysix (other sources indicate twenty-four) people – nursing mothers and their babies. All the women had older children in the school and were forced to leave them behind. 49. Mr Aushev took out a message from Mr Shamil Basayev addressed to the Russian President, Mr Vladimir Putin. It demanded that troops be pulled out of Chechnya and official recognition of Chechnya as an independent State. In return, it promised that terrorist activities in Russia would end “for the next ten or fifteen years”. It made no mention of the school siege. It appears that the terrorists also gave Mr Aushev a videotape depicting part of his visit, the gymnasium with the hostages, explosive devices and one terrorist holding his foot on a “dead man’s switch”. It also contained a statement by Mr Khuchbarov that the negotiations should involve Mr Aslan Maskhadov, the President of the self-proclaimed independent Chechen State, who had been in hiding at the time. 50. On 2 September and on the morning of 3 September the attackers tried to contact the North Ossetian authorities of North Ossetia with the assistance of the school director, Mrs Tsaliyeva. Two hostages – children of the head of the North Ossetian Parliament, Mr Mamsurov – were allowed to call their father on his mobile telephone and tell him that they were suffering without water and food. It appears that family members of other possible contacts among officials and public figures (district prosecutor, a well-known sportsman) were singled out by the terrorists but no contact was established. 51. In parallel to the negotiations carried out through Mr Z., on 2 September direct contact with the terrorists was established through Mr Gutseriyev, an influential businessman of Ingush origin. He supplied Mr Aushev with the requisite telephone numbers, participated in conversations with Mr Akhmed Zakayev and eventually tried to liaise with Mr Maskhadov. 52. As can be seen from various information sources, at around 5 p.m. on 2 September Mr Aushev, Mr Dzasokhov and Mr Zakayev had a telephone conversation during which Mr Zakayev promised to involve Mr Maskhadov in the negotiations (see paragraphs 129, 321, 331, 339 below). Some sources indicate that these talks apparently resulted in Mr Maskhadov agreeing to go to Beslan. 53. At about 10.30 a.m. on 1 September 2004 the OH started to function on the premises of the Beslan town administration. The exact composition, leadership and powers of this structure remain disputed. According to most sources, it was initially headed by Mr Dzasokhov, the North Ossetian President, and as of 2 September by General V. Andreyev, the head of the North Ossetian FSB. It was later established that the OH included the deputy head of the counter-terrorism commission of North Ossetia Mr Tsyban, the Minister of the North Ossetian Ministry of Emergency Situations (Emercom) Mr Dzgoyev, the North Ossetian Minister of Education Mrs Levitskaya, deputy head of the information programmes department of the State television company, Rossiya, Mr Vasilyev and the commander-in-chief of the 58th Army of the Ministry of Defence General Sobolev (see paragraphs 130, 158, 183, 312-333 below). 54. The detachments of the 58th Army started to arrive in Beslan during the afternoon of 1 September. On 2 September 2004 eight armoured personnel carriers (APCs) and several tanks of the 58th Army arrived. They were placed under the command of the FSB special purpose units and positioned around the school out of the terrorists’ sight. 55. In the early morning of 3 September the FSB special purpose units went to Vladikavkaz for joint training with the Ministry of the Interior and the Ministry of Defence to prepare for a possible storming. 56. Thousands of people in Beslan were directly affected by the crisis. 57. Despite the attempts of the authorities to clear the area, local residents and ethnic Ossetians from outside Beslan, some of whom were armed, remained around the school building throughout the siege. 58. On the afternoon of 1 September the hostages’ relatives were invited to the town’s Cultural Centre. Until the end of the siege the Cultural Centre remained a hub for communicating with relatives and providing medical and psychological assistance to them. 59. At 7 p.m. on 1 September the North Ossetian President Mr Dzasokhov, the deputy speaker of the North Ossetian Parliament Mr Kesayev and the North Ossetian Deputy Minister of the Interior Mr Sikoyev met with relatives in the Cultural Centre. During the meeting Mr Sikoyev informed them that the terrorists had not put forward any demands and had refused to accept food, water or medicine for the hostages. 60. At about 9.30 p.m. on 1 September Dr Roshal participated in the meeting at the Cultural Centre. He assured those present that the conditions in the school were “acceptable” and that the hostages could survive for several days without food or water. He also stated that the terrorists had not put forward any demands to the authorities. 61. On 2 September a psychological aid unit was set up at the Cultural Centre. 62. Late in the evening of 2 September Mr Dzasokhov held another meeting with the relatives at the Cultural Centre. 63. At 11.15 a.m. on 3 September he announced to the relatives that there would be no storming and that “new public figures” had appeared in the negotiation process. 64. Some of the applicants were among the relatives who had gathered outside the school building or stayed at the Cultural Centre, and submitted written statements describing the events. 65. From the outset the information about the hostage-taking was strictly controlled by the authorities. Mr Vasilyev, a member of the OH and a senior employee of Rossiya, was put in charge of contacting the journalists. 66. On the afternoon of 1 September the media announced, referring to official sources, that about 250 people had been taken hostage. Later that day the media reported a “corrected” number of hostages: 354 people. According to some hostages, this news outraged the terrorists and prompted them to execute men or throw their bodies out of the window. It also transpires from the hostages’ statements that after the announcements the terrorists refused to allow them to drink or go to the toilet, saying that “there should be no more than 350 of you left anyway” (see paragraph 285 below). 67. On the evening of 2 September Dr Roshal held a press conference. He announced that he had talked on the telephone to a terrorist nicknamed “Gorets” (highlander), who had put forward no demands. 68. At 1 p.m. on 3 September State television showed some of the terrorists’ relatives of Ingush origin asking them to release the hostages. One woman, the wife of a presumed hostage taker, said that she and her children were being held somewhere “against their will” and asked her husband to do everything “to avoid harming the children”. 69. The hostages in the gymnasium were extremely exhausted and suffered from thirst and hunger. They had gone two days without sleep in cramped conditions and the physical state of many had worsened: people started to lose consciousness and some children were hallucinating, having seizures and vomiting. 70. In the early morning the terrorists lifted the IEDs in the gymnasium from the floor, hanging them along the walls. 71. At 11.10 a.m. the terrorists agreed to a request by Mr Aushev and Mr Gutseriyev to allow Emercom to collect the bodies from the school courtyard. 72. At about noon Mr Dzasokhov informed the OH that he had reached some sort of agreement with Mr Zakayev (see paragraph 331 below). According to some sources, that agreement could have extended to the possibility of Mr Maskhadov arriving in Beslan. 73. At 12.55 p.m. an Emercom truck and four officers entered the school courtyard. The men had Mr Gutseriyev’s mobile telephone to communicate with the terrorists. One of the terrorists came out and supervised their work. The explosions inside the gymnasium at 1.03 p.m. came unexpectedly to the group. The ensuing exchange of gunfire resulted in two officers being killed. 74. At 1.03 p.m. a powerful explosion occurred in the upper east part of the gymnasium. Part of the roof was destroyed, the insulation caught fire and fragments of the burning ceiling and roof fell into the gymnasium, killing and injuring those seated underneath. Many of the surviving hostages described the first explosion as a “fireball” or “column of fire”, followed by silvery white powder falling from the ceiling. It appears that the explosion caused a fire in the roof space of the gymnasium (see paragraph 288 below). Twenty seconds later another explosion ripped through the lower part of the wall under the first window on the north-east side. The nature and origins of these explosions are disputed (see documents referred to below). 75. The two explosions killed both terrorists who had been holding the detonators, though most of the IEDs remained intact (see paragraph 307 below). Dozens of people were killed, others were wounded or received burns of varying degrees, and almost everyone was shell-shocked. Many applicants submitted witness statements about these events. 76. Those who could move and were able to reach the opening in the wall on the north side started to climb through it and run outside. The terrorists fired at them from the upper floor, prompting an exchange of gunfire between the terrorists and the security forces. 77. At this point General Andreyev issued an order to storm the building and proceed with the rescue operation and neutralisation of the terrorists. 78. Several terrorists were killed or wounded during the first two explosions but the majority of them survived, including “Polkovnik”. They rounded up the survivors in the gymnasium (about 300 people) and forced them to walk to other parts of the main building, mostly in the south wing: the canteen, the kitchen, a meeting room and craft classrooms. Some hostages remained in the rooms adjacent to the gymnasium, namely the weights room and changing rooms. 79. The dead, injured and shell-shocked remained in the gymnasium, where fire continued to spread in the roof space. 80. At about 1.30 p.m. a third powerful explosion occurred in the south part of the gymnasium, which appears to have been caused by one of the large IEDs catching fire. Soon afterwards flames spread around the gymnasium, taking to the floor and walls. Some hostages continued to escape through the openings in the walls. 81. Between 1.30 and 2.50 p.m. servicemen of the security services and local residents broke the west wall of the gymnasium and entered the hall. They helped to evacuate survivors. Their movements were covered by an APC which went close to the school. No terrorists were found there, but the gymnasium was under fire, probably from terrorist snipers on the first floor. 82. At about 1.40 p.m. part of the burning roof collapsed. 83. Hundreds of wounded hostages and servicemen were taken to the Beslan Hospital in private cars and ambulances. A field hospital had been set up by Emercom in the hospital courtyard in order to sort the wounded and cope with the influx of casualties. Many of the injured were taken to hospitals in Vladikavkaz. The hostages’ relatives were not allowed to enter the hospital. Over 750 civilians and over fifty servicemen received medical help on 3 September 2004 (see paragraphs 242 et seq. below). 84. Over 300 hostages who had survived the explosions and fire in the gymnasium were taken by the terrorists to the canteen and kitchen situated on the ground floor in the south wing. Other hostages were taken to the main meeting room situated above the canteen on the first floor. There they found stocks of water and food and could relieve their thirst for the first time in two and a half days. 85. The women and children in the canteen and meeting room were forced by the terrorists at gunpoint to stand in the windows as human shields and wave their clothes; some were killed or wounded by gunfire and explosions. 86. As shown by many of the witness statements, but not corroborated by the results of the criminal investigation, after 2 p.m. a tank with hull number 320 entered the schoolyard and fired several rounds at the canteen. It appears that another tank with hull number 325 or 328 also fired at the school from a distance of about 20 to 30 metres. Some of the rounds were fired with solid shots, while others were probably done with ammunition (see paragraphs 293, 294, 298, 303, 411 below). 87. Two APCs entered the schoolyard and took part in the fighting with their large-calibre machine guns. 88. The army and the FSB assault troops were positioned on the roofs of 37, 39 and 41 Shkolny Lane, five-storey apartment blocks located on the east side of the school. These servicemen fired at the school with portable grenade launchers and flame-throwers, although the exact timing of the attacks is disputed (see paragraphs 142, 293, 300, 408, 410 below). Two MI24 helicopters circled above the school. According to some sources, although not corroborated by the official investigation, at least one rocket was launched from a helicopter on the school roof (see paragraph 410 below). 89. At 3.10 p.m. the OH ordered fire brigades with water cannons to intervene, by which time the gymnasium was ablaze and other parts of the building were on fire (see paragraphs 150, 199, 304 below). At the same time the head of the OH ordered the servicemen of the FSB special forces units Alfa and Vympel to enter the building. 90. At about 3.30 p.m. the entire roof of the gymnasium collapsed. After 4.30 p.m. the fire was contained; the servicemen of the special forces and firefighters entered the gymnasium, but found no survivors. 91. It appears that the servicemen of the special forces entered the canteen at about 4 p.m. through the openings in the walls and through the windows whose metal bars had fallen off as a result of the explosions or having been pulled out with an APC. Amid fierce fighting they evacuated the surviving hostages. 92. Numerous bodies of terrorists and hostages were found in the canteen, meeting room and rooms and corridors of the south wing. 93. At about 5 p.m. a strict security perimeter was established around the school. All civilians, Emercom staff, firefighters and servicemen of the army were ordered to leave, leaving only the FSB special forces inside. At about 5.25 p.m. the servicemen of the FSB special units held a minute’s silence in the corridor of the south wing in order to honour the memory of their comrades: ten members of the elite Vympel and Alfa units, including three group commanders, had lost their lives and about thirty were wounded – the biggest losses ever sustained by the units in a single operation. 94. After 6 p.m. several shots were fired at the south wing of the building from anti-tank missiles and flame-throwers. 95. At about 9 p.m. two tanks fired at the school. Several powerful explosions followed, which completely destroyed the walls and roof of the craft classrooms in the south wing. 96. The gunfire and explosions at the school continued until past midnight. 97. One terrorist, Nurpashi Kulayev, was captured alive. The rest, it appears, were killed during the storming. Consistent rumours circulated that some terrorists had escaped or had been captured secretly. 98. On the night of 4 September President Putin arrived in Beslan and stayed for several hours. He visited the town hospital and administration. 99. The school building had remained surrounded by soldiers throughout the day. 100. At 7 a.m. Emercom staff started to collect the bodies and clear the debris. Between 112 and 116 charred bodies were found in the gymnasium, and about eighty bodies in the adjacent changing rooms and weights room. It appears that between 106 and 110 bodies were found in the south wing of the school and on other premises, although no exact information was recorded in this respect (see paragraphs 119-122 below). The bodies of eighteen men were collected from the courtyard. About 330 bodies (including those of over 180 children) were placed in the schoolyard and taken to the Vladikavkaz morgue. 101. Later during the day on 4 September bulldozers and trucks arrived at the school. The remaining debris was loaded onto trucks and taken to the town rubbish dump. The victims alleged that they and other locals had later found a number of important items of evidence among this rubbish, including the terrorists’ personal belongings such as backpacks and razor blades, human remains, hostages’ clothes and parts of IEDs. 102. At 6 p.m. on 4 September the security cordons in Beslan were lifted. After 8 p.m. the units of the 58th Army withdrew from the town. 103. On 5 September 2004 the first funerals took place. Over the days that followed collective burials of over 100 people took place. The local cemetery was too small and had to be extended. A special memorial was later erected there (see paragraph 422 below). 104. Many of the bodies were charred beyond recognition. On 17 September seventy-three bodies were taken to a forensic laboratory in RostovonDon for identification through DNA testing. The identification and burials continued throughout December 2004 (see paragraphs 340, 341 below). 105. After declaring 5 and 6 September 2004 days of national mourning, on 6 September 2004 President Putin delivered a televised address to the nation, announcing future measures to improve agency cooperation in counter-terrorism measures. He called the attack a “direct intervention of international terrorism against Russia”. 106. On 5 September 2004 the website Chechenpress.org published a message signed by “the President of Ichkeria” Mr Aslan Maskhadov, condemning the hostage-taking and terrorist attacks against civilians, but blaming the Russian authorities for the radicalisation of Chechens. 107. On 17 September 2004 the website Kavkazcenter.com circulated an email, allegedly from Mr Shamil Basayev, a leader of the radical wing of the Chechen separatist movement who used the titles “Amir of Riyadus Saliheen Brigade of Martyrs” and “the chief of the high military madjlisul shura of the united Caucasus mujahidin”. Mr Basayev, who at the time lived secretly in the Russian North Caucasus, claimed that his “battalion of martyrs” had carried out the attack in Beslan, as well as the explosions in Moscow and the aeroplane crashes in August 2004. 108. The email alleged that the special forces had started the storming and that the IEDs set up by the attackers in the gymnasium had not exploded. Mr Basayev also claimed that the following demands had been put to the authorities: that military action in Chechnya be stopped, that troops be pulled out and that President Putin step down from his post. The note stated that all the hostages, including children, had declared a “dry hunger strike” until these demands were granted. The letter contained details of the number and types of IEDs used, indicated the ethnic origin of thirtythree “mujahedin” who had taken part in “Operation Nord-West” (as they had named the attack at the school) and alleged that the group had gathered and trained for the last ten days under Mr Basayev’s personal leadership near the village of Batako-Yurt [near Psedakh in Ingushetia]. The letter also mentioned the message to President Putin, which had been transmitted through Mr Aushev, and contained its full text. Mr Basayev alleged that the only surviving terrorist, Mr Nurpashi Kulayev, had been taken into the group the night preceding the operation. The document further stated that the leader of the operation, “Polkovnik”, had called him after the storming had started to say that they had counterattacked, and that the last call from him had been received at 2 a.m. [on 4 September]. Lastly, the letter cited the alleged costs of the terrorist attacks of August and September 2004: 8,000 euros (EUR) for “Operation Nord-West”, 7,000 US dollars (USD) for the explosions in Moscow and USD 4,000 for the aeroplanes. 109. In August 2005 the same website published another message signed by Mr Shamil Basayev containing passages suggesting that a member of the group which had seized the school, Mr Vladimir Khodov, had been a double agent of the FSB and Mr Basayev and had ensured the group’s “cover” during the preparation for the attack and their unhindered passage to North Ossetia. 110. On 10 July 2006 Mr Basayev was killed by an explosion in Ingushetia. It was announced that his death had been a result of a special operation by the Russian security services. It was also reported that the blast had resulted from the mishandling of explosives. 111. On 1 September 2004 the North Ossetian Prosecutor opened criminal investigation no. 20/849 concerning a terrorist attack at the school by an armed group and the murder of twelve male hostages. 112. On 2 September 2004 Mr Fridinskiy, Deputy Prosecutor General, ordered the transfer of the investigation concerning the hostage-taking of over 600 people to the Prosecutor General’s Office in the North Caucasus. On the same day Mr Fridinskiy appointed a group of over sixty investigators from the prosecutors’ offices of the Southern Federal Circuit to take over the investigation, under the command of a special investigator of the Prosecutor General’s Office in the North Caucasus. 113. The investigation was extended on several occasions and is still pending (adjourned). 114. Many important investigative steps aimed at establishing the exact circumstances of the preparations for and carrying out of the terrorist act, as well as the explosions in the gymnasium and the ensuing storming, were taken in the course of these proceedings. The applicants claimed that in the course of the proceedings they had not been allowed full access to the documents of the file and challenged this aspect of the proceedings. At the Court’s request, the Government submitted the list of documents in the criminal case. According to this list, by 2012 the case file contained 235 volumes, each ranging on average between 200 and 350 pages. The available information may be summarised as follows. 115. The investigation found out that the group which had committed the terrorist act had been organised by Mr Aslan Maskhadov, Mr Shamil Basayev, “a mercenary of Arab descent” called Taufik-al-Jedani (AbuDzeyt), and their entourage. The aim of the group had been “to disturb the public peace and scare the population to put pressure on the State authorities in order to achieve the withdrawal of troops from Chechnya”. In July and August 2004 the men had put together a plan to take hostage a large number of pupils and parents of school no. 1 in Beslan and murder civilians, police officers and military servicemen. 116. In the second half of August 2004 the men had put together an organised criminal group (gang) comprising over thirty people. Its members had included residents of Chechnya, Ingushetia, other regions of Russia and foreign mercenaries. The organisers of the terrorist act had entrusted the command of the operation to an active member of the gang, Mr Khuchbarov from Ingushetia, who had used the nickname “Rasul” and the radio callname “Polkovnik” (colonel). Twenty-four terrorists were identified by name, while at least six remained unidentified. 117. On 31 August 2004 the gang had gathered in the vicinity of Psedakh in the Malgobek District of Ingushetia. They had had the following arms and ammunition (partly originating from the attacks in Ingushetia on 21 and 22 June 2004): at least twenty Kalashnikov assault rifles, four Kalashnikov machine guns (RPK-74 and PKM), one tank machine gun (PKT), two portable anti-tank missile launchers (RPG-7V), four hand pistols and corresponding ammunition, including cartridges of different calibres and grenades of various modifications. In addition, the group had had two identical IEDs comprised of plastic explosives and hexogen and filled with metal pellets and electro detonators (with a minimum impact radius of 200 metres), six IEDs made of OZM-72 anti-personnel circular fragmentation mines and so-called “suicide bomber belts” – IEDs containing plastic explosives and projectiles made of cut metal wires and metal sheets. The gang had also used mobile telephones and portable radio transmitters. The members had been supplied with camouflage clothes, balaclavas and gas masks. They used a GAZ-66 truck. 118. On 31 August 2004 Mr Khuchbarov had informed the members of the gang about the forthcoming attack and distributed roles amongst them. In the early morning of 1 September 2004 they had travelled towards Beslan. As they had passed through the village of Khurikau they had captured a local policeman, S.G., seizing his handgun and vehicle. 119. Between 7 a.m. and 6.25 p.m. on 4 September 2004 a group of investigators and experts, in the presence of twelve attesting witnesses, compiled a report of the school building and courtyard. The examination of the site was conducted while the clearing of the debris and rescue operation were taking place. It ran to forty-three pages and was accompanied by video and photographic material (over 150 pages). 120. The report mostly concentrated on descriptions of the items found in the school, including personal belongings and documents of the hostages, the terrorists’ equipment and ammunition, damage to the structure of the building and the terrorists’ bodies. Very little information was given about the location and state of the hostages’ bodies. Most notably, page 24 of the report contained the following passage: “[in the gymnasium] from the floor up to 40 to 50 centimetres high there are hundreds of burnt bodies of women, children and men, occupying about half of the gymnasium floor space”. Only three individual descriptions of hostages’ bodies were made. On page 13 it was noted that the body of a twelve to fourteen-year-old boy had been found next to the corpse of a terrorist in a classroom located on the ground floor and on page 25 that the bodies of an elderly man and woman had been found in a storage room adjacent to the gymnasium. The report noted that the bodies had been carried out by Emercom staff into the courtyard. Among relevant items noted as “found among the rubble in the gymnasium” and taken by the sappers and Emercom staff into the courtyard were parts of explosive charges from grenade launchers, launching tubes of grenade launchers, a security cap from an RPO-A Shmel flame-thrower, parts of hand grenades, anti-personnel mines, automatic firearms, pistols, cartridges and ammunition and parts of IEDs. Other similar items were listed simply as “collected at the site”, without specifying in which part of the school they had been found. 121. The description of the canteen on page 15 failed to mention the state of its two windows facing the railway line or to give any details about the nature and extent of damage to its walls other than “signs of damage from firearms ... [resulting in] whitewash falling off”. Page 21 described the damage to the main meeting hall, including a partially destroyed external brick wall and two openings measuring 15 by 20 centimetres in the wall facing the railway line. The adjacent corridor bore signs of numerous impact traces and was scattered with parts of a destroyed wall and furniture. 122. The description of the south wing on page 23 was limited to the following: “the wing is almost destroyed and the Emercom servicemen are clearing the debris, as a result of which no examination of this wing is being carried out”. 123. Subsequent expert reports cited additional examinations of the site. Several reports cited examinations which had taken place on 2 February 2005, 14 September 2005 and 21 February 2007. The reports of these examinations contained much more detailed descriptions of the structure, findings and traces of impact. They were accompanied by a collection of samples, such as scrapes and swabs, in order for chemical examinations to be carried out. The documents indicated that most of the samples had been unable to yield any relevant results. 124. Following requests by the investigation in October and November 2004, on 23 December 2005 “comprehensive forensic expert examination no. 1” (комплексная судебная экспертиза hereinafter “expert report no. 1”) was produced. The request was to evaluate the conduct of the OH and various military and security agencies from 1 to 3 September 2004. The experts visited the site in Beslan and examined numerous items of evidence, including the testimony of servicemen and other witnesses, photographs, graphs and tapes of telephone and radio conversations. The report ran to over seventy pages. It concluded that the actions of the officials had been lawful and reasonable in the circumstances. In particular, it found that the members of the OH and servicemen of the Ministry of the Interior, the internal troops, the FSB and Emercom “had not committed any offences which could bear a causal relationship with the negative consequences resulting from the terrorist act of 1 to 3 September 2004”. 125. This document was extensively cited and relied upon in the subsequent proceedings, although it was later declared invalid (see paragraph 156 below). 126. The report focused on several questions. 127. Firstly, the report found that the actions of the OH had been focused on negotiations with the terrorists in order to obtain the release of and ensure safety for a maximum number of people. The terrorists’ demands transmitted through Mr Aushev could not serve as the subject of negotiations, since they had threatened the basis of the constitutional order and Russia’s territorial integrity. 128. The involvement of Mr Aushev and Mr Gutseriyev as negotiators, as suggested to the OH by the FSB, and the success of Mr Aushev’s mission when he had taken out twenty-six people, had served as an antidote to the escalation of the ethnic Ossetian-Ingush conflict. 129. With respect to Mr Maskhadov’s involvement in the negotiations, the report found that Mr Dzasokhov and Mr Aushev had talked to Mr Zakayev on the morning of 3 September. He had told them that his connection with Mr Maskhadov had remained on a one-way level. They had suggested to Mr Zakayev that he contact Mr Shamil Basayev, but he had refused in view of their past differences. 130. The report also covered the question of Mr Dzasokhov’s involvement in the OH. It stated that on the morning of 1 September 2004 Mr Dzasokhov had taken an active part in the work of the OH. Under his command the officials had ensured a security perimeter around the school, informed the public about the measures taken, supplied the local population with the necessary provisions in the Cultural Centre, and set up a field hospital. Information to the inhabitants had been provided hourly through Mr Dzugayev, the North Ossetian President’s press secretary. Mr Dzasokhov had taken care of the immediate needs of the first day of the siege, coordinating various agencies involved and increasing the security of other vital objects in the Republic. When the terrorists had named him as a negotiator, Mr Dzasokhov had been prepared to go ahead, but the OH had formally forbidden him from doing so. 131. Having scrutinised the taped conversations between the hostage takers and the OH and between the terrorists inside the building and their collaborators outside (namely several conversations with someone using the call-name “Magas” recorded after the start of the storming), the experts found that the terrorists had unconditionally refused to discuss any measures aimed at alleviating the hostages’ situation or any other arrangements except for political demands relating to the situation in Chechnya, and had insisted that the hostages had voluntarily joined them in declaring a “dry hunger strike”. The telephone conversations had often been ended by them in an aggressive manner and without apparent reason. Furthermore, they had anticipated and planned their own deaths, as well as numerous deaths among the hostages, as attested by the cheers and support received by them from “Magas” once the storming had started. These later conversations had contained references to “meeting in heaven”, “fulfilling the duty” and becoming martyrs (shahid), and had welcomed the killing of infidels and referred to the storming as “going normally”. 132. The report relied on numerous telexes, orders and decrees issued by the Ministry of the Interior and the FSB in July and August 2004 indicating a heightened terrorist threat in the North Caucasus and ordering various measures to be taken by the local police and security forces. As of 22 August all forces of the Ministry of the Interior in the Southern Federal Circuit had been put on alert (усиленный вариант несения службы). On 24 and 31 August the local police stations had been requested to take special measures to prevent terrorist acts from taking place during the Day of Knowledge on 1 September. 133. With respect to the Pravoberezhny ROVD of Beslan (situated next to the school building), the report concluded that the commanding officers had failed to take certain preventive steps. In particular, the personnel of the ROVD had not been told what action to take in case of an emergency, and no plan had been put in place to ensure additional security during ceremonies in the schools. The only police officer at school no. 1 had been unarmed, namely Mrs Fatima D. The two other police officers who had been scheduled to guard the school during the ceremony had been absent. Two patrol officers of the transport police had been transferred elsewhere to secure the passage of Mr Dzasokhov’s convoy along the “Kavkaz” federal highway. As a result, the terrorists had had unhindered access to the school and had been able to force a large number of hostages inside. No reaction from the local law-enforcement bodies had been forthcoming during the first fifteen minutes of the attack. 134. The servicemen of the Pravoberezhny ROVD, having received no instructions beforehand and having no preliminary plan of action in the event of a terrorist act, had received arms and ammunition at the ROVD and by 10 a.m. had set up a security cordon around the school. Information about the school siege had been immediately transmitted to the North Ossetian Ministry of the Interior. The report found that the actions of the senior staff of the Pravoberezhny ROVD had amounted to professional negligence. 135. With respect to the situation in the Malgobek District of Ingushetia, the report concluded that the local police had failed to prevent the members of the gang from assembling and training there at the end of August. Reference was made to the pending criminal case against the senior officers of the Malgobek ROVD (see paragraph 363 below). 136. The report concluded that the servicemen of the internal troops had been deployed only in the outer security perimeter around the school, the FSB special forces being deployed in the inner one. They had taken no part in the fighting, and their actions and equipment had fully complied with the relevant legal regulations and with their mission. 137. Servicemen of the FSB special forces had taken part in the operation. They had been armed with customary weapons and special equipment such as RPG-26 portable grenade launchers and RPOA Shmel portable flame-throwers. 138. Turning to the events of 3 September 2004, the report gave the following chronology. By 1 p.m. no plan had been in place to start the storming operation. Two special forces groups had been training outside Beslan, snipers and intelligence groups had kept monitoring the object from their designated positions, an emergency group of thirtytwo people had been positioned behind the housing blocks and the remaining servicemen had stayed at the assembly point. 139. The explosions which had occurred at 1.05 p.m. had been caused by two IEDs. No shots had been fired at that time, as Emercom staff had been working in the front yard of the school. In any event, the place of the explosion had been invisible from the snipers’ positions. 140. No flames could be seen in the gymnasium after the two explosions. The hostages had started to run out through the openings in the walls. The terrorists had opened fire on the escaping people using automatic rifles and machine guns. On the instruction of the head of the OH, the servicemen of the special forces had been ordered to save the hostages. The terrorists had been aimed at by the fire-support group and three APC-80s. 141. A group of servicemen had entered the weights room and evacuated from it several women with small children. This group had then entered the gymnasium and started to take out the hostages. The terrorists had opened fire at them. Two servicemen had taken position on the floor and returned fire, while the rest had continued to lead the hostages out. Between 1.40 and 1.50 p.m. the terrorists had fired several shots from portable grenade launchers (RPG18 Mukha) at the gymnasium, killing and injuring several hostages, wounding two officers of the special forces and starting a fire in the gymnasium. 142. The rescue operation had lasted until 2.40 p.m., at which time all available FSB forces had been regrouped pursuant to a previously adopted plan. At 3 p.m., upon an order from the commander, they had stormed the building. Their movements inside the building had been slowed down by low visibility from smoke and whitewash powder and the presence of hostages whom the terrorists had been using as human shields. The terrorists had used automatic weapons, hand grenades and portable grenade launchers, while the FSB forces had been constrained to fire single shots, to avoid excessive harm to the hostages. By 6 p.m. no hostages had remained in the building. Only once this had been ensured had the forces of the FSB used heavy weapons against the terrorists who had refused to surrender. Hand grenades, RPG20 portable grenade launchers and Shmel flamethrowers had been used for the first time after 6 p.m. At 9 p.m. a T-72 tank had been used to make openings in the walls and suppress enemy firing points, since further movement in the building had been impossible because of mines laid by the terrorists. The records of the site examinations and video material showed that no bodies of hostages had been found in places where the terrorists had been killed by heavy arms and indiscriminate weapons. 143. Ten servicemen of the special forces had been killed during the operation, and eleven had received injuries. The fatalities had included two lieutenant-colonels [group commanders], one of whom had died during the first few minutes of the storming as he had rushed to the school shielding the escaping hostages; the second had died in the main meeting room while trying to release the hostages detained there. 144. The report also analysed the circumstances of the deaths and injuries of each serviceman of the special forces which occurred between 1.20 p.m. and 3 p.m. on 3 September and concluded that their actions had been lawful and adequate and had demonstrated high professionalism, courage and selfsacrifice. 145. The commander of the 58th Army of the Ministry of Defence, General Sobolev, had been informed of the hostage-taking at 9.38 a.m. on 1 September. By 1.30 p.m. the third ring of the security perimeter had been set up around the school by the 58th Army servicemen. The servicemen had been armed with various automatic weapons and portable grenade and mine launchers, but they had not used any of them since their task had been limited to maintaining the security cordon. 146. As to the use of military vehicles, the report found, on the basis of various descriptions, plans, logbooks and servicemen’s testimony, that on 2 September three T-72 tanks with hull numbers 320, 325 and 328 had been transferred under the command of the FSB officers. Tanks with hull numbers 320 and 328 had manoeuvred around the school following the commands of the FSB officers but had not opened fire. A tank with hull number 325 had fired seven high-fragmentation shots (125 millimetre calibre) at the canteen situated in the right wing of the school, following the instructions of the FSB officer in charge. The shots had been fired between 9 and 9.30 p.m. on 3 September 2004. The report concluded that the tank had been used after the end of the rescue operation at 6 p.m., when no harm could have been caused to the hostages and it had been guided by the need to suppress enemy fire in the most efficient way. 147. Several other military vehicles had been used during the operation, also under the command of the FSB officers. Eight APC-80s had been stationed at various points around the school from 1 or 2 September 2004 onwards. Two of them, with hull numbers 823 and 824, had taken part in the storming operation. APC number 823 had used a heavy machine gun (calibre 7.62 millimetres) between 2 and 2.20 p.m. to suppress the terrorists’ firing positions on the school roof. At the same time an APC with hull number 824 had fired several rounds from a heavy machine gun at the windows of the first floor, covering the Alpha servicemen who had entered the building. The remaining military vehicles had taken no active part in the fighting. The experts concluded that the use of machine guns had been fully appropriate in the circumstances and could not have resulted in injuries or deaths among the hostages. 148. From 9.35 a.m. on 1 September, various services of Emercom from North Ossetia and neighbouring regions had begun to arrive at school no. 1. They had included brigades specialising in extinguishing major fires and fire engines with water tanks or cisterns. Rescue workers had arrived with special equipment and search dogs. At 5 p.m. on 1 September 2004 fourteen psychologists had started working with the relatives, and by 4 September 2004 fiftyone psychologists had been working in Beslan. The hub of psychological assistance had been in the Cultural Centre, to which ambulance doctors had been called when necessary. In total, between 1 and 4 September 2004, 254 people and seventy Emercom vehicles had been deployed in Beslan. 149. At 12.40 p.m. on 3 September four servicemen of the Emercom rescue team had been instructed to retrieve bodies from the school courtyard. They had received safety guarantees and a mobile telephone to communicate with the terrorists in the school. Following the explosions in the gymnasium, chaotic firing from the upper floor and roof by the terrorists had left two servicemen dead and two injured. 150. The report then focused on the actions of the fire brigades on 3 September. At 2.51 p.m. a fire alert had been given to the fire service. At around 3.20 to 3.25 p.m. fire brigades had arrived at the scene. The delay in their arrival had been caused by the order of General Andreyev, who had considered that the firemen and their engines could have been attacked by the terrorists, rendering the rescue operation more complex. At 3.26 p.m. two brigades had rolled out fire hoses and proceeded to extinguish the fire. Each cistern had been full and had contained about 2,000 litres of water, which had been used within three to five minutes. The fire hydrant in the school could not be used as it had been located in the military engagement area. At 3.35 p.m. two other fire units had arrived and had been stationed on the north and east sides of the gymnasium. The North Ossetian Deputy Minister of Emercom Colonel Romanov had assumed the role of incident commander. Five fire hoses had been deployed. A supply of water from a water hydrant situated within 200 metres had been ensured, and the firemen had also used water from newly arrived tanks. 151. The fire had been contained and extinguished by 9.09 p.m. The operation had been protracted since on two occasions the firemen had been removed from the school at the request of the special forces. 152. In the meantime, Emercom rescue workers had evacuated hostages from the school building. By 4 p.m. they had taken out over 300 people, including 100 children. After the fire had been extinguished, rescue teams had started to search the debris in the gymnasium. They had had to stop at 10.25 p.m. when unexploded IEDs had been discovered and sappers had been called in. 153. Immediately after midnight on 4 September a fire had started in the south wing of the school building where the canteen, craft classrooms, library and meeting room had been situated. Four fire brigades had arrived on the spot and the fire had been extinguished by 3.10 a.m. 154. At 7 a.m. on 4 September Emercom rescue workers and military servicemen had started to clear the debris and search for the bodies. In total, 323 dead bodies had been collected and sent to the forensic unit in Vladikavkaz. By 7 p.m. the search and rescue operation in the school had been completed. 155. The report concluded, with reference to the evidence contained in the case file, that the deaths of 112 people whose bodies had been found in the gymnasium had been caused by the explosions of the IEDs. The bodies found there had had been 70 to 100% carbonised; the carbonisation had occurred post mortem. The firefighters had had to act in extreme and life-threatening conditions. The organisation and equipment supplied had been sufficient to enable them to carry out their tasks. 156. On 9 November 2006 the Leninskiy District Court of Vladikavkaz, following an application by the applicants, declared expert report no. 1 invalid owing to a number of serious breaches of the procedural legislation governing the appointment of experts and the carrying out of expert evaluations. 157. The investigation established the following time frame concerning the action taken by the OH (as set out in expert report no. 1 and other documents): 158. At about 10.30 a.m. the OH was set up, in accordance with the plan of action in the event of a terrorist threat issued on 30 July 2004. Initially it was headed by the President of North Ossetia Mr Dzasokhov, the head of the North Ossetian FSB General Andreyev and the North Ossetian Minister of the Interior Mr Dzantiyev. Prior to his appointment on 2 September 2004 as head of the OH, General Andreyev had been in charge of coordinating the actions of various law-enforcement and military structures, including the FSB units arriving in Beslan. Two deputy heads of the FSB, Mr Pronichev and Mr Anisimov, who had arrived in Beslan on 2 September, acted as consultants and did not interfere with the command of the operation. 159. Between 11 a.m. and 2 p.m. the operative headquarters ensured the evacuation of residents from adjacent premises and cordoned off the school. The police and security forces searched basements and attics of the nearby buildings, cleared the adjacent streets of parked vehicles and closed them to traffic, closed the local railway line and took other necessary measures. In order to avoid harm to the hostages and other civilians, they were also ordered not to respond to the random shots fired by the terrorists. Scanning of radio frequencies in the vicinity of the school had been put in place by the Ministry of the Interior, the FSB and the army. 160. At 11.05 a.m. the terrorists sent out the first note, containing a telephone number and naming possible negotiators. However, the telephone number had been noted down incorrectly and no contact could be established. 161. Between 11.30 a.m. and 1.30 p.m. two safety perimeters were put in place around the school, composed of police and army servicemen using seventeen APCs. At noon the APCs were moved out of the terrorists’ view, in order to avoid provocation. 162. At 11.40 a.m. the OH started compiling a list of the hostages. 163. At 12.35 p.m. the OH invited the North Ossetian mufti to take part in the talks, but the terrorists opened fire on him when he tried to approach the seized building. 164. At 1.55 p.m. all reserve forces of the North Ossetian police were placed on high alert, including local policemen in towns and villages along the administrative border with Ingushetia and police academy students. 165. At 4.05 p.m. hostage Mrs Mamitova took out a second note with the correct telephone number. 166. Between 4.05 and 5 p.m. a series of gunshots and explosions were heard inside the school. The OH instructed Mr Z., a professional negotiator from the North Ossetian FSB, to contact the terrorists by telephone. The hostage taker presented himself as “Shahid” and said that he had executed ten people and blown up twenty others because the authorities had been slow in contacting them. He then insisted that the men indicated in their note (Mr Zyazikov, Mr Dzasokhov, Mr Aslakhanov and Dr Roshal) should come to the school together. Mr Z. pleaded for some time to bring the four men to Beslan. The terrorist said that the gymnasium had been mined and would be blown up in the event of a storming. 167. At 4.30 p.m. Mr Kudzayev escaped from the school by jumping out of a first floor window. He identified a photograph of one terrorist from Ingushetia; on the same day his relatives were brought from Ingushetia by the FSB. However it transpired that the identification was incorrect. This man was later killed in Ingushetia while actively resisting the authorities. 168. During the day the OH collected information about possible hostage takers and their relatives, so as to involve the latter in the negotiations. 169. At 5 p.m. the terrorists fired several random shots from automatic weapons and portable grenade launchers. About a dozen bodies were thrown out of the window. The OH took steps to prepare for the evacuation of the injured to the local health establishments, and psychological support had been called in for the hostages’ relatives. 170. At 5.45 p.m., in order to prevent the dissemination of incorrect information, it was decided that all contact with the media should be carried out by General Andreyev, Mr Dzantiyev and Mr Dzugayev. Mr Peskov from the Russian President’s administration was given the task of liaising with journalists. 171. At 6 p.m. the North Ossetian Ministry of Health designated hospitals to be on stand-by, and twenty-eight ambulance vehicles were deployed. 172. At 6.30 p.m. special forces of the FSB (подразделения центра Специального назначения (ЦСН) ФСБ России) arrived in Beslan and set up their headquarters. They started contemplating various ways of liberating the hostages and neutralising the attackers. 173. At 7.20 p.m. hundreds of bottles of water, juice and food rations were stocked by the headquarters for the hostages’ eventual needs. 174. At 9.30 p.m. Dr Roshal arrived in Beslan. The terrorists refused to accept water or food from him. They continued to insist that all four men indicated by them should come to the school. Dr Roshal was permitted to talk on the telephone with the school director, who described the situation inside. 175. At 9.36 p.m. the OH continued talks with the attackers. They tried to involve journalists of an Arab television company in the negotiation process, but this was rejected by the terrorists. At the same time, they contacted the former President of Ingushetia Mr Aushev and an influential businessman, Mr Gutseriyev. 176. At 10.20 p.m. the OH tried to arrange the release of hostages in exchange for money and unhindered passage to Chechnya or Ingushetia. Twenty buses were requested in the event that the terrorists agreed. 177. By the end of the day, six hostages who had escaped from the school had been questioned in order to obtain information about the number and location of the terrorists and hostages inside the school, as well as to draw a plan of the IEDs. 178. At 9.30 a.m. some hostages were allowed to call their relatives in order to put pressure on the authorities. 179. At 10 a.m. the OH authorised Mr Gutseriyev’s participation in the negotiations. His offers of money and guarantees of unhindered passage were rejected by the hostage takers. 180. At 1 p.m. General Andreyev spoke to the hostages’ relatives and assured them that no storming would take place. This was done in view of rumours circulating among the local population and the idea by civilians of forming a “life ring” around the school. 181. At 1.50 p.m. religious Muslim leaders of Chechnya, Ingushetia and North Ossetia delivered a televised address calling for peace and the end of further ethnic clashes. 182. At 2.40 p.m. Mr Aslakhanov spoke to the attackers on the telephone; he assured them that their demands would be passed on personally to the Russian President. The terrorists insisted that he come to Beslan with Mr Aushev. 183. At 2.45 p.m. the FSB of Russia appointed General Andreyev the head of the OH and appointed its members by coded message. Report no. 1 listed thirteen members, including two deputy heads of the OH: General Tikhonov, the commander of the FSB Special Services Centre, and Mr Dzantiyev, the North Ossetian Minister of the Interior. It also listed the following members: the North Ossetian President Mr Dzasokhov, the head of the Ingushetian FSB General Koryakov, the commander of the 58th Army General Sobolev, the deputy commander of the internal troops of the Ministry of the Interior General Vnukov, the head of the operational management group at the North Ossetian Ministry of the Interior Lieutenant-Colonel Tsyban, the North Ossetian Minister of Health Mr Soplevenko, the North Ossetian Minister of Education Mrs Levitskaya, the North Ossetian Minister of Emercom Mr Dzgoyev, the director of the AllRussia Centre of Disaster Medicine at the Ministry of Public Health (“the Zashchita Centre”) Mr Goncharov and the deputy head of the information programmes department of Rossiya. All members of the OH were informed of their positions. 184. At 3.23 p.m. Mr Aushev was permitted to enter the school. Between 4 and 4.30 p.m. he negotiated with the terrorists; as a result of his mission twenty-six people were released: babies aged under two and their mothers. Mr Aushev also took out a letter signed by Mr Shamil Basayev with a demand for troops to be withdrawn from Chechnya. 185. At 5.30 p.m. an additional debriefing of former hostages took place in order to obtain more information about the positions of the hostages and terrorists and the location of the IEDs. 186. At 5.40 p.m. the OH ordered measures aimed at identifying and neutralising possible accomplices of the terrorists outside the school. 187. At 6.05 p.m. Mr Aushev proposed to the terrorists that the bodies be collected. They agreed to consider this proposal. 188. At 7.20 p.m. the attackers told Dr Roshal, Mr Gutseriyev and Mr Z. that the hostages had refused to accept food, water or medicine. 189. At 8 p.m. the terrorists fired random shots from automatic rifles and portable grenade launchers out of the school windows. The OH ordered that the surrounding territory be cleared of parked vehicles. 190. In the morning an agreement was reached through Mr Aushev and Mr Gutseriyev to clear the bodies from the schoolyard. 191. At 12 noon Emercom officers were appointed and transport was arranged. They received instructions and means of communication. At 12.40 p.m. the officers started to collect the bodies. One terrorist went down to the courtyard to supervise their work. 192. At 1.05 p.m. two powerful explosions occurred in the gymnasium. Part of the wall collapsed and the hostages started to panic and exit through the opening. The terrorists opened fire on them from automatic rifles and RPG18 portable grenade launchers from the windows of the first floor. Twenty-nine people were killed as a result of gunshot wounds. 193. At 1.10 p.m. the head of the OH, General Andreyev, gave written orders to the units of the FSB special forces to commence the operation aimed at saving the hostages and neutralising the terrorists. 194. At 1.15 p.m. the first hostages were taken to hospitals in Beslan and Vladikavkaz. 195. At 1.20 p.m. one terrorist, Mr Kulayev, was detained and handed over to the investigators. 196. As a result of the explosions and the ensuing fire at least 250 hostages died; the rest were forced by the terrorists to move to the meeting room and other premises of the school. 197. At 2.50 p.m. a fire broke out in the gymnasium. The expert report on fire and explosions established that the source of the fire had been located in the roof of the gymnasium, above the exit. 198. Mr Andreev ordered the firemen not to intervene immediately, in view of the continuing fighting, the risk to the firemen’s lives and the danger of delaying the rescue operation, which would result in more victims. 199. The OH ordered the firefighters to intervene at 3.10 p.m. They arrived at 3.20 p.m. and proceeded to extinguish the fire. 200. At 6 p.m. the rescue operation was over. The OH ordered the deployment of heavy weaponry to neutralise the terrorists. 201. At 12.30 a.m. on 4 September the sweeping of the school building was over and a security cordon was set up. At 1 a.m. the demining started. 202. Two deputy heads of the FSB, Mr Pronichev and Mr Anisimov, were in Beslan during the crisis. 203. A number of high-ranking FSB servicemen were questioned in the course of the investigation, including General Andreyev (on 29 September 2004), General Koryakov (on 30 September 2004) and Generals Anisimov and Pronichev (October 2005). The documents of the criminal investigation submitted by the Government do not contain the record of questioning of General Tikhonov, the commander of the FSB Special Services Centre, who was in charge of the storming operation. His name is not listed among the witnesses/members of the OH in volume 124 of file no. 20/849. The list of documents examined by the experts who had produced expert report no. 1 does not mention his testimony either. 204. In July 2007 the applicants wrote to the head of the FSB and referred to the meeting they had had with the Deputy Prosecutor General in charge of the case, who had told them that the relevant video and audio material could not be found. In December 2006 State television aired a film entitled “The Final Assignment” containing video and audio material made by the special forces in Beslan from 1 to 3 September 2004. They sought to ensure that the footage would be given to the Prosecutor General’s Office. They also asked that the members of the special forces be questioned during the investigation. In September 2007 the FSB informed the applicants that any such action would be done in response to the relevant requests by the prosecutor’s service and in line with the legislation. 205. The investigation file contains a number of documents concerning the use of arms and ammunition by various State bodies; some are cited in other documents (see below). Dozens of various individual experts’ reports were ordered by the investigation on firearms (hand pistols, guns and automatic weapons), ammunition and IEDs supposedly used by the terrorists, as well as weapons and ammunition used by the security forces. Some of the cartridges were marked by experts as suitable for identification of the weapons (for example, expert report no. 263 of 4 October 2004 marked fifty spent cartridges from a Kalashnikov automatic rifle as suitable for weapon identification). These reports were submitted to the Court by the Government, and the most relevant ones are summarised below. The victims challenged certain procedural steps related to the commissioning of some of the reports, complaining that they had not been allowed to take copies of them but had been able to view them in the prosecutor’s office for a limited amount of time. 206. According to a document dated 9 September 2004 (act no. 3), one military unit of the 58th Army of the Ministry of Defence deployed in Beslan used about 6,500 cartridges for automatic weapons and machine guns (5.45 and 7.62 mm calibre), 340 tracer bullets (5.45 mm T), 450 armour-piercing incendiary cartridges for large-calibre machine guns (14.5 mm BZT and B-32) and ten hand grenades (RGD-5). 207. Dozens of witness statements were collected by the investigation between September 2004 and August 2007 from the military and police servicemen, officers of Emercom, firefighters and members of the OH. These statements, consistently and in detail, denied the use of grenade launchers, flame-throwers and a tank cannon prior to 6 p.m. on 3 September 2004. 208. The investigation ordered individual expert reports on parts of explosive charges and launch tubes of explosive, thermobaric and armour-piercing weapons found at the school and in the nearby areas. These included launch tubes of twelve RPOA Shmel flame-throwers with batch and individual serial numbers, parts of artillery shells, hand grenades, smoke grenades, spent cartridges of different calibres, tubes and charges for grenade launchers. The reports contain the following relevant descriptions of the weapons used. 209. Two reports examined launch tubes of five RPOA Shmel tubes with different batch and serial numbers (expert report SI-76 of 10 September 2005: batch 3-02, nos. 115, 171; batch 795, no. 896; batch 13, nos. 51 and 52) and seven RPOA Shmel tubes (expert report SI132 of 11 October 2005: batch 3-02, nos. 109-13 and 116; batch 103, no. 13). The reports describe the RPOA Shmel as follows: “[A] portable anti-personnel flame-thrower RPOA Shmel is designed to impact fortified firing points of the enemy ... destroy light armoured vehicles and other vehicles, sheltered and exposed manpower... Technical characteristics: - range of direct fire 200 m; - effective range 600 m; - maximum range 1,000 m; - temperature of burning of the combustible mixture 1,800˚C; - destruction caused in a closed structure 80 m²; - destruction of manpower 50 m²” The fire experts’ report of 22 December 2005 mentioned an additional expert report, SI–92 of 20 September 2004, which had examined several parts of RPO-A spent charges. 210. In addition to the above-mentioned twelve tubes of RPOA with identified batch and serial numbers, the file contained a document dated 25 September 2004 and signed by Lieutenant-Colonel Vasilyev from the 58th Army. This document stated that the FSB units had received seven RPOA flame-throwers (batch 4-96, nos. 945-48, 486-88) from military storage. After the operation two flame-throwers with the indicated numbers, plus one with a different batch and number (batch 1-0, no. 12), had been returned to storage. It does not appear that the remaining five RPOA devices from batch 4-96 were spotted and examined by experts. 211. Three expert reports concerned over forty used capsules with readable serial numbers, which the experts were first unable to identify or describe otherwise than “special purposes ammunition”, for which no descriptions or technical characteristics were available to the experts of the Ministry of the Interior (expert reports SI83 of 15 September 2004, SI85 of 16 September 2004, SI90 of 17 September 2004). In April 2007 these spent capsules were identified as charges for a light infantry flame-thrower LPO97 (expert report nos. 750/17, 757/17 of 25 April 2007). This latest report also contained detailed information about the thermobaric charge for an LPO-97. Upon an explosion, impact is created by a “sphere of fire” with temperatures ranging from about 2,300˚C in the centre to about 630˚C at 1 metre and 80˚C at 3 metres distance, and secondary effects. Due to the very short “time span of the sphere of fire” (less than four milliseconds), the explosion cannot lead to the combustion of wooden structures. People located within 1 metre of the explosion can receive thermal burns on exposed body parts and within 1.6 metres various injuries, including a perforated eardrum. 212. On 31 January 2005 Colonel B. from a unit of the 58th Army issued a note stating: “[the] use of rocket propelled infantry flame-throwers RPOA and light infantry flame-throwers LPO97 is not prohibited by international conventions. They have been widely used during combat operations in Afghanistan and Chechnya.” 213. On 4 February 2005 a military unit located in Vladikavkaz forwarded detailed technical characteristics of RPOA and LPO97 flamethrowers to the military prosecutor’s office. The functionality of an RPOA was described as: “[the] destruction of manpower in fortified firing points, buildings, vehicles, [and] the creation of islands of fire in the abovementioned objects and on the ground.” The functionality of an LPO97 (introduced into service in 2002) was described as “[the] destruction of manpower inside buildings by means of high-temperature field and a field of extensive pressure ...” 214. Expert report no. SI-75 of 10 September 2004 examined five launch tubes from RPG26 Aglen disposable anti-tank grenade launchers, bearing identifiable batch and serial numbers. 215. Expert report no. SI81 of 17 September 2004 examined the following items that were found in the gymnasium: one grenade type VOG17M for an AGS17 automatic mounted grenade launcher with an identifiable batch number; one grenade type VOG25 for an under-barrel grenade launcher GP25 with a batch number; an RGD5 hand grenade; an F1 hand grenade; an RGN hand grenade; an RDG2B smoke grenade; a shell of a GSZ-F stun grenade, and one security cap from an RPOA Shmel. 216. Expert report no. SI98 of 8 October 2004 examined one used antitank grenade type PG7L with an identifiable batch and serial number, used by reloadable portable grenade launcher type RPG7 and its modifications; four spent parts from RPG-26 disposable anti-tank rocket launchers, with identifiable batch numbers; and one spent part of an anti-tank grenade (RPG27 disposable grenade launcher), with a batch number. 217. On 10 November 2004 the military unit in Vladikavkaz responded to a question from the military prosecutor’s office and submitted a table containing the technical characteristics of four types of grenade launchers: the reloadable RPG7 and GP25, and the disposable RPG18 and RPG22. 218. On 22 December 2005 the Russian Federal forensic expert centre produced fire expert’s report (заключение пожаро-технической судебной экспертизы) no. 2576/17, 320328/1817. The voluminous report consisted of 217 pages, accompanied by about sixty pages of tables and photographs. The report started by reviewing a number of relevant pieces of evidence, including extracts from witness statements, expert reports, information about the arms and ammunition used, an examination of the building materials and a review of available photo and video material. 219. In particular, the report cited a “joint record” dated 10 September 2004 of the arms and ammunition used by the military servicemen, which included about 7,000 cartridges for automatic weapons and machine guns (5.45 mm PS, 7.62 mm LPS), 2,160 tracer bullets (5.45 mm T), ten disposable anti-tank rocket launchers (RPG26 Aglen), 18 armour-piercing charges for reloadable anti-tank grenade launchers (PG7VL), eight highfragmentation warheads for a 125 millimetre calibre tank gun (125 mm OF) and ninety smoke grenades (81 mm ZD6) (page 128 of the report). The same report contained references to expert examinations of a number of parts of used RPOA Shmel flame-throwers (report SI 92 of 20 September 2004) and a list of six empty tubes from an RPOA Shmel collected by the members of the parliamentary commission citing their serial numbers (batch 302, nos. 10913 and 116) (see paragraph 409 below). It also mentioned a document dated 25 September 2004 and signed by LieutenantColonel Vasilyev from the 58th Army about the use of five RPOA flamethrowers with batch number 496 (see paragraph 210 above). On 25 September 2004 LieutenantColonel Vasilyev from the 58th Army was questioned and stated that he had received back two flame-throwers from batch 496, plus one from another batch, which had not been issued from that storage (batch 1–03, no. 12); Major Ts. from the FSB Vympel unit explained that the others had been used (pages 12930 of the report). 220. The report further mentioned a witness statement of Colonel K., who explained that he had led a group of officers who had taken part in the storming of the school building. The group had used RPG26 grenade launchers and RPOA flame-throwers, but not at the premises where the hostages had been present (page 131 of the report). One witness, M.K., a member of a storming group, stated on 23 November 2004 that he had used RPG26 grenade launchers and RPOA flame-throwers upon “enemy firing points which had been designated in advance and identified during the storming”. The firing points identified in advance had been located in the window of the attic area and the third window on the first floor of the main building. No hostages had been there at the time. For the second time the flame-thrower had been used at night, at about midnight, upon a group of terrorists in the craft classrooms on the ground floor. At that time the rest of the building had been in the firm control of the security forces and Emercom staff had been finishing carrying the bodies out of the gymnasium (page 183 of the report). The report listed the main characteristics of an RPOA Shmel: a thermobaric charge of over 2 kilograms upon explosion creates a powerful combustion zone (a sphere of fire 5 to 7 metres in diameter) burning at temperature of about 1,800oC; accompanied by an extremely powerful shock wave caused by a complete burning of oxygen in the detonation zone. An expert described the effects of this charge upon people, which would include severe fractures caused by the shock wave and lung collapse; and upon buildings as a “blowing out” of the external walls and collapse of the structure. The report referred to the records of two experiments carried out on 13 October 2005 wherein disused buildings had been fired at with RPOA flamethrowers, as a result of which the buildings had been demolished but no fire had started (page 183 of the report). Relying on the testimonies of security personnel, the pattern of destruction of the roof in the main part of the building, parts of RPOA charge found in the attic of the “left wing” of the school and the absence of any such parts in the gymnasium, the conclusion was that there had been no explosions of a thermobaric charge from an RPOA there. The report concluded as follows on the use of flamethrowers (pages 185 and 217 of the report): “RPOA Shmel were used during the special operation aiming to free the hostages. Criminal case file no 20/849 contains no material to conclude that RPOA Shmel flame-throwers had been used on the roof and the structure of the gymnasium of school no 1. The use of an RPOA Shmel flame-thrower on the roof of the gymnasium could not have led to a fire in its wooden parts.” 221. In so far as the first explosions were concerned, the report concluded that the explosions in the gymnasium which had occurred within several seconds at about 1.05 p.m. on 3 September 2004 had resulted from the IEDs attached to a basketball hoop near the west wall (equivalent to about 1.2 to 1.3 kilograms of TNT) and located on a chair placed about 0.5 metres away from the north wall under the window (and equivalent to 5.2 kilograms of TNT). Both IEDs had been filled with numerous small metal objects. The third explosion had resulted from the IED placed under a basketball hoop at the north wall catching fire, its metal filling falling on the floor and the explosion of a small amount of explosives (equivalent to about 100 grams of TNT), as a result of exposure to heat (pages 170-73 of the report). 222. The experts considered and accepted as “probable” the hypothesis that the fire in the gymnasium had started as a result of use of armourpiercing and incendiary charges, which could have been used by the terrorists (page 185 of the report). As to the place where the fire had started, having analysed the extent and degree of damage to various constructions of the gymnasium, the experts concluded that it had most probably been located in the attic area located more or less above the basketball hoop in the north part of the room; the fire on the floor had started only after the burning parts of the ceiling and roof had fallen down. The extent of damage caused by the fire and explosions prevented any detailed analysis of the number of places where the fire had started and its exact cause and spreading in the building (pages 215-17 of the report). 223. On 30 December 2005 the FSB’s Institute of Forensic Studies (Институт Криминалистики ФСБ РФ) produced expert report no. 4/106. The report focused on the examination of the IEDs used by the terrorists in the gymnasium. It concluded that the terrorists had placed at least sixteen IEDs in the gymnasium, joined into a single chain by electric cables and detonators. On 3 September at least three IEDs had exploded in the north-west part of the gymnasium: one at the basketball hoop on the west wall (made of an OZM72 anti-personnel mine, equivalent to about 0,66 kilograms of TNT), the second on the right-hand side of the door leading into the gymnasium on the west wall (a sphereshaped IED equivalent to at least 0.5 kilograms of TNT) and the third on the windowpane of the first window on the north-west wall (an IED in a plastic bottle equivalent to at least 1 kilogram of TNT). The total force of the explosions had been equivalent to no less than two kilograms of TNT; however it was impossible to confirm their exact timing and sequence. The most likely cause of the explosions was intentional or non-intentional impact upon the detonator pedal; the reasons why the whole chain had failed to react were unclear, but it could be that the first explosions had damaged the electric cables connecting the rest of the IEDs (pages 18-29 of the report). 224. On 25 October 2006 a comprehensive forensic report on the explosions (комплексная криминалистическая экспертиза математического моделирования взрывов) was ordered from experts of the Stateowned scientific and production company Bazalt (ФГУП ГНПП “Базальт”) and the Central Research and Testing Institute, named after Karbyshev of the Ministry of Defence (Центральный Научно-исследовательский испытательный институт им. Карбышева Министерства Обороны РФ). The applicants submitted that the document in its entirety had been unavailable to them prior to the exchange of the parties’ observations in 2012. 225. In January 2007 Mrs Tagayeva applied to the prosecutor’s office to have the experts of Bazalt dismissed, as they had been administratively dependent on the Ministry of Defence. Her application was rejected on 30 January 2007 because no subjective bias of the experts could be discerned and, objectively, the Ministry of Defence had not been a party to the criminal proceedings. 226. Expert report no. 16/1 was produced on 14 September 2007 and ran to over 300 pages, accompanied by detailed charts and photographs. It appeared to dismiss the doubts expressed, notably, by a member of the State Duma investigative committee and a renowned expert in the field of explosions, Mr Savelyev, about the external origins of the first two explosions in the gymnasium (see paragraphs 406, 408, 410 below). The conclusions of report no. 16/1 are found on pages 264 to 273. They can be summarised as follows: the first explosion was the result of the detonation of a large IED, equivalent to between three and six kilograms of TNT. The origin of this explosion was not linked to the electric wires and detonator, but resulted, most probably, from mishandling of the device by the terrorists guarding it. This IED exploded in the north-east part of the gymnasium, at a spot about a metre away from the north wall and 5 metres away from the east wall. The second explosion occurred about twenty seconds later and consisted of the simultaneous detonation of several (between five and ten) smaller IEDs in the north-west part of the hall; this explosion most probably resulted from one of the terrorists intentionally or unintentionally using the detonator pedal. It could not have been caused by a cumulative charge launched from the outside. The report also concluded that out of all the recorded damage to the gymnasium walls, only two marks could have been caused by either a thermobaric charge or a cumulative charge projected from outside. These projectiles could not have been launched from the roofs of houses at 37, 39 or 41 Shkolny Lane (as alleged by some experts). The damage caused to the south wing of the school could have been caused by the use of various weapons and explosives, including a tank cannon, flame-throwers and grenade launchers; however, the extent of the destruction excluded the possibility of any detailed reconstruction of the events. The report dismissed as improbable the launching of a thermobaric charge from a helicopter, pointing out that it could lead to the destruction of the helicopter and death of the crew. Lastly, the report listed the following types of weapons used by the members of the counter-terrorist operation, reconstructed on the basis of video material and the documents contained in criminal case file no. 20/849: “- portable grenade launchers RPG-7V and their modifications with anti-tank charges PG-7VL, PG-7VM, PG-7VS, fragmentary warhead OG-7V; - disposable anti-tank rocket launchers RPG-26, RPG-27; - propelled attack grenades RShG1 with a thermobaric warhead; - flame-throwers RPOA Shmel with a thermobaric warhead; - light infantry flame-throwers LPO97 with a thermobaric charge (probably); - firearms and portable grenade launchers.” Based on the same sources, the report concluded that the terrorists had used an RPG-7V portable grenade launcher with anti-tank charges type PG7VL; RPG-26 disposable anti-tank rocket launchers, possibly a grenade launcher with a thermobaric charge; no fewer than ten “bottle” type IEDs, no fewer than two IEDs made out of MON90 anti-personnel mines and no fewer than four IEDs made out of OZM-72 anti-personnel mines; and firearms and portable grenade launchers (pages 263-73 of the report). 227. As a follow up to that report, on 14 October 2007 the North Ossetian Ministry of the Interior’s expert laboratory examined the explosion marks on the south walls of the gymnasium and confirmed the above conclusions about the possible trajectory of the charges having been fired from the first floor of the south wing of the school and that these shots could not have been fired from houses at 37, 39, 41 Shkolny Lane or the garage roof (report no. SI63, page 12). 228. Expert report no. 16/2 was ordered by the investigation in April 2007 in order to dispel Mr Savelyev’s allegations about the origins of the second explosion in the gymnasium which had resulted in the destruction of a section of the wall under the window on the north side. It was completed on 11 December 2009 (see paragraph 406 below). Like report 16/1, it was carried out by experts of Bazalt. The experts tested all the possibilities suggested by Mr Savelyev, including the use of various types of grenade launchers and flame-throwers upon a similar construction and concluded that their impact had been incompatible with the damage in the gymnasium. The report ran to over 130 pages and concluded that the “origin of the hole in the north-west wall of the gymnasium ... was the detonation of an IED with the equivalent of about six kilograms of TNT, placed at a height of about 500 millimetres from the floor, near the radiator... The power of this explosion’s impact upon the wall was exacerbated by an almost simultaneous explosion of several other IEDs located in the north-west part of the gymnasium, further away from the first explosion” (pages 99-100 of the report). 229. On 3 December 2004 the Vladikavkaz deputy military prosecutor issued an order not to prosecute unnamed military servicemen of the 58th Army of the Ministry of Defence and internal troops of the Ministry of the Interior. The document stated that the investigation had established that the personnel of the army and Ministry of the Interior had used automatic weapons, RPG25 grenade launchers, RPOA Shmel flamethrowers and T72 tanks. The document then proceeded to describe the events of the siege and storming, in line with witness statements of General Sobolev of the 58th Army. In particular, the document stated that on 1 September 2004, during the first meeting of the OH, it had been decided that Mr Dzasokhov’s involvement in the negotiations was “devoid of purpose” (нецелесообразно) since there was a threat of his being taken hostage as well. It further stated that although the decision to clear the area around the school of civilians and armed “volunteers” had been taken at about 12 noon on 1 September, it had not been implemented until 3 September. Furthermore, on 2 September the terrorists had demanded that Mr Dzasokhov, Mr Zyazikov, Mr Aslakhanov and Dr Roshal arrive for negotiations, but the OH had decided that such talks were also “devoid of purpose”. After the first explosions at 1.10 p.m. the terrorists had opened fire at the hostages running out of the gymnasium, following which the servicemen of the second security perimeter had returned fire. At 2 p.m. a group of sappers under the command of Colonel Nabiyev had started to demine the gymnasium; at the same time he had called for firemen to extinguish the fire. The first fire vehicle had arrived at 2.45 p.m. and contained 2,000 litres of water; the second vehicle had arrived at 3.45 p.m. and proceeded to extinguish the fire. By 9 p.m. the storming of the building had been over, while the search for and elimination of terrorists had continued until 12.30 a.m. on 4 September 2004. 230. The document then summarised the witness statement of Lieutenant-Colonel Tsyban, who explained that the OH had officially been created on 2 September 2004 at about 12 noon under the command of General Andreyev. The OH had decided that Mr Dzasokhov’s involvement in the negotiations could not be authorised in view of the threat of his being taken hostage. 231. The document then related the witness statements of about a dozen servicemen from the 58th Army – sappers, tank and APC commanders. They stated that the tanks had fired seven shots in the evening of 3 September 2004 and that none of them had fired at the school during the daytime. 232. The document referred to several hundred names of military servicemen who had been deployed within the security perimeter. Their statements were summarised in the following manner: “... while securing the area no instances of any loss or stealing of arms or ammunition were noted, and there were no attempts by the terrorists to break through or to get away. Since the commanders had issued an order not to open fire unless there was an open breakthrough of the terrorists, no fire was opened and the use of firearms was regulated by section 11 of the [Army Field Manual]. There were no noted instances of breaches of order or unauthorised use of firearms. No ammunition was used.” 233. The document concluded that the servicemen of the Ministry of the Interior and Ministry of Defence had used “personal, authorised, smallarms weapons, engineering hardware and chemical weapons, destined to cause harm to manpower, but this ammunition was used in line with the [applicable] regulations and on account of the inability to prevent the terrorists’ actions by any other means; the use of the above weapons resulted in the terrorists’ elimination or detention”. The document further stated that the investigation had obtained no evidence that the use of the above-listed weapons had resulted in harm to any of the hostages. Accordingly, there was no evidence of an offence having been committed. 234. The decision of 3 December 2004 was quashed on 12 September 2005 due to certain technical deficiencies. It is unclear what happened next in this respect. 235. On 29 October 2004 a commission from the North Ossetian Emercom carried out an internal investigation into the actions of the Emercom staff during the crisis. According to its findings, the firefighters were aware in advance of the locations of the fire hydrants in the vicinity of the school, but could not use them because they could have been shot at by the terrorists. Hence, they first used mobile cisterns. The staff in charge had drawn up a plan of access for the fire engines to the school, but it was not within the firefighters’ powers to ensure that these routes were accessible – that should have been coordinated by the OH on the basis of that plan. Failure to intervene during the initial stage had been based on the instructions of the OH. Lastly, the use of more powerful hydraulic cannons was deemed impractical by the commission, in view of the limited choice of locations where they could be placed, the distance to the source of the fire of about 60 metres, narrow access to the fire and the danger from the “hot vapour” to those who might still be alive in the burning building. The commission concluded that the actions of the Emercom staff had been correct and justified. 236. On 10 December 2004 an investigator from the Prosecutor General’s Office in the North Caucasus decided not to charge the North Ossetian Minister of Emercom Mr Dzgoyev and his deputy and head of the fire service, Colonel Romanov, with crimes under Article 293 of the Criminal Code (criminal negligence). The decision referred to witness statements made by Colonel Romanov, Mr Dzgoyev and a number of other firefighters and officials of the service. They confirmed that the information about the fire had first come in after the first explosions, soon after 1 p.m., but that the OH had only allowed the firefighters to intervene after 3.20 p.m. They said that seven fire engines had been ready to take part in the operation, but that the access routes to the school had remained busy with cars and people. The two closest fire hydrants had not been accessible; at first the engines had used cisterns to extinguish the fire from two water cannons; later a line to the next hydrant had been made. The decision discussed the question whether the firefighters could have used a more powerful hydraulic water cannon, but the firefighters argued that it could only have produced the desired effects if the distance to the source of fire had been less than 30 metres – that could not have been ensured in view of the ongoing fighting. The decision concluded that at the time of the firefighters’ intervention, the general management of the operation had been taken by the OH headed by the FSB, without whose permission no action could have been taken. The FSB had not allowed the firefighters to intervene for about two hours, in view of a lack of special equipment for them, and thus their members could have been injured or died. In such circumstances, the actions of the Emercom officials contained no elements which could lead to the conclusion that a crime had been committed. It is unclear when the applicants were informed of this decision and whether they had appealed against it. 237. In March 2006 the victims lodged an application to have the competent officials, including Mr Dzasokhov, General Andreyev, Mr Popov and Colonel Romanov, charged with criminal negligence and withholding information entailing danger to people’s lives and health, with serious consequences (Articles 293 § 2 and 237 § 2 of the Criminal Code). In particular, they argued that no necessary preventive measures had been taken prior to the terrorist act; that the OH had remained passive and failed to ensure meaningful negotiations with the hostage takers; that as a result of the inaction of the OH the hostages’ conditions had deteriorated from 1 to 3 September 2004, thus rendering them weak by the time of the storming; that the failure of Mr Dzasokhov, Mr Zyazikov and Mr Aslakhanov to appear for negotiations had excluded the possibility of a dialogue; that the security perimeter around the school had not been properly ensured; and that the storming operation had not been thoroughly prepared. The victims also alleged that the military and security forces had acted without a plan and used excessive and indiscriminate weapons after 1 p.m. on 3 September. In support of that assertion they referred to several dozen witness statements collected during the trial of Mr Nurpashi Kulayev attesting to the use of flame-throwers, grenade launchers, tanks and APCs. They further alleged that there had been a one-and-a-half hour delay between the start of the fire in the gymnasium and the commencement of the extinguishing operation, and that the firefighters had been unprepared since they had lacked water supplies. As a result, dozens of hostages including children in the gymnasium had been burnt alive, since they were injured, shellshocked, disoriented or too weak to leave on their own. 238. On 14 March 2006 the Deputy Prosecutor General rejected the application, finding that the decisions of the investigating officers had been lawful and that the actions sought by the victims were not necessary as the relevant facts had been established through other steps. On 26 June 2007 the Promyshlenny District Court of Vladikavkaz allowed an appeal by the victims against the decision and ordered the Deputy Prosecutor General to examine the victims’ applications in detail and provide them with reasoned answers to each of their arguments. On 15 August 2007 the North Ossetia Supreme Court quashed and remitted the District Court’s decision. On 24 August 2007 the District Court confirmed the validity of the decision of 14 March 2006. It was then approved by the North Ossetia Supreme Court on 3 October 2007. Subsequent requests by the victims for a supervisory review were unsuccessful. 239. In the meantime, and in parallel to the above-mentioned proceedings, on 20 April 2006 the head of the investigation team, an investigator of the Prosecutor General’s Office in the Southern Federal Circuit, decided not to open a criminal investigation, under the same provisions of the Criminal Code, in respect of the head and members of the OH. The investigator found that there were no constituent elements of an offence in the officials’ actions. He relied heavily on the conclusions of expert report no. 1, saying that the actions of the OH had been in conformity with the relevant rules and regulations. The victims appealed, and on 3 April 2007 a judge of the Leninskiy District Court of Vladikavkaz quashed the investigator’s decision, since expert report no. 1 had been found to be unlawful. On 2 May 2007 the North Ossetia Supreme Court quashed and remitted the District Court’s decision, finding that it was not based on all the material available. On 6 June 2007, in a new set of proceedings, the Leninskiy District Court rejected all the applications and found that even though expert report no. 1 had been invalidated, the evidence on which it had relied remained valid and supported similar conclusions. On 15 August 2007 the North Ossetia Supreme Court upheld this decision. 240. In a separate decision, also dated 20 April 2006, the same investigator decided not to open criminal proceedings against the North Ossetian Deputy Minister of Emercom and head of the fire service Colonel Romanov and the head of the fire service of the Pravoberezhny District Mr Kharkov. The decision referred to Article 293 § 2 of the Criminal Code, which concerned criminal negligence, and to witness statements confirming that the first information about the explosions and fire in the gymnasium had been received soon after 1 p.m. on 3 September, as well as to the fact that Colonel Romanov had, on several occasions between 1.20 and 3.20 p.m., ordered the firefighters to intervene and then cancelled his orders due to a lack of authorisation by the head of the OH. At 3.25 p.m. two fire engines had arrived at the school with a full load of water, which could last for about 3 to 5 minutes. Once it had been used, two other fire engines had been called in; later, water had been obtained from a fire hydrant because the closest hydrants could not be used. The decision referred to expert report no. 1 and to the fire expert’s report no. 2576/17, 320-328/18-17 (see paragraphs 218 et seq.). 241. On 30 September 2005 the Russian Ministry of Health informed the Prosecutor General’s Office of the results of its internal inquiry into the actions of its staff from 1 to 3 September. The Ministry conceded that the scale and circumstances of the events had been unprecedented even for its most experienced staff, and that the situation had been “exacerbated by a lack of verifiable information about the number of hostages, the unpredictability of the events and the difficulty in predicting the types of injuries”. The report noted that the situation at the site of the paediatric field hospital set up in Beslan on 2 September 2004 had been made difficult by the presence of a large number of local residents, who had “sometimes turned into a mob displaying signs of emotional/psychological instability”. The work of a mobile group of psychologists had helped to dispel the pressure and create the conditions necessary to administer medical aid. The overall input of the Zashchita Centre was described as vital. 242. The Government, in their submissions made in September 2013, summarised the documents contained in file 20/849 relating to the work of the medical staff as follows. 243. On 1 September 2004 the Ministry of Health set up a coordination cell, joining the forces of the local and federal ministries of health, Emercom, the Zashchita Centre and the Ossetia State forensic bureau (Бюро Судебномедицинской экспертизы (БСМЭ) – “the forensic bureau”). From the evening of 1 September, special psychological aid units were put in place for the relatives. A number of other urgent steps were taken, such as putting medical personnel in a number of local hospitals on standby, preparing supplies of necessary equipment and material, including blood for transfusion, ensuring the preparedness of the intensive care and surgery units. 244. On 2 September an emergency paediatric field hospital was set up in Beslan. The “federal and local headquarters” worked out access to the school and evacuation routes and instructed the drivers and medical and paramedical personnel involved. 245. On 3 September an additional hospital was set up in Beslan, equipped to perform urgent surgical operations and other types of emergency care. Measures were taken in order to assist a large number of the injured. A total of 1,300 places were reserved at various hospitals in the region. Both before and after the storming medical teams were brought in from other regions, including highly qualified doctors from Moscow. 246. By the time of the first explosions, over 200 doctors, 307 medical staff and seventy ambulances were in Beslan. This made ninety-four mobile medical teams, including fourteen reserve ones. 247. Between 1.15 and 6.30 p.m. on 3 September 2004, 556 injured people, including 311 children, were transferred to the local hospitals. By 7 p.m. all patients had been placed in hospitals in Beslan and Vladikavkaz and forty-seven urgent operations had been performed. 248. Over 1,000 people were provided with psychological aid. 249. From 4 September 2004 special medical teams visited families, assisting those hostages and their family members who had gone home. Between 5 and 15 September over 200 patients (including 137 children) were transferred for treatment to Moscow by special flights. 250. Between 3 September and 16 December 2004 about 800 patients received medical aid. A total of 305 died at the school, while twenty-six people died in hospital. By 16 December 2004 twenty-six patients (including seven children) continued to receive medical aid in hospitals; others had been discharged. North Ossetia received twenty-six tonnes of medical equipment and supplies in relation to the crisis. 251. In May 2007 the applicants applied to the Prosecutor General’s Office in the Southern Federal Circuit to have Mr Dzantiyev, the North Ossetian Minister of the Interior, charged with criminal negligence. On 1 June 2007 that application was dismissed. Following an appeal by the victims, on 18 February and 27 March 2008 the Promyshlenny District Court of Vladikavkaz and the North Ossetia Supreme Court upheld that decision. 252. In July 2007 the applicants requested that the prosecutor’s office “evaluate” the actions of the North Ossetian senior officials who had failed to prevent the terrorist act and inform the population of the imminent threat or ensure a proper security perimeter around the school. They also asked it to verify the lawfulness of the actions of the members of the OH who had authorised the use of indiscriminate weapons and had failed to ensure that the fire was promptly extinguished. They referred to the information contained in the Federal Assembly report (see paragraphs 398 et seq.), also seeking to have the officials concerned and the victims questioned. On 2 August 2007 this application was dismissed in part by the investigator, who found that the questions raised by the victims were the subject of the pending criminal investigation. 253. On the basis of the medical documents and forensic reports, the causes of death were established for 215 people; the exact cause of death of 116 people could not be established owing to extensive post mortem burns. As to the injured, seventy-nine people received gunshot wounds, ninety-one shrapnel wounds, 302 people suffered from the consequences of the explosions, ten people received concussion, eighty-three people suffered from fractured bones and contusions, thirty-six people received thermal injuries and 109 people suffered psychological and neurological problems. 254. The investigation concluded that the deaths and injuries of the victims were not connected with any actions or omissions on the part of State agents, including the use of firearms. 255. The applicants in their numerous complaints stressed that the forensic expert reports had been carried out without the extraction of bullets, shrapnel and other objects from the bodies. They also stressed that the forensic reports for many people had failed to establish the cause of death altogether, owing to extensive burns. 256. In the course of the domestic proceedings the victims lodged several hundred applications with the prosecutor’s office requesting various procedural steps to be taken. They appealed against the results of most of these decisions in the district courts. Copies of most of the applications and complaints, as well as the authorities’ reactions, were submitted to the Court or described by the applicants in their submissions. 257. In July 2006 the victims asked the investigator in charge of the case to find out who had decided against presenting the four men sought by the terrorists for negotiations; to hold confrontations between civilian and police witnesses on the one hand and army servicemen on the other; and to investigate the use of tanks and flame-throwers in the afternoon of 3 September 2004. On 24 July 2006 the investigator rejected the application, stating that the decision to use the appropriate weapons had been taken by the OH and that witness confrontations were not considered useful by the investigation. 258. In January 2007 the applicants asked the investigator to determine who had decided that the four men requested by the terrorists should not participate in the talks and who had authorised the use of tanks and flamethrowers during the storming. On 30 January 2007 the investigator in charge granted the application and informed the applicants that they would be kept up to date with the investigation results. 259. In August 2007 the applicants asked the investigation to find out the number of hostages that had been communicated by the OH to the FSB, the Ministry of the Interior and the Russian President on each day of the crisis and to question the relevant officials. On 14 August 2007 this application was granted. 260. In November 2007, referring to the results of the forensic reports and witness statements obtained during the trial of Nurpashi Kulayev (see paragraphs 269 et seq.), the victims argued that the bodies of 116 people had been severely burned, rendering it impossible in most cases for the cause of death to be established. However several forensic reports indicated extensive burns as the cause of death. The victims sought to find out who had ordered the delay in the firefighters’ intervention in the gymnasium and whether they had been properly equipped upon arrival. On 16 November 2007 the investigator dismissed the application to bring charges against several officials, referring to the pending investigation. 261. At the victims’ request, on 23 November 2007 the investigator appended to the file the records of the trials of the officers of the Pravoberezhny and Malgobek ROVDs. 262. In December 2007 the investigator granted the victims’ applications, based on information obtained during the trial of Mr Kulayev, to have a number of senior officials questioned about the steps taken in August 2004 with the aim of preventing the terrorist act, in order to clarify the extent of the local police’s involvement in securing Mr Dzasokhov’s passage on the morning of 1 September and to find out how the OH had come up with the figure of 354 hostages that was aired during the crisis. The investigator also granted the victims’ application to have the commander of the FSB Special Services Centre (ЦCН ФСБ России) General Tikhonov questioned, in order to ascertain the details of the use of indiscriminate weapons on the school. 263. On 10 May 2007 the Promyshlenny District Court of Vladikavkaz reviewed, at the applicants’ request, about 120 applications lodged by them with the investigator between December 2005 and March 2007, the results of which they found unsatisfactory. The complaints mostly concerned the following points: the applicants’ attempts to obtain additional evidence about the exact cause of their relatives’ deaths and injuries; information about the reasons for the first three explosions in the gymnasium; the details of the involvement of various military and security units in the storming; information about the types and results of examinations of the weapons found in the school, evidence related to the actions of the OH; information about the actions of firefighters immediately after the first explosions; the extent of the officials’ responsibility for the outcome of the crisis; and the victims’ requests to acquaint themselves with various documents in the file. The applicants’ complaint was dismissed in full, the District Court finding that the investigators had acted lawfully and within the limits of their professional discretion. The court also noted that the proceedings were still pending. The applicants appealed, but on 13 June 2007 the North Ossetia Supreme Court upheld the decision. 264. On 23 October 2007 the Promyshlenny District Court of Vladikavkaz rejected a complaint by the victims about the investigators’ decisions in response to seven applications they had lodged to ascertain the reasons for the first explosions and the origins of the firearms which had caused the hostages’ deaths and injuries, to find out more about the communications with the terrorists, to identify the person who ordered the deployment of tanks, APCs, flamethrowers and grenade launchers, and to establish the reason for the carbonisation of 116 bodies. The court also rejected the victims’ complaint of inefficiency and delays on the part of the prosecutor’s office. On 8 February 2008 the North Ossetia Supreme Court upheld this decision. 265. On 10 January 2008 the Promyshlenny District Court rejected another complaint in relation to five complaints lodged by the victims with the investigator. They concerned the victims’ access to the expert report on the explosions, ballistics reports and documents relating to the existence of a real threat of a terrorist act prior to 1 September. The court, referring to Article 161 § 3 of the Code of Criminal Procedure, concluded that the restrictions on the victims’ access to the documents had been justified. The remaining actions of the investigation were also found to be lawful. This decision was upheld on appeal on 27 February 2008. 266. According to the decision of the Promyshlenny District Court of 13 March 2008, sixty-two victims and their representatives complained to the Prosecutor General’s Office and then to the court about the investigators’ decisions to reject twelve complaints lodged between December 2007 and January 2008. They included the following demands: to find out the exact reasons for the victims’ deaths where the conclusions of the post-mortem reports had been incomplete; to ascertain whether the carbonisation of the bodies had been caused prior to or after death; to seek an explanation for six victims as to why the conclusions about the reasons for their relatives’ deaths had been based on external inspection without autopsy reports; to establish the causal relationships between the use of flame-throwers, grenade launchers, tanks and APCs during the storming and the hostages’ deaths; to obtain additional questioning of the servicemen of the Malgobek ROVD and of a military unit stationed in the Malgobek District about the prevention of the terrorist act; to clarify the reasons for the appointment of General Andreyev as the head of the OH on 2 September 2004; and to obtain full access to the material of the case file and copies of the complex expert report (including mathematical computations of the explosions, ballistics and explosion examinations). The victims also alleged that they had received no timely responses to their applications and requests, that the investigation had been protracted and lacked objectivity and, in particular, that they had not had access to the most important case documents. The Promyshlenny District Court dismissed all the appeals, finding that the victims’ demands had been satisfied by the investigation wherever possible, or had not been based on the pertinent legislation. On 23 April 2008 the North Ossetia Supreme Court upheld that decision on appeal. 267. On 10 December 2008 the Promyshlenny District Court dismissed another complaint lodged by a group of victims against the decisions taken in response to their complaints to the investigators. Eleven complaints, lodged between February and September 2008, concerned the victims’ access to the ballistics reports and the records of negotiations with the terrorists, obtaining copies of certain documents in the case file and the decisions ordering expert reports. The victims also alleged that the investigation had been unnecessarily protracted, with important steps being delayed, which in turn could have led to a loss of evidence and make the judicial examination of the matters less effective. They asked for the actions of the investigators to be declared unlawful in so far as they had not conducted an effective investigation, had refused to allow victims access to the case file and had failed to establish the extent of the officials’ responsibility. The court found that some documents requested by the victims were confidential, while access to others was regulated by Article 161 § 3 of the Code of Criminal Procedure. On 11 February 2009 the North Ossetia Supreme Court upheld the District Court’s decision. 268. The victims’ subsequent attempts to seek a supervisory review of these decisions were unsuccessful. In September 2015 a group of applicants sought the latest information about the developments in the investigation from the head of the investigation team. They reiterated that they had received no information about the state of proceedings since 2013, particularly in respect of the actions concerning the military and the OH. 269. The applicants submitted voluminous documents related to the criminal investigation and trial concerning Mr Nurpashi Kulayev, the only terrorist captured alive. In particular, they submitted four volumes of trial records (about 2,000 pages), copies of the trial court judgment (319 pages) and cassation court decision and their appeals to the cassation and supervising courts. The most relevant documents and the applicants’ submissions can be summarised as follows. 270. On 19 January 2005 the criminal investigation in respect of the only surviving terrorist, Mr Kulayev, was separated from criminal case no. 20/849 and assigned the number 20/870. 271. On 17 May 2005 the North Ossetia Supreme Court opened the trial of Mr Kulayev. He was charged with aggravated murder, terrorism, hostage-taking, membership of a criminal gang, illegal firearms handling and attempts on the life of law-enforcement personnel (Articles 105, 205, 206, 209, 222 and 317 of the Criminal Code). Between May 2005 and February 2006 the trial court held sixty-one hearings. 272. In court Mr Kulayev stated that he had joined the group on 31 August 2004. His brother, Mr Khanpash Kulayev, had been a clandestine fighter since the early 1990s, but had lost an arm and had lately been living in Psedakh, their home village. On 31 August 2004 a group of armed men had arrived in a VAZ-2110 and accused his brother of working for the FSB. Both brothers and two of their friends had gone with the armed men to a camp situated about 300 metres away from the road. Late in the night on 31 August 2004 the man in charge of the camp, “Polkovnik”, had told all those present to get into a GAZ-66 truck. There had been thirty-two people, including two women wearing masks. Explosives and arms in backpacks had been placed under the benches and the men had taken seats on the floor of the truck. Responding to the victims’ questions, Mr Kulayev stated that he had not seen any wooden boxes for cartridges (which had later been found in the school canteen). 273. They had spent the night in the valley and in the early hours of the morning had continued their journey. The body of the truck had been covered with canvas and they could not see out. At one point the vehicle had stopped and Mr Kulayev had heard someone asking for the driver’s documents. They had then been told that a policeman had been captured and they had travelled on. The policeman had later been released because he had been a relative of one of the fighters. The ride had lasted around two and a half hours. During the capturing of the school one fighter had been fatally injured and “Polkovnik” had ordered the killing of twenty male hostages. In the school Mr Kulayev had been assigned to the canteen. On 1 September there had been a dispute among the fighters and “Polkovnik” had detonated the explosive device carried by a female suicide bomber. This explosion had fatally wounded the other woman and another fighter of Arab origin. According to Mr Kulayev, many members of the group, including himself and his brother, had been unaware of the nature of their mission, but “Polkovnik” had referred to Basayev’s orders and executed anyone attempting to object. The terrorists had talked between themselves in Ingush and “Polkovnik” had called someone to receive instructions in Russian. 274. Referring to the conversations among the terrorists, Mr Kulayev said that “Polkovnik” had told Mr Aushev that if the four men indicated by them came to the school, they would release 150 hostages for each of them. He also understood that some hostages and fighters would have been able to move in buses to Chechnya if the Russian troops had pulled out of the mountainous districts. 275. Speaking about the first explosions in the gymnasium, Mr Kulayev testified that “Polkovnik” had said that a sniper had “killed the man [holding the switch]”and had then cried to someone over the telephone “What have you done?!” before breaking it; after that he had encouraged the terrorists to fight until the bitter end. Mr Kulayev had jumped out of the canteen window and shouted to the soldiers that they should not shoot there because there were women and children. He denied that he had used his machine gun and had walked into the gymnasium while the hostages were detained there. 276. Two people convicted earlier for terrorist activities testified that they had known Mr Khanpash Kulayev, the accused’s brother, as an active member of the underground terrorist movement and that in 2003 both brothers and several other members of the armed group, together with their families, had lived in a rented house in Ingushetia (Ganiyev R., vol. 4, page 1562 of the trial records, Muzhakhoyeva Z., vol. 4, p. 1611). 277. Some local residents stated in court that they had seen unknown men and suspicious boxes at the school prior to 1 September 2004 (Tomayev V. vol. 1, pp. 360-63; Gutnova L. vol. 1, p. 458; Levina Z. vol. 1, p. 474; Kokova R. vol. 3, p. 1243; Rubayev K. vol. 3, p. 1305). During August 2004 the school building had been partially renovated, but the teachers and director denied that anyone other than the school staff and their families had been involved (Guriyeva N., vol. 2, p. 542; Ganiyeva Ye. vol. 3, p. 1157; Digurova Z. vol. 3, p. 1238). Some teachers testified that they had inspected the school in the early morning of 1 September and there had been no one there (Tsagolov A. vol. 1, p. 265; Avdonina Ye. vol. 2, p. 871; KomayevaGadzhinova R. vol. 2, p. 874; Shcherbinina O. vol. 2, p. 931). 278. The police officer who had been captured by the terrorists on the administrative border on the morning of 1 September 2004 testified that he had stopped the GA66 vehicle between 7 a.m. and 8 a.m. The armed men had taken his service pistol, VAZ vehicle and police cap and had driven to Beslan. He had escaped as soon as the shooting started. He denied having known any of the terrorists and confirmed that the terrorists had spoken Ingush between themselves and to him (G.S., vol. 4, p. 1546). 279. As to the prevention of the terrorist act, a senior police officer of the Pravoberezhny ROVD testified in court in November 2005 that at about 8 a.m. on 1 September the school had been inspected, possibly with a service dog. He admitted that, unlike in previous years, no patrol police had been deployed at the school (Khachirov Ch. vol. 3, p. 1215). Mr M. Aydarov, the former head of the Pravoberezhny ROVD, had been aware that the school had been inspected with service dogs on the morning of 1 September, but no appropriate records had been provided (vol. 3, p. 1410). 280. The trial court noted that criminal proceedings in respect of the organisers of the terrorist act were the subject of a separate criminal investigation (no. 20/849, see above). The court cited statements and documents from investigation file no. 20/849. It identified nineteen terrorists (including Mr Kulayev) and referred to thirteen unidentified individuals (including “Abu-Radiy” and “Abu-Farukh”). 281. It transpires that between October and December 2004 numerous hostages and the victims’ relatives were questioned and granted victim status. By the opening of the trial several hundred people had been granted victim status in the proceedings. Over 230 victims were questioned during the trial; statements by others given during the investigation were read out. 282. The victims questioned in court mostly denied having seen Mr Kulayev in the gymnasium, although several hostages had seen him in the gymnasium, in the corridor between 1 and 3 September and in the canteen during the final stage of the assault. Most of the hostages had not seen Mr Kulayev’s brother Khanpash, who had lost his right arm. Several of them also referred to one particular terrorist: a shaven man with a large scar on his neck, who had been particularly cruel to the hostages and whom they had not identified after the siege was over (witness Mitdziyeva I. vol. 2, p. 520). Most hostages had seen two women suicide bombers, although some hostages said they had seen another woman of Slavic appearance on the first floor of the school on 2 September and possibly a fourth one also on 2 September (Mitdziyeva I. vol. 2, p. 518; Misikov K. vol. 2, p. 571; Scherbinina O. vol. 2, p. 935). One woman told the court that on 2 September terrorist “Abdulla” had asked her if she was Ingush and suggested that they would let her family members go free if she agreed to act as a suicide bomber, since “their two girls had been killed by an ammunition round” fired from the outside (Kudziyeva L. vol. 2, p. 525). The hostages estimated the number of terrorists at between thirty and seventy. 283. With respect to the taking of the school, many hostages testified that as soon as the fighters had surrounded the gathering in the courtyard and started to shoot in the air, another group of fighters had fired from the top of the building. Some witnesses stated that when the shooting had started some children had tried to escape through Shkolny Lane, but there had been fighters there who had forced them to return. Many had seen fighters running to the school from the railway line (Kusayeva R. v. 1 p.147; Misikov Yu. v. 1 p. 471; Daurova M. v. 2 p.574). Others said that when they had entered the school there had already been armed fighters guarding the stairs to the first floor. One boy aged nine at the time testified that on 2 September he and about ten older boys had been forced to take boxes with grenades and mines from an opening under the stage in the meeting hall (Khudalov S. v. 2 p. 866), but no one else from this group could be identified. One witness testified that when the fighters had broken the floors in the gymnasium on 1 September they had taken out a long tube which she supposed had been a grenade launcher (Tsakhilova A. v. 2 p. 896). 284. Police officer Fatima D. gave detailed submissions about the hostage-taking and subsequent events. According to her, a second police officer had failed to arrive at the school. At about 8.50 a.m. one mother told her that a strange truck had been parked nearby. When she went out to check, she heard a suspicious noise. She ran to the staffroom on the first floor to alert the police but as soon as she took the telephone, she was surrounded by several fighters wearing camouflage uniforms. They told her that “everything would be serious this time” and led her to the gymnasium. She estimated that there were about seventy fighters (vol. 1, p. 365). 285. On 1 September the teachers, on the terrorists’ orders, drew up lists of the children aged below seven, although they were never used (Levina Z. v. 1 p. 475; Shcherbinina O. vol. 2, p. 937). Numerous hostages told the court that the terrorists had been extremely annoyed by the information about the number of people being held in the school and that their attitude had become harsher after the figure of 354 people had been announced. They testified that the terrorists had refused to allow them to drink or go to the toilet since “nobody needed them anyway and there would only be 350 of them left” (Kokayeva I. vol. 1, p. 413; Kaloyeva F. vol. 1, p. 448; Pukhayeva Z. vol. 1, p. 461; Daurova Z. vol. 1, p. 481). The hostages complained of mocking, insults and ill-treatment and explained how the terrorists had hit the elderly and children, subjected them to false executions, held parents and grandparents at gunpoint in the children’s view, and had fired into the air in order to keep them quiet. 286. The hostages saw the terrorists’ attitude deteriorating further on 2 September after Mr Aushev had left the school. Several of them said that on 2 and 3 September the terrorists had attempted in vain to liaise with the authorities through those who had had relatives among officials or public figures. 287. The school director Mrs Tsaliyeva was a hostage, together with members of her family. She stated that she had inspected the school on the morning of 1 September, denying allegations that anyone except staff and their relatives had been involved in the renovation. She had been called by the fighters to negotiate and testified that they had been annoyed by the absence of contact with the authorities. On 3 September she had attempted to involve the children of Mr Taymuraz Mamsurov and a prosecutor’s mother in the negotiations, but to no avail (Tsaliyeva L., v. 1 p. 432). 288. Many hostages testified about the explosions in the gymnasium. They said that prior to the explosions the fighters had been behaving in a relaxed manner and preparing lunch. Others mentioned some agitation probably caused by electricity failure in the gymnasium. Some hostages testified that they had seen an IED fixed to a basketball hoop explode (Dzarasov K. v. 1 p. 213; Archinov B. v. 1 p.274). Others insisted that when they had been leaving the gymnasium they could still see large IEDs intact on the basketball hoops (Sidakova Z. v. 1 p. 315) or that only the third explosion had come from that IED (Bekuzariva I. v. 2 p. 962). Some described the first blast as a “fireball” (Dzestelova A. v. 2 p. 538). Many testified about the fire and heat emanating from the explosions, enflaming their clothes and hair and causing burns (Agayeva Z. v. 2 p. 600; Dzheriyeva S. v. 2 p. 614; Kochiyeva F. v. 2 p. 631; Tsgoyev A. v. 2 p. 748; Bugulova F. v. 2 p. 764; Makiyev V., v. 2 p. 826; Khanikayev Sh. v. 2 p. 831; Kokova T., v. 2 p. 884). Many testified that the fire could have killed, injured and shellshocked people who had been unable to leave the gymnasium on their own (Tomayeva L. v. 1 p. 357; Gagiyeva I. v. 1 p. 444; Kudziyeva L. v. 2 p. 526; Fidarova S., v. 2 p. 584; Skayeva T. v. 3 p. 1001; Mitdziyeva Z., v. 3 p. 1043; Alikova F. v. 4 p. 1577). Some hostages described how they had been saved by local civilians from the gymnasium and adjacent premises after the explosions (Gagiyeva I. v. 1 p. 444). Numerous witnesses also gave evidence that when the hostages had started to run from the gymnasium through the opening in the wall they had been shot at from the first floor of the school, and many had been wounded. 289. Those hostages who had been taken by the fighters to the canteen and the meeting room testified about the fierce fighting which had taken place there. They stated that the fighters had tried to force the hostages – women and children – to stand in the windows and wave their clothes, and some had been killed by shots fired from outside and by powerful explosions (Kusayeva R., v. 1 p. 152; Sidakova Z., v. 1 p. 313; Urmanov S. v. 1 p. 426; Daurova Z., v. 1 p. 483; Badoyeva N. v. 2 p. 823; Makiyev V. v. 2 p. 826; Svetlova T. v. 2 p. 956; Katuyeva V. v. 2 p. 971). 290. Many also stated that they had not been satisfied with the results of the criminal investigation and that they did not intend to seek damages from the accused, since they considered that the State officials had to bear responsibility for the deaths and injuries. 291. Mr M. Aydarov, former head of the Pravoberezhny ROVD, was questioned in court (vol. 3, pp. 1394-4014) while under investigation in criminal case no. 20/852 for criminal negligence (see paragraph 355 below). He explained that he had only been appointed in midAugust 2004. The administrative border with Ingushetia in the district was 57 kilometres long and had been mostly unguarded. Many small roads through the fields had been closed off and rendered impassable in view of the heightened terrorist threat; however, this had not suited the locals, who very often had removed the barriers. In August 2004 information had been received about a gathering of armed groups near Psedakh in Ingushetia and a number of steps had been taken on both sides of the administrative border, but at the time the measures had produced no known results. 292. He also explained that out of the fifty-three officers of the ROVD who had been present on 1 September, over forty had been women. It had been difficult to maintain the staff on alert for a long time. As soon as shooting could be heard from the school, at about 9.15 a.m. on 1 September, he had ordered his staff to maintain security around the building. Two servicemen of the ROVD had witnessed the hostage-taking and exchanged fire with the terrorists. 293. Mr T. Murtazov, deputy head of the Pravoberezhny ROVD, was also under investigation for criminal negligence at the time of questioning. He gave detailed submissions about the use of Shmel flamethrowers on the school from three snipers positioned on the roofs of a technical building on Lermontova Street, a five-storey housing block on the corner of Shkolny and Batagova Streets and the caretaker’s house (vol. 3, p. 1418). He did not know where the snipers had come from. Between 2 and 4 p.m. he had witnessed a tank shooting at the school and the use of grenade launchers by the military. The officer remarked that not a single bullet had been extracted from the bodies of the deceased hostages which could have led to the identification of the servicemen of the Ministry of the Interior (v. 3 p. 1424). 294. Mr Dryayev, another senior ROVD officer, testified that immediately after the first explosions on 3 September he had seen soldiers (of the army or internal troops) firing automatic weapons at the school in response to enemy fire. Soon after 3 p.m. he had seen a tank stationed on Kominterna Street firing about ten shots at the corner of the school from a distance of about 30 metres. These rounds, possibly non-explosive, had damaged the wall and the roof (vol. 3, p. 1428). 295. Police officers of the Pravoberezhny ROVD testified that by the evening of 1 September they had carried out a house-to-house inspection in the district and compiled a list of 900 hostages’ names, which they had submitted to the officer on duty (Khachirov Ch. v. 3 p. 1212; Friyev S. v. 3 p. 1217). 296. The policemen also explained that two men had been assaulted by the crowd on 2 September and detained at the ROVD on suspicion of aiding the terrorists. They turned out to be civilians from a nearby town; both men had been identified and testified in court about this incident. 297. The court questioned several civilians who had helped to evacuate hostages from the gymnasium. Mr Dudiyev testified that he had entered the gymnasium after the first explosions, together with the special forces units, to search for his wife and three children. He had taken out his wounded wife and the body of his daughter, while his brother had evacuated his injured son; his eldest child had also been killed (Dudiyev A. vol. 1, p. 251). Other witnesses, both civilian and police, told the court that they had entered the burning gymnasium several times, taking out injured women and children before the roof had collapsed (Adayev E., vol. 2, p. 659, Totoonti I., vol. 4, p. 1595). One policeman witnessed the fire spreading very quickly on the roof of the school, saying that the firemen had failed to intervene (Badoyev R. vol. 3, p. 1295). 298. Some witnesses saw tanks shooting at the school soon after the explosions (Khosonov Z. vol. 3, p. 1110); one man was injured by an explosion while taking a child out of the gymnasium (Gasiyev T. vol. 2, p. 676). One witness, E. Tetov, explained that he had served in the army as a tank crew member and was well acquainted with tanks and the ammunition used by them. Shortly after 1 p.m. on 3 September he had counted between nine and eleven non-explosive rounds fired from a tank gun. He was also of the opinion that the first explosions and the fire had been started from the outside, by either a flame-thrower or a tracer bullet (vol. 2 pp. 72930). One civilian witness stated that he had served in the army as a grenade launcher operator and had identified at least two shots fired from grenade launchers or flame-throwers between the second and third major explosions in the gymnasium (Totoonti I., vol. 4, p. 1603). 299. Several police officers testified that the storming of the building had started unexpectedly and that this explained the casualties. Some of them had had no time to put on protective gear and rushed to the school as soon as they had heard the shooting. Some servicemen described the situation after the first explosions as “chaotic”, when various forces had been shooting at the school building using automatic weapons and other arms (Khosonov Z., vol. 3, p. 1109). They referred to the terrorists’ high level of training and preparedness, which had allowed them to mount resistance in the face of the elite Russian units (Akulov O., vol. 1, p. 492). 300. An officer of the Pravoberezhny ROVD testified that at about 9 a.m. on 3 September, while he had been ensuring the security cordon around the school, he had seen two full carloads of portable grenade launchers (RPG) and flame-throwers (RPOA Shmel) being delivered by servicemen of the Ministry of the Interior driving a white Gazel vehicle. He estimated that at least twenty flame-throwers had been unloaded and taken to the snipers’ positions, located about 200 metres from the school. The snipers and the forces of the Ministry of the Interior had used these flame-throwers soon after the explosions at the school, responding to enemy fire from grenade launchers and machine guns (Khachirov Ch. vol. 3, p. 1212). Another policeman counted up to ten shots from flamethrowers in the direction of the gymnasium roof at around 2 p.m. (R. Bidzheov, vol. 3, p. 1222). Other policemen testified that between 3 and 5 p.m. they had seen a tank firing at the school (Friyev S. vol. 3, p. 1218; Khadikov A. vol. 3, p. 1224; Khayev A. vol. 3, p. 1227; Karayev A. vol. 3, p. 1231) and that shots had been fired from grenade launchers (Karayev A. vol. 3, p. 1231; Aydarov M. vol. 3, p. 1400). 301. The hostage-taking and subsequent events were witnessed by numerous local residents; some of them were questioned in court. Several passengers of vehicles who had found themselves on the street in front of the school on the morning of 1 September had seen a GAZ66 truck arriving in the schoolyard. Some said that they had seen three or four women jumping out of the vehicle. Mr K. Torchinov had been a teacher at school no. 1 and a former investigator of the prosecutor’s office; he lived in the house opposite the school and had watched the ceremony from his window, from a distance of about 200 metres. He gave detailed explanations about the hostage-taking. In particular, he had counted the men who jumped out of the GAZ66 vehicle and said that there had been twenty-seven. He had also seen two other fighters in the schoolyard and between seven and eight who had run from the railway lines; at the same time there had been shots fired from the roof and the first floor of the school; he thus estimated the number of fighters at at least forty or forty-five. Mr Torchinov also stated that from 1 to 3 September there had been no soldiers or police lined up along the backyard of the school and that it had been possible to walk there from his house and back (vol. 2, pp. 847-59). 302. Numerous local residents whose relatives had been held in the school stated that they had been appalled by the announcement of the number of hostages. They said that the school had had about 900 students – lists could have been obtained from the local department of education – and that numerous parents and relatives had also been captured. Officials from the local department of education testified that on the morning of 1 September the number of students (830) had been transmitted to the administration with an indication that many relatives could be present at the ceremony (Dzukayeva B. vol. 3, p. 1334; Burgalova Z. vol. 3, p. 1349). Moreover, on 1 September volunteers and police had drawn up lists of over 1,000 hostages. In view of this, they could not explain how the officials had arrived at a figure of 350 (Khosonov Z. vol. 3, p. 1107). 303. Many local residents testified that they had seen or heard a tank shooting at the school after the explosions (Duarov O. vol. 3, p. 1083; Pliyev V. vol. 3, p. 1085; Dzutsev Yu. v. 3 p. 1121; Gagiyev E. vol. 3, p. 1300; Malikiyev A. vol. 3, p. 1308; Savkuyev T. vol. 3, p. 135; Ilyin B. vol. 1, p. 1453). Mrs E. Kesayeva had remained outside the school, where four members of her family were being held hostage. She testified that a tank positioned on Kominterna Street had fired several rounds between 1 p.m. and 4 p.m. (vol. 1, p. 325). One local resident saw a tank enter a courtyard on Pervomayskaya Street and heard it shooting at the school before 3 p.m. on 3 September. The witness was about 50 metres away from the tank (Khabayeva A. vol. 3, p. 1289). All those witnesses described the tank cannon shots as being particularly strong and clearly identifiable despite the overwhelming noise of fierce fighting. 304. Several residents testified about the firemen’s actions. They alleged, in particular, that the firemen had lost time before intervening in the gymnasium and that once the fire engines had arrived, they had been of little use since the water supplies in the cisterns had been quickly exhausted. Moreover, the pressure in the water hoses had been weak and they could not reach the gymnasium from where the machines were stationed. Some witnesses deplored the lack of preparedness by the firemen, who had failed to find out beforehand where to find water locally around the school rather than bringing it in cisterns (Tetov E. vol. 2, p. 729; Katsanov M. vol. 2, p. 802). Other witnesses told the court that they had seen a fire engine stuck in the courtyard and trying to find water for the cistern (Pliyev V. vol. 3, p. 1086). 305. Colonel Bocharov, brigade commander of the internal troops deployed in Beslan on 1 to 4 September, testified in November 2005 that servicemen under his command had ensured the security cordon. Their task had been to prevent the terrorists from breaking through. Four APCs from his brigade had been transferred to the FSB forces on 2 September (v. 3 p. 1209). 306. Officers of the 58th Army testified that their task had been to ensure the “third ring” of security around the school. One officer explained that General Sobolev, the commander of the 58th Army, had instructed him to follow the orders of the FSB officers. Each army vehicle deployed in Beslan had been reinforced by an officer of the FSB who had given orders and coordinated the crews’ actions (Isakov A. vol. 3, p. 1260; Zhogin V. vol. 3, p. 1265). They denied having heard or seen grenade launchers, flamethrowers or tanks being used prior to late on the evening of 3 September. The tank unit commander stated that between 8.56 p.m. and 9.30 p.m. one tank had fired seven high-fragmentation shells at the school (although the seventh had failed to explode), following orders of the FSB officer in charge. No shots had been fired from the tank guns before or after that (Kindeyev V. vol. 3, p. 1277). 307. One officer, a sapper, testified that he had entered the gymnasium at around 2.40 p.m. on 3 September and had deactivated an IED attached to a basketball hoop. Most IEDs had not exploded and had been deactivated the following day. The officer testified that he had entered the gymnasium with a group of seven servicemen and fifteen or twenty civilians who had evacuated the hostages for about one hour. Initially there had been no fire there, but the premises had been under attack from the north wing of the school. Soon afterwards he had noticed a fire starting in the roof, above the entrance to the gymnasium from the side of the weights room (Gagloyev A. vol. 4, pp. 1715 and 1733). 308. Mr Z., a professional negotiator from the North Ossetian FSB, was called to Beslan at 9.30 a.m. on 1 September. He had a meeting with General Andreyev and then informed him of the talks and received instructions from him. He was placed in a separate room, with a psychologist, and maintained telephone contact with the terrorists every 30 to 35 minutes. His efforts to establish psychological contact with his interlocutor (who called himself “Shahid”) were unsuccessful and he failed to obtain any concessions aimed at alleviating the hostages’ situation. The conversations were conducted in a rude manner; the gangsters insulted him and Dr Roshal. The terrorists repeatedly said that they would talk to the four men named by them and did not present any other demands. They did not specify the number of hostages they were holding, saying only that they had “enough”. They spoke of about twenty people shot dead on the first day and said that they had three days to wait for the authorities to bring the four men together. When asked if Mr Dzasokhov could come alone, the terrorists refused. The first telephone conversation took place at about 4 p.m. on 1 September, the last one after 1 p.m. on 3 September immediately following the first explosion. The witness remembered saying “What have you done?!” and “Shahid” responding “We have fulfilled our duty”. Responding to the victims’ questions, Mr Z. admitted that the negotiations involving Mr Aushev and Mr Gutseriyev had been carried out without him and that he had only been informed of these developments after they had occurred (vol. 4, pp. 1819-43). 309. The head of the FSB in Beslan at the relevant time stated in court in January 2006 that he had not been aware of the information and telexes sent by the Ministry of the Interior in August 2004 about the heightened terrorist threat during the Day of Knowledge. The FSB had not been involved in the protection of the administrative border, but their services had cooperated with the Ministry of the Interior in examining the area around the border (Gaydenko O. v. 4 pp. 1847-54). He did not have any information about the possible escape of terrorists after the storming. 310. The former head of the FSB department in Ingushetia, General Koryakov, confirmed that there had been sufficiently precise information about the activities of terrorist groups in Ingushetia in the summer of 2004 as a number of successful special operations had been carried out, but there had been no information about the armed group in the Malgobek District. He testified that he had arrived in Beslan on the morning of 1 September and had remained there for three days, working in close cooperation with General Andreyev. He was not certain if he had been a member of the OH, but he had been fully aware of its work. On the morning of 1 September General Koryakov had called the Ingushetian President Mr Zyazikov and informed him of the terrorist act; at that time no demand to involve Mr Zyazikov in the negotiations had been made. He could not reach Mr Zyazikov later since his mobile telephone had been switched off. By questioning the escaped hostages, they had tried to identify terrorists from Ingushetia and involve their relatives in the negotiations. They had therefore brought in the wife and children of a presumed terrorist, but her appeal had had no effect. The witness had not been aware of the note taken out by Mr Aushev (v. 4 pp. 1841-90). 311. Most of the army and internal troops servicemen failed to testify in court, and their witness statements collected during the investigation of criminal case no. 20/849 were read out (see paragraph 207 above). 312. On 15 November 2005 the court questioned Lieutenant-Colonel Tsyban (v. 3 pp. 1192-203), who at the relevant time headed the operational management group at the North Ossetian Ministry of the Interior (начальник группы оперативного управления по РСО при МВД РФ). The group was created on 11 August 2004 by an order of the Minister of the Interior with the mission of preventing terrorist acts, planning and carrying out special operations and controlling and managing resources allocated for counterterrorism activities. When asked about the meetings, functions and actions of the commission prior to 1 September 2004, he could not recall any details. 313. Lieutenant-Colonel Tsyban learnt of the hostage-taking at 9.30 a.m. on 1 September and went to Beslan. By late morning, he had organised the security perimeter around the school. As of noon on 1 September he reported to the deputy commander of the internal troops of the Ministry of the Interior, General Vnukov. Although he was a member of the OH, he stated that his participation had been limited to ensuring the second security perimeter. He had not been aware of the number of hostages, the nature of the terrorists’ demands or the negotiation attempts. He had not taken part in any meetings or discussions of the OH. As to the rescue operation, he stated that the servicemen of the internal troops had not used weapons, approached the school or taken part in the rescue operation. He had not been at the school on 3 September. He refused to answer when asked whether any terrorists could have passed through the security perimeter. 314. General Sobolev, the commander of the 58th Army of the Ministry of Defence, was questioned in November 2005 (vol. 3, pp. 1316-30). He was the most senior officer from the Ministry of Defence in the OH. He described the OH’s principal strategy of negotiation with the hostage takers, but said that the attempts had been futile because the terrorists had only been prepared to talk if the four people named by them came. Dr Roshal had attempted to contact the terrorists, but they had refused to talk to him; Mr Dzasokhov had been prevented by the OH from going to the school, and no contact had been established with Mr Zyazikov. The danger to the lives of the four men had been too high in the absence of any goodwill shown by the terrorists. In General Sobolev’s view, no negotiations were possible in the circumstances; the storming of the school should have taken place immediately, before the IEDs had been assembled. He believed that the terrorists had been supported and funded by foreign services, including the Central Intelligence Agency (of the United States). His task had been mostly limited to ensuring the security perimeter around the school and providing the necessary equipment; he was not aware of the number of hostages, negotiation strategies or the rest of the plan drawn up by the OH. 315. He named the forces and equipment brought in by the army. Eight APCs and three tanks had been transferred under the command of the FSB to be used as cover in the event of a storming. A group of sappers had demined the gymnasium on the afternoon of 3 September; they had found four mines and ten smaller IEDs connected by a “double chain” which had allowed them to be activated all at once or one by one. Three IEDs had exploded prior to demining; in one of them only the detonator had exploded but not the main charge. 316. Turning to the storming, General Sobolev explained that it had started unexpectedly. Officers of the FSB’s Alpha unit had been training in Vladikavkaz and had to be brought in urgently; many of them had had no time to prepare. This had led to an extremely high number of casualties: a third of the elite troops who had stormed the building had been injured or killed. He had not been aware that flame-throwers or grenade launchers had been used. The tank cannon had fired seven shots after 9 p.m. He was of the opinion that the army had successfully concluded its mission. 317. Mr Dzantiyev testified in November 2005 that at the relevant time he had been the North Ossetian Minister of the Interior. He had arrived in Beslan at about 10 a.m. on 1 September and followed Mr Dzasokhov’s orders. As of 3 p.m. on 1 September General Andreyev, the head of the North Ossetian FSB, had taken over the command of the operation. Mr Dzantiyev’s tasks had been to ensure security around the school and evacuate civilians from the area. The victims referred to the decree of the Russian Prime Minister of 2 September 2004 by which Mr Dzantiyev had been appointed deputy head of the OH; however, the witness insisted that he had not been informed of this, had not assumed such responsibilities and had been excluded from the OH meetings. Mr Dzantiyev had received orders from the Russian Minister of the Interior and his deputy Mr Pankov, who had arrived in Beslan, and on two occasions the deputy head of the FSB Mr Anisimov had asked him to check the situation in two villages. Mr Dzantiyev had been aware by the evening of 1 September, from the lists drawn up by the local police, that the number of hostages had been at least 700. He did not know where the figure of 354 had come from. He had no information about the use of heavy weapons during the storming but knew that later a number of empty tubes from Shmel flamethrowers had been found on the nearby roofs (vol. 3, pp. 137194). 318. In November 2005 the court questioned Mr Dzugayev (v. 3 pp. 143045). At the relevant time Mr Dzugayev was the head of the information and analytical department of the North Ossetian President’s administration. He testified that he had arrived in Beslan on 1 September 2004 at about 10 a.m. He had been instructed by Mr Dzasokhov and General Andreyev to liaise with the press, but had not been aware of the OH’s work, composition and strategy. He was asked a number of questions about the figure of 354 hostages which he had consistently announced to the press between 1 and 3 September. He explained that he had been told the figure by General Andreyev, who had referred to the absence of any exact lists. He had always stressed the preliminary nature of this information. 319. General Andreyev, who at the relevant time was the head of the North Ossetian FSB and head of the OH, was questioned in court in December 2005 (vol. 3-4, pp. 1487-523). He gave a detailed account of his actions and the work of the OH during the crisis. According to him, no formal leadership over the operation had been assumed prior to 2 p.m. on 2 September, but informally all the people with responsibility – members of the operational management group – had carried out their tasks under his and Mr Dzasokhov’s guidance. According to General Andreyev, as of 2 September the OH included seven officials: himself as the head, Lieutenant-Colonel Tsyban as his deputy, Mr Sobolev, Mr Dzgoyev, Mr Goncharov, the North Ossetian Minister of Education Mrs Levitskaya, and Mr Vasilyev from the State television company. 320. Mr Pronichev, deputy head of the FSB, had assisted the OH in a personal capacity but had assumed no formal role. General Andreyev referred to the Suppression of Terrorism Act, which stipulated the plan of action in the event that the hostage takers put forward political demands. The same law excluded political questions from the possible subjects of negotiations. He believed that the terrorists’ primary aim had been to achieve a resumption of the Ossetian-Ingush ethnic conflict, of which there was a real threat. From the first hours of the crisis, work had been carried out in close cooperation with the head of the FSB in Ingushetia. 321. General Andreyev detailed the authorities’ unsuccessful attempts to negotiate with the terrorists: their mobile telephone had initially been switched off, and the school telephone had been disconnected. The terrorists had often interrupted the contact, saying that they would call back. The OH had involved a professional negotiator, who was a staff member of the FSB. The terrorists had behaved in an aggressive and hostile manner and refused to discuss any proposals unless the four men indicated by them came to Beslan. General Andreyev insisted that Mr Zyazikov, the Ingushetian President, could not be found, while the three other men had been in contact with the OH (Mr Aslakhanov had talked to the terrorists over the telephone and had arrived in Beslan on the afternoon of 3 September). The OH had invited two influential men of Ingush origin, Mr Aushev and Mr Gutseriyev, to take part in the negotiations. The terrorists had been inflexible and refused to consider any proposals aimed at aiding the hostages or the possibilities of a ransom and exit. No written demands had been issued and a number of political demands had been made verbally through Mr Aushev. Responding to the questions about the number of hostages, General Andreyev insisted that there had been no exact lists beyond the 354 names and the OH had not wanted to release unreliable information. Responding to the victims’ questions, he reiterated that in the course of the negotiations the terrorists had not referred to the number of hostages and that in his opinion they had not been particularly interested in the figure announced. He testified that on the evening of 2 September Mr Gutseriyev had talked to Mr Zakayev in London and the latter had promised to establish contact with Mr Maskhadov. However, no direct line of communication with Mr Maskhadov had been established. 322. The OH’s strategy had been to negotiate, and no plan consisting of resolving the situation by force had been considered. General Andreyev explained that the involvement of the special forces had only been foreseen in the event of a mass killing of the hostages. 323. Turning to the special forces of the FSB, General Andreyev specified that the FSB Special Services Centre, under the command of General Tikhonov, had their own temporary headquarters located on the third floor of the Beslan administration building, at the local department of the FSB. Questions concerning the types and use of special weapons, such as flame-throwers, lay within the competence of that Centre. General Andreyev had issued an order to start the operation aimed at liberating the hostages and at neutralising the terrorists as soon as the latter had started to shoot at escaping hostages. He conceded that at the beginning of the operation there had been shots fired by other servicemen, and the FSB forces had been in danger of friendly fire. He insisted that the tanks and flame-throwers had been used only after 9 p.m. on 3 September, when there had been no hostages still alive in the school. General Andreyev stated that two terrorists had been captured alive, but one of them had been lynched by the locals. 324. During questioning, the victims openly accused General Andreyev of incompetence, concealing the truth and being responsible for the fatalities. They were reprimanded by the presiding judge. 325. The court heard a statement by the North Ossetian Minister of Emercom Mr Dzgoyev (v. 4 pp. 1523-44). He explained that he had been informed that he was a member of the OH on the evening of 2 September; however, both before and after that time he had functioned semi-autonomously. He had estimated the number of hostages at around 800 and on 2 September Mr Aushev had informed him personally that there were over 1,000; this information had been sufficient to prepare the rescue operation. 326. Mr Dzgoyev answered numerous questions about the extinguishing of the fire in the gymnasium. He stated that the information about a fire at the school (but not in the gymnasium) had been noted by their service at 1.05 p.m. on 3 September. The message that the roof of the gymnasium was starting to collapse had been noted at 2.40 p.m. General Tikhonov, the commander of the Special Services Centre, had authorised the firemen to move in at 3.10 p.m. and at 3.20 p.m. they had arrived at the scene. Mr Dzgoyev was told that by that time there had been no hostages still alive in the gymnasium; this information had later been confirmed by the forensic reports. Five fire brigades had been involved. By 4 p.m. the fire had been contained. Later the fire brigades had been ordered by the FSB to leave the gymnasium. They had then entered again and left the building at 6 p.m. 327. The witness explained that another fire vehicle had been brought in by a relative of a hostage from a nearby factory; it had been seen by many witnesses but had not been an Emercom car. He also insisted that the vehicles and cisterns had been fully prepared, that hoses had been laid from the nearest water hydrants and that the fire equipment had been sufficient. 328. At 7 a.m. on 4 September Emercom teams had started the clearance operation. They had worked in parallel with the staff of the FSB, army sappers and the prosecutor’s office. They had collected the remains of 323 hostages, of which 112 had been found in the gymnasium and adjacent premises. The bodies of thirty-one terrorists had also been found. During the day the Emercom staff had cleared the debris with the use of cranes, bulldozers and excavators; the debris had first been shifted manually to collect human remains and other relevant items. Only after sifting had the rubble been loaded onto the trucks supplied by the local administration. Mr Dzgoyev had personally inspected the destroyed wing of the school, where two floors had collapsed onto the cellar. He had seen the terrorists’ bodies but no hostages’ remains. Emercom had finished the clearance work by 7 p.m. on 4 September, after which the building had been handed over to the local administration. 329. Mr Dzasokhov was questioned on 27 December 2005 (v. 4 pp. 1562690). Then the North Ossetian President, he stated that at about noon on 1 September General Andreyev had received a verbal instruction from the FSB, with reference to the Russian Government, to head the OH. Mr Dzasokhov had not been a member of the OH, which he considered had been a mistake. However, he had done whatever he had thought was right and within his powers. He had been prepared to go and negotiate with the terrorists, but he had been told that he would be placed under arrest if he did so. He had not talked to the terrorists over the telephone, since this had been done by a professional negotiator. He had participated in the meeting with the relatives at the Cultural Centre on 1 and 2 September. He had also had several talks with General Tikhonov, the commander of the FSB Special Services Centre, who had shared his concerns about the use of force. 330. Mr Dzasokhov believed that too much operative information of low quality had been circulated prior to the terrorist act, which had made it difficult to react. In particular, there had been insufficient clarity about the terrorists’ plans in the summer of 2004, although the heightened security threat had been evident. 331. Turning to the negotiations, Mr Dzasokhov testified that he had seen the handwritten note allegedly signed by Mr Basayev which Mr Aushev had taken out of the school. He also explained that on 2 September he had talked to Mr Zakayev in London. At 12 noon on 3 September Mr Zakayev had confirmed that the request to take part in the negotiations had been transmitted to Mr Maskhadov. Mr Dzasokhov had informed the OH accordingly. 332. Mr Ogoyev, a former member of the counter-terrorism commission of North Ossetia and secretary of its security council testified that the OH appointed on 2 September had excluded all other people from its meetings. He had had no access to the OH, and Mr Dzasokhov and Mr Mamsurov had only been invited to its meetings on two occasions (Ogoyev U. vol. 3, p. 1362). He could not recall the work of the North Ossetian counter– terrorism commission created on 23 August 2004, of which he had been a member. 333. Mrs Levitskaya was the North Ossetian Minister of Education at the relevant time. She testified that she had gone to Beslan on 1, 2 and 3 September. She had been at the town administration and had had a number of discussions with Mr Dzasokhov and several other Ossetian officials. She had not participated in any OH sessions or other meetings. She had learnt that she had been a member of the OH on 10 September 2004 during a meeting of the North Ossetian Parliament (vol. 4, p. 1696). She had been informed on 1 September by the local department of education about the number of pupils at the school; she had also been told that this information had already been transferred to the district authorities. 334. The North Ossetian Deputy Minister of the Interior admitted that their resources had been insufficient to monitor the border crossing points with Ingushetia. He had also been aware of the attempts to block small roads in the Pravoberezhny District and the problems that had been encountered in August 2004 – a lack of staff, sabotage by the locals and the absence of funds to pay for the works (Popov V., vol. 4, p. 1807). 335. The director of the Zashchita Centre Mr Goncharov (vol. 3, pp. 116678) testified that on 2 September he had been told that about 300 people were being held hostage and that medical assistance had been planned accordingly. Only after he had met with Mr Aushev on 2 September had he realised that the number of hostages had actually been much higher. That evening he had set up emergency paediatric teams, called in ambulances from the region, carried out training and prepared for the arrival of patients. They had mostly expected victims of injuries; the probability of gas poisoning had been considered low. He testified that although he had been a member of the OH as an official of the Ministry of Public Health, he had not taken part in any meetings or discussions. He had not received any information from the OH, as, in his view, the number of hostages had been the only relevant factor and that had been communicated to him personally by Mr Aushev. His own experience and available resources had been sufficient. Being highly experienced in providing emergency treatment to a large number of victims, his work had been relatively independent from the rest of the OH. Besides, his previous experience had shown that the “security structures” would not share their plans with the medics, out of a need to keep such considerations secret. 336. Turning to the organisation of medical assistance, Mr Goncharov explained that by the morning of 3 September they had had about 500 people on standby in Beslan, including 183 doctors, over seventy ambulances, one field paediatrician hospital and several intensive care units. “Carriers” with stretchers had been grouped about 700 metres from the school, with ambulances and medical vehicles placed in several spots around the building. The idea had been to take the injured to Beslan Hospital where the sorting would take place, urgent operations and life–saving measures would be carried out in the paediatric field hospital and, for adults, in Beslan Hospital and then those who could be transported to Vladikavkaz would be taken there (about 20 kilometres away). 337. Immediately after the explosions at 1 p.m. on 3 September he had received a call from the OH to bring in the medical rescue team. For four hours on 1 September the sorting centre at Beslan Hospital had treated 546 patients and carried out seventy-six urgent operations. Five people had been taken to the hospital in agony and had died within a few hours; fourteen other patients had died within twenty-four hours. In total, 199 adults had been evacuated to other hospitals after urgent medical assistance; fifty-five children had been in a lifethreatening condition and had had to be treated on the spot, seven children had had emergency surgery. On the night of 3 September six children in a critical condition had been taken to Moscow in a specially equipped aeroplane. There had been difficulties in maintaining the necessary security around the school, and later around the hospital, to avoid disruption of services by the relatives. 338. Mr Soplevenko, then North Ossetian Minister of Public Health, was questioned in court on 15 November 2005 (vol. 3, pp. 1179-91). He also testified that between 1 and 3 September he had not received any particular instructions, but rather general indications by Mr Dzasokhov that “adequate medical aid” should be provided. He had not been part of the OH or any other body during the crisis. He had learnt from the nursing mothers who had walked out with Mr Aushev on 2 September that more than 1,000 people were being held in the school. In cooperation with Mr Goncharov he had alerted the hospitals in Vladikavkaz that they would have to admit patients: beds had been freed at five hospitals, surgery and intensive care teams had been put on standby, and stocks of medical and dressing material had been set aside. 339. Dr Roshal, director of the Moscow Institute of Emergency Paediatric Surgery, was questioned in February 2006. He stated that he had been informed by journalists on 1 September about the hostage-taking and had immediately gone to Beslan. He had been taken to the town administration where the OH and other officials had been stationed. He had been taken to a room with Mr Z. where he had received brief instructions from him. On several occasions he had called the terrorists; each time they had reacted in a hostile manner and refused to discuss anything unless all four men requested by them came. His attempts to convince them to accept water, food, medicine or to allow him to examine and treat the wounded and sick had been flatly rejected; moreover, the terrorists had said that all the hostages had declared a “dry hunger strike” in support of their demands. On 2 September at about 11 a.m. the terrorists had called him and let him talk to the school director, who had pleaded with him to intervene since their situation was dire. On 2 September Dr Roshal had personally telephoned Mr Zakayev in London and let Mr Dzasokhov talk to him (v. 4 pp. 1900-25). 340. In December 2005 the court, following an application by the victims, questioned a senior expert of the forensic laboratory in RostovonDon, who on 13 September 2004 had been appointed the chief of the team in charge of identifying the remains by DNA testing. The expert explained that their laboratory was the best equipped in Russia and that the genetic testing would take between three days and five weeks, depending on the quality of the material under examination. All work in the Beslan cases had been completed within a month and a half. Mr Korniyenko stated that the results obtained through genetic pairing had been final and could not be challenged on grounds of possible misidentification. He admitted that many relatives had refused to believe that their loved ones had died and that on some occasions they had carried out second rounds of tests with other relatives’ DNA, primarily out of respect. The expert cited difficulties in identifying the remains which had been burnt “to ashes” and in identifying body fragments, a process which had lasted until summer 2005. The same expert group had worked with the terrorists’ remains: twenty-three had been identified, while eight remained unidentified (v. 3 p. 1469). 341. Hundreds of forensic reports on the victims were examined by the court. They included examinations of bodies, results of the identification of remains through DNA testing, conclusions of experts regarding damage to the health of the surviving hostages and other documents. Over 110 forensic reports concluded that the cause of death could not be established in view of many of the remains being extensively charred and burned and the absence of other injuries. Other reports named extensive burns, gunshot wounds, traumatic amputation of the extremities and injuries to the head and body as the causes of death. Injuries from gunshots and explosions, burns and psychological trauma were recorded for the surviving hostages. 342. In the course of the proceedings the victims lodged several hundred applications. Some of them were lodged with the district courts in Vladikavkaz, where the investigation was being conducted, while others were lodged directly with the North Ossetia Supreme Court. Some of them were submitted to the Court, while others were mentioned in the statement of facts or in the trial records. 343. On 29 September 2005 the victims sought the withdrawal of the head of the investigation team, Deputy Prosecutor General Mr Shepel. They argued that the investigation had been incomplete and failed to take into account all the relevant information about the crime. They indicated that copies of many expert reports had been unavailable to them, that the prosecutor’s office had ignored numerous facts and statements which had differed from the facts “selected” to form the basis of Mr Kulayev’s indictment, and that the role of various officials in the hostages’ deaths had not been clarified. This complaint was dismissed. 344. In January 2006 the victims sought the withdrawal of the prosecution and the judge presiding in the case, referring to the incomplete nature of the investigation and the repeated dismissal of their complaints by the judge. They also questioned the logic behind separating the investigation concerning the terrorist act and its consequences into several sets of criminal proceedings. These complaints were also dismissed (vol. 4, p. 1801). 345. In November and December 2005 and in January 2006 the victims applied to the trial court for permission to have a number of additional witnesses called and questioned: members of the OH, senior civilian and FSB officers who had been present in Beslan during the operation, members of the North Ossetian Parliament’s investigative commission on Beslan, and people who had negotiated with the terrorists, including Mr Gutseriyev, Dr Roshal, Mr Z. and Mr Aslakhanov. The court agreed to question several Ossetian officials who were members of the OH, but refused to call other officials, negotiators and members of the North Ossetian Parliament. It also refused to include the results of the investigation of the North Ossetian parliamentary commission in the case file (v. 3 pp. 1311-312, v. 4 pp. 1570, 1589, 1651, 1778-783, 1796, 1929). In January 2006 the court granted the victims’ application to question Mr Z., Dr Roshal and some senior FSB officials. 346. In February 2006 the victims again sought the withdrawal of the prosecutor in the trial. They argued, with reference to the European Convention on Human Rights, that the investigation had been ineffective and incomplete in ascertaining the most important elements of the crime. They sought to have independent experts appointed in order to clarify key questions concerning the preparation of the terrorist act, the composition and powers of the OH, the reasons for the first explosions, the use of flame-throwers, grenade launchers and tank guns, and the belated arrival of the firefighters. The request was dismissed (v. 4 p. 1936). 347. In July 2006 the victims sought to acquaint themselves with the entire set of documents in the criminal case and to be allowed to take copies. Similar requests were lodged in March and July 2007, but apparently to no avail. 348. In his final submissions of February 2006 the prosecutor asked the court to apply the death penalty to the accused. The victims argued that the investigation and the trial had failed to elucidate many key elements of the events and that the officials responsible should be prosecuted for their actions which had led to the tragedy. 349. On 16 May 2006 the North Ossetia Supreme Court found Mr Nurpashi Kulayev guilty of a number of crimes, including membership of a criminal gang, handling of unlawful arms and explosives, aggravated hostage-taking, murder, and attempts on the life of law–enforcement personnel. The 319-page judgment summarised witness and victim statements and referred to forensic reports, death certificates, expert reports and other evidence. The court found that 317 hostages, one Beslan civilian and two Emercom workers had been killed; 728 hostages had received injuries of varying degrees (151 received serious injuries, 530 received moderately serious injuries and 102 received minor injuries). Ten servicemen of the FSB had been killed and fifty-five servicemen of the army and law-enforcement bodies wounded. The actions of the criminal group had caused significant damage to the school and private properties in Beslan. Mr Kulayev was sentenced to life imprisonment. 350. The victims appealed against the court’s decision. In detailed complaints of 30 August and 8 September 2006 they claimed that the court had failed to undertake a thorough and effective investigation and that its conclusions had not been corroborated by the facts. They argued that the court had failed to investigate the authorities’ failure to prevent the terrorist attack, apportion responsibility for the decisions taken by the OH, establish the exact places and circumstances of the first explosions in the gymnasium and assess the lawfulness of the use of indiscriminate weapons by the security forces. They also complained that the court had not allowed them full access to the case material. Their complaints were supplemented by reference to relevant statements and documents. 351. On 26 December 2006 the Supreme Court held a cassation appeal hearing. Four victims, the defendants’ lawyer and the prosecutor made oral submissions. The Supreme Court slightly amended the characterisation of one offence imputed to Mr Kulayev, while the remaining parts of the parties’ complaints were dismissed. In particular, the Supreme Court found that the questions raised by the victims had no bearing on the characterisation of Mr Kulayev’s actions and that the victims had been allowed full access to the case documents after the completion of the investigation. 352. On the same day the Supreme Court issued a separate ruling (частное определение) in respect of Deputy Prosecutor General Mr Shepel, who had acted as the State prosecutor in the trial. The court noted that his request to the trial court to apply the death penalty to Mr Kulayev had been contrary to the applicable legislation and as such incited the court to adopt a manifestly unlawful decision. 353. The applicants in application no. 26562/07 submitted that during the trial they had heard testimony and examined other evidence. It had allowed them to draw conclusions about the actions of the OH and other officials, most of which could not be elucidated within the course of the trial. Referring to the case material and other evidence, the applicants made the following inferences: (i) from 1 to 3 September the hostages had been detained in inhuman conditions and subjected to intense physical and emotional stress including deprivation of food and water, humiliation, witnessing the suffering and death of family members, and a feeling of helplessness in the absence of any meaningful negotiation attempts from the outside world; (ii) the conclusion that the IEDs had caused the first explosions was not supported by the hostages’ statements and the state of the gymnasium; (iii) after the first explosions the servicemen of the army and FSB had used heavy indiscriminate weapons including a tank gun, APC machine guns, flame-throwers and grenade launchers; (iv) the OH had not made the saving of hostages its primary aim and had authorised the use of heavy weapons during the storming; (v) the firefighters’ intervention had been significantly delayed, resulting in additional victims in the gymnasium. 354. In parallel to the proceedings in criminal case no. 20/849 and that concerning the actions of Mr Kulayev, two additional criminal investigations were conducted against police officers on charges of professional negligence. 355. On 20 September 2004 the Deputy Prosecutor General Mr Kolesnikov ordered the opening of a separate criminal investigation for negligence on the part of the head of the Pravoberezhny ROVD, Mr Aydarov, his deputy on issues of public safety, Mr Murtazov, and the ROVD’s chief of staff, Mr Dryayev. This criminal case was assigned the number 20/852. 356. The police officers were charged with negligence entailing serious consequences and the death of two or more people under Article 293 §§ 2 and 3 of the Criminal Code. They were accused of failing to properly organise an anti-terrorist defence and to prevent terrorist attacks in August 2004, despite the heightened terrorist threat and the relevant telexes and orders of the North Ossetian Ministry of the Interior. 357. Over 180 people were granted victim status in the proceedings. Although no procedural documents were submitted, it appears from the cassation appeal by the victims that only those whose relatives had died were granted victim status in the proceedings, while other hostages were refused this status. 358. On 20 March 2006 the Pravoberezhny District Court of North Ossetia started hearing the case. The applicants submitted four volumes of trial records, comprising about 1,500 pages and covering sixty-nine court hearings. 359. On 29 May 2007 the court terminated the criminal proceedings against the three officials, applying to them the provisions of the Amnesty Act of 22 September 2006. They agreed to the application of that Act, which absolved them from criminal responsibility for the acts committed during the period covered by it (see paragraph 464 below). The prosecutor’s office supported the application of the amnesty, while the victims objected. Outraged by the verdict, the victims present in the courtroom ransacked the premises. 360terrorism operation in Beslan had started after the crime in question had been committed. They also complained that the court had refused to consider civil claims at the same time, that many other hostages and relatives of the injured had been refused victim status in the proceedings, that one volume of the criminal investigation file (no. 43) had been declared confidential by the trial court and thus the victims had been denied access to it, that a number of key witnesses had not been called, and that the trial court had refused to take into account additional evidence such as the report of the North Ossetian Parliament about the investigation into the terrorist act. 361. On 2 August 2007 the Supreme Court of North Ossetia at last instance upheld the judgment of 29 May 2007. It found the victims’ allegations about procedural deficiencies to be irrelevant to the conclusion and confirmed the applicability of the Amnesty Act. 362. The victims applied for supervisory review of the above decisions, but to no avail. 363. On 7 October 2004 a separate criminal investigation was opened in respect of the head of the Malgobek ROVD, Mr Yevloyev, and his deputy, Mr Kotiyev, for negligence entailing serious consequences (Article 293 §§ 2 and 3 of the Criminal Code). It appears that at least one hundred former hostages or their relatives were granted victim status in these proceedings. 364. The applicants submitted various documents related to this trial, including about 200 pages of trial court records, corrections by the victims of these records, copies of their complaints and other documents. As shown by these documents, the officials of the Malgobek ROVD had been charged with failing to spot the terrorists who had gathered and trained in the district and had travelled on 1 September 2004 to North Ossetia. The investigation obtained a number of documents which contained sufficiently clear and precise information about the possible terrorist threat and the actions to be taken to counter it. In particular, on 22 August 2004 the Ingushetia Ministry of the Interior had issued Order no. 611 concerning a terrorist threat to public security, putting all staff of the Ministry on heightened alert until further notice. This document instructed all heads of district departments of the interior to contact the local municipalities, hunters and forest workers, in order to keep track of the movements of any suspicious looking men, and to check all trucks and other vehicles capable of transporting illicit cargo, if necessary using service dogs. On 23 August 2004 Mr Yevloyev issued a corresponding order on measures to be taken in the Malgobek District. 365. On 25 August 2004 the Ingushetia Ministry of the Interior issued Order no. 617 on security measures in schools and educational facilities. By this order the police were called to take special measures aimed at protecting educational facilities against possible terrorist acts. On 28 August 2008 Mr Yevloyev issued a corresponding document for the Malgobek District. 366. On 31 August 2004 the Ingushetia Ministry of the Interior sent a directive to all district departments, citing operative information about a possible terrorist act in educational facilities on the opening of the academic year. Again, a number of urgent steps involving local government and school principals were recommended. 367. The trial was conducted by the Supreme Court of Ingushetia in closed sessions in Nalchik, Kabardino-Balkaria. The defendants opted for a trial by jury. On 5 October 2007 the jury found the defendants not guilty. On the same date the Supreme Court of Ingushetia fully acquitted the defendants and rejected the civil actions lodged by the victims within the same proceedings. 368. The victims appealed, and on 6 March 2008 the Supreme Court confirmed the validity of the judgment. The victims’ subsequent applications for supervisory review were unsuccessful. 369. In November 2007 a group of victims lodged a civil claim against the Ministry of the Interior, seeking compensation for the damage caused by the terrorist act. The victims referred to the judgment of the Pravoberezhny District Court of 29 May 2007 in respect of the officers of the Pravoberezhny ROVD of Beslan. They argued that the application of the Amnesty Act did not exclude the possibility of claiming damages in civil proceedings. Arguing that the Ministry of the Interior had failed to take steps to prevent the terrorist act, they sought financial compensation in respect of each family member who had died or had been a hostage. 370. On several occasions the Pravoberezhny District Court requested the applicants to supplement their claims. On 22 May 2008 the court ordered the case to be transferred to the Leninskiy District Court of Vladikavkaz attached to the North Ossetian Ministry of the Interior. On 26 September 2008 the Leninskiy District Court ordered the case to be transferred to the Zamoskvoretskiy District Court of Moscow near to the Ministry of the Interior of Russia. On 21 October 2008 the North Ossetia Supreme Court, following an appeal by the applicants, quashed a ruling made by the Zamoskvoretskiy District Court and remitted the case to the Leninskiy District Court. 371. On 10 December 2008 the Leninskiy District Court of Vladikavkaz dismissed the applicants’ civil action against the Ministry of the Interior. It explained that the Suppression of Terrorism Act, which had been relied on by the claimants, did not provide for compensation for non-pecuniary damage by a State body which had participated in a counter-terrorism operation. As to the applicants’ attempt to link the compensation claim to the decision not to prosecute the officers of the Pravoberezhny ROVD, the court dismissed it as it concerned another defendant. 372. On 24 February 2009 the North Ossetia Supreme Court rejected an appeal by the applicants against the above decision. Their subsequent attempts to obtain supervisory review of these decisions were unsuccessful. 373. In separate proceedings another group of victims attempted to sue both the Russian and North Ossetian Ministries of the Interior for nonpecuniary damage sustained by them by the terrorist act. On 9 December 2009 the Leninskiy District Court of Vladikavkaz dismissed the claim, giving similar reasoning. On 17 March 2009 the North Ossetia Supreme Court upheld this decision at last instance. 374. On 10 September 2004 the North Ossetian Parliament set up a commission to examine and analyse the events in Beslan from 1 to 3 September 2004. In its work the commission relied on the material available, including official documents, photographs, video footage and audio material, press articles, witness statements and their own information sources. The commission’s report was published on 29 November 2005. The report was forty-two pages long and contained chapters on the chronology of the terrorist act, facts and an analysis of the events preceding the hostage-taking, the actions of the OH and the various State agencies involved, an examination of the first explosions in the gymnasium, detailed information about the fighters and various statistical information relating to the act. The report ended with recommendations to the authorities. 375. The commission strongly criticised the local police and the Ingushetian and North Ossetian branches of the FSB. It expressed particular dismay at the fact that despite a “heightened security threat” the terrorist group had been able to gather and train unnoticed in the vicinity of a village and a major local road, as well as to pass unhindered to the school in the centre of a town across the administrative border, which was supposed to have been under special protection. The commission argued that the police’s attention had been diverted to the presidential elections in Chechnya which had taken place on 29 August 2004, following which no real attention had been paid to other security threats. 376. Turning to the work of the OH, the report was highly critical of its composition and functioning. It concluded that the “first, socalled ‘republican’ OH” had been created on 1 September 2004 at 10.30 a.m., in line with the Suppression of Terrorism Act and the pre-existing plan dated 30 July 2004. It had comprised eleven people under Mr Dzasokhov’s command and had included the heads of the North Ossetian FSB, Ministry of the Interior and other officials. In the presence of the OH members, Dr Roshal and a number of other public figures, Mr Dzasokhov had announced that he was prepared to go to the school; however, the deputy Minister of the Interior of Russia, Mr Pankov, had replied that in that case he would be authorised to arrest him. Mr Dzasokhov himself had confirmed that he had been informed by senior officials in Moscow that he should not take “any steps which could lead to further complications in the operation aimed at liberating the hostages”. This “republican” OH had continued to consider possible strategies aimed at liberating the hostages throughout the crisis. It had also considered the possibility of inviting Mr Maskhadov to negotiate. 377. In the meantime, on the afternoon of 1 September 2004 the President of Russia, in accordance with a secret order issued by the Russian Government (no. 1146-rs), had determined the composition of the OH under the command of General V. Andreyev, the head of the North Ossetian FSB. The OH had included seven people: the deputy head of the counter-terrorism commission of North Ossetia Lieutenant-Colonel Tsyban, the commander of the 58th Army of the Ministry of Defence GeneralLieutenant V. Sobolev, the North Ossetian Minister of Emercom Mr Dzgoyev, the North Ossetian Minister of Education Mrs Levitskaya, the director of the Zashchita Centre Mr Goncharov, and the deputy head of the information programmes department of Rossiya, Mr Vasilyev. The report criticised the composition of the OH, which had excluded not only Mr Dzasokhov – the North Ossetian President – but also a number of other senior officials from the republic. It also noted that two deputy heads of the FSB who had arrived in Beslan, Mr Anisimov and Mr Pronichev, had not been officially designated to take on any tasks in the OH. This had led to a situation of a multitude of “leaderships”. 378. The report described the situation as follows: “The striking disunity of the headquarters is further proved by their locations. The Beslan administration building saw the following distribution of bodies and officials. In the left wing of the ground floor – [the] FSB (Generals V. Andreyev and T. Kaloyev). In the office next to them – Mr Pronichev and Mr Anisimov. On the third floor in the left wing were the Republic’s President, Mr Dzasokhov, Parliament’s speaker Mr Mamsurov, Plenipotentiary Representative of the Russian President in the Southern Federal Circuit Mr V. Yakovlev, and a group of Duma deputies headed by Mr D. Rogozin. In the right wing of the third floor worked the commanders of the Alfa and Vympel special forces units under the leadership of General Tikhonov. However, the most closed and mysterious structure was situated in the south wing of the ground floor of the [administration building], keeping its work secret from all members of the above-listed headquarters. In it worked people who did not belong to any official headquarters structure: Mr Anisimov and Mr Pronichev, Mr Pankov, Mr Kaloyev and others. Another secretive structure was located on the second floor of the building, in the centre. This was a sort of ‘ideological headquarters’ where all information going public was verified and edited prior to publication. Most probably, the announcement of the figure of 354 hostages had been decided there ... In addition, the commander of the 58th Army, Mr Sobolev, had set up his headquarters outside the administration building. Mr Dzgoyev, who, according to his own statement, had been “in reserve”, was also stationed outside the building, as was the North Ossetian Minister of the Interior ... The formal nature of [General] Andreyev’s appointment as OH commander is supported by well-known facts. The head of the North Ossetian FSB had left the headquarters on dozens of occasions and thus lost control over the situation: he talked to the Beslan citizens outside the OH, met with journalists [and] accompanied Mr Aushev to the school on 2 September and the Emercom group on 3 September. How could the General, on whose decisions the lives of hundreds of people depended, behave in this way? This is either excluded or, to the contrary, quite possible, if actual decisions for [General] Andreyev had been taken by his immediate superiors – Mr Pronichev, Mr Anisimov and, probably, the head of the North Caucasus department of the FSB, Mr Kaloyev. There is reason to believe that [General] Andreyev’s orders and directives were not formally recorded, that no meetings of the OH took place, and that everything was decided verbally in the course of working discussions with various agencies ... One gets the impression that the OH under [General] Andreyev’s command oscillated between two extremes: on the one hand, without making public the terrorists’ demands it was searching (or pretending to search) for negotiators who would be able to participate in such talks; on the other hand, it constantly announced the impossibility of a forced solution, while at the same time being obliged not simply to consider this option but to take steps in order to implement it ... By the end of the second day, not a single federal official who could at least partially discuss the terrorists’ demands had contacted them with the aim of negotiating. Becoming more and more convinced that their demands were not being considered and that the topic of negotiations remained the hostages’ supply with food and water, the liberation of the infants and elderly, an ‘escape corridor’ to Chechnya and the like, the terrorists hardened the hostages’ conditions. As to the terrorists’ agreement to allow the removal of two dozen bodies from the school courtyard, it was probably caused by the fighters’ wish to scare the population and make the OH more flexible, since one could easily predict the impression on the relatives of an Emercom truck loaded with corpses. Incomplete information about the development and content of the negotiations, and the lack of clarity about the videotape transmitted to the headquarters, leave many questions unanswered ... Without questioning the principle of non-compliance with the terrorists’ demands, although the Suppression of Terrorism Act speaks about minimal concessions to the terrorists, it appears that it would have been much more reasonable if the federal authorities, to whom the terrorists’ demands had been directed, had undertaken to implement it rather than delegate this problem to the regional authorities or even a paediatrician. It is obvious that any promises by the regional authorities not supported by appropriate guarantees by the highest officials could not have inspired the fighters’ confidence, and they could not have taken the so-called ‘security corridor’ seriously.” 379. The report argued that the first two explosions could not have come from the IEDs. The first explosion, according to the hostages’ testimony, had occurred in the north part of the gymnasium roof space, destroying part of the roof and creating a mushroom-shaped smoke cloud above the explosion. The report argued that this could not have been the result of an IED explosion for a number of reasons: the terrorists had not mined the roof or the roof space of the gymnasium, so not a single electric cable had led there; a mine in the gymnasium could not have destroyed the ceiling and roof 6 metres above; there would have been several simultaneous explosions because they had been connected in a single chain; the mushroom-shaped cloud could not have risen within seconds to about 13 to 15 metres above the roof from an IED explosion inside the gymnasium; the damage to the basketball hoop and the brick wall of the gymnasium bore evidence of the passage of a device fired from outside. The second explosion, which had created a half-metre-wide opening in the brick wall under the window, had not been the result of an IED either, since the floorboards immediately near the hole had not been damaged, unlike the floorboards under the basketball hoop where the IED had later detonated. 380. The report stated that the video-recording of the events had captured not only the smoke cloud from the first explosion, but also the sounds of both explosions, leading to the conclusion that the shots had been fired from a grenade launcher or a flame-thrower. The report considered that the nature of the destruction was consistent with this version. The choice of targets inside the gymnasium had been determined by the presence there of the pedalholding fighters; since a sniper could not have reached them, a grenade had resolved this situation. 381. The report found that the third explosion had most probably resulted from an IED being affected by spreading fire, following which the fire had spread from the ceiling to the floor of the gymnasium. 382. The document concluded by saying that the exploration of the first explosions should have been carried out properly within the framework of the criminal investigation. The report deplored the hasty clearing of the site, which had been opened to the public on 5 September 2004. It referred to “hundreds of people who had found objects which should have been of interest to the investigation”. A number of items had apparently been collected from the town rubbish dump where the debris had been taken on 4 September in trucks. 383. In a separate conclusion, the report stated that the active involvement of civilian volunteers immediately after the explosions had saved many hostages’ lives. The evacuation had been carried out by people who had taken on “the functions of the police, firemen and emergency workers”. 384. The report evaluated the number of army personnel and police officers (excluding the FSB) deployed within the security perimeter around the school at about 1,750 people. Three security cordons were judged to have been of little effect and had basically fallen apart once the operation had started. Hundreds of civilians and dozens of private cars had passed unhindered through the cordons, while filtration groups formed in advance from servicemen of the police special forces (Отдел милиции особого назначения (ОМОН)) and the Pravoberezhny ROVD had not stopped for an identity check any of the volunteers who had helped to evacuate the hostages. The report remarked that a number of men had arrived from elsewhere in Ossetia and spent two days around the school; they had often been unshaven, dirtied with blood and soot, and could not be distinguished from the terrorists. 385. The report then addressed the problem of the ambulance and fire services accessing the school, commenting that it had been made difficult by vehicles parked in the adjacent streets which had not been towed away. The first fire engine, which had arrived at the school at about 2 p.m., had not been carrying a full load of water in its cistern. Other fire brigades which had arrived even later had allowed civilian volunteers to operate the water hoses. 386. The report found it established that between 2 p.m. and 2.30 p.m. on 3 September a tank with hull number 328 stationed behind the railway line had fired several non-explosive rounds at the canteen and kitchen, while at around 4.30 p.m. a tank with hull number 325 stationed on Kominterna Street had fired at the canteen from a close distance, towards the area immediately above the entrance to the cellar. The commission’s members could not agree that the use of the tank to fire at the canteen before 5 p.m. had been justified in view of the probable presence of the last group of hostages with the terrorists. The commission had entered the cellar and found it entirely intact and bearing no traces of the terrorists’ alleged stay there. No complete information could be obtained about the use of tanks, helicopters, flamethrowers or other heavy weapons. 387. The document separately noted the multitude of lines of responsibility within the various agencies involved. According to the commission’s information, the commander of the 58th Army had regularly reported to the Chief of Staff of the Ministry of Defence in Moscow and had obtained instructions from him in return. The Ministry of the Interior had commanded the largest contingent in Beslan and had initially followed the orders of its own headquarters based in the administration building; it later followed the instructions issued by the FSB. 388. Turning to the role of the FSB, the report stated the following: “The Russian FSB has remained the most closed structure in terms of the Commission’s efforts to obtain information in order to find out about its actions between 1 and 3 September 2004. Therefore, it is very difficult to accept, without further verification, the statement that, according to the operative groups of the Special Services Centre, by 6 p.m. there remained no living hostages with the terrorists (in the classrooms, cellar and roof space).” 389. The report devoted some attention to the number of fighters and their identities. It noted discrepancies in the names and number of identified and non-identified terrorists in the documents issued by the prosecutor’s office in relation to the investigation in criminal case no. 20/849. Relying on the information provided by the Prosecutor General’s Office, the report listed thirty-eight names or aliases; of them twenty-two people (including Mr N. Kulayev) were identified by their full name, date of birth, ethnic origin and place of residence, and fourteen people were identified provisionally. In the list of thirty-eight people, at least nine had previously been detained by the law-enforcement authorities; some of them had been released for unknown reasons. According to the report, Mr Iliyev had been detained in 2003 in Ingushetia on charges of illegal arms and ammunition handling, but the case had been closed two months later; Khanpash Kulayev had been sentenced to nine years in prison in 2001; Mr Shebikhanov had been charged with attacking a military convoy in August 2003 and released by jury in July 2004; Mr Tarshkhoyev had been convicted at least three times and given suspended sentences for illegal arms handling and theft, most recently in March 2001; Mr Khochubarov (“Polkovnik”) had been on trial for illegal arms handling; and Mr Khodov had been wanted for a number of serious crimes including terrorist acts and had been detained in 2002 but released. Most of the other identified terrorists were known to the lawenforcement authorities, who had retained their fingerprints, on the basis of which their bodies were identified. Many were on wanted lists for various crimes. 390. Some of those initially announced by the Prosecutor General’s Office as identified bodies in Beslan had later been killed in other places. Mr Gorchkhanov’s death had first been announced in Beslan, but in October 2005 his name had again been announced by the Deputy Prosecutor General Mr Shepel as one of the organisers of the attack at Nalchik, KabardinoBalkaria, who had been killed. Mr Kodzoyev had first been identified as one of the terrorists in Beslan and had apparently had a telephone conversation with his wife, whom the authorities had brought to the school on 2 September. His death had then been announced in an anti-terrorist operation in Ingushetia in April 2005. The report deplored the lack of clarity in such an important aspect of the investigation and asked the prosecutor’s office to issue clear and exhaustive information in this regard. 391. The report contained a table compiled on the basis of information provided by the Prosecutor General’s Office including various figures related to the total number of hostages and the number of people, killed, injured and liberated as a result of the anti-terrorist operation. The commission noted that the causes of death for 331 people had been as follows: twenty had died in hospital; fifty-one (including twenty-one men killed on 1 September) had died of gunshot wounds; 150 had died of shell wounds; ten had died of fire injuries and four had been killed by blunt force trauma injuries. In 116 cases the cause of death could not be established owing to extensive fire damage. Eighty-three bodies had been identified through DNA matching and six cases had called for exhumation and DNA testing, procedures which had lasted until April 2005. The report concluded that the real reasons for many victims’ deaths and injuries had not been established: bullets and shell fragments had not been extracted from the bodies, and no ballistics reports had been made to analyse the bullets and cartridges found at the scene. 392. The commission’s report was made public in December 2005. Mr Torshin stated that it posed more questions than it answered, and its findings and conclusions were not mentioned in the report prepared by the Federal Assembly (see below). 393. In 2007 the report was published as a separate document. By that time the authors had prepared additional statistical data. It included a complete list of the hostages, with indications as to their injuries and dates of death, and other important findings. Many of the figures arrived at by the authors of the report differed from those used by the prosecutor’s office. 394. In particular, the authors stated that 1,116 people (not 1,127 as indicated by the Prosecutor General’s Office) had been taken hostage; three people had escaped on 1 September; seventeen (not twenty-one) men had been shot dead on 1 September and twenty-four (not twenty-six) people had been led out by Mr Aushev on 2 September. By 1 p.m. on 1 September 1,072 hostages had remained alive in the school; 284 had been killed during the storming; ten had died in hospital within two months and three more had died by 2006. Ten special forces servicemen, two servicemen of Emercom and seven civilians had been killed: three civilians had been killed on 1 September by the assailants and four more had died during the storming while evacuating the hostages. Thirty-five civilians had been wounded, the majority of them while evacuating the hostages from the school. 395. The publication gave a list of the servicemen of the FSB, Ministry of the Interior and Emercom who had been killed (twelve) and injured (fifty-two) during the terrorist act. 396. Turning to the causes of death, the publication stated that the commission had examined over 300 orders for forensic expert reports issued by the prosecutor’s office on 3 and 4 September 2004 and the forensic reports issued by the forensic bureau. The document highlighted that the investigation’s orders had suggested that the experts should conduct external examinations of the bodies, and carry out a full autopsy only “where necessary”. Only a few cases had thus necessitated a full examination; one third of the expert reports had concluded that “the cause of death could not be established”. In total, the document stated that 159 bodies out of 333 had displayed burns, although for most cases the experts had noted that the carbonisation had most probably occurred post mortem. They also noted that a disproportionately high number of victims had died of gunshot wounds – forty-four civilians, including eleven women and nine children – while only seven servicemen out of eleven had died of gunshot wounds. 397. Lastly, the report noted that nine exhumations (and not six as indicated in the official documents) had been carried out for an additional verification of the remains. The report listed these cases. 398. On 20 and 22 September 2004 both chambers of the Federal Assembly (the Russian Parliament) – the State Duma and Federation Council – decided to create a joint commission in order to investigate the reasons for and circumstances of the terrorist act in Beslan. About twenty members of both chambers were appointed to the commission, which was chaired by Mr Aleksandr Torshin, deputy speaker of the Federation Council. The commission undertook a number of investigative measures, including visits to Beslan, Ingushetia, Chechnya and RostovonDon. 399. The commission questioned forty-five senior officials, including the Prime Minister, several federal ministers, Mr Aslakhanov, an aide to the Russian President; Mr Patrushev, Mr Pronichev and Mr Anisimov, the head of the FSB and his two deputies; General Tikhonov, commander of the FSB Special Services Centre; several senior officials from the Prosecutor General’s Office, including four deputies to the Prosecutor General; North Ossetian and Ingushetian officials, including Mr Dzasokhov and Mr Zyazikov; and people who had negotiated with the terrorists: Mr Aushev, Mr Gutseriyev and Dr Roshal. The commission received several hundred telephone calls to a special line and letters. 400. On 22 December 2006 the commission’s report was presented to the Federal Assembly. It ran to 240 pages and included a chronology of the terrorist act, chapters on the actions of the State authorities, a historical and political analysis of terrorism in the North Caucasus and a number of legislative recommendations. Two commission members refused to sign it. One of them, Mr Savelyev, prepared an alternative report (see below). 401. The report’s main conclusions were principally in line with the conclusions of the criminal investigations. In particular, it found that: (i) prior to the terrorist act, a number of security measures had not been taken by the local administration and police forces in North Ossetia and Ingushetia. The conduct of the police in the Malgobek District was described as professional negligence and the actions of police in Ingushetia in general as “keeping aloof” from following the orders from the Ministry of the Interior (pages 107-08 of the report). The North Ossetian police had failed to comply with certain precautionary measures and this had facilitated the terrorists’ attack at the school; (ii) the actions of the federal authorities had been adequate and correct; (iii) the OH had been correct in its actions aimed at negotiations with the terrorists, however there had been a number of weak points in its composition and the way it had conducted its work and informed the population of the developments (pages 84 and 94 of the report); (iv) the first explosions in the gymnasium had been caused by two IEDs (page 87); and (v) the use of flame-throwers and the tank gun against the school had been authorised by the commander of the FSB Special Services Centre after 6 p.m. on 3 September and they had not caused any harm to the hostages, who by that time had been evacuated (page 89). 402. Mr Yuriy Savelyev, a deputy of the State Duma elected in 2003 from the Rodina party, was a member of the commission headed by Mr Torshin. He was a rocket scientist by profession, had a doctorate in technical sciences, was the director of the St Petersburg Military Mechanics Institute and had written numerous scientific works and training manuals on rocket construction, ballistics, thermodynamics and pertinent fields. 403. In the summer of 2006 Mr Savelyev announced that he strongly disagreed with the report drafted by the commission. Later that year he published a separate report, based on the material to which he had access as a commission member. The report, entitled “Beslan: The Hostages’ Truth” (“Беслан: Правда Заложников”), was in seven parts: (i) ’The first explosions in the gymnasium’, 259 pages with fiftyeight photographs (“Part 1”); (ii) ‘The origin and development of the fire in the gymnasium’, 133 pages with forty-three photographs (“Part 2”); (iii) ’The use of portable flame-throwers and grenade launchers’, ninetyseven pages with forty-nine photographs (“Part 3”); (iv) ’The use of T-72 tanks and APC-80 military vehicles’, 140 pages with fifty-two photographs (“Part 4”); (v) ’Women in the terrorist group’, sixty-nine pages with twelve photographs (“Part 5”); (vi) ’Losses among the hostages sustained outside the gymnasium’, 145 pages with fifty-four photographs (“Part 6”); and (vii) ’The circumstances of the seizure of hostages’, 296 pages with twenty-one photographs (“Part 7”). 404. This report was submitted to the Court, and its entire content was published on the Internet site www.pravdabeslana.ru. 405. Although based on the same factual material, the report also relied on the author’s own technical expertise and the way it was presented and its conclusions differed drastically from the document signed by the majority of the parliamentary commission and thus from the conclusions reached by that time by the criminal investigation. 406. To sum up the most important distinctions, in Part 1 Mr Savelyev concluded that the first explosion had resulted from the detonation in the attics over the north-east part of the gymnasium of a thermobaric grenade launched by a portable grenade launcher from the roof of a house at 37 Shkolny Lane. The terrorist holding the “dead man’s switch” right under the detonation had been killed instantly. The explosion had created a zone of powerful smouldering combustion in the wood and attic insulation material, which had later caught fire. The second explosion had occurred twenty-two seconds later under the first window of the north side of the gymnasium, destroying the brick wall and throwing the bricks outside, while the windowpane situated immediately above the opening had remained intact. Mr Savelyev concluded that the nature and extent of destruction in this particular area ruled out the idea that it had come from an IED inside the gymnasium. He argued that the explosion had probably been caused by a portable anti-tank missile fired from the roof of a house at 41 Shkolny Lane. The projectile had entered the gymnasium from the opposite window and created the opening in the wall below the windowpane. 407. Mr Savelyev also argued in Part 2 that the fire which had been triggered by the first explosion in the attics had continued to spread unabated until 3.20 p.m. The broken windows of the gymnasium and the opening torn in the roof by the explosion had created a powerful draught, feeding the smouldering insulation with oxygen. The fire had raged in the attics with sufficient force to destroy the wooden beams holding the roof slates, which had finally collapsed by 3.20 p.m., burying the hostages unable to leave under the burning fragments. The firemen had intervened after 3.20 p.m., by which time the fire from the collapsed roof had spread to the floor and walls of the gymnasium. 408. Part 3 of the report included detailed information and an analysis of the type and number of arms and ammunition used between 1 and 4 September 2004. This information was made available to the commission, whilst the victims had no direct access to it. According to the report, volume 1 of the criminal investigation file no. 20/849 contained a “joint record of the use of arms and ammunition during the military operation” (cводный акт об израсходовании боеприпасов при выполнении соответствующей боевой задачи), no. 27 of 10 September 2004. According to this record, various military units had used over 9,000 cartridges for automatic weapons (5.45 mm PS, 7.62 mm LPS, 5.45 mm T), ten disposable anti-tank rocket launchers (RPG26), 18 propelled anti-tank grenades (PG7VL), eight high-fragmentation warheads for a 125 millimetre calibre tank gun (125 mm OF) and ninety smoke grenades (81 mm ZD6) (see paragraphs 219 and 220 above). 409. The report also noted that on 20 September 2004 members of the parliamentary commission had discovered in the attic of 39 Shkolny Lane six empty tubes from RPOA flame-throwers and three empty tubes of disposable RPG26 antitank rocket launchers, the serial numbers of which had been noted by the commission members in an appropriate record on 22 September 2004. These tubes had been transmitted to the prosecutor’s team carrying out the criminal investigation. According to the report, volume 2 of criminal case file no. 20/849 contained a document dated 25 September 2004 and signed by LieutenantColonel Vasilyev from military unit no. 77078 of the 58th Army. This document stated that the FSB units had received seven RPOA flamethrowers from military storage and listed their serial numbers. After the operation two flame-throwers with the indicated numbers, plus one with a different serial number, had been returned to storage (see paragraph 219 above). At the same time, Mr Savelyev noted that the serial numbers of flamethrowers mentioned in the commission’s record of 22 September 2004 and in the document issued by Lieutenant-Colonel Vasilyev on 25 September 2004 differed. He referred to other contradictory evidence given by military servicemen and statements by the Deputy Prosecutor General concerning the use of flamethrowers, concluding that at least nine disposable RPOA flamethrowers had been used by the special forces. Mr Savelyev also referred to the witness statements of one serviceman of the FSB given to the investigation (volume 5 p. 38 of file no. 20/849), according to whom RPG26 grenade launchers and RPOA flame-throwers had been used during the storming, in daytime (see paragraph 220 above), and the statement General Tikhonov of the FSB made to the commission on 28 October 2004 saying that the RPG grenade launchers and RPOA flamethrowers had been used at 3 p.m. 410. Mr Savelyev listed detailed characteristics of each type of the projectiles. According to his conclusions, after the first two explosions at 1.03 p.m. the school building was subjected to the following assault: between 1.30 p.m. and 2 p.m. the windows of the first floor of the south wing were fired at with portable grenade launchers, probably types RPG26 and RShG2; between 2.50 p.m. and 3.05 p.m. flame-throwers (RPO-A) were used upon the roof of the main building, RPG26 and RShG2 grenade launchers were fired at the south-facing windows of the first floor of the south wing and a RPO-A flame-thrower upon the roof of the south wing at the point where it joined the main building. He also argued that at least one thermobaric grenade had been launched from a MI24 helicopter at a target in the central area of the roof of the main building above the Ossetian language classroom, at a terrorist sniper who could not have been suppressed by any other means. 411. Part 4 concentrated on the use of tanks and APCs during the storming. Having analysed numerous witness statements and material evidence, the report drew the following conclusions: three tanks with hull numbers 320, 325 and 328 had taken positions around the school. Tanks with hull numbers 325 and 328 had been positioned near a house at 101 Kominterna Street. These two tanks had repeatedly fired at the school building at 2.25 p.m. and then between 3 p.m and 4 p.m. on 3 September. Seven additional shots had been fired from a tank with hull number 325 at the canteen windows and the wall and stairwell of the south wing. 412. Part 5 of the report was devoted to an analysis of the witness statements and other evidence about the women in the terrorist group. Mr Savelyev concluded that the group had included five women: four suicide bombers who had changed places with each other so that there had always been two of them in the gymnasium at any one time, while the fifth woman had probably been a sniper and had remained on the top floor of the school. 413. Part 6 of the report examined the situation of the hostages whom the terrorists had forced to move from the gymnasium to the south wing after the first explosions. From photographs and video footage of the events and witness accounts, Mr Savelyev concluded that between 1.05 p.m. and 2.20 p.m. the terrorists had evacuated about 300 people to the south wing. The hostages had been divided in more or less equal numbers between the canteen and kitchen on the ground floor and the main meeting room on the first floor. The south wing had become an area of fierce fighting between the terrorists and the assault troops; eight out of ten FSB elite officers had died there. The presence of hostages in that wing had not been taken into account by the assaulting troops, who had used indiscriminate weapons. Mr Savelyev noted the absence of any detailed description of the location of the hostages’ bodies, even though this could have allowed the circumstances of the hostages’ deaths in the south wing to be established. He argued that the bodies in the gymnasium had been exposed to fire, while the number of people who had been found dead adjacent to the gymnasium had been known. He thus estimated the number of hostages who had lost their lives during the fighting in the south wing at about 110. 414. Appended to Part 6 was a “study case” – a document prepared by several authors, including the head of the forensic bureau, summarising their experiences regarding the Beslan terrorist act. The document listed various problems related to the collection, transportation and storage of remains, the organisation of the identification process and the compiling of forensic reports. In view of the large number of remains, many with extensive injuries and difficult to identify, together with the presence of numerous aggrieved relatives, on 4 September the prosecutor’s office had taken the decision first to permit the relatives to identify the remains and then to carry out forensic examinations. As a result, there had been a number of incorrect identifications which later had to be corrected. Furthermore, in view of these constraints most bodies had been subjected to an external examination only. The exact cause of death had been established in 213 cases: of those, gunshot wounds in 51 cases (15.5 %), shell wounds in 148 cases (45%), burns in 10 cases (3%), and blunt force trauma injuries in 4 cases (1.2%). The cause of death had not been established in 116 cases (35.6%) due to extensive charring. The document concluded by giving a number of recommendations for the future, including the establishment of a single information centre and careful compliance with various procedural stages, with people responsible for each stage. 415. Part 7 of the report covered the first moments of the school seizure on 1 September. On the basis of witness accounts, Mr Savelyev concluded that a small group of terrorists – between five and seven – had been in the crowd by 9 a.m. Following a signal by one of them, who had started to shoot into the air, another group of ten to twelve people had entered the school building from Shkolny Lane and other sides. Some of them had run to the first floor while others had broken windows and doors on the ground floor so that the hostages could enter the building. At this point the GAZ-66 vehicle stationed on Kominterna Street near the school fence had approached the main school entrance and up to fifteen people had descended from it. This vehicle had left after the fighters had descended. Lastly, a second GAZ-66 vehicle with a different registration plate had entered from Lermontovskaya Street to Kominterna at high speed, raising a large column of dust mentioned by many witnesses. Over twenty fighters, including four women, had descended from it and run towards the school; the vehicle had then broken down the school gates and stopped in the courtyard. The overall number of terrorists in the school had been between fifty-six and seventy-eight. 416. In response to Mr Savelyev’s allegations about the origins of the first explosions and the use of indiscriminate weapons on the gymnasium, the Prosecutor’s Office ordered expert reports. In 2007 and 2008 experts from the Stateowned scientific and production company Bazalt and the Ministry of Defence Central Research and Testing Institute named after Karbyshev produced two expert reports on the explosions (see paragraphs 224 and 228 above). The results were not published, but were cited by several sources and by Mr Savelyev. The reports ruled out the idea that the first explosions had come from devices fired from outside, such as thermobaric grenades or projectiles. 417. In March 2008 Mr Savelyev published an extensive article in the Novaya Gazeta containing diagrams that indicated four different places and origins of the first explosions in the gymnasium: three from the expert reports ordered by the investigation and his own. He argued that the results of the three experts’ reports differed to such an extent that it was impossible to reconcile them. He further argued that the conclusions about the reasons and yield of the explosions contained in the most recent expert report were inconsistent with the witness statements and material evidence. Lastly, he drew attention to the fact that the remaining parts of his report concerning issues other than the first explosions had not been addressed by the investigation. 418. In accordance with Russian Government Order no. 1338-r of 11 September 2004, the victims of the terrorist act were awarded the following compensation: 100,000 Russian roubles (RUB) (approximately 2,700 euros (EUR) at that time) for each person who had been killed, RUB 50,000 for each person who had received serious and medium gravity injuries and RUB 25,000 for each person with minor injuries. People who had been among the hostages but escaped unharmed received RUB 15,000 each. In addition, the families received RUB 18,000 for each deceased person in order to cover funeral expenses. 419. On 6 and 15 September 2004 the North Ossetian President ordered (Order nos. 58-rpa and 62-rp) the payment of RUB 25,000 in funeral costs for each person who had died, RUB 100,000 for each deceased, RUB 50,000 to each person who had suffered serious and medium injuries and RUB 25,000 to each of the other hostages. 420. The terrorist act in Beslan triggered a major humanitarian response, resulting in collections of significant sums of money. 421. In accordance with North Ossetian Government Decree no. 240 of 17 November 2004, the North Ossetian Ministry of Labour and Social Development distributed the funds paid into their account devoted to humanitarian relief to the victims in the following manner: RUB 1,000,000 for each person who had died (approximately EUR 27,000 at that time); RUB 700,000 for each person who had received serious injuries; RUB 500,000 for each person with medium gravity injuries and RUB 350,000 for people who had suffered minor injuries or had been among the hostages. In addition, each child who had lost their parents received RUB 350,000 and other people who had been briefly detained but had not been among the hostages received RUB 75,000 each. Similar sums were allocated to injured servicemen of the FSB and Emercom and the families of those who had been killed. 422. In 2005 the memorial complex “City of Angels” was opened at the Beslan town cemetery. It comprised a single monument to the victims, individual graves of over 220 people and a monument to the FSB servicemen who had died on 3 September 2004. 423. In 2004 to 2008 there followed a number of other measures by the Russian and North Ossetian Governments, aimed at covering additional medical and social costs for the victims and financing other projects in Beslan. In November 2004 the Russian Government issued Decree No. 1507r providing for the construction of two new kindergartens and schools in Beslan, a multifunctional medical centre, a social support centre for children and families and a number of housing projects aimed specifically at helping the victims’ families. Most of these projects, financed from the federal budget, were completed by 2010. 424. One sports boarding school opened in Beslan was constructed with the participation of Greece and was named after Mr Ivan Kanidi (also spelled Yannis Kannidis), a sports teacher from school no. 1. Mr Kanidi, a Greek and Russian national, was 74 years old at the time and refused to leave the school when asked to do so by the terrorists. After the explosions in the gymnasium on 3 September he got into a struggle with an armed fighter while trying to rescue children and was killed. In December 2004 he was posthumously awarded a Golden Palm Order by the Greek Prime Minister. 425. In September 2004 the entire North Ossetian Government were dismissed by Mr Dzasokhov. 426. On 13 September 2004 the President signed a decree aimed at setting up a more efficient system of anti-terrorist measures in the North Caucasus region. On the same day, at a joint meeting of the Government of Russia and the heads of Russia’s regions, he announced the following measures aimed at achieving greater national unity and better representation of the population’s concerns: cancellation of direct elections of the regional heads of the executive, who would be elected by the regional parliaments upon nomination by the Russian President; the setting up of a purely proportional system of parliamentary elections; establishment of a consultative body comprised of representatives of non-governmental organisations – a Civic Chamber (Общественная Палата); reinstatement of a special federal ministry charged with inter-ethnic relations; implementation of a plan for social and economic development of the North Caucasus region, and other steps. By the end of 2004 these administrative and legal measures had largely been implemented. 427. During and after the Beslan terrorist act, numerous journalists from all over the world covered the events. 428. In January 2005 the US network CBS aired a film about the hostage-taking in their programme 48 Hours. Shown in it, for the first time, was an extract filmed by the terrorists. The network alleged that the tape had been found by locals among rubble on the site and then obtained by their journalist. The tape had been made on 2 September 2004 inside the school and showed the fighters’ leader, “Polkovnik”, and about a dozen other terrorists in full military gear. It also showed the talks with Mr Aushev and the mothers with nursing babies being led out by him. In the final moments a baby girl (the youngest hostage aged six months) was handed to Mr Aushev by her mother who could not force herself to part with her two older children (aged three and ten; only the three-year-old boy survived). The extract ended with the school door being closed and locked by the terrorists filming from inside. The extract had been tagged by the operator “Fun Time2/09/2004”. 429. Several long reports were produced by the journalists who had been in Beslan during the siege and by those who had investigated the tragedy afterwards. Notably, over the years the Moscow-based Novaya Gazeta and Moskovskiy Komsomolets ran a series of reports dedicated to the hostage-taking and the investigation. Der Spiegel published a large report in its December 2004 issue and Esquire published a story entitled “The School” in March 2007. 430. A significant number of other television programmes, documentary films and books have covered the subject. The applicants in the present cases, in particular, have referred to the relevant chapter from Mr Rogozin’s book, “Public Enemy”. An Internet site http://pravdabeslana.ru was dedicated to the tragedy and subsequent proceedings. 431. The relatives and victims of the terrorist act have joined efforts, striving primarily to obtain a comprehensive investigation into the events of 1 to 3 September 2004 and determine the level of the officials’ responsibility. 432. In February 2005 the victims set up a non-governmental organisation, Beslan Mothers (Materi Beslana). The organisation had about 200 members – former hostages and relatives of the victims. It was headed by Mrs Dudiyeva. 433. In November 2005 several hundred victims set up another organisation, The Voice of Beslan (Golos Beslana), chaired by Mrs Ella Kesayeva. In November 2005 the NGO issued a public statement labelling the criminal investigation inefficient and fraudulent. It called on anyone who could assist them with obtaining or gathering factual information about the events to do so. On 15 October 2009 the Pravoberezhny District Court of Vladikavkaz found that it had contained statements defined as “extremist” under the Suppression of Extremism Act (Federal Law no. 114-FZ of 25 July 2002) and put it on the federal list of extremist material, making it an offence to disseminate it by any means. 434. These organisations have played an important role in collecting and publishing material about the terrorist act in Beslan, advocating the rights of victims of terrorist acts in general, supporting victims in similar situations, and organising public gatherings and events. On two occasions – in September 2005 and in June 2011 – their representatives met with the Russian Presidents; they also regularly meet with local and federal officials and high-ranking international visitors. 435. Following the admissibility decision of 9 June 2015, the applicants submitted two additional documents – independent expert reports ordered by them on the counter-terrorist and forensic aspects of the case. 436. In September 2014 two UK anti-terrorist experts produced a report following a request from EHRAC, the applicants’ representatives. The experts were Mr Ralph Roche, a solicitor admitted in Northern Ireland, England and Wales, a Council of Europe and OSCE consultant on policing and human rights issues, co-author of the Council of Europe publication The European Convention on Human Rights and Policing (2013); and Mr George McCauley, former Detective Chief Superintendent and former head of the Special Operations Branch within the Police Service of Northern Ireland. The authors relied on open sources, including the communication report in the present case, and analysed the applicability of the relevant standards under Article 2 of the Convention to different aspects of the operation. Their main conclusions may be summarised as follows. 437. Looking at the previous attacks and the information available to the authorities immediately before the Beslan attack, the experts argued that “there was an extremely high level of threat of terrorist attack in the Southern Federal [Circuit] of Russia in late August to early September 2004, in particular in the border areas of [North Ossetia] and Ingushetia. This threat could be classified as real, as it had been verified by various orders, telexes and other documents issued by the Federal [Ministry of the Interior]. It could also be classified as immediate, as the information disseminated by the authorities pointed to an attack taking place on a specific day: 1 September”. The experts also pointed out that, in addition to the date, the information had referred to a specific area – near the border between North Ossetia and Ingushetia – and the potential target, as the attack had been planned to coincide with the Day of Knowledge. As Beslan was the largest town in Ossetia within 20 kilometres of the border with the Malgobek District, where terrorists had apparently been gathering, they concluded that “Beslan, and other towns in the vicinity, were clearly under a real and immediate threat of an attack on a school on 1 September”. Such a large-scale attack against a civilian target would have the potential for significant loss of life. The experts concluded that the level of detail available even from the relatively “sanitised versions” in the telexes and other communications indicated that there might have been a “covert human intelligence source” in the terrorist group, as well as technical coverage, such as the interception of communications. The event had therefore had a “high degree of foreseeability”. 438. As to the scale of the threat presented by the “well-organised, ruthless and determined terrorists who had ... actively targeted civilians”, the report reiterated the importance of the Day of Knowledge to Russian society and argued that an attack upon a school on that day was an act “bound to strike at the very heart of the nation” – something the terrorists had obviously strived to achieve. 439. The experts thus concluded that in view of the high foreseeability and magnitude of the threat, the feasible operational measures “must have been seen to take precedence over all other threats”. They divided the possible responses into three broad categories: (i) target denial, (ii) intervention and (iii) security. An example of target denial would involve postponing the opening of the school year in a defined area. Although unprecedented, this would have denied the terrorists the high-profile target sought. As to intervention, in the absence of any additional information, any comment would necessarily be speculative. It could be that the authorities did not conduct any preventive strike on the basis that to do so would have compromised the sources, or for other reasons – for example in view of the serious risk to the lives of the members of the security forces. Nevertheless, it was clear that “the risk would be likely to be greater in the event that the group succeeded in carrying out their intentions” and that the need to protect sources could not be used as a valid reason to put human life at serious risk. Lastly, as to security, the experts were of the opinion that the “essentially passive approach” adopted had been “seriously inadequate” in view of the circumstances. They noted that there had been no effective ownership or containment of the threat and that the staff of the local police had clearly been incapable of dealing with the security situation: “Given the degree of foreseeability, the recognised high threat by the [North Ossetian Ministry of the Interior] and the level of specificity in terms of the terrorists’ location, asserted target and likely area, there should have been a significant scaling up of resources in the identified areas. The purpose of this would have been to prevent or disrupt the terrorists’ plans and deny the target. Such actions would include large, highly visible deployments of forces to search and locate the terrorist group, to undertake Vehicle Check Points both along the main arterial routes and in depth at likely target towns. Similar specific deployments should have been implemented at schools to deny the target.” The experts concluded that while no security measures could serve as a guarantee against the attackers’ success, the presence of security personnel on the roads and at potential targets would have acted as a deterrent and could have impeded the attackers. They considered that the fact that a group of over thirty armed terrorists had been able to travel along the local roads to Beslan, having encountered only one police roadblock manned by a single officer “show[ed] the extent of failure of the authorities to act upon the information available to them”. 440. By means of comparison, the experts outlined the steps that would have been taken in the United Kingdom in the event of a known comparable threat. They considered that a command centre would have been established, with a clear and accountable chain of command, depending on role requirements. The centre would have comprised senior police officers coordinating with the relevant units of the British Army, specialist counter-terrorism units and the security services, as well as other public sector bodies such as fire and rescue and ambulance services. A dedicated crisis response committee would have been set up within the Government of the UK, in order to co-ordinate the actions of various bodies to ensure adequate resources and a media strategy. The potential targets would have been “hardened” by high-profile visible deployments of armed security personnel. 441. According to the report, once the terrorists had reached the school and taken a large number of hostages, the authorities faced an extremely difficult scenario – one where significant loss of life, including that of children, was inevitable. The experts noted the group members’ intention to die, which had been apparent from the beginning, and to cause large-scale loss of life in the event of a storming. In such circumstances, the role of the authorities should be to seek to minimise the loss of life to the greatest extent possible. 442. The experts started by reiterating that the presence of only one unarmed police officer at the school at the time of the hostage-taking had delayed the response to the attack and permitted the terrorists to capture a large number of children and adults at the ceremony, as well as secure the building and deploy the IEDs with very little resistance. Without predicting the exact results of a heavier security presence at the ceremony, the experts argued for the possibility that “an adequately-assured police response would have repelled the terrorists for long enough to allow a significant number” of potential hostages to escape. 443. They then reflected on the formation, structure, record-keeping and auditing of the OH. The experts stressed that the pressure under which the members of the OH had worked could not be underestimated. In their words, “[a]ny amount of training and experience could not prepare someone fully for [a] crisis such as Beslan” which represented “one of the most difficult situations that any administration could face”. Furthermore, there could be no detailed or prescribed international standard for the control and planning of an operation of this sort; it seemed inevitable that the responses would be prepared quickly and with minimal formalities, in order to reflect the dynamics and seriousness of the situation. Relying on the witness statements, official documents and other data cited in the Court’s decision on admissibility, the report noted the following shortcomings of the OH functioning: failure to keep proper records of the OH’s composition, meetings and the main decisions taken; a lack of any apparent formal structure for information-sharing and decision-making, resulting in uncoordinated decisions being taken; a clear lack of structure of command and control for both strategic and important tactical decisions, such as the types and use of special weapons; and an overall failure of command and control. They stressed, in addition to the above, that the absence of any plan to start a rescue operation as late as 1 p.m. on 3 September, in view of the hostages’ intolerable conditions and the terrorists’ unpredictability – meaning that intervention could be required at any moment – had amounted to a failure to plan properly for a rescue operation. 444. According to the experts, the situation faced by the Russian authorities, once the terrorists had reached their target, was a terrible one. The possibility of a peaceful outcome of the hostage-taking appeared minimal. The authorities were therefore required to make extraordinarily difficult and agonising decisions in a highly fluid situation and “there [was] no training or manual which [could] provide solutions to these dilemmas”. Furthermore, they acknowledged significant gaps in the information relating to the preparation of the rescue operation and many aspects in the way it was carried out, for example those relating to the origins of the first explosions. Having said that, the experts were of the opinion that since the situation had developed for over two full days before the rescue operation had started, it could not be characterised as entirely spontaneous, since the authorities had had time and resources to plan and practice it. 445. In view of the above, they highlighted a number of points that were, in their opinion, important in the evaluation of the rescue operation. Some of these points were relevant to the level of control exercised by the authorities over these developments: for example whether the operation was at all times under the control of the senior officers, or whether, in view of the hostages’ known intolerable conditions, they had prepared their response to a possible attempt by the hostages to leave the building at any moment. Other points focused more on the commanders’ tactical decisions directly relevant to the rescue operation that had taken place. 446. If the first explosions had been triggered by the detonation of an IED placed by the terrorists, and they had started to shoot at the fleeing hostages, the authorities had no option but to launch a rescue operation, which was in fact done. It ended with massive loss of life, and the accounts differ as to the use of flame-throwers and tank cannon fire. The experts stressed that these were military weapons destined to neutralise buildings with enemy combatants within. In their view, if these weapons had indeed been used at a time when hostages had still been within the building, it would have been unjustifiable. It could be justifiable if they had been used in the belief that there had been no civilians in the building and no military alternative to their use; however, in the absence of a definitive assessment of the facts such judgment had to be reserved. They noted, nevertheless, that the fact that by 5 p.m., or soon afterwards, the school building had seemed to be sufficiently under control for the security forces to hold a memorial service for the fallen officers made it unlikely that the terrorists had still been in the building at that time. 447. The report then commented that the fact that both the Alpha and Vympel special forces units had been deployed at a training exercise at the time when the rescue operation had commenced, had left the authorities without or with insufficient specialist intervention contingencies. The high number of losses sustained by the FSB special forces was a testament to the officers’ bravery, since they had probably realised that they had been likely to lose their lives by entering the school. Nevertheless, the experts were of the opinion that the same failures to plan and conduct the rescue operation had had a bearing on their fate as well as on the fate of the hostages. 448. Turning to the firefighters, the experts pointed out that in view of the known potential for fires to start from explosions, the fire brigades should have been deployed earlier. In their view, “the fact that very few fire engines were deployed and that they were without adequate supplies of water [was] a failing of foresight and planning ... The general requirement ... that rescue operations must be planned and controlled in such a manner as to minimise the risk to life, required a much greater deployment of fire brigade resources including multiple pumps and specialist fire vehicles...” Equally, the experts noted that although the medical evacuation and subsequent services had been well organised, as relatively few wounded had died in hospital, the medical staff had not been informed in any detail of the relevant information in order to plan an appropriate response. They commented that “it appear[ed] that the relative success of the medical evacuation [was] a result of the professionalism of the medical staff, and that they [had] not [been] included in the OH or even kept informed of relevant information (such as the number of hostages) so that they could deploy adequate resources”. 449. The experts also examined three aspects of the operation challenged by the applicants: (i) dissemination of incorrect information regarding the number of hostages during the crisis, (ii) coordination between various authorities about the rescue plans and (iii) the negotiation strategy. 450. As to the number of hostages, the authors of the report were of the opinion that this aspect of communication could not have had any foreseeable negative impact on the terrorists’ behaviour or any other foreseeable consequences. With regard to the authorities’ co-ordination, the authors pointed out that effective coordination was a key element of command and control of counter-terrorist operations. They noted the obvious lack of coordination with the medics and the failure to preserve the scene, despite the presence of several cordons manned by different security agencies. Nevertheless, once the explosions and outbreak of shooting had occurred, the authorities had had no other option but to order the rescue operation; at this stage the pre-planned contingencies should have been implemented. 451. Lastly, concerning the negotiations, the experts were of the opinion that the terrorists “were not interested in negotiation and came to Beslan to inflict as much terror and death on the most vulnerable element of the civilian population as possible”. Their demands had been unrealistic and inflexible and they did not seem to have had any negotiation strategy; in addition, they seemed to have been prepared to die from the very beginning. Such a mental state “was not of rational people and so unpredictable as to render negotiations particularly difficult, if not impossible”. The authorities had ascertained the terrorists’ demands, made efforts to engage with them and put them in contact with the people they had demanded. The authorities’ approach to negotiation could not be criticised. 452. In October 2015 a forensic pathologist from Glasgow produced an expert report in response to a request from EHRAC to consider matters related to the recovery of bodies, post-mortem examinations and conclusions drawn as to the causes of death. Dr John Clark had worked in England and Scotland as a forensic pathologist for about thirty years. He was also involved in international work, having been the Chief Pathologist for the International Criminal Court for Former Yugoslavia (1999-2001) and having worked in Africa for the International Criminal Court, in Palestine/Jordan for the United Nations, and in other regions of the world. He also had the relevant academic and teaching background (having previously held a post at the University of Glasgow and being an examiner for national pathology qualifications and secretary of the professional association for UK forensic pathologists). In addition to the Statement of Facts (admissibility decision) in the present case, Dr Clark was provided with the transcripts of the representatives’ oral submissions before the Court, English translations of expert report no.1 (of 23 December 2005), five autopsy reports of the victims and transcripts of the testimonies given by the pathologists in the domestic proceedings. His conclusions may be summarised as follows. 453. On the overall organisation of the forensic service, Dr Clark noted that the task faced by the authorities had been extremely difficult. The mortuary in Vladikavkaz could not have possibly coped with the influx of over 300 bodies – as, in fact, no mortuary in the world could have. Alternative solutions should therefore have been considered, such as establishing a temporary mortuary elsewhere (a storage warehouse or cool facility – he recalled the use of an ice-rink in the Lockerby events) and bringing in refrigerator trucks or distribution to other mortuaries. In view of the potentially high number of expected casualties from the siege, some sort of system should have been planned in advance, with a suitable location, equipment and personnel identified and available at short notice. He noted that “the matter of body storage and preservation would have been uppermost in the minds of the pathologists, particularly with the warm weather”. A more orderly fashion of dealing with the bodies could have not only helped to avoid wrong identifications, but also alleviated the pressure on the forensic team. It would have permitted them to carry out a more in-depth examination of the bodies, where necessary, in order to establish the causes of death and identify and extract the objects that could be helpful to the investigation, such as bullets, fragments of IEDs and so forth. A clear explanation to the relatives as regards time expectations and the need for examination would have helped both them and those dealing with the bodies. 454. As to the recovery of the bodies from the school, the expert noted that the location and position of each person should have been recorded and the body numbered and preferably photographed. The description of the scene and the record of body recovery as reflected in the available documents appeared “totally inadequate for such an important incident and provides no basis for independent analysis, as any proper forensic report should allow”. 455. That most bodies had been subjected to external examinations only, as opposed to a full autopsy, would have been understandable if the principal purpose of the examination had been identification. Such an approach was justifiable, for example, in cases of major disaster casualties, or even at mass crime scenes where the evident injuries from gunfire or gross damage from an explosive device made the cause of death obvious. However, such an approach “would not reveal other unexpected findings, nor permit retrieval of bullets or shrapnel from inside the body”, although the evidential value of much of this type of material, for example for matching with a particular rifle, would have been questionable in the case of high-velocity ammunition. A lighter option could have included the use of imaging facilities, such as portable X-ray machines usually available at hospitals. This could have assisted in deciding whether a more in-depth examination had been required. In some cases, the expert noted, the conclusions about the cause of death had been inconsistent with the number of examination carried out, and should have been “couched in far more cautious terms”. With respect to those cases where the cause of death had not been established, mostly in view of extensive burns, Dr Clark was of the opinion that this could have been established relatively easily. “Questions of where and when they died, and whether it was from gunshot, explosion, fire, other trauma, or any combination, could and should have been established...” 456. The expert also commented on the people who had been burnt to an extent that the cause of death could not be established, and whether these burns could have been received ante or post mortem. He stressed that post mortem burns often masked those received while the person had been alive; that most people died in fires from smoke inhalation rather than from burns; but that smoke inhalation could only be proved by an internal examination including a carboxyhaemoglobin blood test and dissection of the body in order to examine to what extent the air passages were lined with soot. The expert stressed that “[i]nternal examination of a body to establish smoke inhalation can be done on even very charred and partly destroyed remains (which generally are remarkably well preserved inside), certainly on the type seen in the photographs and described in the post-mortem reports above. Thus, to say that no cause of death could be established because the body was burned is nonsense and dishonest”. | 1 |
test | 001-182227 | ENG | RUS | CHAMBER | 2,018 | CASE OF KARACHENTSEV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova | 5. The applicant was born in 1972 and lives in St Petersburg. 6. On 4 June 2010 the applicant was arrested on suspicion of robbery committed in an organised group. 7. On 5 June 2010 the Vyborgskiy District Court of St Petersburg (“the District Court”) remanded the applicant in custody. The District Court relied on the particularly serious nature of the crime with which the applicant had been charged and his position on the merits of the arrest and the charges brought against him. The court also relied on the risk that he might flee from the investigating authorities and the court, exert pressure on victims, witnesses and other participants in the criminal proceedings, or otherwise hamper the administration of justice in the case. 8. On 4 August 2010 the District Court extended the applicant’s detention until 24 August 2010. 9. On 20 August and 23 August 2010, at the request of the applicant’s lawyer, the District Court adjourned the review of the applicant’s detention until 23 August and 24 August 2010, respectively. 10. On 24 August 2010 the applicant retained another lawyer to defend him. The newly appointed lawyer joined the proceedings at 4 p.m. on the same day. 11. On 24 August 2010 the applicant’s lawyer asked the District Court to adjourn the hearing until 25 August 2010 so as to enable her to review the prosecution material and discuss her position with the applicant. The judge refused to adjourn the hearing until 25 August 2010, but granted a two-hour adjournment until 6 p.m. 12. On 24 August 2010 the District Court extended the applicant’s detention until 24 November 2010, having found no grounds for altering or lifting the custodial measure and having taken note of the particular complexity of the case. The applicant’s argument to the effect that no investigative measures were being carried out with his participation was rejected with reference to the investigator’s discretion to lead the investigation. 13. The applicant appealed against the above decision, claiming, inter alia, that the two-hour adjournment of the hearing on 24 August 2010 had not permitted him to consult his lawyer in private; nor had it allowed his lawyer to have sufficient time to review the prosecution material. 14. On 11 October 2010 the St Petersburg City Court (“the City Court”) found that there were no reasons to vary the preventive measure, and it upheld the decision of 24 August 2010 on appeal. The City Court held that the two-hour adjournment granted by the District Court had been sufficient for studying the prosecution file consisting of 153 pages. Most of the file consisted of procedural documents concerning issues relating to the institution of the criminal proceedings, the extension of the time-limit for the investigation, the joinder of criminal cases, and documents which had been previously handed to the applicant. Besides, all these documents had been examined in the hearing on 24 August 2010. As regards the applicant’s complaint as to his inability to have a confidential exchange with his lawyer before the hearing of 24 August 2010, the City Court held that the applicant and his lawyer had been given the opportunity to communicate in the courtroom. However, they had refused to communicate in such conditions. This did not amount to a breach of the applicant’s right to defence, because the applicant’s lawyer could have had a confidential meeting with the applicant in the remand prison without any restrictions, and they could have developed their defence position beforehand. In any event, the hearing could not have been adjourned until 25 August 2010, since the time-limit for the applicant’s detention had been due to expire on 24 August 2010, and therefore the decision on the preventive measure had had to be taken before then. Both the applicant and his lawyer participated in the appeal hearing. 15. On the same date, 11 October 2010, charges in respect of two counts of large-scale robbery committed in an organised group under Article 161 § 3 (a) and (b) of the Russian Criminal Code were brought against the applicant. 16. On 15 October 2010 the applicant and his lawyer were informed that the pre-trial investigation had been terminated, and on 16 November 2010 they were given access to the case file. 17. On an unspecified date in November 2010 the District Court extended the applicant’s detention until 24 February 2011. 18. On 21 February 2011 the applicant’s lawyer was informed that a review of the preventive measure was to take place on the following day. 19. On 22 February 2011 the applicant’s lawyer did not appear for the hearing. The applicant asked the court to adjourn the hearing owing to the lawyer’s illness. However, the adjournment was refused. Legal aid counsel was appointed for the applicant. 20. On 22 February 2011, reiterating the reasons which had prompted the application of the custodial measure in the applicant’s case, the District Court extended the applicant’s detention until 24 May 2011 pending examination of the case file. 21. The applicant appealed, complaining, inter alia, about the refusal to adjourn the hearing so as to enable his lawyer to defend him. 22. On 6 April 2011 the City Court found that there were no reasons to vary the preventive measure, and it upheld the decision of 22 February 2011 on appeal. As regards the applicant’s complaint regarding the alleged violation of his right to defence by the refusal to adjourn the hearing of 22 February 2011, the City Court held that the applicant’s lawyer had failed to prove her sickness by providing a medical certificate. This made the examination of the issue of the applicant’s detention in her absence lawful under domestic law, as legal aid counsel had been appointed for the applicant. Both the applicant and his lawyer participated in the appeal hearing, the applicant by means of a video link from the remand prison. 23. On 30 May 2011 the District Court further extended the applicant’s detention until 24 August 2011 pending examination of the case file. The court noted that the grounds which had prompted the application of the custodial measure in the applicant’s case had not changed, and referred to the considerable size of the case file, a case file which neither the applicant, nor his co-defendants or their lawyers had been able to examine in full. 24. On 28 June 2011 the City Court upheld the above decision on appeal. 25. On 11 January 2013 the City Court acquitted the applicant of all charges in a jury trial. The judgment became final on 23 July 2013. 26. Between 5 June 2010 and 29 July 2011 the applicant was held in remand prison IZ-47/4 in St Petersburg. The prison was overcrowded. Thus, cell 76, measuring 18 sq. m, was equipped with eight sleeping places and accommodated up to ten inmates, and cell 145, measuring 18 sq. m, was designed for eight people and housed up to ten individuals. Cell 164, measuring 15 sq. m, offered six places, and up to six detainees occupied those places. 27. As mentioned above, on 6 April and 28 June 2011 respectively the City Court examined the applicant’s appeals against the decisions of the District Court of 22 February and 30 May 2011 extending his detention. He participated in the appeals by means of a video link from the remand prison, where he was confined in a metal cage. | 1 |
test | 001-161532 | ENG | RUS | CHAMBER | 2,016 | CASE OF KOLESNIKOVICH v. RUSSIA | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra | 6. The applicant was born in 1978 and until his arrest lived in Krasnoyarsk. He is currently serving a sentence in a correctional colony in the Krasnoyarsk Region. 7. On 13 December 2005 the applicant was arrested on suspicion of aggravated kidnapping, murder, fraud and conspiracy. 8. On 27 December 2007 the Krasnoyarsk Regional Court found him guilty as charged and sentenced him to twenty-four years and eleven months’ imprisonment. The first seven years were to be served in a prison and the remaining term in a high-security correctional colony. 9. On 24 December 2008 the Supreme Court of Russia upheld his conviction and sentence on appeal. 10. The parties provided the Court with the applicant’s medical documents, including clinical records, discharge summaries and expert reports. Parts of the clinical records drawn up during his detention and submitted to the Court by the Government are illegible. 11. On several occasions before his arrest the applicant underwent inpatient and outpatient treatment in civilian hospitals. Between 1999 and 2001 he was treated for cerebral concussion, cerebral contusion, vertebral contusion, knee pain and a duodenal ulcer. 12. After his arrest on 13 December 2005 the applicant was taken to a police detention facility in Krasnoyarsk. Two days later he was transferred to remand prison no. 24/1 (“the remand prison”), also in Krasnoyarsk, where resident doctors carried out a general check-up, noting in the medical file that he had sustained a brain injury and suffered from a duodenal ulcer. The doctors found him fit for detention, noting that detention in northerly regions should be avoided. 13. According to the applicant, in 2005 and in 2006 he complained to the prison doctor about various health problems, including stomach pain, but his complaints remained unnoticed by the authorities. His medical records for the period between 2005 and 2007 did not contain any entries regarding his complaints, medical examinations or treatment in that period. 14. On 16 June 2007 the prison doctor saw the applicant after he complained of stomach pain and deteriorating eyesight. He diagnosed the applicant with a duodenal ulcer in the acute phase and myopia, but did not prescribe any treatment. He noted that a specific endoscopy was to be performed. 15. On 19 July and 13 and 16 August 2007 the trial court adjourned its hearings in the applicant’s case as he did not feel well and had complained of severe stomach pain. The court asked the detention authorities to submit detailed information on his actual state of health. 16. In August 2007 the applicant received injections of drotaverine allegedly provided by his mother, a retired doctor, to relieve his stomach pain. On 21 August 2007, at a court’s request, a deputy head of the prison medical ward examined the applicant and observed that he was receiving treatment for an acute duodenal ulcer. In addition, he noted that the applicant was to be transported to Regional Tuberculosis Hospital no. 1 (“the prison hospital”) for the fibrogastroduodenoscopy ordered in June 2007. 17. On 19 October 2007 the applicant was taken to the prison hospital. Multiple tests performed there led to him being diagnosed with first-stage myopia, a duodenal ulcer in remission and duodenitis associated with cicatricial deformation of the duodenum bulb. Omeprazole was prescribed. Insofar as the submitted medical records could be deciphered, the applicant did not receive the prescribed treatment. 18. In March 2009 the applicant was transported to the prison hospital for the second time. This time the doctors prescribed him medication for his myopia and neurological symptoms resulting from the trauma in 1999. The medical records did not contain any information on the actual intake of drugs by the applicant. 19. In October 2009 the applicant’s stomach pain came back. A fibrogastroduodenoscopy showed that he suffered from duodenitis with cicatricial deformation of the duodenum bulb and antral gastritis. The resident doctor saw him in October 2009 and January 2010, prescribing him drug treatment and a special diet. The applicant’s medical records do not contain any information indicating that the doctor’s recommendations were followed. 20. On 19 March 2010 the applicant underwent an in-depth medical examination in the prison hospital. It showed that in addition to his peptic problems, erosive duodenitis and antral gastritis, the applicant had developed first-stage sensorineural hearing loss and his myopia had progressed slightly. A drug programme and special diet were recommended. According to the applicant, the recommendation was not followed by the authorities. His medical documents contain no entries in this regard. 21. In early April 2010 the court had to adjourn several hearings in the applicant’s criminal case owing to his severe stomach pain. It ordered the detention authorities to provide him with anti-ulcer treatment. At the end of that month the applicant was examined in a civilian hospital, which diagnosed him with an aggravated ulcer and acute gastritis. Inpatient treatment was prescribed. The authorities did not admit him for it. 22. The next recurrence of the applicant’s ulcer occurred in autumn 2010. According to the medical records, the applicant did not receive any drugs at that time. An examination on 21 December 2010 showed that his ulcer had grown and the duodenitis and gastric disease had progressed further. A civilian doctor who visited him recommended inpatient treatment, but he remained in the remand prison. The resident doctor prescribed drug treatment in December 2010 and January and March 2011. However, the medical records contain no information concerning the actual provision of the prescribed drugs to the applicant. According to him, only one of the drugs was made available to him. His mother sent him the required drugs in June 2011 to enable him to receive at least some relief. 23. A new acute stomach pain attack occurred in December 2011. The applicant was immediately taken to the prison hospital for an X-ray examination and a surgical consultation. The surgeon concluded that the applicant’s condition did not call for surgery. Over the next few days the applicant was diagnosed with duodenitis and recurring acute gastritis which had passed to the chronic stage. Drug treatment was prescribed, but the Court was not given any records showing that he actually received it. 24. In the meantime the applicant started complaining of mild knee pain and impeded nasal breathing allegedly caused by a broken nose in 2006 while in detention on remand. He stated that he had received some medication for knee pain, but had not undergone any septal surgery. 25. In the beginning of 2012 the applicant underwent a magnetic resonance imaging scan of the brain and spine in a civilian hospital. He paid for the scan himself, which revealed the presence of Schmorl’s nodes, protruded discs, spondylarthrosis and a haemangioma in one of the spinal discs. It also indicated moderate changes within local tissue associated with a cerebrospinal fluid cyst in the arachnoid membrane of the brain. These diagnoses were confirmed by the prison doctor, who found that the applicant’s condition did not call for surgical treatment. 26. The applicant was sent to a prison to serve his sentence. 27. On 23 October 2012 the applicant arrived at the prison in Minusinsk in the Krasnoyarsk Region (“the prison”). On admission he was seen by a prison doctor, who considered him to be in satisfactory health. He was included on a list of detainees subject to regular medical check-ups and enhanced medical attention. 28. The next day he was diagnosed with acute gastritis and degenerative disc disease. He was prescribed a fibrogastroduodenoscopy and several drugs, including nonsteroidal antiinflammatory medication and medication to treat his gastritis. He refused to comply with the doctors’ recommendations pertaining to the endoscopy and anti-inflammatory drugs, insisting that they would lead to a further deterioration of his ulcer. He nevertheless took the medication prescribed for gastritis treatment. According to the medical records, the ulcer treatment continued for the following few months. 29. In the meantime, an independent medical specialist and neurologist, Dr M., assessed the applicant’s health and prepared a report on 5 November 2012. It stated that he should be admitted to a neurological or neurosurgical medical facility, where his spinal problems could be treated with nonsteroidal anti-inflammatory medication, neuromuscular blocking agents and painkillers. The doctor gave detailed recommendations concerning the applicant’s treatment. 30. On 29 November 2012 the prison doctor prescribed the applicant vitamin injections and pain-relief ointment to treat his spinal problems. Several days later the doctor authorised an additional hour’s rest from physical activity and prescribed nonsteroidal anti-inflammatory medication, spasm relief analgesics and omeprazole for his peptic problems. 31. In the absence of any positive developments, in January 2013 the doctor amended the spinal treatment and introduced a stronger antiinflammatory drug. 32. In March 2013 the applicant was transferred to the prison hospital. Tests showed that his conditions had not progressed. The gastritis and duodenal ulcer were in remission. The applicant was prescribed omeprazole and sucralfate-based medication. According to an entry made in his medical history on 26 March 2013, his attending doctor recommended testing for the bacteria Нelicobacter pylori (“H.pylori”). The test was never performed. 33. After the applicant’s return to the prison his treatment continued in line with the recommendations of the prison hospital doctors. He received meloxicam and omeprazole. However, in May 2013 his duodenal ulcer again worsened. The acute phase lasted about two months. 34. On 17 July 2013 the applicant was examined by a number of medical specialists from a mobile prison hospital. He was diagnosed with a duodenal ulcer in remission, chronic gastritis, erosive duodenitis, osteoarthritis of the left knee, Raynaud’s syndrome, degenerative disc disease, acute back pain and second-stage myopia. He was prescribed drug treatment. The records do not indicate that he received all of the prescribed medications. 35. On 7 August 2013 the prison authorities received a parcel of medication from the applicant’s mother. He was treated with those drugs until 30 August 2013, when he was sent to a correctional colony. 36. On 11 September 2013 the applicant arrived at correctional colony no. 288/17 in Krasnoyarsk. He complained to the resident doctor of nausea and was diagnosed with an ulcer and degenerative disc disease. He was put on a list of detainees for close medical supervision. The doctor noted that the applicant required anti-recurrence ulcer treatment and in-depth examinations every six months, recording that it was necessary for him to be placed on a special diet when the ulcer recurred. 37. On 18 September 2013 the applicant was seen by doctors from the mobile prison hospital and underwent a fibrogastroduodenoscopy. It revealed that he had antral gastritis. According to him, his mother bought him medication for the ulcer treatment and sent it to the correctional colony. 38. In November 2013 the applicant had another severe attack of stomach and back pain. The prison doctor prescribed him drugs, injections of painkillers and vitamins. According to the Government, he refused to take one of the drugs, a nonsteroidal antiinflammatory. He disputed that allegation. 39. On 30 August 2013 the applicant filed a complaint against the prison administration, arguing that his treatment fell short of the requirements of Russian law. He stressed that the authorities had failed to properly treat his conditions. 40. On 16 October 2013 the Minusinsk Town Court dismissed the applicant’s complaint, finding that the authorities had provided him with adequate treatment. According to the court, he was regularly seen by a doctor and prescribed medication, including anti-inflammatory drugs and painkillers. They were given to the applicant as prescribed. His condition remained stable between 23 October 2012 and 30 August 2013. 41. On 17 March 2014 the Krasnoyarsk Regional Court upheld the judgment on appeal. | 1 |
test | 001-167803 | ENG | MNE | CHAMBER | 2,016 | CASE OF RADUNOVIĆ AND OTHERS v. MONTENEGRO | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 5. The applicants were born in 1982, 1967 and 1978 respectively and live in Podgorica. 6. The applicants were employees of the USA Embassy (“the Embassy”) in Montenegro. The first applicant worked as a protocol specialist/translator, and the second and third applicants as security guards. All the applicants were local staff. 7. The employment contract between the locally employed staff and the Embassy provided, inter alia, as follows: “3. Services to be Performed. The employee agrees to perform all the duties set forth in the Position Description in accordance with the terms and conditions set forth herein. [...] 12. Disputes. All disputes between the employee and the Government arising out of this agreement shall be decided by the Management Officer or, in the absence thereof, the designee of the Management Officer, provided that the employee shall have the right to appeal in writing within thirty (30) days of receipt of notice of any such decision to the Chief of Mission [at the American Embassy Podgorica].” 8. The first applicant’s main duties and responsibilities were related to assisting in organising official receptions, lunches and dinners; questions relevant to protocol and local practices and customs; maintaining a contact database; drafting correspondence in English and Montenegrin; interpreting and translating documents, articles and incoming correspondence; arranging official calls; ensuring press coverage of ceremonial events; organising official visits and serving as a contact person between the front desk and the host country officials. 9. The second and third applicants’ main duties and responsibilities were continuous surveillance of an area around their fixed posts for security hazards; checking ID cards, screening visitors and vehicles, and controlling parking; recognising emergencies and unusual incidents, and acting accordingly. They could occasionally be required to work at other locations and for special functions such as VIP visits, receptions and dinners at the Principal Officer’s Residence. 10. Between 14 February 2009 and 28 June 2012 the applicants were informed by the Embassy that they were dismissed. 11. On 26 July 2010 the Court of First Instance (Osnovni sud) in Podgorica, apparently upon the third applicant’s claim to that effect, quashed the decision on his dismissal and ordered his reinstatement. It would appear that on an unspecified date thereafter this decision became final. 12. Between 22 November 2010 and 26 July 2012 the applicants instituted separate civil proceedings against the Embassy. All the applicants claimed compensation: the first applicant sought compensation for non-pecuniary damage caused by the wrongful dismissal, and the second and third applicants claimed compensation for loss of earnings. The first and second applicants, in addition, sought reinstatement. 13. On 26 May 2011 the Court of First Instance in Podgorica declared that it lacked competence to deal with the first applicant’s claim and rejected it (tužba [se] odbacuje), which decision was upheld by the High Court on 21 June 2011. On 4 October 2011 the Supreme Court quashed these decisions. Relying on section 29 of the Civil Procedure Act, section 2 (1) of the Labour Act and section 46 of the Resolution of Conflict of Laws and Regulations of other States Act (see paragraphs 30, 33 and 35 below), the Supreme Court considered that the Montenegrin courts had jurisdiction to examine the merits of the first applicant’s claim. 14. Between 8 September 2011 and 24 September 2012 the Court of First Instance in Podgorica declared that it lacked competence to deal with the applicants’ claims (in a re-trial in respect of the first applicant) and rejected them. In substance, the court considered that the respondent State had immunity provided for by international law, and therefore could not be subjected to the jurisdiction of another State’s court. In rejecting the first applicant’s claim the court further held that granting immunity to the respondent State could not be considered a restriction on access to court, as provided in Article 6 of the Convention. While the court acknowledged that in international and comparative law there were restrictions on State immunity in respect of employment-related disputes, it also held that recruitment (pitanja u vezi sa zapošljavanjem) in a foreign diplomatic mission or an embassy was an issue which could be “very sensitive or of a confidential nature” and might relate to the diplomatic and organisational policy of a foreign State. In ruling upon the second and third applicants’ claims, the Court of First Instance relied also on the Vienna Convention on Diplomatic Relations, which provided that the function of Embassies was to represent foreign States, and held that therefore the jurisdiction of the domestic courts was excluded. The court also relied on Article 22 of the Vienna Convention, which provided for the inviolability of the premises of Embassies. 15. On various dates thereafter the applicants appealed. The first applicant submitted, inter alia, that by examining the merits of her claim the courts would not interfere with the other party’s sovereignty. She also submitted that the Court of First Instance had to examine the claim on the merits pursuant to the decision of the Supreme Court of 4 October 2011 and relied on section 415 of the Civil Procedure Act (see paragraph 32 below). 16. Between 20 November 2011 and 6 December 2012 the High Court upheld the first-instance decisions, in substance endorsing their reasoning. The High Court further held, upon the first applicant’s appeal, that a violation of sections 367 (1) and 415 of the Civil Procedure Code (see paragraphs 31 and 32 below) by the first-instance court did not render the first-instance decision unlawful, in particular as it was undisputed that the respondent party had its seat in another State and only a diplomatic representation in Montenegro. In ruling upon the second applicant’s claim it held that the jurisdiction of the domestic courts was not explicitly provided for either by the law or an international agreement. 17. Between 1 November 2012 and 10 May 2013, ruling upon the applicants’ appeals on points of law, the Supreme Court upheld the previous decisions on the grounds that the respondent party was a foreign State with its own legal personality and the domestic courts had no competence to rule upon the applicants’ claims. The court relied on section 29 of the Civil Procedure Act, section 46 of the Resolution of Conflict of Laws and Regulations of other States Act, and Article 3 of the Vienna Convention on Diplomatic Relations. In ruling upon the third applicant’s appeal on points of law the Supreme Court also held, inter alia, that granting immunity to a foreign State in civil proceedings pursued a legitimate aim of complying with international law and encouraging good diplomatic relations between States, and that it could not be considered as a restriction on access to court in violation of Article 6 of the Convention. 18. Between 10 January 2013 and 12 July 2013 the applicants lodged separate constitutional appeals. On 18 November 2015 the Constitutional Court dismissed the first and third applicants’ constitutional appeals, while the second applicant’s constitutional appeal would appear to be still pending. The Constitutional Court held that there had been no violation of Article 6 of the Convention as the decisions had been issued by tribunals established by law, which had acted within their competence, and which had given clear reasons for their decisions. There was therefore no arbitrariness in the courts’ rulings. In ruling upon the third applicant’s constitutional appeal the Constitutional Court in addition held that pursuant to the case-law of the Court and the Constitutional Court “it [was] not the task of these courts to examine the conclusions of the regular courts in respect of the substantive law application, except in cases where [...] procedural rights were violated ([such as ...], the right of access to court) [...]”. However, it did not go into any analysis about the third applicant’s right of access to court. | 1 |
test | 001-176760 | ENG | TUR | CHAMBER | 2,017 | CASE OF TÜRK v. TURKEY | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance) | Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano | 5. The applicant was born in 1972 and is currently serving a life sentence in Antalya. 6. On an unspecified date the applicant went to the Mersin Security Directorate headquarters to complete certain procedures regarding the sale of his car and found out that a warrant for his arrest had been issued by the Antalya Security Directorate. 7. Subsequently, at approximately 1 p.m. on 16 February 2004 the applicant went to the Antalya Security Directorate. It appears that at some point he confessed to his involvement in the shooting of a certain K.G. and as a result, at 4 p.m. the same day he took part in a photo identification procedure. According to a report drawn up by the police and signed by the applicant, the applicant turned himself in and confessed to his involvement in the shooting of K.G., which had taken place in 1992, and identified S.K., M.N.A. and A.Y. as his accomplices. There was no record indicating that the applicant had been advised of his rights, including his right to legal assistance and his right to remain silent, under the Code of Criminal Procedure in force at the material time. 8. At around 5.30 p.m. the same day, the applicant participated in a reconstruction of the events (yer gösterme). According to the record drafted by police officers and signed by the applicant, the latter described in detail what steps he had taken before the shooting, how he had shot K.G. in 1992 in Antalya, and how he had left the crime scene. There was no record indicating that the applicant had been advised of his rights, including his right to legal assistance and to remain silent, under the Code of Criminal Procedure in force at the material time. 9. The police started questioning the applicant at around 6.30 p.m. the same day. According to the applicant, he was shown an arrest warrant, dated 19 November 1992, in which the offence was indicated as “breaching Law no. 6136 (the Firearms Act)” and the deadline stipulated in the statute of limitations was “2 September 1997”. In this connection, the police officers told him that the offence for which he was being sought was illegal possession of firearms and explosives contrary to Law no. 6136. They said that any statement given by him was merely a “formality”, since the time-limit for prosecution of that offence had already expired in 1997. The applicant therefore agreed to give a statement. His statements were transcribed on a pre-printed form. According to this form, he had been reminded of his rights to remain silent and to be represented by a lawyer. It appears that the applicant had refused legal assistance, since the first page of the record includes a pre-printed phrase stating “No lawyer is requested” with the applicant’s signature underneath. He was thus questioned in the absence of a lawyer. 10. The applicant was accordingly questioned at the Anti-Terrorism Department of the Antalya Security Directorate about his involvement in the PKK (the Workers’ Party of Kurdistan, an illegal organisation) and the wounding of a certain K.G. in 1992. In his nine-page statement, the applicant admitted to his involvement in the PKK and explained in detail that he had shot K.G. upon the instructions of the illegal organisation. 11. On 17 February 2004 the applicant was questioned again by the Antalya public prosecutor and the investigating judge. According to the statement drawn up during the questioning by the public prosecutor, the applicant had been advised of his rights again. However, the statement he gave was similar to his police statement. 12. Before the investigating judge, the applicant was advised of his rights again. He stated that he did not want the assistance of a lawyer and repeated the content of his police statement. The investigating judge first ordered the applicant’s release; however, following an objection by the prosecutor, he ordered that the applicant be placed in detention pending trial. 13. On 10 March 2004 the public prosecutor at the Izmir State Security Court filed an indictment with that court and accused the applicant of carrying out activities for the purposes of bringing about the secession of part of the national territory, an offence under Article 125 of the Criminal Code. In his indictment, the public prosecutor also indicated that the applicant had turned himself in. 14. During the hearings before the Izmir State Security Court the applicant was represented by a lawyer. At a hearing held on 4 May 2004, the applicant gave evidence in the presence of his lawyer and retracted the statements he had made previously. He maintained, in particular, that he had been tricked by the police into giving incriminating statements by being shown a paper in which the time-limit for prosecution of the offence he was accused of committing had expired. He denied his involvement in the shooting and rejected the accusations against him. The applicant further submitted that he did not know the co-accused, A.Y., S.K. or M.N.A. 15. During the same hearing, the trial court deemed it necessary to hear from people who had been tried for the same incident in a previous case, no. 1996/9, namely M.N.A., S.K. and B.Ç., with a view to verifying the defence submissions of the applicant and his co-accused, A.Y. In this connection, the trial court ordered that the necessary steps be taken to find out in which prisons M.N.A., S.K. and B.Ç. had been held and ordered an enquiry as to their addresses in the event that they had been released from prison. The trial court further ordered that a confrontation take place once the witnesses had been located. It ordered that photographs be taken of the applicant and A.Y., one from the side and the other from the front, and sent with the reports concerning the case, in the event that M.N.A., S.K. and B.Ç. were located outside its jurisdiction. If they resided in the centre of İzmir, they should be heard in person. 16. The trial court also ordered that the address of the victim, K.G., be ascertained with a view to bringing him before the court, so that evidence could be taken from him in person. 17. At a hearing held on 29 June 2004, the trial court heard evidence from S.K. as a witness. S.K. said that he neither knew nor had ever seen the applicant and A.Y. He did not have direct knowledge of K.G.’s shooting and had given his previous statement as a result of information he had obtained from M.N.A. and B.Ç. The trial court reiterated its orders concerning M.N.A., B.Ç. and K.G. 18. At a hearing held on 26 August 2004, A.Y.’s lawyer submitted a medical report issued by the Elazığ Psychiatric Hospital, dated 3 September 2002, which stated that M.N.A. suffered from depression. The lawyer accordingly asked the trial court not to call M.N.A. as a witness. The trial court did not respond to that request. 19. Under Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the Izmir Assize Court. 20. On 19 August 2004 M.N.A. was questioned by the Siirt Assize Court, pursuant to a letter rogatory from the trial court. According to the transcript of the hearing at the Siirt Assize Court, M.N.A. was serving a sentence in the Siirt E-type Prison at that time. He explained that in 1992, together with the applicant and a certain A.Y., he had received instructions from the PKK and S.K. to shoot K.G. Accordingly, while he had secured the area, the applicant and A.Y. had gone to shoot K.G. He had heard gunshots but had not seen K.G. being shot. He further identified the applicant and A.Y. from the photographs. The Siirt Assize Court then asked M.N.A. to clarify the inconsistency between the statements he had given to the police and the public prosecutor in 1995 and those he had just given to the court. M.N.A. insisted that he was now telling them the correct version of the events. The court reminded him that in his statement of 29 November 1995 before the public prosecutor he had said that he had not known the accused, and asked him to clarify that point. M.N.A then explained that it was because he had been questioned as an accused on 29 November 1995. He repeated that he was now telling them the correct version of the events. 21. On 17 December 2004, at the seventh hearing, M.N.A.’s statement was read out. The applicant objected to the statement, referring to the inconsistency of M.N.A.’s statements since 1995. A.Y.’s lawyer also referred to the medical report in respect of M.N.A. and requested that his statement be considered as unreliable. The trial court did not provide a response to that request. It reiterated its orders concerning B.Ç. and K.G. 22. On 17 February 2005 the eighth hearing was held, and the trial court again reiterated its orders concerning B.Ç. and K.G. 23. At the ninth hearing on 28 April 2005 the trial court once again reiterated its orders concerning B.Ç. and K.G. 24. At the tenth hearing on 12 July 2005 the victim, K.G. appeared before the trial court and gave evidence as a witness. K.G. submitted that he had not seen the applicant or A.Y. at the crime scene and that they had not been involved in his shooting. He gave a detailed description of the people who had shot him. 25. On 4 October 2005 the Izmir Assize Court found the applicant guilty as charged and convicted him on the basis of the case file as a whole, including the record of the reconstruction of the events and the report of the photo identification. 26. The court accordingly sentenced the applicant to life imprisonment, under Article 125 of the former Criminal Code, for carrying out activities with the aim of bringing about the secession of part of the national territory. 27. On 14 February 2006 the Court of Cassation quashed the judgment and remitted the case to the first-instance court in order to determine whether the terms of the new Criminal Code, which had entered into force on 1 June 2005 (no. 5237), were more favourable for the applicant. The case was thus re-examined by the Izmir Assize Court in view of the recent legislative changes. 28. On 13 June 2006 the applicant’s lawyer requested that the trial court bring M.N.A before the court in order to cross-examine him directly and arrange a physical confrontation between him and the applicant. The Izmir Assize Court rejected the request on the grounds that it had already examined and rejected the same request. 29. On the same date the Izmir Assize Court, relying on the same pieces of evidence, once again found the applicant guilty as charged under Article 125 of the Criminal Code and sentenced him to life imprisonment. 30. The applicant lodged an appeal on 3 July 2003, in which his lawyer submitted, inter alia, that M.N.A.’s statements should not have been taken into consideration given the medical report on his mental state. He further submitted that the applicant had been deceived by the police and asked the Court of Cassation to declare his statements inadmissible and in contravention of Article 6 of the Convention. 31. On 19 December 2006 the Court of Cassation rejected the applicant’s appeal. | 1 |
test | 001-170836 | ENG | DEU | CHAMBER | 2,017 | CASE OF MITZINGER v. GERMANY | 4 | Violation of Article 14+8 - Prohibition of discrimination (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Yonko Grozev | 5. The applicant was born in 1940 in Troschenreuth, in the former German Democratic Republic (GDR), and lives in Bayreuth. 6. The applicant is the natural and only daughter of Mr A.W., who recognised paternity in 1951. She lived in the territory of the former GDR until 1984, while her father lived in the Federal Republic of Germany (FRG), having married. The father and the daughter corresponded regularly during that period. Between 1954 and 1959, the applicant also visited her father and his wife once a year. After the applicant obtained an exit permit in 1984 for herself, her husband and her younger daughter, she left the GDR and moved to Bavaria. Thereafter the applicant visited her father on a regular basis until 2007. He died on 4 January 2009. 7. On 14 January 2009 the applicant applied to the Memmingen District Court for the right to administer her father’s estate, asserting the incapacity of her father’s wife to protect the applicant’s inheritance due to a grave illness, and notified the District Court of her inheritance claims. Furthermore, she asked to receive copies of all documents relating to the estate. She asserted that between 2002 and 2007 she had regularly visited her father at his retirement home and had talked to him on the telephone. Subsequently, her own health had prevented her from visiting. Telephone calls had been impossible because her father’s health had meant he had no longer been able to use a telephone. The retirement home had been in possession of her address and telephone number, and had phoned her on several occasions. 8. In a decision of 28 January 2009 the Memmingen District Court dismissed the applicant’s application, as there were no indications that the applicant’s father’s wife could not protect the inheritance. In addition, being born before 1 July 1949 and thus not being a statutory heir, she had no right to receive copies of documents about the estate. 9. On 6 February 2009 the applicant appealed to the Memmingen Regional Court, arguing in particular that she needed the power to administer the estate because her father’s wife suffered from dementia and that she was a statutory heir because she was her father’s natural daughter. 10. In a decision of 23 February 2009 the Memmingen Regional Court upheld the District Court’s decision refusing to give her the power to administer her father’s estate, holding that the applicant was not a statutory heir and thus had no right to apply. The Regional Court referred to the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 (see paragraph 15 below) and to a decision of the Federal Constitutional Court of 8 December 1976, in which the provision had been found to be in conformity with the Basic Law (see paragraph 16 below). 11. On 8 March 2009 the applicant appealed to the Munich Court of Appeal, arguing that the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would discriminate against her and breach her inheritance rights and was therefore not in conformity with the Basic Law. The applicant pointed out that in her case there was no need to protect the legitimate expectations of the deceased or other heirs as she was her father’s only daughter and her father had been separated from his wife for more than ten years when he had died. Furthermore, cultural and social changes within society had to be considered when interpreting the Basic Law. 12. In a decision of 14 May 2009 the Munich Court of Appeal dismissed the applicant’s appeal on the grounds that it was bound by the decisions of the Federal Constitutional Court in which the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had been found to be in conformity with the Basic Law. In the Court of Appeal’s view, the provision did not contravene the Basic Law, despite German reunification, as the Federal Constitutional Court had held in a decision of 20 November 2003 (file no. 1 BvR 2257/03). 13. On 17 July 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court, claiming discrimination as a result of the application of the aforementioned provision. According to her there were no apparent reasons why children born outside marriage should be treated differently from those born within marriage. That was particularly true in her case because she was her father’s only child. The applicant argued that the Munich Court of Appeal, when considering an appeal, had to respect Article 6 § 5 of the Basic Law, which provided that children born outside marriage must be provided by legislation with the same opportunities for physical and mental development and for their position in society as those enjoyed by children born within marriage. That provision prohibited a generalised application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act. 14. In a decision of 8 December 2009 the Federal Constitutional Court declined to consider the complaint, which it considered inadmissible for lack of sufficient substantiation (no. 1 BvR 2021/09). It observed, in particular, that the applicant had failed sufficiently to address the arguments of the Munich Court of Appeal’s decision. As the applicant doubted the validity of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, which had previously been declared valid by the Federal Constitutional Court, she had been obliged to give further reasons, which she had failed to do. | 1 |
test | 001-157374 | ENG | ROU | CHAMBER | 2,015 | CASE OF BORDENCIU v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant was born in 1966 and is currently being detained in Târgu Jiu Prison. 6. In 1998 the applicant started serving a twenty-five-year sentence for murder. On 23 July 1998 he was placed in Târgu Jiu Prison. Except for short periods of time when he was transferred to other prisons in order to appear before the courts and three occasions when he was hospitalised for a maximum of one day in prison hospitals, the applicant was held in Târgu Jiu Prison. 7. The applicant alleged that the conditions of his detention in Târgu Jiu Prison since his incarceration in 1998 amounted to torture. More specifically, he alleged that he was being held in severely overcrowded cells with thirty-five to forty prisoners, with worn-out furniture and without natural light or ventilation. He further submitted that the cells were full of bed bugs and the food was insufficient and of very poor quality. The applicant also alleged that he was being held in cells with smokers. 8. The applicant lastly alleged that he had become sick as a result of the inhuman conditions to which he had been subjected. He submitted in that connection a medical certificate issued by the prison doctor on 17 March 2014, according to which he was suffering from: chronic cholecystitis, fatty liver disease, chronic venal insufficiency of the legs, type-II diabetes, chronic pancreatitis, gastroduodenitis, lumbar discopathy and impulsive personality disorder. 9. The Government submitted that the applicant had been held for unspecified periods of time in three different cells of the Târgu Jiu Prison infirmary block, which are described below. 10. Cell E 2.2 measured 22.62 sq. m, of which 2.41 sq. m were occupied by a bathroom (20.21 sq. m of remaining space). The cell had five rows of bunk beds and accommodated eight prisoners (2.52 sq. m of personal space, including the space occupied by the beds). Ventilation was ensured by a window measuring 0.97 by 1.45 m. The bathroom had its own window measuring 40 by 45 cm. 11. Cell E 2.3 measured 21.75 sq. m, of which 3.85 sq. m were occupied by a bathroom (17.92 sq. m of remaining space). The cell had four rows of bunk beds and accommodated five prisoners (3.5 sq. m of personal space, including the space occupied by the beds). Ventilation was ensured by a window measuring 0.97 by 1.45 m. The bathroom had its own window measuring 40 by 45 cm. 12. Cell E 2.4 measured 24.05 sq. m, of which 3.36 sq. m were occupied by a bathroom (20.69 sq. m of remaining space). The cell had four rows of bunk beds and accommodated four to six prisoners (between 3.44 and 4.13 sq. m of personal space, including the space occupied by the beds). Ventilation was ensured by a window measuring 0.97 by 1.45 m. The bathroom had its own window measuring 40 by 45 cm. 13. For the rest of the time the applicant was held in non-smoking cells, a description of which is set out below. 14. Cell E 2.5 measured 49.8 sq. m, of which 7.31 sq. m were occupied by a bathroom (42.49 sq. m of remaining space). The cell had twenty-seven beds and accommodated twenty-five to twenty-six prisoners (an average of 1.63 sq. m of personal space, including the space occupied by the beds). The cell had three windows measuring 90 by 109 cm and the bathroom had a window measuring 40 by 45 cm. 15. Cell E 3.4 measured 36.15 sq. m, of which 5.55 sq. m were occupied by a bathroom (30.6 sq. m of remaining space). The cell had eight rows of bunk beds and usually accommodated twenty prisoners (1.53 sq. m of personal space, including the space occupied by the beds). The cell had a window measuring 118 by 158 cm. The bathroom had its own window measuring 110 by 50 cm. 16. Cell E 1.13 measured 48.40 sq. m, of which 9.25 sq. m were occupied by a bathroom and 2.17 sq. m by a storage room (36.98 sq. m of remaining space). The cell had eleven rows of bunk beds and accommodated twenty-five to twenty-nine prisoners (between 1.47 sq. m and 1.27 sq. m of personal space, including the space occupied by the beds). It also had three windows measuring 100 by 125 cm and 100 by 150 cm. The bathroom had its own window measuring 60 by 50 cm. 17. The Government submitted that all of the cells contained adequate furniture and that disinfection operations took place whenever the presence of insects was reported. | 1 |
test | 001-161408 | ENG | ARM | CHAMBER | 2,016 | CASE OF ZALYAN AND OTHERS v. ARMENIA | 3 | Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Article 35-3 - Ratione materiae);Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Prompt information);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano | 6. The applicants were born in 1985 and live in Vanadzor and Gyumri, Armenia. 7. In May 2003 the applicants were drafted into the Armenian army and assigned to the third infantry battalion of military unit no. 33651, situated near the village of Mataghis in the Martakert Region of the unrecognised Nagorno Karabakh Republic (hereafter, Nagorno Karabakh) (see Chiragov and Others v. Armenia [GC], no. 13216/05, § 28, 16 June 2015). 8. On 9 January 2004 the Martakert Garrison Prosecutor’s Office instituted criminal proceedings no. 90800104 on account of the murder of two servicemen of the same military unit, R.Y. and H.M., who had been found dead in a nearby canal on 9 and 10 January 2004. They had been murdered on 24 December 2003. 9. An investigating team was created by order of the Military Prosecutor of Armenia, which was headed by investigator A.H. of the Military Prosecutor’s Office of Armenia. The investigating team also included the investigator of the Gugark Garrison Military Prosecutor’s Office of Armenia, S.T., the investigator of the Martakert Garrison Military Prosecutor’s Office of Nagorno Karabakh, A.K., the Deputy Chief of the Yerevan Military Police Department, V.K., and the Chief of the Stepanakert Military Police Department of Nagorno Karabakh, A.B. 10. On 16 January 2004 a number of servicemen were arrested and subsequently charged and detained in connection with the murders. It appears that these charges were later dropped for lack of evidence. 11. By letter of 6 March 2004 the Military Police Chief of Armenia informed the Military Prosecutor of Armenia that three servicemen had testified and implicated three other servicemen, V.H., S.P. and G.Y., in the crime but later retracted their testimony, alleging that they had made those statements under moral and psychological pressure from one of the officers of the Stepanakert Military Police Department and two officers of their military unit. 12. On 16 April 2004 the first and second applicants were assigned to keep watch at a military outpost. 13. On 19 April 2004 the investigative team received from one of the officers of military unit no. 33651 an empty envelope allegedly found at the crime scene on 25 December 2003, on which some names were written. 14. On 20 April 2004 a former serviceman of the same military unit, K.A., was questioned in this connection in the second applicant’s home town of Gyumri. It appears that it was disclosed during this interview that the envelope in question was linked to the second applicant and had been included in a parcel sent to him by his parents at the end of December 2003. It further appears that this fact was confirmed during the questioning of the second applicant’s younger brother, which took place on 21 April 2004 from 11 a.m. to 1.10 p.m. 15. The applicants alleged that on 19 April 2004 they were taken, in turns, to the office of their military unit’s commander, M.A., for questioning in connection with the murders. The questioning was carried out by investigators A.H. and S.T. and military police officers V.K. and A.B. Chiefs of the Third and Fourth Battalions, E.M. and I.V. respectively, were also present during part of the questioning. The law enforcement officers started beating, threatening and verbally abusing the applicants, forcing them to confess to the murders. On the same day, following their questioning, they were transported by these law enforcement officers to the Martakert Garrison Military Prosecutor’s Office in Nagorno Karabakh by order of the Military Prosecutor of Armenia, where they continued to be illtreated and were kept until their transfer to the Stepanakert Military Police Department for further questioning. 16. The Government contested these allegations and claimed that on 19 and 20 April 2004 the first and second applicants were on watch at a military outpost. It was only on 21 April 2004 that the second applicant was taken to the office of the commander of the military unit, M.A., for questioning as a witness in connection with the murders. Soon thereafter the commander of the military unit ordered the Chief of the Third Battalion, E.M., to bring also the first applicant from the military outpost for questioning as a witness. The third applicant was also taken for questioning. The questioning was carried out in the office of the commander of the military unit by employees of the military prosecutor’s office and the military police. During questioning it was revealed that on 24 December 2003 the applicants had abandoned their military unit without authorisation and had gone to Mataghis village. This was found to be a grave disciplinary offence and the commander of the military unit decided to impose on them a disciplinary penalty of ten days in isolation. On the same day, namely 21 April 2004, the applicants were taken first to the Martakert Garrison Military Prosecutor’s Office and later to the Stepanakert Military Police Department where they were placed in a disciplinary isolation cell in order to serve their disciplinary penalty. 17. It appears from the materials of the case that the applicants’ first questioning took place at their military unit, in the office of commander M.A., where they were taken in turns. The questioning was carried out by investigators A.H. and S.T. and military police officers V.K. and A.B. It appears that the Chief of the Fourth Battalion, I.V., was also present for part of the questioning. The applicants were asked questions about a parcel that the second applicant had received from his parents on 24 December 2003, which included food, letters and other items, whether they had eaten the food together after fetching the parcel from Mataghis and, if so, where and when. No record was made of this interview. 18. It further follows from the materials of the case that on 21 April 2004 the commander of the military unit, M.A., issued Order no. 112, according to which the applicants were considered to be isolated by the Stepanakert Military Police Department and were deprived of their daily allowance as of 22 April 2004. This Order was based on three Isolation Notices dated 21 April 2004 and signed by the commander, which stated that the applicants were to be isolated for a period of ten days on the grounds of a “VMR” (violation of military rules) and were to be kept in a common cell. In the section of the Isolation Notices entitled “Doctor’s conclusion” the note “practically healthy” appeared, followed by the signature of doctor S. The sections of the Isolation Notices which were to include the signature of the chief of the disciplinary isolation cell and his notes regarding the time and date of the applicants’ admission to and release from the disciplinary isolation cell were left blank. 19. On 21 April 2004 the applicants were questioned as witnesses at the Martakert Garrison Military Prosecutor’s Office. According to the relevant records, the first applicant was questioned by investigator S.T. from 2.50 p.m. to 7.25 p.m., the second applicant was questioned by investigator A.K. from 2.35 p.m. to 7.40 p.m., and the third applicant was questioned by investigator A.H. from 2.05 p.m. to 7.20 p.m. The second applicant admitted during questioning that he and the other two applicants had eaten the food contained in the parcel received from his parents outside the military unit next to the canal on 24 December 2003. The first applicant was asked during questioning to provide an account of what he had done on 24 December 2003. He was then asked whether he was familiar with servicemen R.Y. and H.M. and whether the nearby shop had still been open when he and the other two applicants had eaten the food, as well as two questions regarding the envelope of the letter which had arrived with the parcel. 20. Later that day at an unspecified hour the applicants were taken to the Stepanakert Military Police Department of Nagorno Karabakh where from 10.35 p.m. to 00.10 a.m. the second applicant was questioned as a witness by investigator A.H. The interview was videotaped by the cameraman of the Media Department of the Nagorno Karabakh Defence Army, A.G. 21. The applicants were kept at the Stepanakert Military Police Department until 23 April 2004. On that date the Military Prosecutor of Armenia issued a letter addressed to the Defence Minister of Nagorno Karabakh, with a copy to the Chief of Military Police of Armenia, the Chief of the Stepanakert Military Police Department and the commander of military unit no. 33651, having the following content: “For the purposes of criminal case no. 90800104 examined by the investigative unit of the Military Prosecutor’s Office of Armenia, on 21 April 2004 [the applicants], who were performing their military service at military unit no. 33651, were taken to the Martakert Garrison Military Prosecutor’s Office, whereupon they were taken to the Stepanakert Military Police Department. It is necessary to transfer the three above-mentioned servicemen to military unit no. 10724 in Yerevan in order to carry out a number of investigative measures with their participation.” 22. On the same date the applicants were transferred to Yerevan, the second applicant separately from the first and third applicants. At 10.45 p.m. the officer on duty of the Military Police Department of Armenia drew up a record entitled “Receipt” in which it was stated that he had received the first and third applicants from the employees of the Stepanakert Military Police Department. 23. The applicants alleged that, during the entire period prior to their transfer to Yerevan, they were questioned on numerous occasions as witnesses, in spite of already being suspected of the crime. They were continually subjected to beatings, threats and verbal abuse by investigators A.H. and S.T., military police officers V.K. and A.B. and another officer of the Stepanakert Military Police Department nicknamed M., with the aim of extorting a confession. They were kept in various rooms and cells at different law enforcement agencies and were neither fed nor allowed to sleep. They were transferred from one law enforcement agency to another, blindfolded and handcuffed. The second applicant also alleged that the officers threatened to rape him with a club and to arrest his mother and younger brother, if he refused to confess. 24. The applicants further alleged that upon their arrival in Yerevan they remained in custody and at an unspecified point were placed in an arrest facility situated at military unit no. 10724 which was administered by the military police (hereafter, the military police arrest facility – ՀՀ Պաշտպանության նախարարության Ռազմական ոստիկանության վարչության քննչական մեկուսարան) upon the instructions of the investigator. 25. The Government admitted that the applicants had been transferred to Yerevan upon the request of the Military Prosecutor on 23 April 2004, but claimed that this was done as a protective measure under Article 98 of the Code of Criminal Procedure (CCP). They further claimed that the applicants were placed in the military police arrest facility only after their arrest on 24 April 2004. 26. On 24 April 2004 from 10.45 a.m. to 3.10 p.m. the second applicant was questioned as a witness by investigator A.H. at the Military Prosecutor’s Office of Armenia. This interview was videotaped. During the questioning, the second applicant confessed that it was he and the other two applicants who had committed the murders. According to his statement, on 24 December 2003 he and the other two applicants had left their military unit in order to eat in private the food sent by his parents, near the canal. There they had come across the two fellow servicemen. A quarrel had erupted which led to a fight and resulted in fatal injuries. Having realised that the two fellow servicemen were dead, he and the other two applicants had decided to throw their bodies into the canal. 27. On the same date the applicants were formally arrested and recognised as suspects. The first applicant’s arrest record was drawn up at 6.35 p.m. at the Military Police Department in Yerevan. The record indicated that he was suspected of complicity in the murder of the two servicemen. 28. It appears that investigator A.H. invited lawyers M.A. and V.Y. to represent the applicants. M.A. was assigned to represent the second applicant, while V.Y. was assigned to the first and third applicants. The first applicant agreed in writing that his interests be represented by lawyer V.Y. 29. Later that day the applicants were questioned separately as suspects in the presence of their lawyers. Furthermore, two separate confrontations were held between the second applicant and the first and third applicants respectively, both in the presence of the lawyers. During his questioning and the above confrontations, the second applicant confirmed his earlier confession, while the other two applicants denied their guilt and his account of events. 30. The applicants alleged that the above-mentioned lawyers had been invited to join the case by the investigators of the Military Prosecutor’s Office and their involvement in the case was merely a formality and amounted to the signing of records and other documents in order to create an appearance of lawfulness. The first applicant also alleged that he had never met with his lawyer in private, while the second applicant alleged that his lawyer, M.A., had not been chosen by him and neither he nor his family had given their consent to the lawyer’s participation in the case. 31. On the same day at an unspecified hour the officer on duty of the military police arrest facility drew up a record of examination of a person’s body (արձանագրություն անձին մարմնի զննության ենթարկելու մասին) in respect of each applicant, which noted that he, together with two deputy officers, two attesting witnesses, V.V. and K.A. (male and female respectively), and the medical assistant on duty (հերթապահ բուժակ), K.G., examined the applicants’ bodies and that “nothing was detected on [them]”. The time of the examinations was indicated as “9.55 p.m.”, “10.05 p.m.” and “10.10 p.m.” for the second, third and first applicants respectively. The respective records were signed by the applicants and everybody else involved. The Government alleged that these examinations had been carried out upon the applicants’ admission to the military police arrest facility. 32. On 26 April 2004 the applicants were formally charged with murder under Article 104 of the Criminal Code. The applicants were questioned as accused in the presence of lawyers V.Y. and M.A. It appears that later that day the first and third applicants dispensed with the services of lawyer V.Y. 33. On the same date the third applicant was visited by his father and his cousin’s husband, H.M. It appears that this visit took place in investigator A.H.’s office and lasted a few minutes. 34. On the same date investigator A.H. took a decision prohibiting the applicants from meeting with their relatives on the ground that it “might obstruct the interests of the criminal investigation”. 35. On 27 April 2004 at an unspecified hour the Arabkir and KanakerZeytun District Court of Yerevan examined and granted the investigator’s motions seeking to have the applicants detained on remand. It appears that the motions were presented at the hearings by the investigators dealing with the case, in the first applicant’s case this being investigator A.H. The applicants were present at their respective hearings. It appears that the second applicant, who was represented by lawyer M.A., admitted at the hearing that he and the others had beaten the two fellow servicemen, but had no intention of killing them. It further appears that the first applicant was not represented at his hearing. The record of the hearing stated that lawyer V.Y. had been duly notified but had failed to appear. The applicants’ detention was to be calculated from 24 April 2004 and was valid for a period of two months. 36. On 29 April 2004 the second applicant was taken to the crime scene in Mataghis for a reconstruction of the crime, which was videotaped. 37. On 11 May 2004 the second applicant addressed a letter to the Military Prosecutor of Armenia in which he retracted his confession, claiming that he and the other two applicants had nothing to do with the murder. He submitted that he had made his confession because the investigator A.H. had informed him that his mother and younger brother had been arrested and were also held at the Military Prosecutor’s Office of Armenia and had threatened that they would “come to harm”. The investigator further threatened that his younger brother would be assigned to perform his military service at the same military unit and would “come to harm”. The second applicant requested that he be questioned again. 38. On 14 May 2004 a lawyer, Z.P., was hired by the first applicant’s family to represent his interests. 39. On 18 May 2004 the second applicant was questioned by investigators A.H. and S.T. in the presence of lawyer M.A. He was asked questions about his letter of 11 May 2004, including whether it had been his idea to write that letter, why he had not written it earlier, whether it had been dictated to him, whether he stood by his allegations and why he had not retracted his confession earlier when he had other chances to do so. The second applicant again denied their involvement in the murder and repeated his allegation that he had made his confession since he had been told that his mother and younger brother had been arrested. In reply to the investigator’s question about whether anyone had forced or coerced him into making the confession, the second applicant replied that no one had forced him. In reply to the investigator’s question about why he had made a false confession, he replied that when he had told the truth the investigators refused to believe him. 40. By letter of 19 May 2004 investigator A.H. informed the chief of the military police arrest facility that the first applicant’s interests were represented by lawyer Z.P. 41. On 21 May 2004 the applicants were examined by a board of psychiatrists in order to evaluate whether they were competent to stand trial. They were found not to suffer from any mental health issues either at the time of the offence or at present. 42. On 25 May 2004 the chief of the military police arrest facility instructed the staff of the facility that lawyer Z.P. had been authorised to represent the first applicant. It appears that the lawyer was allowed to visit the first applicant at the facility. The first applicant alleged that, prior to his first meeting with lawyer Z.P., he had been deprived of any contact with the outside world and of any legal assistance. 43. On the same date the first applicant addressed a complaint to various authorities, including the General Prosecutor, the Military Prosecutor and the Ombudsman, indicating the number of his criminal case and informing them of the following: “I, Arayik Zalyan, and my two conscript friends, Razmik Sargsyan and Musa Serobyan, are kept at a military police arrest facility and are falsely accused of a grave crime[, namely] the murder of [servicemen H.M. and R.Y.]. On 19 April 2004 I and Razmik Sargsyan were at a military outpost when Razmik received a call from the military unit and was told to come down because his parents had arrived. About an hour later I also received a call and was told that my parents had also arrived and was summoned to the military unit. I went down and was taken to the commander’s office. In the corridor I saw Musa Serobyan who was standing hunched in the corner. There were four unfamiliar persons in the office, two of whom – as I later found out – were investigators [A.H. and S.T.] of the Military Prosecutor’s Office of Armenia. Chief of the Third Battalion [E.M.] and Chief of the Fourth Battalion [I.], whose last name I do not remember, were also present. The two investigators, [A.H. and S.T.], assaulted me, calling me a “murderer”, demanding that I tell with whom I had eaten on 24 December, beating me and demanding that I explain how we murdered servicemen [H.M. and R.Y.]. I was beaten so hard that my nose bled profusely. The Chief of the Fourth Battalion [I.] then helped me and took me to clean my nose. Thereafter I, Musa Serobyan and Razmik Sargsyan were forced to put our T-shirts over our heads, placed in a car and taken away. We arrived in some place, which – as I later found out – was Martakert. I was taken to a room where I stayed with my T-shirt pulled over my head for about an hour and from where I could hear Razmik’s and Musa’s terrified voices and how they were beaten continuously for about an hour. Then it was my turn. [Investigator S.T.] came to my room, started questioning me, saying that my friends had confessed that we had committed the murder, told me to write the same thing and intimidated me, saying that I would not last long and that I would get a life sentence. At that moment some Major entered the room and said that the deceased were his friend’s children and if we did not write the truth – that we had killed them – he would take me out, kill me, throw me in a pit and say that it was the [Azeris] who had killed me. Thereafter, again with our T-shirts over our heads, we were taken away ... and arrived in some place where I was taken to what appeared to be a police station where I was questioned from 6.00 p.m. to 3.00 a.m. I was questioned, sworn at, beaten, threatened, persuaded and told to write that it was us who had killed [H.M. and R.Y.]. They beat and threatened us for a whole day, not even giving us water to drink. That night at around 3.30 a.m. I was taken down to the Stepanakert Military Police Department’s detention facility, where there were three other persons... I, Musa and Razmik were kept in that facility until the morning of 23 April. Musa and I were taken to Yerevan together by a senior lieutenant of the military police department. I realised that Musa had been severely beaten since his face was covered with red and blue marks of blows. We spent the night of 23 April 2004 in Yerevan on the premises of the military police in а room of some supervised unit where we stayed for one night. Musa and Razmik were also there and were kept in separate rooms. The next day I was questioned in the same building and then taken to a confrontation with Razmik. When I saw Razmik, I could hardly recognise him since his entire face was swollen. I realised that he had been beaten and was extremely frightened of the investigators, which is why he gave false testimony. I ask you to carry out an investigation and to find the real perpetrators ...” 44. On 8 June 2004 lawyer Z.P. addressed another complaint to the same authorities, submitting that the applicants had been unlawfully arrested between 19 and 24 April 2004 without an arrest warrant and questioned on numerous occasions on suspicion of having committed a murder. The lawyer further complained in detail about the ill-treatment inflicted on the applicants during that period. She also complained that from 23 April 2004 to the present the applicants, in violation of the law, had been kept at a military police arrest facility, despite their pre-trial detention having been ordered by the court decision of 27 April 2004. Thus, they were deprived of the protection offered by the justice system and were kept under the authority of the military police who were, moreover, working in close cooperation with the Military Prosecutor’s Office. She alleged, inter alia, a violation of Articles 3 and 5 of the Convention. 45. By a letter of 10 June 2004 the Military Prosecutor informed the first applicant and his lawyer, in reply to their complaints, that: “The first investigative measures involving [the applicants] were carried out on 21 April 2004 at the Martakert Garrison Military Prosecutor’s Office where they were questioned as witnesses. Before the questioning they had been informed about the right not to testify against themselves ... guaranteed by Article 42 of the Constitution. In order to clarify a number of discrepancies in their statements, on 21 April 2004 [the applicants] were taken to the Stepanakert Military Police Department of the Ministry of Defence of Armenia for the purpose of conducting confrontations and further questioning. On 22 April [the second applicant], upon my instruction, was transferred to Yerevan as a witness in a criminal case, since I found it inexpedient for him to continue his military service at his military unit. In Yerevan he stayed in the barracks together with the servicemen entrusted with guarding the building of the Military Prosecutor’s Office of Armenia. [The first and third applicants] were transferred to Yerevan from Stepanakert on the night of 23-24 April and stayed, without being isolated, in the room envisaged for servicemen on duty of military unit no. 10724... On 24 April [the second applicant] was questioned again as a witness and he was again informed about the requirements of Article 42 of the Constitution, which is confirmed by his signature under the record of the interview. [The applicants] were arrested on 24 April 2004 and were immediately provided with lawyers. From the moment of their arrest all the investigative measures in respect of [the applicants], such as questioning, confrontations, the arraignment, etc., were carried out in the presence of their lawyers. In compliance with [the CCP] the accused took part in the hearings concerning the imposition of detention, during which they did not make any statements about the ‘illtreatment inflicted’ on them... The accused are kept in the military police arrest facility in accordance with Annex 14 to the Regulations for the Garrison and Sentry Services. A medical examination can be conducted in respect of [the first applicant] and the others if a relevant request is made.” 46. On 10 June 2004 the second applicant’s lawyer M.A. filed a motion with the Military Prosecutor, challenging the impartiality of investigator A.H. and requesting that he be removed from the case. It appears that attached to this motion was a complaint by the second applicant, in which he alleged that the investigator and others had bullied and beaten him in Martakert and Stepanakert, as a result of which he had made a false confession. The lawyer requested that the persons mentioned in the second applicant’s complaint be questioned. 47. On 12 June 2004 the Military Prosecutor decided to reject the motion as unsubstantiated, finding that all the investigative measures involving the second applicant had been carried out in compliance with the rules of criminal procedure. From the moment of his arrest his lawyer had participated in all the investigative measures, except the reconstruction of 29 April 2004 in which case the lawyer’s absence had been voluntary. Most of the second applicant’s interviews had been videotaped, which further proved that no ill-treatment had been inflicted on him. Moreover, at the detention hearing of 27 April 2004 he had stated that his statements made at those interviews had been true. Following his complaint of 11 May 2004 he had been additionally questioned upon his request and stated that he had not been forced to make any statements. 48. On 14 June 2004 the first applicant’s lawyer Z.P. filed a similar motion with the Military Prosecutor, challenging the impartiality of investigators A.H. and S.T. and requesting that they be removed from the case on the ground that they had, inter alia, ill-treated the applicants. 49. On 16 June 2004 the third applicant’s new lawyer, A.A., filed a similar motion with the Military Prosecutor, challenging the impartiality of investigator A.H. and requesting that he be removed from the case on the ground that the investigator had, inter alia, ill-treated the third applicant in Stepanakert, including by administering blows to his head with the handle of his pistol. 50. On 17 June 2004 the Arabkir and Kanaker-Zeytun District Court of Yerevan examined and granted the investigator’s motions seeking to extend until 24 August 2004 the period of the applicants’ detention, which was to expire on 24 June 2004. The first applicant submitted at the court hearing that his and the second applicant’s testimony had been given under duress. 51. On 18 June 2004 the Military Prosecutor decided to reject the motion of 14 June 2004 as unsubstantiated, finding that the first applicant had been questioned on 21 April 2004 in compliance with all the rules of criminal procedure, including being informed about the right not to testify against himself guaranteed by Article 42 of the Constitution. No investigative measures involving the first applicant had been carried out on 19 and 20 April 2004. He was arrested on 24 April 2004 and was immediately provided with a lawyer. Neither he nor the third applicant had complained about ill-treatment prior to a similar complaint made by the second applicant. The foregoing indicated that the allegations of illtreatment made by the accused and their lawyers were unsubstantiated, concocted and were aimed at justifying the accused, who were employing coordinated common tactics. 52. On the same date the Military Prosecutor rejected the third applicant’s motion of 16 June 2004 on similar grounds. 53. On 25 June 2004 the first applicant lodged an appeal against the decision of 17 June 2004. In his appeal he complained in detail, inter alia, that he and the other applicants had been subjected to ill-treatment by investigator A.H. and other law enforcement officers. The first applicant also complained that he and the other applicants were unlawfully kept at a military police arrest facility. 54. On 29 and 30 June 2004 the second applicant was questioned again. At the outset he was asked questions in connection with the allegations of illtreatment raised in his complaint of 10 June 2004, namely whether he had suffered any injuries and whether he still had any injuries. The second applicant stated that he had suffered only a swollen jaw, which healed in about three to four days, still being visible at the time of his arrest on 24 April 2004 but not when he had appeared before a judge on 27 April 2004. Currently he had no injuries. The injury to his jaw had been inflicted at the office of the commander of the military unit in Mataghis on 21 April 2004 by S.T., A.H., police officer V.K. and one tall police officer from the Stepanakert Police Department. The same persons had continued to illtreat him at the Military Prosecutor’s Office in Martakert and the Military Police Department in Stepanakert, which made his kidneys hurt and lasted a few days. He had had no other injuries and nobody had ill-treated him following his transfer to Yerevan. When ill-treated, he was being ordered to tell the truth. He had made up the confession himself, without any outside interference. The second applicant was then asked a number of questions in connection with his allegations, including why he had made his confession in Yerevan if no ill-treatment had been inflicted on him there and why he had not raised his allegations of ill-treatment earlier. Lastly, a number of questions were posed about the events of December 2003 and the murder. 55. On 5 July 2004 the investigation into the applicants’ criminal case was over. 56. On 6 July 2004 the Criminal and Military Court of Appeal dismissed the first applicant’s appeal of 25 June 2004. 57. On the same date the Military Prosecutor addressed a letter to the chief of the military police arrest facility, stating that it was no longer necessary to keep the applicants at the arrest facility and requesting that they be transferred to Nubarashen pre-trial detention facility. 58. On the same date the applicants were transferred from the military police arrest facility to Nubarashen pre-trial detention facility. 59. On 7 July 2004 the first applicant was subjected to a medical examination at Nubarashen pre-trial detention facility, with the following conclusion: “No fresh bodily injuries or traces of beatings have been disclosed. Skin and mucous membranes are of a normal colour. Vesicular respiration present in the lungs. Heart sounds [(illegible)] ... The abdomen is soft and pain free. There are no external symptoms of venereal disease.” 60. Medical file no. 607 was opened. On the front page of the medical file “19 April 2004” was noted as the starting date of the first applicant’s detention. 61. It appears that the second and third applicants were also subjected to medical examinations and no injuries were recorded. 62. On 16 July 2004 the General Prosecutor decided to reject another motion filed by the first applicant challenging the impartiality of both the Military Prosecutor and investigators A.H. and S.T., on the ground that, inter alia, the allegations of ill-treatment had not been confirmed. No such allegations had been made by the applicants at the court hearings concerning their detention and they had jointly started raising such complaints only at the end of May 2004. 63. On 22 July 2004 the Deputy Ombudsman informed the General Prosecutor about the second applicant’s allegations of ill-treatment. The Deputy Ombudsman further stated that the second applicant had been kept from 26 April to 6 July 2004 at a military police arrest facility in violation of the Law on Conditions for Holding Arrestees and Detainees and the Regulations for the Garrison and Sentry Services. The Deputy Ombudsman argued that, according to these legal acts, the second applicant should not have been kept at that facility for more than 72 hours after the court issued its decision to detain. 64. On 26 July 2004 the Deputy Ombudsman was informed by the General Prosecutor’s Office that the accused had been kept at the military police arrest facility on the basis of Annex 14 to the Regulations for the Garrison and Sentry Services and had been transferred to Nubarashen pretrial detention facility following the entry into force of the amendments to those Regulations adopted by the Parliament on 28 April 2004 and ratified by the President on 22 May 2004. 65. On 24 September 2004 the Deputy Ombudsman addressed a letter to the General Prosecutor in connection with the first applicant’s complaint of illtreatment. The Deputy Ombudsman pointed out that the above complaint had been transmitted to the Military Prosecutor’s Office, the authority whose actions were the subject of the complaint, and the criminal case continued to be dealt with by the same investigator who was alleged to have inflicted ill-treatment on the accused. 66. On 3 August 2004 the first applicant made a written statement, declaring that he was going on a hunger strike in protest against the unlawful actions of the law enforcement authorities. He alleged that the charges against him and the others were trumped up and based on a coerced confession. Since all his complaints in this respect had remained unanswered, he wished to continue his protest with a hunger strike. 67. The following record was made in the first applicant’s medical file: “Since 11 August 2004 the patient has been on hunger strike and under constant medical observation ...” 68. On 5 August 2004 the first applicant and his lawyer were granted access to the case file. 69. By a letter of the same date the investigator informed the chief of Nubarashen pre-trial detention facility about this and added that the first applicant’s detention period was suspended pursuant to Article 138 § 3 of the CCP. 70. On 24 August 2004 the first applicant’s detention period, as extended by the decision of 17 June 2004 of the Arabkir and KanakerZeytun District Court of Yerevan, expired. 71. On 9 September 2004 the first applicant and his lawyer finished familiarising themselves with the materials of the case. 72. On the same date the first applicant filed a motion with the investigator, arguing that from 24 August 2004 there was no court decision authorising his detention and requesting that he be released. 73. On 10 September 2004 the investigator decided to dismiss that motion, stating that, pursuant to Article 138 § 3 of the CCP, the detention period had been suspended on the date when the first applicant was granted access to the case file, namely 4 August 2004. 74. On 16 September 2004 the first applicant’s mother asked to be allowed to visit him in detention. She was worried about his health, as he was on hunger strike, but she was not allowed to see him. 75. On 22 September 2004 the case file was transmitted by the Prosecutor to the Syunik Regional Court, which sat in Stepanakert, Nagorno Karabakh. 76. On an unspecified date Judge M. of the Syunik Regional Court decided to take over the case. 77. By a letter of 15 October 2004 the chief of Nubarashen pre-trial detention facility informed the first applicant that his detention period had been suspended in accordance with, inter alia, Article 138 of the CCP by the letter of the Military Prosecutor’s Office of 5 August 2004. The chief of the detention facility further stated that, according to the Military Prosecutor’s letter of 22 September 2004, as of that date the detention period had been accounted for by the Syunik Regional Court. 78. On 19 October 2004 the first applicant was transferred to the Hospital for Prisoners due to his general emaciation as a result of the hunger strike. 79. On the same date the first applicant’s lawyer addressed a letter to various public authorities, including the prosecutor in charge of the detention facilities and the Chief of the Hospital for Prisoners, complaining that the first applicant was unlawfully detained without a relevant court decision. She further submitted that the first applicant’s state of health was critical and that no requisite medical assistance had been provided for him by the administration of Nubarashen pre-trial detention facility during the entire hunger strike. The lawyer requested that the first applicant be released immediately. 80. By a letter of 21 October 2004 the Deputy Chief of the Hospital for Prisoners informed the lawyer that no visceral illnesses had been disclosed following the first applicant’s objective inpatient examination, clinical and biochemical analyses of his blood and urine, and a number of instrumental examinations. There was therefore no need to administer medicine. The first applicant was under constant medical supervision due to his hunger strike and the resulting general emaciation of a minor degree. 81. On 25 October 2004 the lawyer lodged similar requests with the Kentron and Nork-Marash District Court of Yerevan and the Syunik Regional Court. 82. By a letter of 26 October 2004 the General Prosecutor’s Office informed the first applicant’s lawyer that he had not been released from detention by virtue of Article 138 § 3 of the CCP. 83. On 27 October and 1 November 2004 the lawyer again requested the Kentron and Nork-Marash District Court of Yerevan to release the first applicant. She also submitted that she had visited him on 25 October 2004 at the Hospital for Prisoners. He had been lying in bed motionless and looked frail. She further alleged that the psychologist had told her that, if the first applicant continued to remain isolated on hunger strike, his life could be in serious danger. She lastly complained that he had been illtreated when questioned as a witness. 84. By a letter of 27 October 2004 the District Court informed the first applicant’s lawyer that, in order to have the circumstances of the alleged unlawful methods of investigation examined, she had to apply to the authority dealing with the merits of the case. The District Court was not, however, dealing with the merits of the first applicant’s case. 85. On 1 November 2004 the lawyer requested the administration of the Hospital for Prisoners to provide details of the treatment provided for the first applicant. 86. By a letter of 2 November 2004 the Deputy Chief of the Hospital for Prisoners informed her that the first applicant had undergone an examination and no visceral illnesses had been found. Due to his general emaciation, since 22 October 2004 the first applicant had been receiving intravenous injections of 5% glucose and vitamins in order to sustain water and vitamin balance. In his current state of health the first applicant was fit to be transferred to a detention facility. 87. On 2 November 2004 the first applicant was discharged from the Hospital for Prisoners and transported to Stepanakert, Nagorno Karabakh, to participate in the trial. According to the discharge summary: “[The first applicant] was taken to the Hospital for Prisoners on 19 October 2004 in order to undergo an inpatient examination. The detainee underwent a clinical and laboratory instrumental examination, as a result of which no symptoms of visceral illnesses were found. He was examined by a psychiatrist who concluded that he had no psychological disorders. Taking into account his refusal to eat over a long period of time and the general emaciation of his organism, the detainee was injected with glucose and vitamins through a drip. Since inpatient treatment is no longer necessary, the detainee is being discharged to remain under further medical supervision by the medical staff of the detention facility.” 88. On 4 November 2004 Judge M. of the Syunik Regional Court decided to set the case down for trial and to fix the date of the first court hearing, which was to take place on an unspecified day in November 2004. The judge stated in his decision that the first applicant’s detention was to remain unchanged. 89. On 5 November 2004 the first applicant ended his hunger strike. 90. On 26 November 2004 the first applicant’s lawyer applied to the Chief of the Nagorno Karabakh Remand Centre, claiming that the first applicant’s state of health was unsatisfactory following his hunger strike and requesting that he be examined by a doctor. It is not clear whether there was any follow-up to this request. 91. In November 2004 the court hearings in the applicants’ criminal case commenced at the Syunik Regional Court. 92. The second applicant submitted before the Regional Court that on 19 April 2004 he had been taken to the office of the military unit commander M.A. The Chief of the Fourth Battalion I.V. had also been present. The commander had started asking him questions about a parcel that he had received from his parents on 24 December 2003, including where and with whom he had eaten the food contained in that parcel. He had answered that he had eaten the food with the other two applicants at the military unit, but the commander did not believe him. Thereafter investigators S.T. and A.H. and military police officers V.K. and A.B. had entered the office and started beating him and forcing him to admit that it was he and the other two applicants who had killed the two servicemen. Then the other two applicants had been brought and subjected to beatings. The ill-treatment had continued at the Martakert Garrison Military Prosecutor’s Office and the Stepanakert Military Police Department. Not being able to stand the ill-treatment, he had had to come up with a false story, admitting his and the others’ guilt. Later on he had realised his mistake and asked to be questioned again, during which he retracted his earlier confession. 93. The first and third applicants submitted that they had been illtreated in similar circumstances. 94. The Regional Court called and examined investigators A.H., S.T. and A.K. and military police officers V.K. and A.B. 95. Investigator A.H. submitted that he and the other members of the investigating team had arrived at the military unit near Mataghis on 21 April 2004. Upon his instructions the second applicant had been brought from the military outpost to the military unit, since it was necessary to find out where and with whom he had eaten the food contained in the parcel received from his parents. The first and third applicants were also later brought in for questioning. In order to verify the versions of events presented by the applicants, the latter had been transferred to Martakert and then to Stepanakert where further interviews were conducted. Thereafter the applicants had been transferred to Yerevan where the second applicant confessed to the crime. 96. Investigator S.T. and military police officers V.K. and A.B. made similar submissions. 97. Investigator A.K. submitted that he had questioned the second applicant at the Martakert Garrison Prosecutor’s Office but did not know about the outcome of that interview since investigator A.H. and military police officer V.K. had taken over and he had left. 98. The applicants submitted in reply that investigators A.H. and S.T. and military police officers V.K. and A.B. had ill-treated, beaten and threatened them. 99. The Regional Court also called and examined Chiefs of the Third and Fourth Battalions E.M. and I.V., cameraman A.G. and an officer of military unit no. 33651, M.A., who had been present at the reconstruction of the crime on 29 April 2004. 100. I.V. submitted that he had been present on and off during the applicants’ questioning on 21 April 2004 but nobody had ill-treated them in his presence. 101. E.M. submitted that he had personally delivered the first applicant to the office of the military unit commander on 21 April 2004. The second applicant was already there. Thereafter the law enforcement officers had arrived and he had to leave. Nobody had ill-treated the applicants in his presence. 102. A.G. submitted that he had been present during the second applicant’s questioning at the Stepanakert Military Police Department and no beatings or violence had been inflicted on the second applicant by investigators A.H. and S.T. or military police officer A.B. Nor did he notice any injuries on the second applicant or bloodstains on the floor. 103. M.A. submitted that he had been present during the reconstruction of the crime by the second applicant in April 2004. The reconstruction had been filmed by investigator A.H. The second applicant had been calm and no illtreatment or violence had been inflicted on him. 104. On 18 May 2005 the Syunik Regional Court found the applicants guilty of murder and sentenced them to 15 years’ imprisonment. This judgment was based, inter alia, on the second applicant’s confession statement. As regards the applicants’ allegations of ill-treatment, the Regional Court found them to be unsubstantiated on the following grounds. First, the applicants had not raised any such complaints during their questioning as witnesses on 21 April 2004, during their questioning as suspects and as accused and the two confrontations which were held on 24 and 26 April 2004 in the presence of their lawyers, or during the reconstruction of the crime on 29 April 2004. Second, the second applicant had not raised such allegations even during his additional questioning on 18 May 2004 and did so only in his motion of 10 June 2004, which was followed by similar motions filed by the first and third applicants on 16 June 2004, all of which were dismissed by the Military Prosecutor as unsubstantiated. Third, the fact that no ill-treatment had been inflicted on the applicants was confirmed by the submissions of law enforcement officers A.H., S.T., V.K. A.B. and A.K., Chiefs of the Third and Fourth Battalions E.M. and I.V. and officer M.A. The Regional Court concluded that the motions filed by the applicants and their lawyers, challenging investigator A.H.’s impartiality, and their allegations of ill-treatment, threats and psychological pressure were aimed at helping the applicants to avoid criminal responsibility. 105. On 1 June 2005 the applicants lodged an appeal against the judgment of the Syunik Regional Court. In their appeal they complained in detail that they had been unlawfully deprived of their liberty from 21 to 24 April 2004 and subjected to ill-treatment during that entire period. They further complained that the authorities had failed to investigate their allegations of ill-treatment in violation of Article 3 of the Convention. Moreover, instead of ordering the institution of criminal proceedings, the Regional Court decided to call and examine the alleged perpetrators as witnesses and to rely on their statements in justifying the conviction. 106. On an unspecified date, the proceedings commenced in the Criminal and Military Court of Appeal. The applicants repeated in detail their allegations of ill-treatment before the Court of Appeal. They also added that at the time of their admission to the military police arrest facility in Yerevan they had various bodily injuries, including an injured jaw, a bruised eye and a bruised back. They were stripped and examined, but the member of the medical staff who had drawn up the relevant records did not note those injuries. They had signed the records drawn up as a result of these examinations without reading them. 107. In this connection the Court of Appeal called and questioned medical assistant K.G. who had participated in the examination of the applicants’ bodies at the military police arrest facility. K.G. submitted that the applicants had been admitted to the arrest facility when he was on duty. They had been examined in the presence of witnesses and no bodily injuries had been found. Appropriate records had been drawn up, which were signed also by the applicants. K.G. further submitted that it was impossible for him to fail to record any injuries found, since he would be held personally responsible for such an omission. Nor was it possible for the second applicant to have had an injured jaw, since that was a serious injury which he could not have overlooked. 108. On 12 December 2005, while their case was still being examined by the Court of Appeal, the applicants lodged another complaint with the General Prosecutor, alleging in detail that they had been deprived of their liberty from 19 to 24 April 2004 and subjected to ill-treatment for the purpose of coercing a confession. They indicated investigators A.H. and S.T. and military police officers V.K., A.B. and M. as the perpetrators and requested that criminal proceedings be instituted against them. The applicants alleged, in particular, that as a result of ill-treatment the second applicant had an injured jaw, the first applicant had a bleeding nose and the third applicant was beaten up and had dirty clothes, having been thrown to the floor and repeatedly kicked. Furthermore, the second applicant was stripped, leaned against the wall and threatened that, if he refused to confess, he would be raped with a club. Thereafter, he was forced to hang on a rod placed on chairs and was threatened with clubs and weapons. When being beaten during his questioning in the office of the chief of Stepanakert Military Police Department A.B., a large amount of blood dripped from the second applicant’s nose onto the floor and he was ordered to lick it off. The applicants finally alleged that they had been kept unlawfully at the military police arrest facility until 6 July 2004 in order to be subjected to further threats and abuse. 109. By a letter of 26 December 2005 the General Prosecutor’s Office informed the applicants that, during the court examination of the criminal case against them, the Syunik Regional Court, guided by Article 17 § 4 of the CCP, had taken the necessary measures to verify the statements alleging that they had been subjected by the investigators to coercion during the investigation, and found them to be unsubstantiated in its judgment of 18 May 2005. 110. On 8 January 2006 the applicants lodged a complaint with the Kentron and Nork-Marash District Court of Yerevan under Article 290 of the CCP, complaining that the Prosecutor’s Office, by relying on the examination carried out by the Syunik Regional Court, was refusing to institute criminal proceedings. However, the Syunik Regional Court was not competent to carry out examinations outside the scope of the criminal case before it. The alleged perpetrators were not involved as accused and appeared before the Regional Court only as witnesses. In order to carry out an effective investigation of the allegations of ill-treatment, it was necessary to institute criminal proceedings under Article 181 of the CCP. They requested the District Court to oblige the General Prosecutor to institute such proceedings. 111. On 1 February 2006 the Kentron and Nork-Marash District Court of Yerevan dismissed the complaint, finding that the General Prosecutor’s reply was in conformity with the law and did not violate the applicants’ rights. The District Court stated, in particular, that complaints alleging a violation of lawfulness in the course of criminal proceedings, pursuant to Article 17 § 4 of the CCP, were to be thoroughly examined by the authority dealing with the merits of the case, while statements about a crime made during a court hearing, pursuant to Article 177 of the CCP, were to be entered into the record of the court hearing. 112. On 14 February 2006 the applicants lodged an appeal, raising similar arguments to those in their complaint of 8 January 2006. 113. On 14 March 2006 the Criminal and Military Court of Appeal upheld the decision of the District Court, finding that the applicants’ allegations of ill-treatment had been examined during the proceedings before the Syunik Regional Court and the evidence obtained was evaluated in the ensuing judgment. The case was currently being examined on the merits by the Criminal and Military Court of Appeal, which was not constrained by the appeal and was competent to examine the full scope of the case, including any new evidence. The applicants’ argument that the Regional Court and the Court of Appeal were not competent to conduct proceedings in respect of persons who had not been involved as accused was incorrect, since the courts, in adopting their judgments, were obliged under the criminal procedure law to verify and assess whether the evidence obtained was admissible and relevant and whether or not it had been obtained through violence, threats and other unlawful actions of the police officers as alleged in the applicants’ appeal. Pursuant to Articles 41 § 2 (4) and 184 § 1 of the CCP, the courts, based on the materials of a case examined by them, were entitled to request that the prosecutor adopt a decision instituting criminal proceedings against third persons. Since the case was currently pending before the Court of Appeal, the applicants’ appeal was to be dismissed. 114. On 28 March 2006 the applicants lodged an appeal on points of law, raising similar arguments. They also claimed that their procedural rights had been violated since the authorities refused to comply with the requirements of Articles 180 and 181 of the CCP. 115. On 30 May 2006 the Criminal and Military Court of Appeal issued its judgment on the merits of the applicants’ criminal case. It found the applicants guilty and increased their sentences to life imprisonment. The Court of Appeal relied, inter alia, on the second applicant’s confession statement. As regards the applicants’ allegations of ill-treatment, the Court of Appeal found them to be unsubstantiated. In doing so, the Court of Appeal first of all referred to the submissions made before the Regional Court by law enforcement officers A.H., S.T., V.K. A.B. and A.K., Chiefs of the Third and Fourth Battalions E.M. and I.V., officer M.A. and cameraman A.G. The Court of Appeal further referred to the video recording of the reconstruction of the crime, which did not reveal any bodily injuries on the second applicant, who moved and talked freely, and the records of examination of a person’s body drawn up at the military police arrest facility on 24 April 2004. 116. On 1 June 2006 the Court of Cassation decided to leave the appeal of 28 March 2006 unexamined. It found, in particular, that the applicants had brought a complaint under Article 290 of the CCP against the prosecutor’s actions related to the pre-trial proceedings. However, since the Court of Cassation was the supreme judicial instance and was called upon, pursuant to Article 92 of the Constitution, to ensure the uniform application of the law, its constitutional status prevented it from examining appeals against decisions and actions of the prosecutor related to the pre-trial proceedings. Such appeals might be examined by the Court of Cassation in exceptional circumstances, if they raised an issue of high importance for judicial practice. In such circumstances, the appeal was to be left unexamined since it was brought against a decision which was not subject to appeal in cassation. 117. On 9 June 2006 the applicants lodged an appeal on points of law against the judgment of the Criminal and Military Court of Appeal of 30 May 2006. 118. On an unspecified date, the father of one of the murdered servicemen, in his capacity of victim, also lodged an appeal on points of law against that judgment. In his appeal he complained that the criminal case had been conducted with procedural violations, as a result of which three innocent servicemen had been found guilty, while the real perpetrators were never brought to justice. 119. On 7 August 2006 the Court of Cassation returned the applicants’ appeal, requesting them to correct a shortcoming and to re-submit the appeal in accordance with the newly-adopted amendments to the CCP. 120. On 11 September 2006 the first and second applicants resubmitted their appeals, seeking to have their conviction quashed and to be acquitted. It appears that on an unspecified date the third applicant also followed suit. The applicants complained in detail that they had been unlawfully deprived of their liberty from 19 to 24 April 2004 and subjected to illtreatment during that period. They further complained that the authorities had failed to investigate their allegations of ill-treatment. 121. On 9 October 2006 the Court of Cassation decided to admit the applicants’ appeals for examination. On an unspecified date the victim’s appeal was also admitted for examination. 122. On 22 December 2006 the Court of Cassation decided to dismiss the applicants’ duly the statements of the defence concerning the applicants’ innocence and the existence of exonerating evidence, as well as their allegations of a violation of lawfulness in the course of the proceedings. In such circumstances, the applicants’ appeals seeking an acquittal could not be granted, since it was necessary to carry out a further investigation into the case. 123. As regards, in particular, the second applicant’s confession statement, the Court of Cassation found that this statement was not supported by other objective evidence in the case. Furthermore, the second applicant had retracted his statement, alleging that he had given it as a result of fear, violence and torture. It was therefore necessary to verify the credibility of the second applicant’s confession statement. 124. As regards the question of the applicants’ deprivation of liberty and their allegations of ill-treatment, the Court of Cassation stated: “It follows from the materials of the case that [the applicants] were detained on 24 April 2004. It was indicated in the appeals on points of law that for five days in a row [the applicants], having the status of a witness, had been subjected to violence, torture and inhuman treatment, as a result of which a confession statement was extorted from [the second applicant]. Pursuant to Paragraph 5 of Order no. 112 of 21 April 2004 of the commander of military unit no. 33651, [the third applicant] was ‘considered to be isolated’ by the Stepanakert Military Police Department and was deprived of his daily allowance on the basis of Isolation Notice N-99. Pursuant to Paragraph 6 of the same Order, [the second and first applicants], who were on military watch, were considered to be ‘isolated by the Stepanakert Military Police Department’ and were deprived of their daily allowances on the basis of Isolation Notices N-100 and N-101. In the course of the further investigation it is necessary to clarify what it means ‘to consider’ the said soldiers ‘to be isolated by the Stepanakert Military Police Department’ on the basis of isolation notices and what is the substance of such isolation. Has it not led to unlawful restrictions and deprivation of liberty not inherent in measures normally applied in the armed forces? It is also necessary to verify in detail the arguments raised in the appeals lodged by the defence concerning the infliction of violence on [the applicants] and subjecting them to torture during those days.” 125. The Court of Cassation also decided to annul the preventive measure and to release the applicants from detention. 126. On 6 February 2007 the investigation into the applicants’ criminal case was assigned to another investigator of the Military Prosecutor’s Office, V.S. An investigator of the Gugark Garrison Military Prosecutor’s Office of Armenia, S.G., was appointed as his assistant. 127. On 19 February 2007 the applicants appeared for questioning in their capacity of accused but refused to testify, stating that they considered themselves to be victims rather than accused. They stated that they would be willing to testify in connection with their allegations of torture if a separate criminal case was instituted and they were recognised as victims. 128. On the same date lawyer Z.P., who at that point was representing all three applicants, challenged the impartiality of employees of the Military Prosecutor’s Office, alleging that they were incapable of carrying out an objective investigation, which was evidenced by all the unlawfulness demonstrated earlier in the case, and requesting that they be removed from the investigation. This challenge was dismissed by the Acting Prosecutor General as unfounded. 129. On 27 February 2007 lawyer Z.P. filed a motion with the General Prosecutor’s Office requesting that a separate criminal case be instituted. She argued that the criminal case in question had been instituted on account of murder and the applicants were involved as accused. It was not possible to carry out an investigation into allegations of torture within the scope of that criminal case. The applicants had consistently complained for three years about the torture that they had undergone, and indicated the names of the perpetrators, but the authorities refused to make a proper assessment of their allegations. 130. On 28 February 2007 investigator V.S. rejected the motion, finding that not every report of a crime was sufficient in itself to institute criminal proceedings. Sufficient materials had not yet been obtained to adopt such a decision. 131. In March and April 2007 the investigators questioned a number of persons, including investigators A.H. and S.T. and military police officers V.K., A.B. and M., the commander of the applicants’ military unit, M.A., three military police officers of the Stepanakert Military Police Department and one officer of the Nagorno Karabakh Defence Army who had transported the applicants from Stepanakert to Yerevan, lawyers M.A. and V.Y., and the third applicant’s cousin’s husband, H.M., who had visited him in detention together with his father on 26 April 2004. 132. Investigators A.H. and S.T. provided their account of the events and denied having ill-treated the applicants. The transcripts of their interviews, including the questions and answers, contained texts which were word-for-word duplicates. Military police officers V.K. and A.B. similarly denied having ill-treated the applicants. Military police officer M. stated that he had been absent from the Stepanakert Military Police Department during the period when the applicants were taken there and he had never encountered them. Commander of the military unit M.A. stated that on 21 April 2004 he had imposed disciplinary detention on the applicants because of their unauthorised absence from the unit and ordered that they serve it at the Stepanakert Military Police Department. He did not know what questions had been posed to the applicants by the investigators in his office because this had been done in private. No violence had been inflicted in his presence. The officers who had transported the applicants stated that the applicants had not been handcuffed and no violence had been inflicted on them during their transfer. They had not noticed any bodily injuries and the applicants had not complained about their health. 133. Lawyers M.A. and V.Y. stated that on 24 April 2004 they had received telephone calls from investigator A.H. who had invited them to the Military Prosecutor’s Office to take up the applicants’ defence, since a lawyer’s participation was mandatory in cases involving servicemen. They were presented to the second applicant, who was asked to choose between them, so he chose lawyer M.A. Lawyer M.A. stated that, from that moment, he participated in all the interviews and confrontations involving the second applicant. On 27 April 2004 he met with his parents and signed a contract. Lawyer V.Y. stated that he had represented the first and third applicants until 26 April 2004. On that day he met with the first and third applicants’ parents, who did not wish him to continue representing them. Both lawyers stated that they had not noticed any injuries on the applicants, no illtreatment had been inflicted on the applicants in their presence, no complaints of ill-treatment had been made by the applicants nor any pressure exerted on them by the investigator. Lawyer M.A. added that the second applicant did not raise his allegations of ill-treatment until 15 days later when they met in private at the military police arrest facility. He then advised the second applicant to lodge a complaint with the Military Prosecutor. 134. H.M. stated that on 24 April 2004 the third applicant’s father had told him that his son had been taken to the Military Prosecutor’s Office. Since he was acquainted with investigator A.H., who lived in his neighbourhood, he promised to find out the reasons for the third applicant’s arrest. On the next day he had bumped into A.H. in the yard and introduced him to the third applicant’s father. They inquired about the reasons for his arrest, to which A.H. had replied that he was investigating a murder case and the third applicant had been arrested in that connection. They had further asked A.H. to give them a possibility to visit the third applicant for a few minutes, to which A.H. replied that on the following day he was going to carry out some investigative measures involving the third applicant at the Military Prosecutor’s Office and he could allow them to see him for a few minutes. On the following day they had gone to the Military Prosecutor’s Office and met with the third applicant for a few minutes in A.H.’s office. In reply to the investigator’s question as to whether he had seen any injuries on the third applicant or received from him any complaints of ill-treatment, H.M. stated that he had not noticed any injuries or received such complaints. Furthermore, since the investigator had left them alone for a few minutes, the third applicant, in his opinion, would at least have told his father about any ill-treatment. 135. On 2 April 2007 the investigator decided to order a forensic medical examination in respect of the applicants. The experts were requested to answer the following questions: (a) whether there had been or were any injuries on the applicants’ bodies and, if so, what was their origin; (b) if so, whether they could have originated during the period from 19 to 24 April 2004 and not be visible three days later, namely on 27 April 2004; and (c) whether the applicants suffered from any illness and, if so, whether it had been caused by the alleged ill-treatment. 136. On 10 September 2007 the forensic medical experts produced their conclusions. They found that, according to the applicants’ medical files, they did not have any injuries or suffer from any illnesses at the material time. It was not possible to determine whether the applicants had any injuries or illnesses at present since they had failed to appear for the examination. The experts added that skin, bone and joint injuries, such as wounds, bruises, scratches, fractures and dislocated joints, were usually visible after three days. 137. On 1 October 2007 the Acting General Prosecutor decided not to institute criminal proceedings against the alleged perpetrators of illtreatment for lack of a criminal act. This decision referred at the outset to the instructions of the Court of Cassation to investigate the circumstances of the applicants’ alleged deprivation of liberty prior to 24 April 2004 and their ill-treatment. As regards the deprivation of liberty, it was found to have been a lawful disciplinary measure imposed by the commander of the military unit within the scope of authority vested in him. It was further found that the investigating team had the right to interview the applicants as witnesses and they had been transferred for that purpose. At the Stepanakert Police Department they were placed in a disciplinary isolation cell and continued to be questioned, but later it was necessary to transfer them to Yerevan for the purposes of the investigation. There the second applicant had made his confession, after which the applicants were arrested. Lawyers were assigned to them and they were detained by a court decision of 27 April 2004. In such circumstances, the applicants’ allegations of unlawful deprivation of liberty and ill-treatment had been rebutted by the evidence collected in the case. 138. On 25 October 2007 the applicants lodged an appeal against this decision. They complained in detail that they had been unlawfully deprived of their liberty from 19 to 24 April 2004 in the guise of witnesses, while already being suspected of the crime. This had been done in order to deprive them of the safeguards enjoyed by a suspect under the law, such as the right to have a lawyer and the right not to testify, and to coerce them into making a confession. They had never been summoned to appear as witnesses as required by law but instead were forcibly taken from their military unit and transported miles away from one law enforcement agency to another where they were kept in various rooms and cells and subjected to repeated illtreatment. There had been no reasonable suspicion to justify depriving them of their liberty and they had been arrested only once the confession had been secured through coercion. They had then been placed in the military police arrest facility where the investigators continued exerting pressure, and in order to hide any traces of ill-treatment. They had not been informed about the reasons for their deprivation of liberty and were brought before a judge with a delay of eight days. The decision of the Acting General Prosecutor had been unlawful and unfounded. He was obliged by law to institute a separate set of criminal proceedings on account of illtreatment, to recognise them as victims and, after carrying out an investigation, to give a proper assessment to the questions raised by the Court of Cassation in its decision of 22 December 2006. For more than four years they had consistently raised their allegations of ill-treatment and indicated the names of the perpetrators but no effective investigation had ever been carried out. The applicants relied, inter alia, on Articles 3 and 5 of the Convention. 139. On 23 November 2007 the Kentron and Nork-Marash District Court of Yerevan decided to dismiss the appeal. The decision reads as follows: “Having studied the appeal and the materials of the criminal case, the court finds that the contested actions were taken in compliance with the law and there has been no violation of a person’s rights or freedoms.” 140. No appeal was lodged against this decision. 141. On 18 January 2008 the Military Prosecutor decided to institute criminal proceedings to investigate whether the fact that the starting date of the first applicant’s detention was indicated in his medical file as “19 April 2004” amounted to falsification of an official document. A number of persons were questioned and it was revealed that the note in question had been made by mistake by the head of the medical service based on the first applicant’s oral statement. For this reason it was decided to terminate the criminal proceedings for lack of a criminal act. 142. On an unspecified date the applicants’ trial resumed in the Shirak Regional Court. According to the applicants, a number of former servicemen of their military unit and also a few civilians testified during the trial that they had been locked up during various periods at the beginning of 2004 at the Martakert Garrison Military Prosecutor’s Office and the Stepanakert Military Police Department and questioned in connection with the murders. Many of them stated that they had been humiliated and brutally illtreated during those periods in order to confess to the crime. 143. On 18 December 2012 the Shirak Regional Court, having heard numerous witnesses and examined the available evidence, found that the applicants’ guilt had not been substantiated and decided to acquit them. It appears that no appeals were lodged against this judgment. | 1 |
test | 001-180484 | ENG | TUR | COMMITTEE | 2,018 | CASE OF KAPLAN v. TURKEY | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić | 6. The applicant was born in 1975 and is detained in Tekirdağ. 7. On 9 September 1995 the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation. 8. On the same day the public prosecutor at the Istanbul State Security Court prolonged the applicant’s detention in police custody for a period of up to 15 days. 9. On 13 September 1995 the applicant’s statements were taken by the police in the absence of a lawyer. The applicant confessed to being a member of an illegal organisation and having been involved in a murder. 10. On 14 September 1995 the applicant participated in a reconstruction of the events (yer gösterme) with another suspect K.A., organised by the police in the absence of a lawyer. According to a report, drafted by police officers and signed by the applicant and K.A., both of the accused gave the details of the murder which they had committed. 11. On 22 September 1995 the applicant was examined by a doctor from the Istanbul Forensic Institute. A collective medical report was drawn up in respect of the applicant and five other suspects. According to the report, there were no traces of ill-treatment on the applicant’s body. 12. On 22 September 1995 the applicant was heard by a public prosecutor and an investigating judge respectively. In his statements to the public prosecutor and the investigating judge, the applicant denied his police statements alleging that they had been taken under duress. Following his questioning, the investigating judge ordered the applicant’s detention on remand. 13. On 9 October 1995 a public prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant with attempting to undermine the constitutional order, an offence prescribed by Article 146 § 1 of the former Criminal Code. 14. On 7 December 1995 the applicant was heard by the trial court during the first hearing in the presence of his lawyer. The applicant denied all the charges against him and stated that his statements at the police had been taken under duress. 15. In the meantime, State Security Courts were abolished by Law no. 5190 of 16 June 2004. Accordingly, the case was transferred to Istanbul Assize Court. 16. On 13 September 2007, relying on, inter alia, the applicant’s and his co-accused K. A.’s statements to the police, the Istanbul Assize Court held that the applicant had committed the offence under Article 146 § 1 of the Criminal Code and sentenced him to life-imprisonment. 17. On an unknown date the applicant’s lawyer appealed against the judgment of 13 September 2007. 18. On 1 December 2008 the Court of Cassation upheld the above judgment. | 1 |
test | 001-147284 | ENG | TUR | CHAMBER | 2,014 | CASE OF MURAT VURAL v. TURKEY | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Nicolas Bratza;Robert Spano | 5. The applicant was born in 1975 and lives in Ankara. 6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 7. In the early hours of 28 April 2005 the applicant went to a primary school in the town of Sincan and poured paint on a statue of Atatürk which was situated in the school’s garden. On the evening of the same day, he poured paint on a statue of Atatürk in the garden of another primary school. 8. On 6 May 2005 he did the same thing in the same two primary schools. 9. On 8 July 2005 the applicant poured paint on a statue of Atatürk in Sincan town centre. 10. On 12 September 2005 the applicant went to the same statue in Sincan town centre equipped with a tin of paint, paint thinner and a ladder. As he was about to open the tin of paint he was arrested by police officers and taken to a police station where he was questioned. In a statement taken from him on the same day the applicant was reported as having told the police officers that he had carried out the above-mentioned actions because he resented Atatürk and had expressed his resentment by pouring paint on the statues. 11. On the same day the applicant was brought before a prosecutor and then a judge, who ordered his detention on remand pending the opening of criminal proceedings against him. In his statement to the prosecutor the applicant maintained that he had carried out his actions to express his “lack of affection” for Atatürk. 12. In his indictment of 15 September 2005, lodged with the Sincan Criminal Court of First Instance (hereinafter “the trial court”), the Sincan prosecutor charged the applicant with the offence of contravening the Law on Offences Committed Against Atatürk (Law no. 5816; see “Relevant Domestic Law and Practice” below). 13. In the course of the trial the applicant admitted that he had poured paint on the statues. He told the trial court that he had completed his university studies and qualified as a teacher. However, he had been unemployed for a long time because his application to work as a teacher had not been accepted by the Ministry of Education. He had carried out his offences in order to protest against the Ministry’s decision. 14. On 10 October 2005 the trial court found the applicant guilty as charged. Having regard to the fact that the offence was committed in a public place and on a number of occasions, the trial court sentenced him to three years’ imprisonment instead of the minimum term of imprisonment applicable under Law no. 5816, which is one year. The fact that the offence had been committed in a public place also led the trial court to increase the sentence by half in accordance with section 2 of Law no. 5816. The trial court also considered that the applicant had committed the offence on five separate occasions, and decided to multiply the sentence by five. The applicant was thus sentenced to a total prison term of twenty-two years and six months for his above-mentioned actions. 15. The applicant appealed. In his appeal he argued that, according to the provisions of the Criminal Code, only one sentence should have been imposed on him because, regardless of the fact that he had poured paint on the statues on five occasions, he had in fact only committed one offence and not multiple offences. In support of his argument, he submitted that his five actions had been carried out within a short span of time. 16. The applicant also pointed out that, instead of imposing on him the minimum one-year prison sentence provided for in Law no. 5816 in respect of each offence, the trial court had handed down a three-year sentence because it had had regard to the number of times he had poured paint on the statues. The trial court had then gone on to rely on the frequency of his actions when multiplying the sentence by five. 17. The applicant also challenged the trial court’s reliance on section 2 of Law no. 5816 when increasing his sentence by half because the offence had been committed in a public place. He drew the Court of Cassation’s attention to the fact that, by their nature, statues are placed in public places. 18. The applicant added that he had carried out his actions in order to express his “lack of affection” for Atatürk. As such, he had remained within the boundaries of his right to freedom of expression, which was guaranteed by Article 10 of the Convention. Thus, although it would have been reasonable to prosecute and punish him for damaging property, he had in fact been punished for expressing his opinions. 19. On 6 April 2006 the Court of Cassation rejected the applicant’s argument that he had been expressing his opinion, but quashed the trial court’s judgment on the ground of, inter alia, that court’s failure to give adequate consideration to the possibility that the five separate incidents could form only one offence and not multiple offences. The Court of Cassation considered that the applicant had carried out his actions in order to protest against the Ministry of Education’s decision not to appoint him as a teacher. The case file was sent back to the trial court. 20. In its decision of 5 July 2006 the trial court agreed with the Court of Cassation’s conclusion, and held that the applicant’s actions had amounted to a single offence and not five offences. However, having regard, inter alia, to the “contradictory reasons” put forward by the applicant as justification for his actions, as well as “the effects of his actions on the public”, the trial court concluded that the applicant’s actions had amounted to “insults”, and deemed it fit to sentence him to five years’ imprisonment, which is the maximum allowed under Law no. 5816. The sentence was then increased by half because the acts had been committed in a public place. Furthermore, pursuant to Article 43 of the Criminal Code (see “Relevant Domestic Law and Practice” below), the sentence was further increased by three quarters. The applicant was thus sentenced to a total of thirteen years, one month and fifteen days’ imprisonment. 21. Furthermore, in its decision the trial court set out the restrictions under section 53 of the Criminal Code which were to be placed on the applicant on account of his conviction. Accordingly, until the execution of his sentence, the applicant was banned from, among other things, voting and taking part in elections, as well as from running associations, parties, trade unions and cooperatives (see “Relevant Domestic Law and Practice”). 22. The applicant appealed and repeated his arguments under various provisions of the Convention. He maintained, in particular, that he had carried out his actions in order to express his “lack of affection” for Atatürk and had thus exercised his freedom of expression guaranteed in Article 10 of the Convention. 23. The appeal was dismissed by the Court of Cassation on 5 February 2007. No mention was made in the Court of Cassation’s decision of the arguments raised by the applicant about his freedom of expression. 24. According to a document drawn up by the prosecutor on 16 April 2007 setting out the details of the applicant’s prison sentence, the date of the applicant’s release from prison was set as 22 October 2018, with a possibility of release on 7 June 2014 for good behaviour. 25. In the meantime, on 1 June 2005 the Law on the Execution of Prison Sentences and Other Security Measures (Law no. 5275) entered into force. This law sets out the circumstances in which prisoners can benefit from early release. 26. On 15 May 2007 the prosecutor responsible for the prison the applicant was serving his sentence in wrote to the trial court and asked for guidance in calculating the date of the applicant’s possible early release. The prosecutor stated that, for offences committed before 1 June 2005, Law no. 647 was applicable and, for offences committed after that date, the new Law no. 5275 would be applicable. The applicant had carried out his actions both before and after that date. 27. On 16 May 2007 the trial court considered that the critical date was the date of the commission of the final act and thus the new law was applicable. 28. The applicant lodged an objection against that decision and argued that most of his actions had been carried out before 1 June 2005 and that therefore, when calculating his prison sentence, the old law should be taken into account. If his prison sentence were calculated in accordance with the new law, he would spend four more years in prison. That objection was rejected by the trial court on 18 June 2007 and the date of the applicant’s possible release from prison was calculated in accordance with the document drawn up by the prosecutor on 16 April 2007 (see paragraph 24 above). 29. A request made by the applicant to the Ministry of Justice for his conviction to be quashed and another request to the Court of Cassation to rectify the judgment were rejected on 28 September 2007 and 28 December 2007 respectively. 30. On 11 June 2013 the applicant was released conditionally. | 1 |
test | 001-139991 | ENG | FIN | CHAMBER | 2,014 | CASE OF OJALA AND ETUKENO OY v. FINLAND | 3 | Preliminary objection partially allowed (Article 34 - Victim);Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The first applicant was born in 1952 and lives in Helsinki. The applicant company has its seat in Helsinki. 6. The applicants, a publisher and a publishing company, wrote and published, together with the former girlfriend of the Prime Minister at the time, an autobiographical book about her relationship with the Prime Minister. The book described a period of nine months in their lives from the point of view of the girlfriend, a single mother. The Prime Minister had earlier divorced his wife. The book described the dating couple’s life and their intimate interaction. The book was published on 19 February 2007. The Prime Minister held office from June 2003 to June 2010 when he stepped down. 7. On 5 October 2007 the public prosecutor brought charges under Chapter 24, section 8, of the Penal Code against the first applicant and the girlfriend for having disclosed information about the Prime Minister’s private life (yksityiselämää loukkaavan tiedon levittäminen, spridande av information som kränker privatlivet). He also requested that the proceeds of the crime received by the applicant company be ordered forfeit to the State in accordance with Chapter 10, section 2, of the Penal Code. The Prime Minister concurred with the charges brought by the public prosecutor against the first applicant. He also pursued a compensation claim against the first applicant which was joined to the criminal charges. The girlfriend has lodged a separate application with the Court (see Ruusunen v. Finland, no. 73579/10). 8. On 15 February 2008 the book was withdrawn from sale. 9. On 5 March 2008 the Helsinki District Court (käräjäoikeus, tingsrätten), after having voted, dismissed the charges against the first applicant and rejected the request that the proceeds of the crime received by the applicant company be ordered forfeit to the State. It found that the book disclosed a lot of information about the Prime Minister’s private life but that he had already widely disclosed information about his family and habits as well as about his relationship with the girlfriend. Even though he himself had published an autobiography in 2005, had given several interviews, ran a blog and even permitted photographs to be taken at his home, he was known as a politician who strictly controlled his public image. The book also contained some information which had not previously been disclosed to the public. In this respect the court found that these new details only completed the information the Prime Minister had disclosed earlier. It was never suggested that the facts disclosed were not true. The book covered a period of nine months in the girlfriend’s and the Prime Minister’s private life. The court found that the girlfriend had the right to recount her private life. She also described the Prime Minister, his actions and family in a compassionate manner. The court found that, even though the information disclosed in the book had no direct relevance to the Prime Minister’s political functions or his hierarchical position in the State, it had relevance as far as the Prime Minister’s person was concerned. The Constitution required that ministers were “known to be honest and competent”. Moreover, the book described a situation in which two different realities of present day Finnish society met: a wealthy party leader and Prime Minister on the one hand, and a single mother with everyday money problems on the other hand. The court found that the fact that the girlfriend was writing about her life and her relationship with one of the highest authorities in the country did not restrict but in fact widened her freedom of expression. When weighing the freedom of expression against the protection of private life, the court found that the need to resort to criminal liability decreased when the disclosed information became more widely known. Criminal liability was the last resort in guiding human behaviour and its use had to be proportionate. The court could therefore not hold that the publication of the applicants’ book was a criminal act. Moreover, as the first applicant had obtained an opinion from a lawyer before publishing the book, he could not be regarded as having acted with intent and could not therefore be considered as a perpetrator. 10. By letter dated 18 April 2008 the public prosecutor appealed to the Helsinki Appeal Court (hovioikeus, hovrätten). The Prime Minister also appealed. 11. On 10 February 2009 the Helsinki Appeal Court convicted the first applicant for disseminating information violating personal privacy and sentenced him to 60 day-fines, in total 840 euros. He was ordered to pay the Prime Minister 1,000 euros plus interest for non-pecuniary damage and 9,344 euros plus interest for his costs and expenses before the District Court and the Appeal Court. The proceeds of the crime, 4,260 euros, were ordered forfeit to the State. The applicant company was to receive 4,000 euros as compensation for its costs and expenses before the District Court. The court found that the passages in the book concerning the Prime Minister’s intimate dating and his children’s feelings and behaviour unnecessarily violated the core areas of his protected private life. He had not previously disclosed these details of his private life in the media. The fact that he had disclosed some parts of his private life, the protection of which was, due to his status, much narrower than a private person’s, did not mean that he could not benefit at all from any protection of his private life. He had thus not waived his right to the protection of private life, nor implicitly consented to the disclosure of information concerning details of his private life. Even though the girlfriend had the right to write about her private life, disclosure of intimate details of another person’s private life always required his or her consent. The aim of the applicants’ book had been to discuss matters of private life and it had no relevance to the Prime Minister’s political functions or his hierarchical position in the State. Nor had it any relevance to the assessment of his personal qualities, such as any lack of honesty and judgment, as the relationship fell within the core areas of his private life and had no relevance to his position as Prime Minister. Moreover, the first applicant could be held as a perpetrator even though he had obtained a legal opinion about the book before its publication. His acts had been intentional. 12. By letter dated 14 April 2009 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), requesting that the court establish a precedent in the case as the court had not yet in its case-law assessed freedom of expression in the context of an autobiography. 13. On 11 June 2009 the Supreme Court granted the applicants leave to appeal. 14. On 16 June 2010 the Supreme Court, after having held an oral hearing, upheld the Appeal Court’s conviction but quashed the forfeiture in respect of the first applicant and reduced the costs and expenses to be paid to the Prime Minister for the proceedings before the District Court and the Appeal Court to 6,000 euros plus interest. The first applicant was ordered to pay the Prime Minister 4,500 euros plus interest for his costs and expenses before the Supreme Court. The applicant company was to receive 2,000 euros as compensation for its costs and expenses before that court. In particular, by referring extensively to the Court’s case-law, the Supreme Court gave a more narrow scope to the Prime Minister’s private life than the Appeal Court. The court found that information about the Prime Minister’s sex life and intimate events and his children’s feelings and behaviour had not been disclosed to the public before. The fact that some details of his private life had been disclosed before did not mean that they could not fall within the scope of criminal liability under Chapter 24, section 8, of the Penal Code. The Prime Minister had not waived his right to protection of private life in these respects, nor had he given his consent to their publication by consenting to the use of his photograph on the cover of the book. The court considered, contrary to the Appeal Court, that the information about how and when the Prime Minister had met the girlfriend and how quickly their relationship had developed had had relevance to general public discussion as these issues had raised the question of whether in this respect he had been dishonest and lacked judgment. Also the information concerning the great differences in the standard of living between the girlfriend and the Prime Minister, his lifestyle, the data protection concerns and the protection of the highest political authorities in general had had relevance to general public discussion. The court found also that disclosure of information about the Prime Minister’s children was not conducive to causing him damage, suffering and contempt as the girlfriend had only given her own interpretation of the children’s attitudes. However, the only references which, according to the court, had illegally disclosed information about the Prime Minister’s private life were the information and hints about the sex life and intimate events between the girlfriend and the Prime Minister. The court enumerated in particular seven parts of the book which contained information about the start of the sex life in the beginning of their relationship, descriptions of their brief and passionate intimate moments as well as giving massages to each other, and accounts of their sexual intercourse. The court found that such information and hints fell within the core area of private life and their unauthorised publication was conducive of causing the Prime Minister suffering and contempt. It was thus necessary to restrict the applicants’ freedom of expression in this respect in order to protect the Prime Minister’s private life. | 0 |
test | 001-179211 | ENG | RUS | COMMITTEE | 2,017 | CASE OF MAGOMETKHOZHIYEV AND AMALAYEV v. RUSSIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. The applicants complained of a breach of their property rights through the actions of Russian military forces in Chechnya in 2000 and the failure of the competent domestic authorities to provide them with effective remedies in respect of those breaches. 5. The facts of the cases, as submitted by the parties, may be summarised as follows. 6. The application was lodged on 14 March 2008 by Mr Isa Magometkhozhiyev, who was born in 1950 and currently lives in Urus-Martan, Chechnya. He is represented before the Court by Mr D. Itslayev, a lawyer practising in Grozny. 7. The applicant lived at 109 Sovetskaya Street, Urus-Martan. At about 10 a.m. on 10 March 2000 a group of military servicemen arrived at the house. The servicemen drove two armoured personnel carriers (APCs), and an Ural lorry with the registration number M 105 61. The group’s commander introduced himself to the applicant as Major Iv. They seized the applicant’s GAZ-330700 petrol lorry, which was stationed in the courtyard. They did not show any documents or give any explanation in respect of the seizure to the applicant, except to tell him that they had been instructed by their commanders to do so. 8. The applicant followed the servicemen who drove his lorry away. They entered the compound of a military unit known as DON-100, in the south-western outskirts of Urus-Martan. 9. On 11 March 2000 the applicant was allowed by a soldier to enter the compound and he saw his vehicle there. The applicant states that he saw many other vehicles stationed there; some had parts missing. 10. Two weeks later a serviceman told the applicant that his vehicle had been transported to a military unit in Mozdok, North Ossetia. 11. The applicant stated that he had reported the seizure of the vehicle to the authorities immediately, but submitted no documents in this respect. 12. On 15 March 2001 the applicant informed the military prosecutor of Chechnya of the unlawful seizure of his lorry and asked him to intervene. 13. On 19 June 2001 an investigator of the Urus-Martan district prosecutor’s office (hereinafter “the district prosecutor’s office”) asked the Ministry of Justice to inform him of the current location of Major Iv., who was no longer stationed in Chechnya. 14. In July and August 2001 the Ministry of Justice replied to the investigator that no Ministry serviceman by the name of Iv. had been serving in Urus-Martan at the time in question. 15. On 20 January 2002 the district prosecutor’s office opened criminal investigation file no. 61001 into the alleged robbery. The decision by which the criminal investigation file was opened stated that in March 2000 a group of unidentified armed persons had, having threatened the applicant with firearms, taken his lorry from his house. 16. After a subsequent exchange of letters between the district prosecutor’s office and the Ministry of Justice and the Ministry of Defence, it proved impossible to identify the military unit in question. On this basis, in April 2003 the military prosecutor’s office refused to take possession of the file. 17. Officials of the North Caucasus Military Circuit denied that the GAZ lorry with the registration and identification numbers indicated by the applicant had been registered with any of their units. This was affirmed by the Chechnya Agency of State property. 18. Certain documents indicated that the servicemen identified by the applicant as belonging to “DON-100” had served in military unit no. 3660 of the internal troops of the Ministry of the Interior, which was permanently based in the Rostov Region. 19. At some point the applicant was granted victim status and information about the vehicle was entered in the national register of missing and stolen vehicles. 20. The applicant on numerous occasions complained to various bodies, including the civilian and military prosecutor’s offices, and the military and civilian authorities both in Chechnya and at the federal level. 21. The investigation was adjourned and reopened on several occasions but failed to identify the perpetrators, to find or question anyone from the military unit in question, or to locate the vehicle. 22. The applicant lodged a claim for compensation against the State Treasury. On 8 August 2005 the Urus-Martan Town Court refused to consider the claim on the merits. The applicant appealed, and on 30 August 2005 the Supreme Court of Chechnya quashed that decision and remitted it to the District Court for fresh examination. 23. In the meantime, the applicant applied to the Urus-Martan Town Court, requesting that it confirm his ownership of the vehicle in question. The applicant submitted that the vehicle and relevant documents had been taken from him by unidentified servicemen of the Ministry of Justice. The Chechnya traffic police were unable to issue any documents since their archives had burned down in 2000, but a police inspector from Urus-Martan confirmed that the applicant had had the vehicle in his possession. Two witnesses confirmed that the applicant had owned the vehicle. On the strength of the above, on 27 February 2006 the Town Court confirmed the applicant’s ownership of the vehicle in question. 24. By a decision dated 21 September 2006 the Urus-Martan Town Court transferred the applicant’s claim for damages to the Basmanny District Court of Moscow, the city in which the Federal Treasury was situated. The applicant appealed, and on 4 July 2006 the Supreme Court of Chechnya quashed the decision of 21 September 2006 and remitted the case to the Urus-Martan Town Court for fresh consideration. 25. On 21 December 2006 the Urus-Martan Town Court considered the substance of the case and concluded that the evidence submitted by the applicant and adduced during the pending criminal investigation had failed to establish conclusively the implication of State agents in the crime. 26. The applicant appealed, and on 30 January 2007 the Supreme Court of Chechnya quashed the judgment of 21 December 2006 and again remitted the case to the Urus-Martan Town Court for fresh consideration. 27. The applicant lodged a claim seeking compensation for the cost of the lorry (which he estimated at 170,000 Russian roubles (RUB)) and lost income, together with compensation for non-pecuniary damage. On 1 August 2007 the Urus-Martan Town Court dismissed the applicant’s claim, referring to the absence of conclusive proof that State servicemen had seized the vehicle. On 18 September 2007 the Supreme Court of Chechnya upheld that ruling, referring to the fact that the criminal investigation remained pending. 28. The application was lodged on 6 October 2008 by Mr Ismail Amalayev, who was born in 1960 and currently lives in Kiel, Germany. 29. In the evening of 14 October 2000 the applicant, his wife and aunt travelled in the applicant’s KAMAZ 53-20 lorry from the village of Starye Atagi to the Chiri-Yurt district of Grozny, Chechnya. At about 5 p.m. the applicant’s lorry got stuck on the road, not far from a security roadblock. The applicant tried to seek help from the passing drivers, but they were either unable to tow the lorry or didn’t want to stop, in view of the approaching curfew. 30. An armoured personnel carrier (APC), with the hull number 233, belonging to military unit no. 205 was passing by, and the applicant signalled to it by flashing his headlights. The APC stopped within 200-300 metres of the applicant’s lorry. Several servicemen got out but did not approach the lorry. Soon afterwards the applicant’s lorry was shot at from the direction of the APC; the applicant, his wife and his aunt escaped unhurt and ran to Starye Atagi. 31. In the morning on 15 October 2000 the applicant went to the lorry and found it burnt out and looking as though it had suffered from an explosion. The applicant immediately informed the local police, the head of the local administration of Starye Atagi and the local military commander’s office. 32. On 19 October 2000 the applicant drew up a description of the destroyed lorry, which was co-signed by two traffic police officers from Starye Atagi. The description concluded that the lorry had been “blown up and burned during curfew hours not far from the roadblock manned by the [servicemen of the] 205th motorised rifle regiment”. The applicant submitted a copy of this document to the Court, with some handwritten corrections. 33. On the same day a senior inspector of the state traffic police of the Grozny district department of the interior (ОВД Грозненского района Чеченской Республики) concluded that the applicant’s KAMAZ lorry had been destroyed by fire as a result of being fired at and could not be repaired. 34. In a decision dated 24 October 2000, the Grozny district prosecutor’s office stated that it would not open a criminal investigation into the applicant’s allegations. It concluded that the applicant had left his lorry on the road and that the car had been destroyed by fire as a result of an electrical short circuit. In 2001-2002 the applicant lodged a number of complaints against that decision. 35. On 25 March 2001 the Grozny District Prosecutor’s Office opened a criminal investigation into the applicant’s allegations that his KAMAZ lorry had been shot at and been destroyed by fire by unidentified servicemen driving APC no. 233. The investigation was adjourned on several occasions. 36. In March 2006 the applicant, his wife and aunt were granted victim status. The value of the lorry was put by the applicant at RUB 280,000. It does not appear that the investigation progressed beyond the facts communicated by the applicant. 37. On 8 May 2008 the Grozny District Court refused to consider the applicant’s complaint concerning the ineffectiveness of the investigation, since on 1 May 2008 the latest decision to adjourn the investigation had been quashed. On 11 June 2008 the Supreme Court of Chechnya confirmed this decision. 38. On 1 June 2008 the applicant was, once again, informed that the investigation had been adjourned. 39. The applicant lodged a claim, seeking to recover the cost of the lorry directly from the military unit. On 15 November 2006 the Grozny District Court dismissed the applicant’s claim. The applicant appealed, and on 19 December 2006 the Supreme Court of Chechnya quashed the District Court’s decision and remitted the case to the District Court. The Supreme Court pointed out that the case-file material in respect of the pending criminal case, the applicant’s submissions and the evidence produced all pointed to the Ministry of Defence as the possible tortfeasor. It considered that the District Court had failed to elucidate the circumstances of the events in question and to inform the Ministry of Defence of the hearing of 15 November 2006. 40. The case was then transferred to Moscow, where the Ministry of Defence headquarters is located. On 2 March 2007 the Presnensky District Court dismissed the claim. It pointed out that the circumstances of the events in question were the subject of pending criminal proceedings and that “military unit no. 205” did not exist, according to the General Staff of the Ministry of Defence. It is not clear if the applicant appealed. 41. It appears that in March 2013 the applicant left Chechnya and, via Poland, moved to Germany. | 1 |
test | 001-153905 | ENG | AZE | CHAMBER | 2,015 | CASE OF NAGIYEV v. AZERBAIJAN | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicant was born in 1980 and lives in Baku. 6. On 15 November 2007 there was a bomb explosion in Moscow. Criminal proceedings were instituted in connection with this explosion and on 13 December 2007 the applicant was charged with unlawful possession of explosive materials under Article 222.2 of the Criminal Code of the Russian Federation. 7. On 21 December 2007 the Preobrazhensky District Court, Moscow City, ordered the application of the preventive measure of remand in custody in respect of the applicant and issued an arrest warrant. 8. On 26 December 2007 the arrest warrant was sent to the Ministry of Internal Affairs (“the MIA”) of Azerbaijan. 9. It appears from a letter of 30 October 2008 signed by the head of the Criminal Investigation Department of the MIA that following the transfer of the arrest warrant to the Azerbaijani authorities the police contacted the applicant, who was in Azerbaijan, sometime in January 2008. The applicant came voluntarily to the MIA and submitted that he had no link with the explosion in question. The MIA established that the applicant was an Azerbaijani national and decided to transfer his statement to the relevant Russian authorities. At the request of the Russian authorities, on 31 January 2008 the applicant was again questioned at the MIA with the participation of two Russian police officers about his possible involvement in the explosion. Following a two-hour interrogation, no action was taken against the applicant and he left the premises of the Ministry. 10. On 30 June 2008 the applicant lodged a complaint with the Organised Crime Department (“the OCD”) of the MIA about an alleged misappropriation of his property by a certain E.H. and others. Dissatisfied with the progress in the case, the applicant subsequently lodged complaints with various State authorities about the failure of the OCD to investigate his complaint. 11. On 18 September 2008 the applicant was summoned to the OCD and on arrival there he was arrested. The applicant was not allowed to contact his family or a lawyer, and his arrest was not documented. 12. As the applicant’s family had no information about his whereabouts, on 21 September 2008 they lodged a criminal complaint with Khatai District Police Station No. 36 related to the applicant’s disappearance, and submitted a photograph of him to the police. 13. On 22 September 2008 the OCD informed the applicant’s family by telephone that the applicant had been arrested and detained in the temporary detention facility of the OCD. 14. On 24 September 2008 the applicant’s brother was allowed to visit him in the temporary detention facility of the OCD. However, the applicant’s family was not informed of the reasons for the applicant’s arrest and detention. 15. On 26 September 2008 the applicant’s family contacted a lawyer for the applicant’s defence and at around 10 a.m. on 27 September 2008 a contract was concluded between them. 16. At around 3 p.m. on 27 September 2008 the lawyer went to the OCD and tried to meet the applicant. However, the lawyer was informed that he could not meet the applicant without the authorisation of the investigator. The lawyer immediately sent telegrams to the MIA, the Prosecutor General’s Office and the Ombudsman complaining that he had been prevented from meeting the applicant. 17. At around 9 p.m. on 27 September 2008 the applicant was brought before a judge of the Narimanov District Court who ordered his detention on remand (see paragraph 22 below). His lawyer was not informed about the hearing; the applicant was represented by a State-appointed lawyer. 18. While detained in the temporary detention facility of the OCD, he was during the period from 18 September to 2 October 2008 forced to change his statement in the criminal case concerning the misappropriation of his property by E.H. and others. 19. As regards the criminal complaint lodged by his family (see paragraph 12 above), by letter of 2 October 2008 the head of Khatai District Police Station No. 36 informed the applicant’s family of the investigator’s refusal to institute criminal proceedings in connection with his disappearance. The relevant part of the decision reads as follows: “On 21 September 2008 citizen B. Nagiyev lodged a complaint with Khatai District Police Station No. 36, stating that his brother, Nagiyev Asif Najaf oglu [the applicant], born in 1980, left his home at around 1.15 p.m. on 19 September 2008 and has not returned. Citizen B. Nagiyev also made a statement confirming the content of his complaint. A report was prepared and transferred to Khatai District Police Station No. 36 in connection with the search for Asif Nagiyev [the applicant]. During the search, all the police stations in Baku were instructed and other measures were taken. During the search, non-official information was received indicating that Asif Nagiyev had been arrested by the OCD of the MIA because he was wanted in Russia. An enquiry in this regard was sent to the OCD, but no response has yet been received. The whereabouts of A. Nagiyev have not yet been clearly established. Taking into account that there is no evidence that a crime has been committed, institution of criminal proceedings in connection with this subject should be rejected.” 20. The applicant was arrested at around noon on 27 September 2008. The relevant part of the official record of the applicant’s arrest (cinayət törətmiş şəxsin tutulması barədə protokol) of 27 September 2008 reads as follows: “... At around noon on 27 September 2008, Nagiyev Asif Najaf oglu [the applicant], whose identity was established later, born on ... and in ... was arrested in the district of Narimanov in Baku and taken to the department. It was established during questioning there that on 21 December 2007 Nagiyev Asif Najaf oglu was charged under Article 222.2 (unlawful possession of explosive materials) of the Criminal Code of the Russian Federation by the Moscow City Prosecutor’s Office ... an arrest warrant was issued, and the application of the preventive measure of remand in custody was ordered ... Nagiyev Asif Najaf oglu was transferred to the temporary detention facility of the OCD ...” 21. It appears from the extracts from the logbook of the OCD’s temporary detention facility submitted to the Court by the Government that the applicant arrived at the detention facility at 4 p.m. on 27 September 2008 following a decision of a Narimanov District Court judge. 22. On 27 September 2008 a judge of the Narimanov District Court, relying on the Russian court’s detention order of 21 December 2007, ordered the application of the preventive measure of remand in custody in respect of the applicant for a period of two months. At the hearing the applicant was represented by a State-appointed lawyer. The judge relied on the provisions of the Code of Criminal Procedure (“the CCrP”) of the Republic of Azerbaijan relating to detention with a view to extradition when she ordered the applicant’s detention. The judge justified this measure as follows: “Taking into account the fact that Nagiyev Asif Najaf oglu committed a less serious criminal offence and, if released, would obstruct the objective functioning of the investigation by absconding from it, I consider it necessary to confirm the decision of 21 December 2007 of the Federal Court of Preobrazhensky District, Moscow City, to apply the preventive measure of remand in custody in respect of him for a period of two months. In fact, according to Article 495.1 of the CCrP of the Republic of Azerbaijan, upon receipt of a request for extradition of a person and a copy of a detention order in respect of him from the competent authority of a foreign State, the prosecuting authority of the Republic of Azerbaijan to which the request is addressed may, if necessary, take measures in compliance with the provisions of this Code to have the person arrested and detained before a decision on extradition is taken.” 23. Following a series of complaints to the various domestic authorities, on 8 October 2008 the applicant’s lawyer was provided with a copy of the record of the applicant’s arrest and the Narimanov District Court’s decision of 27 September 2008. 24. On an unspecified date the applicant appealed against the Narimanov District Court’s decision of 27 September 2008, claiming that his arrest and detention had been unlawful. In particular, he submitted that he had been unlawfully arrested on 18 September 2008 and that there were no criminal proceedings pending against him in Azerbaijan. He further argued that as he was an Azerbaijani national he could not be extradited to a foreign State, which followed from Article 53 of the Constitution of the Republic of Azerbaijan and Article 13 of the Criminal Code. He also submitted that his arrest and detention had not been carried out in accordance with domestic and international law, since no official request accompanied by the relevant documents for his detention and extradition was ever submitted by the Russian authorities. The applicant’s lawyer also submitted a request for restoration of the time-limits for lodging an appeal. In this connection, the lawyer stated that although at 10 a.m. on 27 September 2008 the applicant’s family had appointed him as a lawyer for the applicant’s defence, he had not been informed of the Narimanov District Court’s hearing, which was held at around 9 p.m. on 27 September 2008. He further noted that he had been provided with a copy of the detention order only on 8 October 2008. 25. On 3 November 2008 the Narimanov District Court granted the request for restoration of the time-limits for lodging an appeal and forwarded the applicant’s appeal to the appellate court for examination. 26. On 7 November 2008 the Baku Court of Appeal upheld the Narimanov District Court’s decision of 27 September 2008 without considering the applicant’s specific complaints. 27. On 27 November 2008 the Narimanov District Court granted the prosecutor’s request for the extension of the applicant’s detention for a period of two months, relying on Article 159 of the CCrP concerning the extension of detention periods pending criminal proceedings. In its decision, the court noted that as the applicant was an Azerbaijani national he could not be extradited to a foreign State, and for this reason the Azerbaijani Prosecutor General’s Office had requested the Russian Prosecutor General’s Office to transfer the applicant’s criminal case to the Azerbaijani authorities. The court thus justified the extension of the applicant’s detention period by the fact that more time was needed for the submission of relevant documents relating to the applicant’s case from the Russian Prosecutor General’s Office to the Azerbaijani authorities. The relevant part of the decision reads as follows: “As the extradition of Nagiyev Asif Najaf oglu to Russia is impossible because he is a citizen of the Republic of Azerbaijan, a request was sent to the Russian Prosecutor General’s Office for the criminal case to be transferred to the Azerbaijani Prosecutor General’s Office for the criminal inquiry to be continued in the Republic of Azerbaijan. Taking into account the fact that more time is needed for the transfer of the criminal case relating to the accused Nagiyev Asif Najaf oglu from the Russian Prosecutor General’s Office to the Azerbaijani Prosecutor General’s Office, but that the detention period of Nagiyev Asif Najaf oglu ends on 27 November 2008, I consider the request justified in order to ensure the criminal prosecution of Nagiyev Asif Najaf oglu in the future and to prevent him from absconding from the court proceedings. Taking into account the above-mentioned matters and relying on Articles 159, 448 and 454 of the CCrP, I decide that the detention period of Nagiyev Asif Najaf oglu born on ... and in ... must be extended for a period of two months, until 27 January 2009.” 28. The applicant appealed against this decision, claiming that the extension of his detention was unlawful. He noted in particular that although the court had relied on Article 159 of the CCrP concerning the extension of detention periods pending criminal proceedings when it ordered the extension of his detention, there were no criminal proceedings pending against him in Azerbaijan, and therefore his detention could not be extended on this basis. He also submitted that the court had failed to justify the extension of his detention, and that his continued detention was in breach of the relevant international conventions. The applicant further reiterated the complaint concerning his unlawful detention from 18 to 27 September 2008 in the OCD, noting that the main reason for his detention was his complaint concerning misappropriation of his property by E.H. and others. In this connection he disputed the content of the official record of his arrest, stating that his family could not possibly have known about his arrest at 10 a.m. on 27 September 2008 and concluded a contract with his lawyer for his defence, if he had been arrested at noon on 27 September 2008 as indicated in the official record. 29. On 5 December 2008 the Baku Court of Appeal dismissed the applicant’s appeal. The appellate court made no mention of the applicant’s particular complaints. 30. On 12 December 2008 the applicant lodged a request with the Narimanov District Court, asking the court to replace his remand in custody with the preventive measure of house arrest. He claimed, in particular, that his detention had not been justified and that there was no reason for his continued detention. In support of his request, the applicant pointed out that he had a permanent place of residence and that there was no risk of his absconding from or obstructing the investigation. 31. On 19 December 2008 the Narimanov District Court dismissed the request. 32. On 27 January 2009 the Narimanov District Court extended the applicant’s detention for a period of one month, relying on Article 159 of the CCrP concerning the extension of detention periods pending criminal proceedings. As to the justification for the extension of the applicant’s detention, the court relied on an almost identical wording as that of the court’s decision of 27 November 2008. 33. On 29 January 2009 the applicant appealed against this decision, reiterating his previous complaints. He noted in this regard that the domestic courts had ignored his complaint concerning his unlawful detention in the temporary detention facility of the OCD from 18 to 27 September 2008. He further stated that although the Russian authorities had never submitted any extradition request or a request for institution of criminal proceedings against him in Azerbaijan, he had been detained in breach of the domestic and international law. In particular, he referred to Article 497.1 of the CCrP, which provides that a person arrested with a view to extradition must be released if no official request for his extradition is received by the Azerbaijani prosecuting authority within forty-eight hours of his arrest. 34. On 2 February 2009 the Baku Court of Appeal upheld the first-instance court’s decision. The appellate court made no mention of the applicant’s specific complaints. 35. On 27 February 2009 the Narimanov District Court again extended the applicant’s detention for a period of one month. The court’s decision was almost identical in its wording to the decisions of 27 November 2008 and 27 January 2009. 36. On 2 March 2009 the applicant appealed against this decision. He reiterated that the domestic courts had ignored his complaint concerning his unlawful detention in the temporary detention facility of the OCD from 18 to 27 September 2008. He further stated that it was not legitimate for the domestic courts to order the extension of his detention on the ground that more time was needed for the transfer of relevant documents from the Russian authorities to their Azerbaijani counterparts. 37. On 10 March 2009 the Baku Court of Appeal granted the applicant’s appeal and ordered his release. The appellate court quashed the Narimanov District Court’s decision of 27 February 2009, holding that the first-instance court had erred in extending the applicant’s continued detention. The relevant part of the decision reads as follows: “It appears from the OCD’s decision of 22 September 2008, concerning an operational-search measure and which was added to the case file, that a decision concerning an operational-search measure in respect of Nagiyev Asif Najaf oglu, who was wanted for a crime committed in Russia, was taken. The record of the applicant’s arrest, drawn up by ..., indicates that Nagiyev Asif Najaf oglu was arrested on 27 September 2008. In accordance with the requirements of Article 495.1 of the CCrP of the Republic of Azerbaijan, upon receipt of a request for extradition of a person and a copy of a detention order in respect of him from the competent authority of a foreign State, the prosecuting authority of the Republic of Azerbaijan to which the request is addressed may, if necessary, take measures in compliance with the provisions of this Code to have the person arrested and detained before the decision on extradition is taken ... In accordance with paragraph II of Article 53 of the Constitution of the Republic of Azerbaijan, a citizen of the Republic of Azerbaijan may under no circumstances be extradited to a foreign state. In accordance with Article 13 of the Criminal Code, a citizen of the Republic of Azerbaijan who has committed a crime on the territory of a foreign state shall not be extradited to that foreign state ... In accordance with the requirements of Article 75 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 13 January 2004, if a request for extradition, as provided for in Article 67 of the Convention, and accompanying documents were not transferred within forty days of the date of arrest of the person arrested, the person must be immediately released. It appears that A. Nagiyev has been in detention for five months and thirteen days, or one hundred and sixty-three days, and that during this period no additional material concerning him was sent from the Russian Federation to the Azerbaijani authorities ... Therefore, taking into account the above-mentioned findings, the panel of the court considers that the appeal of the lawyer must be granted and that the Narimanov District Court’s decision on extension of A. Nagiyev’s detention period must be quashed.” | 1 |
test | 001-181393 | ENG | LVA | CHAMBER | 2,018 | CASE OF R.Š. v. LATVIA | 4 | No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect) | André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 5. The applicant was born in 1983 and lives in Mārupe. At the material time the applicant held a pilot licence and was undergoing aviation training. 6. In 2008 the applicant used the services of a company, KD.C. (the name of this company was subsequently changed, but it will be referred to hereinafter as “KD.C.” or “the company”). D.K. held 100% of the shares in the company (he was its sole owner) and he was also its sole board member. The company provided private flights and organised private pilot training courses. The Civil Aviation Agency had issued the company with a registration certificate for the provision of private pilot training courses. 7. The company did not provide commercial flights, therefore it fell outside the scope of the Regulation of the Cabinet of Ministers on Procedures Regarding the Issuing of an Air Operator’s Certificate for Aerial Work (8 May 2007), and was not certified by the Civil Aviation Agency. 8. On 16 August 2008 KD.C. organised a private flight from Riga to Tukums using a multi-engine aircraft, a Piper PA-31 with a maximum allowed mass of 2,900 kg. The applicant and six other people boarded the aircraft as passengers. The applicant occupied the front seat of the aircraft, next to the pilot, G.V., and maintained radio communication with the air traffic control service. 9. At around 10 a.m. the pilot, G.V., lost control of the aircraft and it crashed (see paragraph 12 below). As a result, the pilot died and all passengers sustained serious injuries. 10. According to a forensic medical examination, the applicant suffered serious, life-threatening injuries. He permanently lost the vision in his right eye and sustained other permanent damage to his health. He underwent treatment in Latvia and abroad. After rehabilitation, the applicant was able to continue working as an aviation specialist, but under certain limitations. He was not permitted to operate an aircraft independently and was required to undergo medical checks more often than other aviation specialists. 11. Following the accident on 16 August 2008 officials from the Transport Accident and Incident Investigation Bureau (Transporta nelaimes gadījumu un incidentu izmeklēšanas birojs, hereinafter “the TAIIB”), whose main task was to establish the circumstances of an accident, went to the scene of the accident and carried out an investigation. 12. According to the TAIIB’s final report of 27 June 2009, on the day of the accident, when operating in cloudy weather, G.V., the pilot, made a series of chaotic manoeuvres, as a result of which the aircraft, which was about 30-50 m from the ground, lost altitude. The attempts to stabilise it were unsuccessful. As a consequence of hitting the ground and damaging its tank, the aircraft caught fire. 13. The investigation concluded that the primary cause of the accident was “human error” (cilvēka faktors), namely G.V. having insufficient skills and experience to independently operate a multi-engine aircraft in accordance with instrumental flight rules and, in particular, to operate a Piper PA-31 aircraft. The pilot had not obtained authorisation from the Civil Aviation Agency to fly that particular type of aircraft. In particular, G.V. had started the “differences training programme” for the Piper PA31 aircraft on 1 August 2008, but had not finished it. Nevertheless, on 16 August 2008 he had flown without sufficient qualifications. 14. The final report indicated several aspects which had contributed to the accident, such as unfavourable weather conditions with poor visibility, and the “unsafe supervision” (nedroša uzraudzība) carried out by the Civil Aviation Agency “[to ensure] that the aviation legislation and visual flight rules were complied with”. 15. With regard to KD.C., the company which owned the aircraft, the investigation concluded that it had not followed up on the pilot’s differences training programme and its outcome. On the day of the accident the company had not checked whether the pilot’s documents complied with the requirements of the legislation, and it had unjustifiably (nepamatoti) handed over the aircraft to him and verbally authorised him to fly. 16. The above report, inter alia, addressed to the Civil Aviation Agency eight recommendations concerning flight safety. The second recommendation advised the Civil Aviation Agency to impose a duty on aircraft owners to set up a procedure for aircraft handovers which would prevent pilots from operating a flight without a licence and would contain confirmation of an appropriate qualification certificate issued by the Civil Aviation Agency. 17. On 16 August 2008 a criminal investigation was opened into the aircraft accident. In the course of the investigation the police gathered evidence, ordered that forensic examinations be carried out, and interviewed numerous witnesses, including various aviation specialists. 18. Questioned as a witness, D.K. stated that he himself had no experience of operating aircrafts, and that G.V. had been the company’s de facto associate, although legally he had had no contractual relationship with the company; D.K. also stated that he had had no doubts that G.V. had had sufficient qualifications, because he had undergone the necessary training and obtaining a certificate had only been a formality. It had been supposed that G.V. would at all times be accompanied by a more experienced instructor during the training flights. On the day of the accident D.K. had a telephone conversation with G.V. and the latter informed him that he had finished his “instruction” and would soon be starting a flight. Only afterwards did D.K. find out that another aeroplane had returned to the same airport owing to bad weather conditions. 19. The investigation revealed that G.V. had undertaken to fly the aircraft even though he lacked the requisite skills, which had caused the accident in question. On 14 January 2010 the proceedings with regard to G.V. were terminated due to his death. 20. The material in the criminal case contained a letter from the TAIIB dated 20 October 2009 which stated, inter alia, that at the material time the legislative acts regulating aviation safety in Latvia had not provided for a procedure setting out how to hand over an aircraft for a general aviation flight. 21. This was further confirmed in a statement given by a TAIIB official during the investigation, that in general aviation, unlike in commercial aviation, there were no established (nebija sakārtots) regulations regarding an aircraft owner’s responsibility in relation to a specific flight and a pilot’s skills. Therefore the recommendations of the TAIIB were adopted to address that issue within the existing system (see paragraph 16 above). During the investigation, an official of the Civil Aviation Agency testified that in commercial aviation, the question of an operator’s responsibility with regard to the qualifications and rights of a pilot was sufficiently regulated, however this regulation did not apply to general aviation flights. 22. On 24 May 2011 the prosecution indicted D.K. for negligence in the performance of his professional duties (section 197 of the Criminal Law) and violation of air traffic safety or operation regulations (section 257(2) of the Criminal Law). The prosecution alleged that D.K. had handed over the aircraft to G.V. knowing that the latter lacked the requisite permit and skills to operate it. On 8 June 2011 the prosecution referred the case for trial. 23. On 22 October 2012 the Tukums District Court found D.K. guilty on both counts. It established that D.K. had not applied any measures to verify G.V.’s qualifications. He had given the aircraft to the pilot knowing that the latter lacked the appropriate authorisation and had permitted him to fly. D.K. was given a suspended prison sentence of five years. He was also ordered to pay the applicant 20,000 Latvian lati (around 29,000 euros (EUR)) in compensation for non-pecuniary damage. 24. On 15 May 2013 the Zemgale Regional Court, acting as an appellate court, quashed the above judgment and acquitted D.K. In the appeal proceedings, D.K. testified that in his telephone conversation with G.V. on 16 August 2008 they had agreed that G.V. would not fly, owing to the bad weather conditions. He explained the inconsistency in relation to his pretrial testimony (see paragraph 18 above) as follows. Firstly, he had been a witness at that stage. Secondly, he had been interviewed in Latvian, which was not his mother tongue, and he had not been as fluent as was necessary. He had no doubt that G.V. was responsible for the accident, and he could not envisage also being charged in criminal proceedings. 25. With regard to negligence in the performance of his professional duties (see paragraph 44 below), the court deemed that neither the indictment nor the first-instance judgment had shown what professional duties in particular D.K. had neglected. Also, not being an aviation specialist, he could not have been regarded as a “special subject” for the purposes of this section of the Criminal Law (an organisation’s responsible employee). 26. Concerning the alleged violation of air traffic safety or operation regulations (see paragraph 45 below), the appellate court concluded that it had not been established precisely what regulations D.K. had violated and by what conduct in particular. Besides, section 257 of the Criminal Law required that the prohibited conduct be committed by a transport employee, which D.K. was not. 27. The appellate court indicated that, even though D.K. could not be held criminally liable, KD.C. had an obligation to provide compensation for the damage sustained by the victim, and therefore the applicant had rights to seek damages in civil proceedings. 28. Both the applicant and the prosecutor submitted appeals against the appellate court’s judgment. 29. On 9 December 2013 the Senate of the Supreme Court endorsed the appeal court’s findings that it had not been shown that D.K. had committed the requisite actus reus. The Senate confirmed that D.K.’s actions did not contain the necessary elements of a crime under sections 197 and 257(2) of the Criminal Law. 30. The Senate stated that the prosecution should not have relied on certain provisions of the Commercial Law, the Civil Law, the Law on Aviation and the Convention on International Civil Aviation (hereinafter “the Chicago Convention”). Those provisions were applicable when determining the civil and not criminal liability of an aircraft owner. In accordance with section 34 of the Law on Aviation, a pilot was prohibited from performing his functions in the event that he had not acquired the appropriate qualifications. The above provision had been binding upon the pilot and not D.K. The Senate also stated that only on 18 November 2010 had Part II of Annex 6 to the Chicago Convention, Seventh Edition, come into force, making provision for the liability of an aircraft owner and a pilot; before that date the Chicago Convention provided the responsibility only of the pilot (see also paragraph 58 et seq. below). 31. Furthermore, at the material time, no legislation had provided for a procedure for handing over an aircraft to a pilot, designating a person responsible for verifying pilots’ training, or checking flight planning and implementation. Only subsequent to the accident in question had recommendations been issued to the Civil Aviation Agency on the preparation of statutes relevant to flight safety. As of 24 April 2013, section 91 of the Law on Aviation had provided that an aircraft owner or operator was not allowed to hand over an aircraft to a person lacking the appropriate qualifications and insurance cover (see paragraph 55 below). 32. On 13 August 2010 the applicant lodged a claim for damages against KD.C. (the company which owned the aircraft), D.K. (the sole owner and board member of the company), and the insurance company. In the claim, inter alia, the applicant relied on sections 1782, 2347 and 2349 of the Civil Law (see paragraphs 42-43 below). In the meantime, by a final decision of the Riga Regional Court of 8 November 2010, KD.C. was declared bankrupt (maksātnespējīgs) upon application by one of its creditors and respective proceedings were started with retrospective effect from 31 December 2008. 33. On 14 May 2013 the Riga Regional Court, acting as a court of first instance, dismissed the claim in full on the grounds that the defendants had not committed unlawful actions (prettiesiska darbība). There was no dispute that D.K. had agreed to the pilot starting a “differences training programme” for the Piper PA-31 aircraft with a flight instructor, O.G. However, there was no evidence that on 16 August 2008 D.K. had allowed the pilot to operate this aircraft carrying seven passengers. On the contrary, the instructor and another witness (J.Z.) had testified that it had been planned that the pilot would operate the aircraft with the flight instructor, who had not arrived at the airport to take the flight on that date because of the bad weather conditions. The pilot had been informed of the bad weather conditions and the fact that the flight instructor would not arrive for the flight. By referring to the investigation carried out by the TAIIB, the Riga Regional Court noted that the primary reason for the accident was “human error” on the part of the pilot, and that the lack of sufficient procedure in relation to handing over an aircraft had contributed to the accident, but was not the sole cause of it. Moreover, the applicant had occupied the front seat of the aircraft, next to the pilot, and had maintained radio communication. Taking into account that he was a pilot himself and that he had received information about the unfavourable weather conditions, he could have avoided any damage by choosing not to fly in such circumstances. By referring to the second recommendation (see paragraph 16 above), the court concluded that, at the material time, there had been no obligation for aircraft owners to verify the qualifications and health of pilots. 34. On 24 September 2015 the Civil Cases Chamber of the Supreme Court, acting as an appellate court, dismissed the applicant’s claim in full on the following grounds. 35. With regard to KD.C., the civil proceedings were terminated because the company had ceased to exist (on 26 May 2015 it had been excluded from the Companies Register) and there was no legal successor. 36. Next, the appellate court found that D.K. could not be held liable under sections 1779 and 1635 of the Civil Law for the damage sustained by the applicant. By referring to the investigation carried out by the TAIIB, the appellate court also noted that the primary cause of the accident had been “human error” on the part of the pilot. While the lack of a sufficient procedure in relation to handing over the aircraft had contributed to the accident, there was no causal link between the accident and the actions of D.K., who managed the company. The appellate court also referred to the conclusions made in the criminal proceedings to the effect that D.K. was not liable for the flight operated by the pilot, and the fact that he had been acquitted. Moreover, the appellate court referred to evidence given to the first-instance court and concluded that on 16 August 2008 D.K. had not allowed the pilot to operate the aircraft independently and that the pilot’s course of action (to operate the aircraft independently) had been arbitrary and unlawful. It had been planned that the pilot would operate the aircraft with the flight instructor (see paragraph 33 above). In the light of sections 97 and 98 of the Law on Aviation, the owner of the aircraft was the company and not D.K. Thus, the latter could not be held responsible under the Law on Aviation. In so far as the applicant referred to the Chicago Convention, this was inapplicable, because it only provided for the responsibility of a pilot-in-command and, from 18 November 2010 onwards, the responsibility of an owner; D.K. was neither a pilot nor an owner. Neither could D.K. be held liable under section 1782 of the Civil Law (see paragraph 43 below) because the pilot had not been an employee of the company. Nor could he be held liable under sections 2347 and 2349 of the Civil Law (see paragraph 42 below). Referring to the conclusions made in the criminal proceedings, the appellate court held that D.K. had not engaged in any unlawful (prettiesiska) or liable (vainojama) activity. Therefore, he could not be required to pay damages to the applicant. There was no doubt that the aircraft was a source of dangerous activity, but D.K. was not its owner. Instead, KD.C. was the owner of the aircraft, therefore it was liable for loss caused by the source of dangerous activity. 37. The appellate court also refused to hold D.K. liable as a board member of the company. It concluded that, under the relevant provisions of the Commercial Law, board members were liable for damage caused to a company. In the present case, the company had not incurred any losses because it had not provided compensation for any damage sustained by the applicant. 38. Lastly, the appellate court dismissed the claim against the insurance company. In the judgment, it stated that the aircraft accident fell outside the terms of the aircraft’s insurance, which provided that compensation was not awarded if an accident was caused by a pilot who had no right to operate an aircraft. In the present case, the pilot had not had a permit to operate the aircraft in question. 39. In a preparatory meeting on 5 May 2016 the Senate of the Supreme Court dismissed an appeal on points of law by the applicant in the case against KD.C., D.K. and the insurance company. 40. In a letter dated 12 May 2015 addressed to the Government regarding the accident in question, the Civil Aviation Agency stated: “As regards the responsibility of the aircraft owner, we note that the legislative acts [at the material time] provided that the owner of an aircraft was responsible for ensuring the maintenance of the aircraft’s airworthiness, but not its safe operation during a flight, which was the pilot’s responsibility. In particular, in accordance with Commission Regulation (EC) No 2042/2003 of 20 November 2003 on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks, under Annex I (Part M) M.A. 201 (a), the owner is responsible for the continuing airworthiness of an aircraft and shall ensure that no flight takes place unless: the aircraft is maintained in an airworthy condition; and any operational and emergency equipment fitted is correctly installed and serviceable or clearly identified as unserviceable; and the airworthiness certificate remains valid; and the maintenance of the aircraft is performed in accordance with the approved maintenance programme.” | 0 |
test | 001-159575 | ENG | ROU | ADMISSIBILITY | 2,015 | BÂRZĂ AND OTHERS v. ROMANIA | 4 | Inadmissible | András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 1. The applicants – Mr Mircea Bârză, Mr Ştefan Necşuleu, Ms Marcela Felicia Necşuleu, Mr Ioan Voicu, Ms Maria Voicu, Mr Viorel Zudor, Ms Livia Zudor, Mr Cornel Oprița, Mr Ioan Muntean, Ms Ana Muntean, Mr Ioan Şeican, Ms Victoria Şeican, Ms Maria Voic, Ms Mariana Voic and Ms Ioana Voic – are Romanian nationals who were born in 1950, 1951, 1954, 1930, 1937, 1952, 1954, 1949, 1928, 1928, 1949, 1951, 1928, 1953 and 1953, respectively, and live in Alba-Iulia. They were represented before the Court by Mr E.A. Popescu, a lawyer practising in Alba-Iulia. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants had lived on the same street for over thirty years. The street they lived on had been built – in order to afford them easy access to their homes – on their own private land. 5. By Government Decision no. 974/2002 confirming the inventory of the public property owned by Alba County, the street on which the applicants’ houses were located was transferred, as public property, to Alba County. 6. On an unspecified date the applicants lodged a preliminary complaint (procedura prealabilă) with the Government, seeking to have Government Decision no. 974/2002 cancelled on the ground that they were the owners of the land on which the street their houses were located on was built. 7. On 11 April 2007 the Romanian Government dismissed the preliminary complaint on the grounds that the impugned decision had been lawful and that the complaint was time-barred. 8. On 8 May 2007 the applicants instituted court proceedings against the Romanian Government and Alba-Iulia Local Council seeking the annulment, inter alia, of part of attachment no. 12 to Government Decision no. 974/2002. They argued that the domestic authorities had unlawfully transferred to public ownership the street, which had been built on their private land. Moreover, they argued that Government Decision no. 974/2002 had been issued on the basis of Article 108 of the Romanian Constitution and Article 21(3) of Law no. 213/1998 on public property. Consequently, it had been of a normative character and had therefore – under Article 11(4) of Law no. 554/2004 – not been subject to statutory limitation. Furthermore, the applicants supported their claim that the impugned decision had been of a normative character by relying on, inter alia, the Court of Cassation’s judgment no. 1511 of 2 May 2006. 9. The domestic authorities argued that the applicants’ action was timebarred. 10. On 13 July 2007 the Alba-Iulia Court of Appeal dismissed the applicants’ action. It noted that in 2003 the applicants had instituted court proceedings against Alba-Iulia Local Council and a third party, seeking an injunction against Alba-Iulia Local Council and that third party to acknowledge the applicants’ ownership of the land on which the street their houses were located on was built. During those proceedings, on 19 March 2004 the Alba-Iulia Mayor’s Office had expressly informed the applicants that the street their houses were located on had been transferred to public ownership and had been mentioned in attachment no. 12 to Government Decision no. 974/2002. The court held that the attachment was undoubtedly a unilateral administrative act of an individual character because it contained an inventory of the properties transferred to public ownership and was published in the Official Gazette (no. 701(bis.) of 25 September 2002). Moreover, the applicants had expressly been made aware of the transfer by the information note of 19 March 2004 sent to them by the Alba-Iulia Mayor’s Office. The applicants had initiated the proceedings before the court on 8 May 2007. The proceedings were therefore time-barred, given the statutory time-limit provided by Article 11(2) of Law no. 554/2004 on actions before administrative courts. 11. The applicants appealed on points of law (recurs) against the judgment and reiterated the arguments they had raised before the firstinstance court. Moreover, they contended that the Court of Cassation’s judgment no. 1511 of 2 May 2006 had already established (in proceedings initiated by another third party) that Government Decision no. 974/2002 was an administrative act of a normative character and that it could therefore be challenged at any time. 12. By a final judgment of 7 March 2008 the Court of Cassation dismissed the applicants’ appeal on points of law. It held that the firstinstance court had correctly established that under Article 11 of Law no. 554/2004 the proceedings initiated by the applicants were timebarred. Moreover, the applicants’ argument, unsupported by reasons, that the impugned decision was a unilateral administrative act of a normative character could not be accepted. The aforementioned decision was in fact a unilateral administrative act of an individual character because it attested that the property in question was in the public ownership of Alba County and it concerned specific legal entities operating in the county, as well as the individual properties mentioned in the annexes. 13. On 14 April 2010 the Court of Cassation allowed a third party’s action against the Romanian Government and Alba-Iulia Local Council seeking the annulment of part of attachment no. 12 to Government Decision no. 974/2002. It held, inter alia, that the third party had been made aware of the impugned decision in December 2007 and had initiated the court proceedings within the statutory time-limit. 14. On 26 November 2013 the Court of Cassation informed the Government that it had developed a rich case-law which had classified government decisions similar to the one challenged by the applicants as unilateral administrative acts of an individual character. It supported its submission by referring to thirty-four judgments delivered by it between January 2009 and November 2011 that had been published either on the Court of Cassation’s website or had been referred to in legal articles. 15. Article 11(2), (4) and (5) of Law no. 554/2004 on actions before administrative courts provides that normative administrative acts may be challenged at any time, whereas individual administrative acts may be challenged no later than a year from the date on which they were issued. 16. Article 108 of the Romanian Constitution provides, inter alia, that the Government may issue decisions or ordinances. Such decisions may be issued in order to implement laws. The Government’s decisions shall be signed by the Prime Minister and the ministers responsible for their implementation and shall be published in the Official Gazette. Failure to publish such decision renders it ineffective. 17. Article 21(3) of Law no. 213/1998 on public property and rules governing it provides that inventories of property under public ownership shall be drawn up by the county councils or the Bucharest General Council and sent to the Government in order for the latter to attest by a decision that the property has been included in the public ownership of the county. 18. By a final judgment of 2 May 2006 (no. 1511) the Court of Cassation allowed the proceedings brought by a third party against, among others, the Romanian Government, seeking the annulment of part of attachment 12 to Government Decision no. 974/2002. It held that the impugned decision was a normative administrative act issued on the basis of Article 108 of the Romanian Constitution and of Article 21(3) of Law no. 213/1998 on public property during the final stages of the special procedure establishing an inventory of Alba Country’s public property. On that legal basis it appeared that irrespective of whether Government Decision no. 974/2002 was a normative or individual, it was an act that determined property falling under public ownership and established the rules that would apply to such property. Therefore, the proceedings seeking the partial annulment of the aforementioned decision had not been subject to the time-limits stipulated by Article 11 (2) of Law no. 544/2004 and the decision to dismiss those proceedings as time-barred had amounted to a misinterpretation of the law. The conclusion reached by the first-instance court had been incorrect, even if it could have been accepted that the impugned decision had not been an administrative act of a normative character, given that the proceedings had been initiated within one year of the time when the victim the third party had been made aware of that decision. | 0 |
test | 001-162422 | ENG | HRV | CHAMBER | 2,016 | CASE OF LETINČIĆ v. CROATIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing) | Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1988 and lives in Zagreb. 6. In 1993 the applicant’s father, Ž.L., who was a war veteran, killed the applicant’s mother and her parents and then committed suicide. 7. In 1996 the applicant, represented by his grandmother, sought family disability benefit in connection with the suicide of his father, arguing that the suicide was a consequence of mental derangement caused by his participation in the war. 8. On 19 June 1996 his request was dismissed by the competent Zagreb Office of the Ministry of Defence (Ministarstvo obrane) in charge of war veterans’ affairs on the grounds that the war veteran status of his father had not been established. In July 1996 the applicant challenged that decision before the Ministry of Defence, which accepted his appeal and on 12 December 1997 quashed the first-instance decision and remitted the case for re-examination on the grounds that the nature of the applicant’s request had not been adequately established. 9. Following several procedural decisions of the Zagreb Municipality Office with responsibility for war veterans’ affairs (hereinafter: the “Zagreb Office”) and the Ministry in charge of war veterans’ affairs (Ministarstvo branitelja i međugeneracijske solidarnosti; hereinafter: the “Ministry”), on 3 June 2004 the Administrative Court (Upravni sud Republike Hrvatske) ordered the Zagreb Office and the Ministry to examine the applicant’s request for family disability benefit on the merits, which the applicant should have a possibility to challenge if he was not be satisfied with the outcome. 10. On 8 November 2005 the Zagreb Office dismissed the applicant’s request on the grounds that nothing from the materials available in the case file suggested that the death of his father was a result of his participation in the war. 11. The applicant challenged this decision before the Ministry, and on 15 January 2006 the Ministry found that the facts of the case connecting the suicide of the applicant’s father to his participation in the war had never been clearly established. It thus ordered the Zagreb Office to clarify the matter by commissioning an expert report from the competent medical institution and to obtain the relevant witness statements concerning the applicant’s father’s wartime service. 12. On the basis of the Ministry’s instructions, the Zagreb Office commissioned an expert report concerning the question whether the suicide of the applicant’s father was related to his participation in the war from the Psychiatric Clinic of the Clinical Hospital Dubrava, Reference Centre of the Ministry of Health and Social Care for Stress-Induced Disorders, Regional Centre for Psychotrauma in Zagreb (Klinička bolnica Dubrava, Klinika za psihijatriju, Referentni centar Ministarstva zdravstva i socijalne skrbi za poremećaje uzrokovane stresom, Regionalni centar za psihotraumu Zagreb; hereinafter: the “Centre”), a public health care institution authorised by law to give expert opinions on matters related to war veterans’ psychiatric disorders (see paragraph 28 below). It also questioned two witnesses concerning the applicant’s father’s wartime service. 13. In an expert report dated 10 June 2007 addressed to the Zagreb Office, the Centre concluded, on the basis of the available medical reports and the statements of witnesses, that the applicant’s father had not developed any symptoms resulting in a psychiatric diagnosis linked to his participation in the war and that his suicide could not be attributed to his wartime service. This expert report was not forwarded to the applicant. 14. On 26 September 2007 the Zagreb Office dismissed the applicant’s request for the family disability benefit referring to the Centre’s expert report, which had not established any link between his father’s suicide and his participation in the war. 15. The applicant challenged the above decision before the Ministry, seeking remittal of the case to the Zagreb Office for further examination. He alleged that the Centre’s report was superficial, since it had not been commissioned with regard to all aspects of the events, such as the triple murder committed by his father. The applicant also considered the report to be illogical, given that before the war his father had had no psychiatric problems whereas after his wartime activities he had committed a triple murder and suicide, which made it difficult to accept that he had not developed some mental condition. The applicant further contended that another expert report should be commissioned from one of the permanent court experts in psychiatry, since the report produced by the Centre raised the issue of its independence. He also stressed that any expert opinion on the matter should necessarily be forwarded to him for comments before the adoption of a decision. 16. On 2 April 2008 the Ministry dismissed the applicant’s appeal on the grounds that the Centre’s report was conclusive that the suicide of his father had not been related to his participation in the war. 17. The applicant lodged an administrative action in the Administrative Court against the above decision, asking the Administrative Court to decide the case on the merits instead of remitting it to the administrative bodies. He pointed out that the proceedings had already lasted excessively long and that the administrative bodies had failed to comply effectively with the previous instructions of the Administrative Court. He therefore considered that the Administrative Court should itself decide the case on the merits, as provided under section 63 of the Administrative Disputes Act (see paragraph 25 below). The applicant also contended that, if the Administrative Court did not decide the case on the merits, it should quash the Ministry’s decision and remit the case for re-examination. 18. In his administrative action the applicant in particular pointed out that the Ministry had failed to reply to the specific arguments set out in his appeal against the first-instance decision of the Zagreb Office and had merely reiterated the findings of the first-instance decision. He also reiterated his appeal arguments that the Centre’s expert report was superficial and illogical, since it had not been commissioned with regard to all aspects of the events, such as the triple murder committed by his father, and that it had failed to take into account that before the war his father had had no psychiatric problems whereas after his wartime activities he had committed a triple murder and suicide. In these circumstances, the applicant stressed that under section 191 of the Administrative Disputes Act another expert report ought to be commissioned from the permanent court experts in psychiatry. 19. On 4 December 2008 the Administrative Court dismissed the applicant’s action as ill-founded. In particular, it stressed: “During the proceedings an expert report was commissioned, under section 123 § 1 (8) of the [Veterans Act], from the [Centre] and the report was produced on 10 June 2007. The report concluded that based on the relevant documents from the case file it did not find that Ž.L. had developed any symptoms resulting in a psychiatric diagnosis linked to his participation in the war ... Having these facts in mind, this court is of the opinion that the defendant acted lawfully when dismissing the appellant’s appeal against the first-instance decision ... It should also be noted that this court already held that the formation of an expert team [competent to determine] a possible link [between death and participation in the war], which [provides for] a decisive evidence within the meaning of section 123 § 1 (8) of the [Veterans Act], is a precondition for any further proceedings concerning the status of the family member of a deceased war veteran. The defendant therefore correctly dismissed the appeal against the first-instance decision and thereby it did not act contrary to the relevant law. This court did not find it necessary to act under section 63 of the Administrative Disputes Act given that, as already noted above, the administrative body complied with the instruction from the judgement no. Us-2377/00 [see paragraph 9 above] concerning the appellant’s request for family disability benefit, which is the subject matter of the proceedings at issue. Although the defendant did not expressly reply to the appeal arguments concerning the necessity to request a report with regard to [Ž.L.’s] act of triple murder, [the court finds] that it could not be a decisive factor for a decision in the proceedings at hand. This is because such a criminal act cannot be a basis for the establishment of a link between the death of the war veteran and his participation in [the war]...” 20. On 18 February 2009 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) arguing that his right to a fair trial in the proceedings had been violated. He contended in particular that the administrative bodies and the Administrative Court had ignored his request for an expert report to be commissioned from the permanent court experts and that he had been offered neither the possibility of participating in the choice of experts nor the opportunity to take cognisance of and comment on the expert opinion before the adoption of a decision during the proceedings. 21. On 27 May 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded, noting that: “In his constitutional complaint, the complainant was unable to show that the Administrative Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide on. ...” 22. The decision of the Constitutional Court was served on the applicant’s representative on 14 June 2010. | 1 |
test | 001-160248 | ENG | HRV | ADMISSIBILITY | 2,015 | B.V. AND OTHERS v. CROATIA | 4 | Inadmissible | Georgieva;Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković | 1. The applicants are Croatian nationals who were born in 1936, 1958, 1967 and 2003 respectively and live in Z. The President of the First Section, to which the case was initially allocated, decided that the applicants’ identities should not be disclosed to the public (Rule 47 § 4). They were represented by Ms I. Bojić, a lawyer 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 first applicant is the mother of the second and third applicants. The third applicant is the mother of the fourth applicant. They all live in the same household in a flat located on the first floor of a residential building in Z. 5. Since 2003 the applicants have had various conflicts with their neighbours, Mr M.P. and Ms B.P., who live in a flat on the ground floor of the same residential building. Occasionally, they have also had conflicts with their other two neighbours, Mr D.P. and Ms S.P. 6. It follows from a report of the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske) available to the Court, that in the period between 2003 and 2013 there were in total ninety-one police interventions concerning various conflicts between the applicants and their neighbours. 7. Some of these incidents resulted in the criminal proceedings examined further below (see paragraphs 86-129 below). 8. The majority of the incidents resulted only in the police issuing a verbal caution or in minor offences proceedings. This in particular relates to the police interventions in connection with the following events. 9. On 12 May 2003 the police intervened because the first applicant was disturbed by M.P. and B.P. smoking on their balcony. 10. On 15 June 2003 the intervention of the police was requested in relation to an altercation between the second applicant and B.P. In particular, they exchanged a series of insults in the course of which B.P. also made reference to the second applicant’s Serbian ethnic origin and threw a piece of wood in her direction, causing her a small abrasion on the right thigh. On the same day minor offences proceedings were instituted against both parties to the conflict for breach of public peace and order, but they were discontinued on 3 August 2005 on the ground of prescription. 11. On 6 July 2003 B.P. requested the intervention of the police because the second applicant had allegedly disposed of some dirt on her balcony, which resulted in a verbal altercation. 12. On 9 July 2003 the police intervened in connection with B.P.’s insults against P.V. (the first applicant’s late husband) related to his Serbian ethnic origin, and on the same day instituted minor offences proceedings against B.P. for breach of public peace and order. On 19 September 2006 the proceedings were discontinued on the ground of prescription. 13. On 21 November 2003 B.P. requested the intervention of the police because water was pouring from the applicants’ balcony into their flat. 14. On 3 February 2004 the police intervened because the first applicant had allegedly disposed of some dirt on the balcony of B.P. 15. On 25 May 2005 the first applicant requested the intervention of the police after a verbal altercation with M.P. relating to the manner in which she was dusting. 16. On 27 May 2005 M.P. reported to the police that the first applicant was threatening him. He did not insist on pursuing the matter but requested the police to warn her. 17. On 18 July 2005 the first applicant had a dispute with D.P. concerning her flowers and therefore she requested the intervention of the police. 18. On 8 October 2005 police intervention was requested in connection with the first applicant’s and D.P.’s mutual insults related to, inter alia, her Serbian ethnic origin and his Croatian ethnic origin. Minor offences proceedings were instituted on the same day against both participants to the altercation and on 26 March 2007 they were discontinued on the ground of lack of evidence. This decision became final on 21 August 2008. 19. On 22 September 2006 both the first applicant and B.P. requested the intervention of the police, alleging an attack by the other party. The police intervened at the scene but found their statements confusing to the extent that it was impossible to establish the exact course of the events. 20. On 1 October 2006 the police intervened on the basis of B.P.’s complaint that P.V. had insulted and attacked her. The police found that both participants in the alleged attack were providing confusing statements. 21. On 6 December 2006 B.P. requested the intervention of the police concerning a glass that had fallen from the applicants’ flat on to her balcony. 22. On the same day B.P. lodged a criminal complaint against the first applicant, claiming that she had insulted and threatened her. On 16 January 2007 the Z. Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zap.) rejected the criminal complaint as ill-founded. 23. On 13 January 2007 M.P. informed the police that water was pouring from the applicants’ flat and that the first applicant had spat on him. 24. On 24 January 2007 the third applicant requested the intervention of the police, alleging that B.P. had insulted her and attacked her while she was holding the fourth applicant. The police found that the third applicant had sustained an abrasion on her left forearm but no evidence that the attack had happened in the presence of the fourth applicant. On the same day the police instituted minor offences proceedings against B.P. for breach of public peace and order and on 16 April 2009 the proceedings were discontinued on the ground of prescription. The Z. Municipal State Attorney’s Office was also informed of the incident and it requested a medical report concerning the alleged injuries sustained by the fourth applicant during the incident. On 17 May 2007 a doctor who had examined the fourth applicant after the incident informed the Z. Municipal State Attorney’s Office that he had not found any injuries on the fourth applicant and that the third applicant had refused further medical examinations of the fourth applicant. 25. On 24 January 2007 B.P. informed the police of a conflict with the applicants. 26. On 25 January 2007 the third applicant complained to the police about the problems of her family with M.P. and B.P. 27. On 29 January 2007 B.P. lodged a criminal complaint against P.V. on charges of making threats. On 26 April 2007 the Z. Municipal State Attorney’s Office rejected the criminal complaint on the ground that the alleged conduct did not constitute a criminal offence. 28. On 9 March 2007 the police received an anonymous call that the fourth applicant had been molested within her family. 29. On 19 August 2007 the police instituted minor offences proceedings against the first and third applicants, P.V., B.P. and a certain LJ.B. for mutual insults. On 13 December 2007 the proceedings were discontinued on formal grounds. 30. On 20 August 2007 the third applicant reported to the police that B.P. had threatened her. 31. On 10 October 2007 B.P. reported to the police that P.V. had threatened her. The complaint was forwarded to the Z. Municipal State Attorney’s Office, which rejected it on 18 December 2007 on the ground of lack of evidence. 32. On 15 October 2007 the first applicant called the police about an incident involving B.P. 33. On 28 October 2007 B.P. complained to the police about an incident involving the applicants’ family. 34. On 12 August 2008 the second applicant complained to the police about the conduct of B.P. and M.P. 35. On 17 August 2008 the police received two anonymous calls – one alleging that B.P. had been drunk disturbing public peace and order, and the second alleging that there had been fighting in the applicants’ flat. The police interventions did not confirm any of the allegations. 36. On 12 September 2008 D.P. requested the intervention of the police, alleging that the second applicant had insulted him. 37. On 23 September 2008 D.P. requested the intervention of the police, claiming that the third applicant had attacked his son. 38. On 27 September 2009 the police received an anonymous call alleging domestic violence in the applicants’ family. 39. On 30 September 2008 the first applicant reported to the police that D.P. had damaged her flowers. 40. On 11 October 2008 B.P. complained to the police about the conduct of the applicants. 41. On 13 October 2008 the third applicant called the police concerning the parking of M.P.’s car. 42. On 28 January 2009 P.V. complained to the police about harassment by B.P. 43. On 26 February 2009 the second applicant reported to the police that S.P., wife of their neighbour D.P., had unlawfully installed surveillance cameras in the building. The police established that the complaints were unfounded. 44. On 28 March 2009 the third applicant reported to the police that she had had a verbal altercation with B.P. concerning the fourth applicant. 45. On 10 April 2009 the second applicant reported to the police a verbal altercation with B.P. 46. On 8 May 2009 the first applicant called the police, maintaining that she had had verbal altercation with B.P. 47. On 14 May 2009 the police received an anonymous call that the applicants and B.P. and M.P. had been arguing but the police found no incident at the scene. 48. On 25 May 2009 the second applicant reported to the police a verbal altercation with M.P. 49. On 26 May 2009 B.P. requested police intervention, claiming that the first applicant had insulted her. 50. On 13 August 2009 the police received an anonymous call about an incident involving the applicants but the intervention did not disclose any breach of the law. 51. On 14 August 2009 the third applicant complained to the police about the conduct of B.P., alleging that she had attacked her. 52. On the same day B.P. first requested police intervention, claiming that she had been physically attacked, and then she lodged a criminal complaint against P.V. on charges of making threats. The Z. Municipal State Attorney’s Office rejected the criminal complaint on 26 August 2009 on the ground of lack of evidence. 53. On 4 October 2009 the police received an anonymous call that there was fighting in the applicants’ flat but an intervention at the scene did not confirm that. 54. On 20 October 2009 the third applicant requested the intervention of the police, claiming that B.P. had thrown some garbage in front of her flat. 55. On the same day B.P. informed the police that there was fighting inside the applicants’ flat but an intervention at the scene did not confirm that. Later on the same day she lodged a criminal complaint against the first and the third applicants and P.V. on charges of making threats and once again requested the intervention of the police, claiming that somebody from the applicants’ flat had thrown a tomato on to her balcony. The criminal complaint lodged by B.P. was rejected by the Z. Municipal State Attorney’s Office on 20 November 2009 on the ground of lack of evidence. 56. On 21 October 2009 B.P. requested the intervention of the police in relation to a verbal altercation with the first applicant. 57. On 15 November 2009 M.P. requested the intervention of the police, claiming that he was being harassed by the second applicant. 58. On 15 March 2010 B.P. reported to the police that the first applicant had threatened her. She also lodged a criminal complaint which was rejected by the Z. Municipal State Attorney’s Office on 31 March 2010 on the ground that the event at issue did not constitute an offence prosecuted ex officio. 59. On 25 March 2010 police intervention was requested in connection with a verbal altercation between the first applicant and B.P. On the same day the police instituted minor offences proceedings against both of them on charges of breach of public peace and order. On 15 September 2010 the competent Minor Offences Court acquitted them on the ground of lack of evidence. 60. On 10 May 2010 the police first received an anonymous call that there was fighting inside the applicants’ flat and then B.P. requested police intervention, claiming that the first applicant had spilled boiling water on her. Both police interventions could not confirm any unlawful conduct. 61. On 19 August 2010 M.P. lodged a criminal complaint with the police against P.V., alleging that he had threatened him during their verbal altercation on the day before (see paragraphs 98-103 below). 62. On 20 August 2010 the third applicant and B.P. requested the intervention of the police, accusing each other of making threats. 63. On 12 September 2010 the first applicant insulted D.P. in the presence of the police officers. She was indicted in the Minor Offences Court and on 13 January 2011 found guilty on charges of breach of public peace and order. This judgment became final on 26 January 2011. 64. On 14 March 2011 B.P. lodged a criminal complaint against the second applicant on charges of making threats in connection with their conflict of the same day (see paragraphs 107-112 below). On 10 May 2011 the Z. Municipal State Attorney’s Office rejected the criminal complaint on the ground of lack of evidence. 65. On 30 May 2011 the third applicant requested the intervention of the police, claiming that B.P. had insulted her. 66. On 15 June 2011 the first applicant requested the intervention of the police, claiming that she was disturbed by the music emanating from M.P.’s flat. The police intervened at the scene and established that there had been a verbal and physical conflict between the parties. Concerning the event the police lodged a criminal complaint against M.P. (see paragraph 121 below) and on 5 July 2011 they instituted minor offences proceedings against B.P. and the first, second and third applicants on charges of breach of public peace and order. On 15 May 2013 the competent Minor Offences Court found them all guilty as charged. It appears that the proceedings are pending on appeal before the High Minor Offences Court (Visoki prekršajni sud Republike Hrvatske). 67. On 1 July 2012 the first applicant requested the intervention of the police, claiming that her neighbour S.P. usually closed the entrance doors of the building which disturbed her when she needed to walk her dog. 68. On 30 July 2012 the third applicant called the police in connection with a verbal altercation with B.P. but the police found no evidence to confirm any unlawful conduct. 69. On 1 August 2012 B.P. reported to the police that the first applicant harassed her child but an intervention did not confirm any such allegations. 70. On 14 August 2012 B.P. lodged a criminal complaint against the second applicant on charges of making threats. 71. On 17 August 2012 S.P. requested an intervention of the police, claiming that she had been insulted by the first applicant. 72. On 26 August 2012 the third applicant requested the intervention of the police, complaining that somebody was knocking on her doors but the police intervention did not confirm any such allegations. 73. On 29 August 2012 the third applicant reported to the police that B.P. did not allow her to exit the building. The police intervention did not confirm any unlawful conduct. 74. On 24 September 2012 S.P. requested the intervention of the police because the first applicant was allegedly falsely accusing her of stealing electricity. 75. On 4 October 2012 the third applicant reported to the police a verbal altercation between B.P. and the first applicant. 76. On 10 October 2012 the police intervened on the basis of a complaint by B.P. alleging that the third applicant had insulted her. Both parties made allusions to their Serbian and Croatian ethnic origins respectively. On the same day they lodged criminal complaints on charges of making threats. 77. On 9 March 2013 the first applicant requested the intervention of the police, claiming that D.P. had been provoking her and behaving inappropriately. 78. On 22 June 2013 B.P. requested the intervention of the police, alleging that the first applicant had insulted her making allusions to her ethnic origin. 79. On 7 September 2013 the third applicant requested the intervention of the police in connection with an alleged noise emanating from M.P.’s flat but the police intervention did not confirm any such allegations. 80. On 11 September 2013 B.P. requested the intervention of the police, claiming that the first applicant had insulted and threatened her husband. 81. On 24 January 2014 S.P. requested the intervention of the police with regard to a dispute she had with the first applicant concerning the electricity bills. 82. On 4 February 2014 the police received an anonymous call that a noise was emanating from the applicants’ flat but the police intervention did not confirm that. 83. On the same day the second applicant requested the intervention of the police, referring to the problems with her neighbours. 84. On 18 February 2014 S.P. requested the intervention of the police, claiming that she had been attacked by the third applicant, but the police intervention could not confirm any unlawful conduct. 85. On 6 March 2014 B.P. requested the intervention of the police, alleging that the first applicant had insulted her in the presence of her child. 86. On 4 December 2006 the police informed the Z. Municipal State Attorney’s Office of the third applicant’s criminal complaints against B.P. of 25 September 2006 and against M.P. of 3 October 2006 on charges of making threats and discriminatory references to her and P.V.’s ethnic origin on 22 September and 1 October 2006. 87. Based on the allegations contained in the criminal complaint, on 7 December 2006 the Z. Municipal State Attorney’s Office indicted B.P. and M.P. in the Zap. Municipal Court (Općinski sud u Zap.). 88. During the proceedings the Zap. Municipal Court commissioned a psychiatric report concerning B.P. 89. A report of 10 October 2008 indicated that B.P. had a personality disorder but that she was capable of understanding the meaning of her acts. It also recommended B.P.’s psychiatric treatment although not necessarily by ordering it as a safety measure in criminal proceedings. 90. On 17 February 2009 the Z. Municipal State Attorney’s Office dropped the charges against B.P. on the ground that they were based on conflicting evidence. 91. On 20 April 2009 the Zap. Municipal Court found M.P. guilty on charges of making threats and sentenced him to one month’s imprisonment, suspended for one year. 92. M.P. appealed against this judgment to the V.G. County Court (Županijski sud u V.G.) and on 6 July 2009 the V.G. County Court quashed it and ordered a retrial on the ground that the judgment was based on conflicting evidence. 93. On 29 September 2009 the Z. Municipal State Attorney’s Office, relying on the findings of the V.G. County Court, dropped the charges against M.P. on the ground that they were based on conflicting statements of the third applicant and P.V. 94. On 14 July 2009 the police informed the Z. Municipal State Attorney’s Office of the third applicant’s criminal complaint against B.P. of 26 May 2009 on charges of making threats and discriminatory references to her ethnic origin. 95. On 24 July 2009 the Z. Municipal State Attorney’s Office indicted B.P. in the Zap. Municipal Court. 96. On 4 October 2010 the Zap. Municipal Court found B.P. guilty on charges of making threats and sentenced her to three months’ imprisonment, suspended for one year. 97. This judgment became final on 20 February 2012. 98. On 18 August 2010 the third applicant requested the intervention of the police in connection with an altercation with M.P. and B.P. She also lodged a criminal complaint against M.P. on charges of making threats. 99. The matter was reported to the Z. Municipal State Attorney’s Office and on 14 September 2010 it indicted M.P. in the Zap. Municipal Court on charges of making threats. 100. On 12 October 2010 the Zap. Municipal Court issued a penal order against M.P. However, he objected to the order and therefore a trial was opened. 101. Due to a reorganisation of the judicial work, the case file was transferred to the Z. Municipal Criminal Court (Općinski kazneni sud u Z.). 102. On 13 January 2012 the Z. Municipal Criminal Court found M.P. guilty and sentenced him to two months’ imprisonment, suspended for one year. 103. This judgment became final on 28 August 2012. 104. In connection with the incident of 20 August 2010 (see paragraph 62 above), on 10 November 2010 the Z. Municipal State Attorney’s Office indicted P.V. and the first and third applicants in the Z. Municipal Court on charges of making threats against B.P. 105. On 7 January 2011 the Zap. Municipal Court issued a penal order against P.V. and the first and third applicants. However, based on their objection the penal order was set aside and a trial was opened. 106. On 1 July 2011 the Z. Municipal State Attorney’s Office dropped the charges against P.V. and the first and third applicants on the ground that the charges were based on conflicting witness statements. 107. On 16 June 2011 the second applicant instituted a private prosecution in the Zap. Municipal Court against B.P. on charges of causing bodily injury in connection with an incident of 14 March 2011 during which the second applicant had sustained a contusion on the left thigh. 108. Meanwhile, the case file was transferred to the Z. Municipal Criminal Court (see paragraph 101 above). 109. At a hearing on 5 July 2013 the second applicant submitted an expert report of 25 May 2007 concerning the fourth applicant indicating that she was under stress in relation to the conflicts of her family with their neighbours and that there was a possibility of her emotional harassment in that respect. However, the expert report did not confirm any acute or chronic signs of trauma or symptoms or indications of any psychiatric disorder. 110. At the same hearing, a forensic expert confirmed the second applicant’s injury. 111. On 5 July 2013 the Z. Municipal Criminal Court found B.P. guilty as charged and sentenced her to two months’ imprisonment, suspended for two years. 112. This judgment became final on 11 October 2013. 113. On 28 March 2011 the third applicant requested the intervention of the police in connection with damage to the front doors of the applicants’ flat caused by B.P. On the same day the second applicant lodged a criminal complaint against B.P. on charges of causing damage to her property. The complaint was forwarded to the Z. Municipal State Attorney’s Office. 114. On 29 April 2011 the Z. Municipal State Attorney’s Office indicted B.P. in the Zap. Municipal Court on charges of causing damage to the second applicant’s property. 115. The case file was transferred to the Z. Municipal Criminal Court (see paragraph 101 above). 116. At a hearing on 11 December 2013 the second applicant set out a civil claim for damages against B.P. 117. During the proceedings, the Z. Municipal Criminal Court commissioned an expert psychiatric report concerning B.P. 118. An expert report of 10 January 2014 found that B.P. had developed an addiction to alcohol and that she needed treatment which could be ordered as a safety measure in the criminal proceedings. 119. On 10 February 2014 the Z. Municipal Criminal Court found B.P. guilty and sentenced her to five months’ imprisonment, suspended for three years. It also ordered B.P. to undergo treatment for her alcohol addiction. The second applicant was instructed that she could claim damages in respect of her front doors in separate civil proceedings. 120. This judgment became final on 1 April 2014. 121. On 15 June 2011, following a verbal altercation, M.P. physically attacked the second applicant with a wooden stick, causing her injuries to the head and contusions on the left arm, chest and shoulder. On the same day the police intervened at the scene, arrested M.P. and took the necessary actions to investigate the matter. 122. The case was reported to the Z. Municipal State Attorney’s Office and on 14 July 2011 it indicted M.P. in the Zap. Municipal Court on charges of attempted grave bodily injury. 123. On 15 July 2011 the Zap. Municipal Court ordered M.P. not to approach or otherwise contact the first, second and third applicants. 124. The case file was transferred to the Z. Municipal Criminal Court (see paragraph 101 above). 125. During the proceedings before the Z. Municipal Criminal Court the second applicant set out her civil claim for damages against M.P. 126. After several unsuccessful attempts to summon the defendant, a hearing was held on 19 March 2012 at which M.P. pleaded not guilty. Further hearings were held on 15 May and 15 October 2012 and a hearing scheduled for 28 January 2013 was adjourned because M.P.’s lawyer withdrew from the case. The Z. Municipal Criminal Court held further hearings on 21 March and 24 May 2013. 127. Following a hearing on 5 July 2013 the Z. Municipal Criminal Court found M.P. guilty and sentenced him to four months’ imprisonment suspended for two years. The second applicant was instructed that she could seek damages in separate civil proceedings. 128. On 3 December 2013, based on an appeal of the State Attorney’s Office, the Z. County Court (Županijski sud u Z.) quashed the first-instance judgment and ordered a retrial on the ground of conflicting reasoning of the judgment. 129. According to the applicants, in the resumed proceedings M.P. was found guilty and sentenced to eight months’ imprisonment. He appealed and the appeal proceedings are still pending. 130. On 3 January 2013 B.P. requested the Zap. Social Care Centre (Centar za socijalnu skrb Zap.) to facilitate a settlement of her disputes with the third applicant. 131. A meeting at the Zap. Social Care Centre was scheduled for 10 January 2013 but the parties failed to appear. 132. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows: “Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics. All shall be equal before the law.” Article 23 “No one shall be subjected to any form of ill-treatment ...” “Everyone has the right to respect for and legal protection of his or her private and family life, dignity, reputation and honour.” 133. The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, with further amendments) provides: “(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens. (2) In exceptional circumstances the law may provide for criminal proceedings in respect of certain criminal offences to be instituted on the basis of a private prosecution or for the State Attorney’s Office to institute criminal proceedings following [a private] application.” 134. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provided: “(1) Criminal proceedings shall only be instituted and conducted upon the order of a qualified prosecutor. ... (2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences that may be prosecuted privately the qualified prosecutor shall be a private prosecutor. (3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person. (4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party may take his place as a subsidiary prosecutor under the conditions prescribed by this Act.” “Nobody can be tried twice for an offence for which he or she has been tried and in respect of which a final court decision has been adopted.” 135. Articles 47 to 61 regulated the rights and duties of private prosecutors and of injured parties acting as subsidiary prosecutors. A private prosecutor (privatni tužitelj) was an injured party who brought a private prosecution in respect of criminal offences for which such a prosecution was expressly allowed by the Criminal Code (these were offences of a lesser degree). An injured party acting as a subsidiary prosecutor (oštećeni kao tužitelj) was a person taking over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities, for whatever reason, had decided not to prosecute (Article 55). When acting as a subsidiary prosecutor, the victim had all rights in the proceedings which the State Attorney’ Office would have had as public prosecuting authority, save for those vested in the State Attorney’s Office as a state body. Pursuant to Article 58, the State Attorney’s Office was authorised, on a discretionary basis, to take over a prosecution from a subsidiary prosecutor at any point before the end of the trial. 136. Relevant provisions concerning the processing of criminal complaints provided: “(1) The State Attorney shall reject a criminal complaint by a reasoned decision if the offence in question is not an offence subject to automatic prosecution, if the prosecution is time-barred or an amnesty or pardon has been granted, or other circumstances excluding criminal liability or prosecution exist, or there is no reasonable suspicion that the suspect has committed the offence. The State Attorney shall inform the victim about his decision ... within eight days (Article 55) and if the criminal complaint was submitted by the police, he shall also inform the police. ...” 137. The relevant provision of the Minor Offences Act (Prekršajni zakon, Official Gazette no. 107/2007) provides: “A minor offence is an act which breaches the public order, social discipline or other social values and is not listed as an offence under the Criminal Code or other regulation listing offences.” “(1) The competent prosecutor is: ... 2. State administrative body, ... 4. victim.” 138. The relevant part of the Minor Offences against Public Order and Peace Act (Zakon o prekršajima protiv javnog reda i mira, Official Gazette nos. 5/1990, 47/1990 and 29/1994; hereinafter: the “Public Peace and Order Act”) reads: “Whoever in a public place fights, argues, yells or otherwise breaches public order and peace, shall be liable to a fine ... or to a term of imprisonment not exceeding sixty days.” 139. The relevant parts of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005, 41/2008 and 125/2011), read as follows: Section 19 “(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act. (2) The right to respect for one’s personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, and the right to respect for one’s name and the privacy of one’s personal and family life, freedom et alia. ...” Section 1046 “Damage is ... infringement of the right to respect for one’s personal dignity (non-pecuniary damage).” “Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality and the elimination of its consequences.” 140. The relevant parts of the Prevention of Discrimination Act (Zakon o suzbijanju diskriminacije, Official Gazette no. 85/2008) provide: “(1) This Act ensures protection and promotion of equality as the highest value of the constitutional order of the Republic of Croatia; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour, gender, language, religion, political or other conviction, national or social origin, state of wealth, membership of a trade union, education, social status, marital or family status, age, health, invalidity, genetic inheritance, gender identity, expression or sexual orientation. (2) Discrimination within the meaning of this Act means putting any person in a disadvantageous position on any of the grounds under subsection 1 of this section, as well as his or her close relatives. ...” “This Act shall be applied in respect of all State bodies ... legal entities and natural persons ...” “Anyone who considers that, owing to discrimination, any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue, and may also seek protection in separate proceedings under section 17 of this Act.” “(1) A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this Act may bring a claim and seek: (1) a ruling that the defendant has violated the plaintiff’s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff’s right to equal treatment (claim for an acknowledgment of discrimination); (2) a ban on (the defendant’s) undertaking acts which violate or may violate the plaintiff’s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken (claim for a ban or for removal of discrimination); (3) compensation for pecuniary and non-pecuniary damage caused by the violation of the rights protected by this Act (claim for damages); (4) an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant’s expense.” | 0 |
test | 001-152784 | ENG | HUN | CHAMBER | 2,015 | CASE OF VARGA AND OTHERS v. HUNGARY | 2 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 5. The applicants were born in 1975, 1987, 1961, 1968, 1973 and 1984, respectively. When introducing the applications, they were detained in prisons in Baracska, Szolnok, Budapest, Sopronkőhida, Pálhalma and Szeged, respectively. 6. On 31 December 2013 the Hungarian prisons accommodated altogether 18,042 inmates (that is, an overcrowding rate of 144 %), out of which 5,053 people were in pre-trial detention. 7. Mr Varga was held at Baracska Prison which, he claimed, was severely overcrowded at the time of his detention lasting from 17 January to 3 September 2011. In particular, the cell in which he was detained measured 30 square metres and accommodated seventeen prisoners (that is, 1.76 square metres gross living space per inmate). The quality and quantity of the food provided were poor, as a result of which he claimed to have lost 20 kilograms. From 4 July 2011 he was kept in solitary confinement for eleven days as a disciplinary measure. He submitted that he was kept in a cell of some eight square metres and in poor sanitary conditions, without adequate running water. This led to problems of hygiene and a skin infection, for which he did not receive adequate treatment. Throughout this confinement he had outdoor stays of only 30 minutes a day. 8. Mr Lakatos was held from 20 January 2011 until an unspecified date in the spring of 2012 at Hajdú-Bihar County Prison in a cell that measured nine square metres and accommodated three inmates including him (that is, three square metres gross living space per inmate). As of spring 2012, he was transferred to Jász-Nagykun-Szolnok County Prison where he has been held in a cell measuring nine square metres and housing four inmates including him (that is, 2.25 square metres gross living space per inmate). He claimed that at the latter facility there was no ventilation and the toilet was only separated from the living area by a curtain, offering insufficient privacy. 9. Mr Tóth was placed in pre-trial detention on 7 April 2010. On 10 April 2010 he was transferred to Hajdú-Bihar County Prison where he was held until 18 January 2012 in a cell of about ten square metres together with three other detainees (that is, 2.5 square metres gross living space per inmate). Only a curtain was used as a partition between the toilet and the living area. He was subsequently transferred to Budapest Prison (Budapesti Fegyház és Börtön) where the cell in which he was held between 18 January 2012 and 18 January 2014 was about ten square metres in size; he shared it with two other inmates (that is, 3.33 square metres gross living space per inmate). Since 18 January 2014 he has been detained with seven other detainees in a cell measuring 25 square metres (that is, 3.13 square metres gross living space per inmate). He claimed that the toilet is separated only by a curtain from the living area. The bed linen is changed only once every five or six weeks. 10. The applicant started to serve his prison sentence in 2009 at Márianosztra Prison. He shared his cell with eight to ten inmates and the surface available was 25.7 square metres (that is, a maximum of 2.86 square metres gross living space per inmate). On 6 December 2012 he was transferred to Sopronkőhida Prison where his cell measures 6.2 square metres and is occupied by him and another man (that is, 3.1 square metres gross living space per inmate). 11. On 27 October 2011 Mr Fakó was placed in pre-trial detention at Budapest Correctional Facility (Fővárosi Büntetés-végrehajtási Intézet). On 29 April 2013 he was transferred to Pálhalma Prison, where he shared a cell with thirteen other inmates. Without specifying the size of the cell, he submitted that the gross living space per person varied between 1.5 and 2.2 square metres. He had a daily one-hour-long outdoor exercise and spent the remainder of his time in the cell. He submitted that in 2013 the summer temperature in the cell rose to 40˚C because of poor ventilation. He asserted that he was allowed to take a shower once a week for no longer than five minutes each time. Furthermore, the cell was infected with bed bugs, lice and cockroaches, but the prison administration did not address this issue. 12. From 12 December 2006 Mr Kapczár has served his sentence at Szeged Prison. Throughout his detention he has been held in fourteen different cells. The size of those cells was 8, 12 and 24 square metres, respectively. The occupancy rate in the cells measuring 8 square metres was often up to three persons (that is, 2.67 square metres gross living space per inmate). In the cells of 12 square metres the occupancy rate was four persons (that is, 3 square metres gross living space per inmate). In the cells measuring 24 square metres it was often up to ten persons (that is, 2.4 square metres gross living space per inmate). The applicant claimed that the toilets in those cells had been separated from the living space only some eighteen months ago, and their ventilation remained unresolved. Furthermore, some of the bunk beds had been welded together, so detainees were obliged to sleep right next to each other. | 1 |
test | 001-159565 | ENG | ROU | ADMISSIBILITY | 2,015 | MUNTEANU v. ROMANIA | 4 | Inadmissible | András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 1. The applicant, Mr Vladimir Munteanu, is a Moldovan national, who was born in 1965 and lives in Cahul. He was represented before the Court by Mr V. Iordachi, a lawyer practising in Chişinău. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. The Moldovan Government, who had been informed of their right to intervene in the proceedings, under Article 36 § 1 of the Convention, gave no indication that they wished to do so. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 30 August 2006 the applicant was charged, together with two Romanian citizens, with fraud, initiating and belonging to an organised crime group, forgery and money laundering. The prosecutor’s decision stated that the applicant had imported car tyres into Romania, and through several offshore companies and using falsified customs documents had avoided paying customs duties. 5. On 3 September 2006 the applicant was placed in pre-trial detention for thirty days. The prosecutor requested an extension, but this was rejected by the Bucharest County Court on 27 September 2006. The court held that after the applicant’s placement in pre-trial detention, the prosecutor had not produced any new evidence to prove he was guilty of the crimes he had been charged with. 6. On 2 October 2006 the Prosecutor’s Office of the High Court of Cassation and Justice imposed a preventive measure on the applicant, banning him from leaving Romania for thirty days so that the investigation into the above-mentioned crimes could continue. This preventive measure was extended on a monthly basis by decisions of the case prosecutor. 7. On 28 September 2007 the applicant complained to the Bucharest County Court about the prosecutor’s decision to extend the ban on him leaving Romania from 27 September until 26 October 2007. He applied to have the measure revoked, arguing that no new investigative steps had been taken by the prosecutors in the meantime, and that the measure taken against him had been extended automatically without taking into consideration his specific situation, namely that he was not a Romanian citizen and that his wife, two young children and parents all resided in Moldova and needed a visa to travel to Romania. The applicant also argued that extending the measure for more than one year would be contrary to the Criminal Procedure Code. 8. In the meantime, before a decision was taken on his complaint, the applicant was allowed by the prosecutor to leave Romania for twelve days to visit his sick father in Moldova. 9. On 15 January 2008 the Bucharest County Court allowed the applicant’1 of the Criminal Procedure Code. The court held that the prosecutor’s decision had not provided any new reasons to extend the preventive measure taken against the applicant. In addition, it held that the prosecutor had not proved there was a reasonable suspicion that he had committed the crimes he had been charged with. The judgment became final on 21 January 2008, when an appeal by the prosecutor on points of law (recurs) was rejected by the Bucharest Court of Appeal. 10. On that date the applicant was free to leave Romania and he returned to Moldova. 11. The relevant provisions of the Criminal Procedure Code in force at the time are as follows: “(1) In cases concerning offences punishable with imprisonment, to ensure the proper conduct of the criminal trial or to prevent the suspect or defendant from fleeing during the criminal investigation, trial or ... execution of the sentence, one of the following preventive measures may be imposed: ... (b) a ban on leaving town; (c) a ban on leaving the country; ... (8) The measure to be taken shall be chosen taking into account its purpose, the severity of the crime, the health, age, [and any] previous convictions or other circumstances [of] the person on whom the measure is to be imposed.” “A person charged with an offence or a defendant may complain about a ... ban on leaving town or the country within three days of its adoption by the prosecutor ... “(2) ... A measure not to leave town may be extended in the course of the criminal investigation if necessary and only by a reasoned decision. The extension may be ordered by the prosecutor conducting or supervising the investigation, each not exceeding thirty days. The maximum duration of the measure provided for in paragraph (1) in the course of a criminal investigation is one year. Exceptionally, where the punishment is life imprisonment or detention of ten years or more, the maximum duration of the ban on leaving town may be two years.” “(2) The provisions of Article 145 also apply to bans on leaving the country.” 12. The relevant provisions of the Criminal Code in force at the relevant time are as follows: “(5) Fraud which had very serious consequences shall be punished with 10 to 20 years’ imprisonment and the interdiction of certain rights.” | 0 |
test | 001-163115 | ENG | DNK | GRANDCHAMBER | 2,016 | CASE OF BIAO v. DENMARK | 1 | Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;André Potocki;Dean Spielmann;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helena Jäderblom;Ján Šikuta;Jon Fridrik Kjølbro;Josep Casadevall;Ledi Bianku;Mark Villiger;Nebojša Vučinić;Päivi Hirvelä;Paul Lemmens;Paul Mahoney;Paulo Pinto De Albuquerque;Peer Lorenzen;Robert Spano;Vincent A. De Gaetano;Ksenija Turković | 10. The applicants were born, respectively, in 1971 in Togo and in 1979 in Ghana. They live in Malmö, Sweden. 11. The first applicant lived in Togo until the age of 6 and again briefly from the age of 21 to 22. From the age of 6 to 21 he lived in Ghana with his uncle. He attended school there for ten years and speaks the local language. On 18 July 1993, when he was 22 years old, he entered Denmark and requested asylum, which was refused by a final decision of 8 March 1995. 12. In the meantime, on 7 November 1994, he had married a Danish national. Having regard to his marriage, on 1 March 1996, by virtue of the former section 9, subsection 1(ii), of the Aliens Act (Udlændingeloven) he was granted a residence permit, which became permanent on 23 September 1997. 13. On 25 September 1998 the first applicant and his Danish wife got divorced. 14. On 22 April 2002 the first applicant acquired Danish citizenship. At the relevant time he met the requirements set out in the relevant circular relating to the length of his period of residence (at least nine years), age, general conduct, arrears owed to public funds and language proficiency. 15. On 22 February 2003 the first applicant married the second applicant in Ghana. He had met her during one of four visits to Ghana made in the five years prior to their marriage. 16. On 28 February 2003, at the Danish Embassy in Accra, Ghana, the second applicant requested a residence permit for Denmark with reference to her marriage to the first applicant. At that time she was 24 years old. She stated that she had never visited Denmark. Her parents lived in Ghana. On the application form, the first applicant submitted that he had not received any education in Denmark, but had participated in various language courses and short-term courses concerning service, customer care, industrial cleaning, hygiene and working methods. He had been working in a slaughterhouse since 15 February 1999. He had no close family in Denmark. He spoke and wrote Danish. The spouses had come to know each other in Ghana and they communicated between themselves in the Hausa and Twi languages. 17. At the relevant time, under section 9, subsection 7, of the Aliens Act family reunion could be granted only if both spouses were over 24 years old and their aggregate ties to Denmark were stronger than the spouses’ attachment to any other country (the so-called attachment requirement). 18. On 1 July 2003 the Aliens Authority (Udlændingestyrelsen) refused the residence permit request because it found that it could not be established that the spouses’ aggregate ties to Denmark were stronger than their aggregate ties to Ghana. 19. In July or August 2003 the second applicant entered Denmark on a tourist visa. 20. On 28 August 2003 she appealed against the Aliens Authority’s decision of 1 July 2003, to the then Ministry for Refugees, Immigration and Integration (Ministeriet for Flygtninge, Indvandrere og Integration). The appeal did not have suspensive effect. 21. On 15 November 2003 the applicants moved to Malmö, Sweden, which since 1 July 2000 has been connected to Copenhagen in Denmark by a 16 km bridge (Øresundsforbindelsen). 22. By Act no. 1204 of 27 December 2003, section 9, subsection 7, of the Aliens Act was amended so that the attachment requirement was lifted for persons who had held Danish citizenship for at least 28 years (the socalled 28-year rule – 28-års reglen). Persons born or having arrived in Denmark as small children could also be exempted from the attachment requirement, provided they had resided lawfully there for 28 years. 23. On 6 May 2004 the applicants had a son. He was born in Sweden but is a Danish national by virtue of his father’s nationality. 24. On 27 August 2004 the Ministry for Refugees, Immigration and Integration upheld the decision by the Aliens Authority of 1 July 2003 to refuse to grant the second applicant a residence permit. It pointed out that in practice, the residing person was required to have stayed in Denmark for approximately twelve years, provided that an effort had been made to integrate. In the case before it, it found that the applicants’ aggregate ties to Denmark were not stronger than their ties to Ghana and that the family could settle in Ghana, as that would only require that the first applicant obtain employment there. In its assessment, it noted that the first applicant had entered Denmark in July 1993 and had been a Danish national since 22 April 2002. He had ties with Ghana, where he had been raised and had attended school. He had visited the country four times in the past six years. The second applicant had always lived in Ghana and had family there. 25. On 18 July 2006, before the High Court of Eastern Denmark (Østre Landsret), the applicants instituted proceedings against the Ministry for Refugees, Immigration and Integration and relied on Article 8 of the Convention, alone and in conjunction with Article 14 of the Convention, together with Article 5 (2) of the European Convention on Nationality. They submitted, among other things, that it amounted to indirect discrimination against them when applying for family reunion, that persons who were born Danish citizens were exempt from the attachment requirement altogether, whereas persons who had acquired Danish citizenship at a later point in life had to comply with the 28-year rule before being exempted from the attachment requirement. In the present case that would entail that the first applicant could not be exempted from the attachment requirement until 2030, thus after 28 years of Danish citizenship, and after reaching the age of 59. 26. In a judgment of 25 September 2007 the High Court of Eastern Denmark unanimously found that the refusal to grant the applicants family reunion with reference to the 28-year rule and the attachment requirement did not contravene the Articles of the Convention or of the European Convention on Nationality relied upon. It stated as follows: “...the facts given in the decisions of the immigration authorities in the case are found not to be in dispute. Accordingly, [the second applicant] who is a Ghanaian national, was thus 24 years old when she applied for a residence permit on 28 February 2003, and she had no ties with Denmark other than her recent marriage to [the first applicant]. [The second applicant] had always lived in Ghana and had family there. [The first applicant] had some ties with Ghana, where he had lived with his uncle while attending school in Ghana for ten years. He entered Denmark in 1993 at the age of 22 and became a Danish national on 22 April 2002. [The applicants] married in Ghana on 22 February 2003 and have lived in Sweden since 15 November 2003 with their child, born on 6 May 2004. [The first applicant] has told the High Court that the family can settle lawfully in Ghana if he obtains paid employment in that country. It appears from a Supreme Court judgment of 13 April 2005, reproduced on page 2086 in the Danish Weekly Law Reports (Ugeskrift for Retsvæsen) for 2005, that Article 8 of the Convention does not impose on the Contracting States any general obligation to respect immigrants’ choices as to the country of their residence in connection with marriage, or otherwise to authorise family reunion. In view of the information on [the applicants’] situation and their ties with Ghana, the High Court accordingly finds no basis for setting aside the Respondent’s decision establishing that [the applicants’] aggregate ties with Ghana were stronger than their aggregate ties with Denmark and that [the applicants] therefore did not meet the attachment requirement set out in section 9, subsection 7, of the Aliens Act. In this connection, the High Court finds that the refusal did not bar [the applicants] from exercising their right to family life in Ghana or in a country other than Denmark. The fact that [the first applicant] is able to reside in Ghana only if he obtains paid employment there is found not to lead to any other assessment. Accordingly, the High Court holds that the decision of the Ministry did not constitute a breach of Article 8 of the Convention. Although the High Court has held that Article 8 of the Convention has not been breached in this case, the High Court has to consider [the applicants’] claim that, within the substantive area otherwise protected by Article 8, the decision of the Ministry constituted a breach of Article 14 read in conjunction with Article 8 of the Convention. The High Court initially observes that [the first applicant] had been residing in Denmark for 11 years when the Ministry issued its decision. Although he acquired Danish nationality in 2002, nine years after entering Denmark, he did not meet the 28year nationality requirement applicable to all Danish nationals pursuant to section 9, subsection 7 of the Aliens Act, irrespective of whether they are of foreign or Danish extraction. Nor did he have the comparable attachment to Denmark throughout 28 years which will generally lead to an exemption from the attachment requirement according to the preparatory work of the 2003 statutory amendment. The 28-year rule is a generally-worded relaxation of the attachment requirement based on an objective criterion. In practice, however, the rule may imply that a Danish national of foreign extraction will only meet the 28-year rule later in life than would be the case for a Danish national of Danish extraction. When applied, the rule may therefore imply an indirect discrimination. According to the relevant explanatory report, Article 5 of the European Convention on Nationality must be taken to mean that Article 5 § 1 concerns the conditions for acquiring nationality while Article 5 § 2 concerns the principle of non-discrimination. According to the report, it is not a mandatory rule that the Contracting States are obliged to observe in all situations. Against that background, Article 5 is considered to offer protection against discrimination to an extent that goes no further than the protection against discrimination offered by Article 14 of the Convention. The assessment of whether the refusal of the Ministry implied discrimination amounting to a breach of Article 14 read in conjunction with Article 8 of the Convention is accordingly considered to depend on whether the difference in treatment which occurred as a consequence of the attachment requirement in spite of nationality can be considered objectively justified and proportionate. According to the preparatory work of the Act, the overall aim of the attachment requirement, which is a requirement of lasting and strong links to Denmark, is to regulate spousal reunion in Denmark in such a manner as to ensure the best possible integration of immigrants in Denmark, an aim which must in itself be considered objective. In the view of the High Court, any difference in treatment between Danish nationals of Danish extraction and Danish nationals of foreign extraction can therefore be justified by this aim as regards the right to spousal reunion if a Danish national of foreign extraction has no such lasting and strong attachment to Denmark. The balancing of this overall consideration relating to the specific circumstances in the case requires a detailed assessment. The High Court finds that the assessment and decision of the Ministry were made in accordance with section 9(7) of the Aliens Act and the preparatory work describing the application of the provision. Accordingly, and in view of the specific information on [the first applicant’s] situation, the High Court finds no sufficient basis for holding that the refusal by the Ministry to grant a residence permit to [the second applicant] with reference to the attachment requirement of the Aliens Act implies a disproportionate infringement of [the first applicant’s] rights as a Danish national and his right to family life. The High Court therefore finds that the decision of the Ministry was not invalid, and that it was not contrary to Article 14 read in conjunction with Article 8 of the Convention.” 27. The applicants appealed against the judgment to the Supreme Court (Højesteret), which delivered its judgment on 13 January 2010 upholding the High Court judgment. 28. The Supreme Court, composed of seven judges, found, unanimously, that it was not in breach of Article 8 of the Convention to refuse the second applicant a residence permit in Denmark. It stated as follows: “In its decision of 27 August 2004, the Ministry of Integration refused the application from [the second applicant] for a residence permit on the grounds that the aggregate ties of herself and her spouse [the first applicant] with Denmark were not stronger than their aggregate ties with Ghana (see section 9, subsection 7, of the Aliens Act). [The applicants] first submitted that the refusal was unlawful because it was contrary to Article 8 of the European Convention on Human Rights. If the refusal was not contrary to Article 8, they submitted as their alternative claim that it was contrary to the prohibition against discrimination enshrined in Article 14 read in conjunction with Article 8, for which reason they were eligible for family reunion in Denmark without satisfying the attachment requirement set out in section 9(7) of the Act. For the reasons given by the High Court, the Supreme Court upholds the decision made by the Ministry of Integration that it is not contrary to Article 8 to refuse [the second applicant’s] application for a residence permit.” 29. Moreover, the majority in the Supreme Court (four judges) found that the 28-year rule was in compliance with Article 8 of the Convention read in conjunction with Article 14 of the Convention. They stated as follows: “Pursuant to section 9, subsection 7, as worded by Act No. 1204 of 27 December 2003, the requirement that the spouses’ or cohabitants’ aggregate ties with Denmark must be stronger than their aggregate ties with another country (the attachment requirement) does not apply when the resident has been a Danish national for 28 years (the 28-year rule). Until 2002, Danish nationals had had a general exemption from the attachment requirement. Act No. 365 of 6 June 2002 tightened the conditions of family reunion, one of the consequences being that the attachment requirement would subsequently also apply to family reunion where one of the partners was a Danish national. One of the reasons for extending the attachment requirement to include Danish nationals also given in the preparatory work (on page 3982 of Schedule A to the Official Gazette for 2001 to 2002 (2nd session)) is that there are Danish nationals who are not particularly well integrated in Danish society and for this reason the integration of a spouse newly arrived in Denmark may entail major problems. It quickly turned out that this tightening had some unintended consequences for persons such as Danish nationals who had opted to live abroad for a lengthy period and who had started a family while away from Denmark. For that reason, the rules were relaxed with effect from 1 January 2004 so that family reunion in cases where one of the partners had been a Danish national for at least 28 years was no longer subject to satisfaction of the requirement of stronger aggregate ties with Denmark. According to the preparatory work in respect of the relaxation, the Government found that the fundamental aim of tightening the attachment requirement in 2002 was not forfeited by refraining from demanding that the attachment requirement be met in cases where the resident had been a Danish national for 28 years (see page 49 of Schedule A to the Official Gazette for 2003 to 2004). It is mentioned in this connection that Danish expatriates planning to return to Denmark one day with their families will often have maintained strong ties with Denmark, which have also been communicated to their spouse or cohabitant and any children. This is so when they speak Danish at home, take holidays in Denmark, read Danish newspapers regularly, and so on. Thus, there will normally be a basis for successful integration of Danish expatriates’ family members into Danish society. Persons who have not been Danish nationals for 28 years, but were born and raised in Denmark, or came to Denmark as small children and were raised here, are normally also exempt from the attachment requirement when they have stayed lawfully in Denmark for 28 years. A consequence of this current state of the law is that different groups of Danish nationals are subject to differences in treatment in relation to their possibility of being reunited with family members in Denmark, as persons who have been Danish nationals for 28 years are in a better position than persons who have been Danish nationals for fewer than 28 years. According to the case-law of the European Court of Human Rights, nationals of a country do not have an unconditional right to family reunion with a foreigner in their home country, as factors of attachment may also be taken into account in the case of nationals of that country. It is not in itself contrary to the Convention if different groups of nationals are subject to statutory differences in treatment as regards the possibility of obtaining family reunion with a foreigner in the country of their nationality. In this respect, reference is made to paragraph 88 of the judgment delivered by the European Court of Human Rights on 28 May 1985 in the case of Abdulaziz, Cabales and Balkandali v. the United Kingdom. In this case the Court found that it was not contrary to the Convention that a person born in Egypt who had later moved to the United Kingdom and become a national of the United Kingdom and Colonies was treated less favourably as regards the right to family reunion with a foreigner than a national born in the United Kingdom or whose parent(s) were born in the United Kingdom. The Court said in that respect: ‘It is true that a person who, like Mrs Balkandali, has been settled in a country for several years may also have formed close ties with it, even if he or she was not born there. Nevertheless, there are in general persuasive social reasons for giving special treatment to those whose links with a country stem from birth within it. The difference of treatment must therefore be regarded as having had an objective and reasonable justification and, in particular, its results have not been shown to transgress the principle of proportionality.’ The Court then held that Mrs Balkandali was not a victim of discrimination on the ground of birth. As regards Mrs Balkandali, who was a national of the United Kingdom and Colonies, it was not contrary to the Convention to make it an additional requirement for family reunion that she must have been born in the United Kingdom. A different additional requirement is made under Danish law: a requirement of Danish nationality for 28 years. The question is whether [the first applicant] is subjected to discrimination contrary to the Convention owing to this criterion. We find that the criterion of 28 years of Danish nationality has the same aim as the requirement of birth in the United Kingdom, which was accepted by the Court in the 1985 judgment as not being contrary to the Convention: to distinguish a group of nationals who, seen from a general perspective, had lasting and strong ties with the country. In general, a person of 28 years who has held Danish nationality since birth will have stronger real ties with Denmark and greater insight into Danish society than a 28-year-old person who – like [the first applicant] – only established links with Danish society as a young person or an adult. This also applies to Danish nationals who have stayed abroad for a shorter or longer period, for example in connection with education or work. We find that the 28-year-rule is based on an objective criterion, as it must be considered objectively justified to select a group of nationals with such strong ties with Denmark when assessed from a general perspective that it will be unproblematic to grant family reunion with a foreign spouse or cohabitant in Denmark as it will normally be possible for such spouse or cohabitant to be successfully integrated into Danish society. Even though it is conceivable that a national who has had Danish nationality for 28 years may in fact have weaker ties with Denmark than a national who has had Danish nationality for a shorter period, this does not imply that the 28-year rule should be set aside pursuant to the Convention. Reference is made to the case, relative to the then applicable additional British requirement of place of birth considered by the European Court of Human Rights, of a national who was not born in the United Kingdom, but who had in reality stronger ties with the United Kingdom than other nationals who satisfied the requirement of place of birth, but had moved abroad with their parents at a tender age or maybe had even been born abroad. It is noted in this respect that it was sufficient to satisfy the then British requirement of place of birth for only one of the relevant person’s parents to have been born in the United Kingdom. We also find that the consequences of the 28-year rule cannot be considered disproportionate relative to [the first applicant]. [He] was born in Togo in 1971 and came to Denmark in 1993. After nine years’ residence, he became a Danish national in 2002. In 2003 he married [the second applicant] and applied for reunion with his spouse in Denmark. The application was finally refused in 2004. The factual circumstances of this case are thus in most material aspects identical to Mrs Balkandali’s situation assessed by the Court in its judgment in 1985, when the Court found that the principle of proportionality had not been violated. She was born in Egypt in 1946 or 1948. She first went to the United Kingdom in 1973 and obtained nationality of the United Kingdom and Colonies in 1979. She married a Turkish national Bekir Balkandali in 1981, and their application for spousal reunion in the United Kingdom for the husband of a British national was refused later in 1981. A comparison of the two cases reveals that both [the first applicant] and Mrs Balkandali only came to Denmark and the United Kingdom, respectively, as adults. In [the first applicant’s] case, the application was refused when he had resided in Denmark for 11 years, two of which as a Danish national. In Mrs Balkandali’s case, the application was refused after she had resided in the United Kingdom for eight years, two of which as a British national. On these grounds we find no basis in case-law to find that the 28-year rule implied discrimination against [the first applicant] contrary to the Convention. As regards the significance of the European Convention on Nationality of 6 November 1997, we find for the reasons stated by the High Court that it cannot be a consequence of Article 5 § 2 of this Convention that the scope of the prohibition against discrimination based on Article 14 read in conjunction with Article 8 of the European Convention of Human Rights should be extended further than justified by the 1985 judgment. We hold on this basis that the refusal of residence for [the second applicant] given by the Ministry of Integration cannot be set aside as being invalid because it is contrary to Article 14 read in conjunction with Article 8 of the European Convention of Human Rights. For this reason we vote in favour of upholding the High Court judgment.” 30. A minority of three judges were of the view that the 28-year rule implied indirect discrimination between persons who were born Danish citizens and persons who had acquired Danish citizenship later in life. Since persons who were born Danish citizens would usually be of Danish ethnic origin, whereas persons who acquired Danish citizenship at a later point in their life would generally be of foreign ethnic origin, the 28-year rule also entailed indirect discrimination between ethnic Danish citizens and Danish citizens with a foreign ethnic background. More specifically, they stated as follows: “As stated by the majority, the requirement of section 9, subsection 7, of the Aliens Act that the spouses’ or cohabitants’ aggregate ties with Denmark must be stronger than their aggregate ties with another country (the attachment requirement) does not apply when the resident person has been a Danish national for 28 years (the 28year rule). The 28-year rule applies both to persons born Danish nationals and to persons acquiring Danish nationality later in life, but in reality the significance of the rule differs greatly for the two groups of Danish nationals. For persons born Danish nationals, the rule only implies that the attachment requirement applies until they are 28 years old. For persons not raised in Denmark who acquire Danish nationality later in life, the rule implies that the attachment requirement applies until 28 years have passed after the date when any such person became a Danish national. As an example, [the first applicant] who became a Danish national at the age of 31, will be subject to the attachment requirement until he is 59 years old. The 28-year rule therefore implies that the major restriction of the right to spousal reunion resulting from the attachment requirement will affect persons who only acquire Danish nationality later in life far more often and with a far greater impact than persons born with Danish nationality. Hence, the 28-year rule results in obvious indirect difference in treatment between the two groups of Danish nationals. The vast majority of persons born Danish nationals will be of Danish ethnic origin, while persons acquiring Danish nationality later in life will generally be of other ethnic origin. At the same time, the 28-year rule therefore implies obvious indirect difference in treatment between Danish nationals of Danish ethnic origin and Danish nationals of other ethnic origin regarding the right to spousal reunion. Pursuant to section 9, subsection 7, of the Aliens Act, the attachment requirement may be disregarded if exceptional reasons make this appropriate. According to the preparatory work of the 2003 Act, this possibility of exemption is to be administered in such a manner that aliens who were born and raised in Denmark or who came to Denmark as small children and were raised here must be treated comparably to Danish nationals, which means that they will be exempt from the attachment requirement when they have lawfully resided in Denmark for 28 years. However, relative to persons who were not raised in Denmark, but acquire Danish nationality later in life, this does not alter the situation described above concerning the indirect difference in treatment implied by the 28-year rule. When the attachment requirement was introduced by Act No. 424 of 31 May 2000, all Danish nationals were exempt from the requirement. Act No. 365 of 6 June 2002 made the attachment requirement generally applicable also to Danish nationals. Concerning the reason for this, the preparatory work in respect of the Act states, inter alia: ‘With resident aliens and Danish nationals of foreign extraction it is a widespread marriage pattern to marry a person from their country of origin, among other reasons due to parental pressure ... The Government find that the attachment requirement, as it is worded today, does not take sufficient account of the existence of this marriage pattern among both resident foreigners and resident Danish nationals of foreign extraction. There are thus also Danish nationals who are not well integrated into Danish society and where integration of a spouse newly arrived in Denmark may therefore entail major problems.’ By Act No. 1204 of 27 December 2003, the application of the attachment requirement to Danish nationals was restricted through the 28-year rule, and the preparatory work in respect of the Act stated that the purpose was, inter alia, ‘to ensure that Danish expatriates with strong and lasting ties to Denmark in the form of at least 28 years of Danish nationality will be able to obtain spousal reunion in Denmark’. In the light of these notes, it is considered a fact that the indirect difference in treatment between Danish nationals of Danish ethnic extraction and Danish nationals of other ethnic extraction following from the 28-year rule is an intended consequence. Under Article 14 of the Convention, the enjoyment of the rights and freedoms recognised by the Convention, including the individual’s right under Article 8 to respect for his or her family life, must be ‘secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. As mentioned above, the 28-year rule implies both indirect difference in treatment between persons born Danish nationals and persons only acquiring Danish nationality later in life and, in the same connection, indirect difference in treatment between Danish nationals of Danish ethnic extraction and Danish nationals of other ethnic extraction. Both these types of indirect difference in treatment must be considered to fall within Article 14 read in conjunction with Article 8 of the Convention. The two types of indirect difference in treatment implied by the 28year rule are therefore contrary to Article 14 unless the difference in treatment can be considered objectively justified and proportionate. The European Convention on Nationality of 6 November 1997, which has been ratified by Denmark, provides in Article 5 § 2: ‘Each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently’. The memorandum of 14 January 2005 made by the Ministry of Integration and the memorandum of November 2006 made by the working group composed of representatives of the Ministry of Justice, the Ministry of Foreign Affairs and the Ministry of Integration state that the provision solely concerns issues on the revocation and loss of nationality. In our opinion it is dubious whether there is any basis for such a restrictive interpretation as the provision, according to its wording, comprises any difference in treatment exercised as a consequence of how and when nationality was acquired. As is apparent from the explanatory report, the provision is not a prohibition from which no derogation may be made, and the provision must be taken to mean that it may be derogated from if the difference in treatment is objectively justified and proportionate. However, when assessing the 28-year rule relative to Article 14 read in conjunction with Article 8 of the Convention, we consider it necessary to include the fact that, at least according to its wording, Article 5 § 2 of the European Convention on Nationality comprises a general provision stating that any difference in treatment between different groups of a State Party’s own nationals is basically prohibited. In an assessment made under Article 14 read in conjunction with Article 8 of the Convention, another factor to be taken into consideration is the crucial importance of being entitled to settle with one’s spouse in the country of one’s nationality. As mentioned, Danish nationals were originally generally exempt from the attachment requirement. The Supreme Court established in a judgment reproduced on p. 2086 in the Danish Weekly Law Reports for 2005 that discrimination relative to the right to spousal reunion based on whether the resident spouse is a Danish or foreign national is not contrary to the prohibition of discrimination laid down in Article 14 read in conjunction with Article 8 of the Convention. In this respect, the Supreme Court referred to paragraphs 84 to 86 of the judgment delivered by the European Court of Human Rights on 28 May 1985 in Abdulaziz, Cabales and Balkandali v. the United Kingdom. Difference in treatment based on nationality must be seen, inter alia, in the light of the right of Danish nationals to settle in Denmark, and no significance can be attributed to the fact that such discrimination is not considered contrary to Article 14 read in conjunction with Article 8 when assessing whether it is permissible to implement a scheme implying a difference in treatment between different groups of Danish nationals. In our opinion, no crucial significance can be attributed to paragraphs 87 to 89 of the Abdulaziz, Cabales and Balkandali judgment either in this assessment, among other reasons because difference in treatment based on the length of a person’s period of nationality is not comparable to a difference in treatment based on place of birth. In the cases in which the attachment requirement applies, some of the factors emphasised are whether the resident spouse has strong links to Denmark by virtue of his or her childhood and schooling in Denmark. Such strong attachment to Denmark will exist in most cases where a person has held Danish nationality for 28 years. However, when assessing whether the difference in treatment implied by the 28year rule can be considered objectively justified, it is not sufficient to compare persons not raised in Denmark who acquire Danish nationality later in life with the large group of persons who were born Danish nationals and were also raised in Denmark. If exemption from the attachment requirement was justified only by regard for the latter group of Danish nationals, the exemption should have been delimited differently. The crucial element must therefore be a comparison with persons who were born Danish nationals and have been Danish nationals for 28 years, but who were not raised in Denmark and may perhaps not at any time have had their residence in Denmark. In our opinion, it cannot be considered a fact that, from a general perspective, this group of Danish nationals has stronger ties with Denmark than persons who have acquired Danish nationality after entering and residing in Denmark for a number of years. It should be taken into consideration in that connection that one of the general conditions for acquiring Danish nationality by naturalisation is that the relevant person has resided in Denmark for at least nine years, has proved his or her proficiency in the Danish language and knowledge of Danish society and meets the requirement of self-support. Against that background, it is our opinion that the indirect difference in treatment implied by the 28-year rule cannot be considered objectively justified, and that it is therefore contrary to Article 14 read in conjunction with Article 8 of the Convention. The consequence of this must be that, when applying section 9, subsection 7, of the Aliens Act to Danish nationals, the authorities must limit the 28-year rule to being solely an age requirement, meaning that the attachment requirement does not apply in cases where the resident spouse is a Danish national and is at least 28 years old. Accordingly, we vote for ruling in favour of the [applicants’] claim to the effect that the Ministry of Integration must declare invalid the decision of 27 August 2004, thereby remitting the case for renewed consideration. In view of the outcome of the voting on this claim we see no reason to consider the claim for compensation.” 31. The applicants remained in Sweden and did not subsequently apply for family reunion in Denmark, which they could have done under section 9, subsection 7 of the Aliens Act, had the first applicant decided to reside in Denmark anew. He maintained a job in Copenhagen and therefore commuted every day from Malmö in Sweden to Copenhagen in Denmark. | 1 |
test | 001-166747 | ENG | RUS | COMMITTEE | 2,016 | CASE OF USHAKOV AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6-1 - Reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 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 their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-184060 | ENG | HUN | CHAMBER | 2,018 | CASE OF LAKATOS v. HUNGARY | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention) | Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Georges Ravarani | 6. The applicant was born in 1986 and lives in Gyál. 7. On 26 February 2011 the Pest Central District Court remanded the applicant in custody under Article 129 § 2 (b) and (c) of the Code of Criminal Procedure, on suspicion of aggravated murder within the meaning of Article 166 § 1 of the Criminal Code. It summarised the suspicions against him, referred to police reports, an autopsy report, the victim’s medical documents, examinations of various exhibits and witness testimonies, and concluded that there was a reasonable suspicion that the applicant had poisoned the victim on 8 April 2010. The court found it established that there was a need for the applicant’s detention, because otherwise he would tamper with evidence by exerting pressure on the witnesses, as evidenced by his previous conduct whereby he had threatened them. It dismissed an argument by the applicant that he had committed the criminal offence more than a year before, thus the prosecutor’s office had erred in stating that he could tamper with evidence or influence witnesses. The court also held that the applicant’s “unclear” financial situation and the severity of the possible punishment demonstrated that there was a risk of his absconding. The court gave no consideration to an application by the applicant’s lawyer for the applicant to be placed under house arrest. 8. An appeal against that decision was dismissed on 3 March 2011. 9. On 21 March 2011 the Buda Central District Court extended the applicant’s pre-trial detention until 26 May 2011. It noted again that because of the severity of the possible punishment and the fact that the applicant had neither a permanent address nor a regular income, there were grounds to believe that he would abscond. The court held that there was a risk of his interfering with the investigation if he were to threaten the witnesses or destroy physical evidence. 10. The applicant appealed, arguing that the conditions for pre-trial detention had not been fulfilled because there was no risk of his absconding or influencing witnesses. He argued that his well-established personal circumstances – the fact that he lived with his common-law wife and two children, his parents, and his brother’s family – and the fact that he had no criminal record excluded the risk of his absconding. He further submitted that he had cooperated with the investigating authorities. Alternatively, the applicant requested that he be released and placed under house arrest. 11. The first-instance decision was upheld on appeal by the Budapest Regional Court on 15 April 2011, and the court’s reasoning was that the public interest in the applicant being detained was more important than his interest in his right to liberty being respected. 12. On 23 May 2011 the Buda Central District Court extended the applicant’s detention until 26 August 2011. The court maintained its previous reasons justifying the need for his detention. It emphasised that there was a risk of his absconding, owing to the severity of the possible punishment and the fact that he had no declared employment and had previously not been reachable at his permanent address. It added that, if released, the applicant might influence the witnesses or destroy evidence. 13. On 22 June 2011 the Budapest Regional Court upheld that decision. 14. On 24 August 2011 the Buda Central District Court extended the applicant’s detention until 26 November 2011 under Article 129 § 2 (b) (risk of absconding) and (c) (risk of collusion) of the Code of Criminal Procedure. As regards the risk of absconding, the court found that although the applicant had previously not been reachable at his permanent address and had only had temporary jobs, his temporary residence had been known and he had no criminal record. However, given the seriousness of the potential punishment and his “unstable” financial circumstances, his presence at the proceedings could only be ensured through the most restrictive measure. As regards the risk of collusion, the court dismissed an argument by the applicant’s lawyer that the prosecution authorities should have questioned all the witnesses by that stage of the proceedings. It held that although the majority of the witnesses had been heard, further questioning could still be necessary. 15. On 26 August 2011 the Budapest Regional Court upheld the lower court’s decision under Article 129 § 2 (b) and (c) of the Code of Criminal Procedure. 16. Subsequently, the applicant’s pre-trial detention was extended on a number of occasions. In particular, on 23 November 2011 the Buda Central District Court extended his detention until 26 February 2012. The court found that he had failed to attach a “hosting declaration” (befogadó nyilatkozat) and a declaration of his host’s financial capacity to his application to be placed under house arrest. According to the court, although the investigation was about to conclude, based on previous witness testimonies, there was a risk that the applicant would intimidate witnesses. It also held that this last reason could justify the applicant being detained until the closure of the investigation. That decision was upheld on appeal by the Budapest Regional Court on 1 December 2011. Although by that time the applicant had submitted a hosting declaration, the appeal court objected to his release for the reason that he had not provided a declaration of his host’s financial capacity. 17. Furthermore, on 24 February 2012 the Budapest High Court held that the unclarified financial situation of the applicant and the seriousness of the crime substantiated the risk of his absconding. It also found, without giving further reasoning, that there were still grounds to believe that at that stage of the proceedings the applicant would influence the witnesses. In an appeal, the applicant argued that the investigating authorities had implemented no procedural measures, the proceedings had been unreasonably lengthy, and previously he had always been reachable at his temporary residence. As regards the risk of his influencing witnesses, the applicant submitted that no such risk could be established two years after the alleged criminal offence. On 8 March 2012 the Budapest Court of Appeal dismissed the applicant’s appeal, stating that the investigation was being conducted in a timely manner and witness testimonies had previously evidenced that the applicant had tried to exert pressure on the witnesses. 18. On 25 April 2012 the applicant’s pre-trial detention was extended by the Budapest High Court until 26 June 2012. The court maintained that, under Article 129 § 2 (b) of the Code of Criminal Procedure, his detention was still necessary because of the risk of his absconding. It considered that the applicant had no “financial or essential” ties counterbalancing the risk of him escaping an eventual serious punishment. Although he had family ties, a child who was a minor, and a relative willing to give assurances to provide for him if he were released, given the seriousness of the charges, the gravity of the possible punishment and his unstable financial circumstances, there was a real risk that he would abscond. However, the court did not find that the risk of collusion (Article 129 § 2 (c) of the Code of Criminal Procedure) was substantiated, since there was no way to influence any of the investigative measures which the prosecution had relied on. In particular, the witness who the investigating authorities still intended to hear was unlikely to testify, given the fact that he was ill and unreachable. The court also considered that although it was likely that the applicant’s acquaintances and relatives had tried to influence witnesses in the two years following the commission of the crime, there was no reliable information that this had actually taken place, and a hypothetical risk of further attempts to do so could not substantiate the risk of collusion. 19. That decision was upheld on appeal on 7 May 2012. 20. On 22 June 2012 the applicant’s pre-trial detention was extended until 26 August 2012. The court agreed with the applicant’s argument that his unsettled personal circumstances could not be relied on to justify his detention after the passing of a lengthy period of time following his arrest. It nonetheless held that, in the absence of any financial ties, his family ties could not counterbalance the risk of his absconding, also having regard to the severity to the potential punishment. 21. That decision was upheld on appeal by the Budapest Court of Appeal on 28 June 2012, and an appeal by the applicant to the effect that less restrictive measures could be applied in his case was dismissed. 22. The Budapest High Court extended the applicant’s pre-trial detention on 21 August 2012, reiterating the same arguments as before. It dismissed the applicant’s arguments that no investigative measure had been implemented for a considerable period of time. It also found that the hosting declaration of the applicant’s family member, the fact that he was raising a child who was a minor, and the fact that his legal residence had also been clarified were irrelevant, and did not diminish the risk of his absconding. The second-instance court upheld the decision on 24 August 2012. 23. On 24 October 2012 the applicant’s pre-trial detention was extended again for a month under Article 129 § 2 (b) of the Code of Criminal Procedure. However, the Budapest High Court expressed doubts as to whether there was enough evidence to conclude that there was a reasonable suspicion that the applicant had committed the crime. It dismissed an argument by the prosecutor’s office that the applicant would hinder the investigation. It considered that, irrespective of the seriousness of the charges, it appeared that there was less risk of his absconding, since he was raising two children who were minors and he had no criminal record. On appeal, the Budapest Court of Appeal upheld the first-instance judgment but extended the applicant’s detention by two months. 24. On 21 December 2012 the applicant’s detention was extended; the Budapest High Court again referred to the fact that, at the time of his arrest, the applicant had been unreachable at his permanent address and had been earning a living from temporary jobs, which, taken together with the severity of the potential punishment, substantiated the risk of his absconding. The decision was upheld on appeal on 10 January 2013. 25. On 22 February 2013 the Budapest High Court released the applicant from pre-trial detention and placed him on bail under house arrest. According to that decision, besides the suspicion against the applicant, the only grounds for restricting his liberty were the risk of his absconding, given the gravity of the offence, and this in itself could not justify his continued pre-trial detention. On appeal, the Budapest Court of Appeal reversed the first-instance decision and placed the applicant in detention on 28 March 2013. It noted that, given the seriousness of the offence, there was a danger of his absconding, irrespective of his family ties. 26. On 23 April 2013 the Budapest High Court released the applicant from detention upon his giving an undertaking not to leave his place of residence. Relying on the Court’s case-law, the High Court found that pretrial detention could only serve as a measure of last resort, and the applicant’s continued detention would only serve as an anticipated punishment. The decision was overturned by the Budapest Court of Appeal on 26 April 2016, and the applicant was placed in detention for the same reasons as those given before. 27. On 17 June 2013 the Budapest Chief Public Prosecutor’s Office preferred a bill of indictment. 28. On 25 June 2013 the Budapest High Court extended the applicant’s detention until the date of the first-instance court’s judgment, under Article 129 § 2 (b) of the Code of Criminal Procedure (risk of absconding), for essentially the same reasons as those given before. 29. On 28 January the applicant applied for release, but the application was dismissed on 18 February by the Budapest High Court on the grounds that, given the gravity of the offence and the complexity of the case, pretrial detention did not constitute an anticipated punishment. That decision was upheld on appeal by the Budapest Court of Appeal on 18 February 2014. A further application by the applicant of 18 April 2014 was dismissed on 8 April 2014 (the dismissal was upheld by the second-instance court on 24 April 2014) on the grounds that the applicant had not relied on new circumstances warranting his release. 30. The applicant’s detention was reviewed on 16 July 2014 by the Budapest Court of Appeal. It held that the gravity of the offence, the applicant’s lack of financial resources and essential ties, and the fact that he had only notified the authorities of his place of residence once he had been placed in detention substantiated the risk of his absconding. 31. On appeal, that decision was upheld by the Kúria on 24 September 2014, which endorsed the reasons given by the lower court. The Kúria also found that the applicant’s pre-trial detention was both necessary and proportionate, and no less restrictive measure would be sufficient to ensure the purpose of the criminal proceedings. 32. On 29 October 2014 the applicant was found guilty of aggravated murder and sentenced to eighteen years’ imprisonment by the Budapest High Court. | 1 |
test | 001-174420 | ENG | RUS | CHAMBER | 2,017 | CASE OF BOGOMOLOVA v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1978 and lives in Berezniki, Perm region, together with her son, born in 2001. She is a single mother. 6. At the material time the applicant was teaching physical education in a secondary school in Berenzniki. 7. In November 2007 the applicant learnt that a photograph of her son had been published on the cover page of a booklet prepared by the Centre for Psychological, Medical and Social Support of the Usolskiy District, Perm region (“the Centre”), entitled “Children need a family”. 8. The booklet consisted of six pages, including the cover page. The boy’s photograph occupied the major part of the cover page and showed his face. Above the photograph there was a slogan “Children need a family”. At the bottom of the cover page, just under the photograph were the words: “Centre for Psychological, Medical and Social Support, town of Usoliye”. The second page contained two more photographs of other children, with citations from the Convention on the Rights of the Child and the Russian Family Code. The third page was headed “Forms of replacing family care” and presented the various arrangements: adoptive family, tutorial family, foster home and others. The remaining pages informed the readers about the creation in the district of the Municipal Centre for Psychological, Medical and Social Support, the role of which was to protect orphans and assist families in adopting them. They explained what kind of support and advice families could seek in the Centre and how they could help orphans. On the last page the following was written: “If you wish to save a child from loneliness and give him a hearth and home, come to us!” 9. The applicant alleged that she had not been informed about the booklet, let alone asked for authorisation for a photograph of her son to be published. 10. In November 2007 the applicant asked the local department of the interior and the prosecutor’s office to carry out an investigation into the unauthorised publication of her son’s photograph on the booklet. 11. In December 2007 the department of the interior replied that there were no grounds to institute criminal proceedings. 12. On 9 January 2008 the district prosecutor informed the applicant that the booklet had been prepared and published by a publishing company, A., at the request of the Centre. In total, 200 copies of the booklet had been published. The photograph of the child had been placed on the booklet by Mr P., who had been engaged by that company to prepare the layout of the booklet and who had found the photograph of the applicant’s son on the Internet. It was impossible to establish from which website the photograph of the child had been taken. The prosecutor advised the applicant to bring court proceedings to protect her rights. 13. The applicant did not lodge any judicial appeal against those replies. 14. In March 2008 the applicant instituted civil proceedings against the Centre before the Usolskiy District Court, Perm Region (“the District Court”) on her own behalf and on behalf of her minor son. 15. In her statement of claim the applicant complained that her and her son’s honour, dignity and reputation had been damaged by the unlawful publication of her son’s photograph in a booklet calling for adoption. In particular, the photograph had been published without her authorisation and knowledge. The booklet had been distributed in various organisations in the town of Usoliye and in the Usolskiy District, Perm region (libraries, hospitals, police departments) and had provoked a negative attitude towards her and her son on the part of her colleagues, neighbours and those close to her. People thought that she had abandoned her son. The boy had become a victim of mockery in the kindergarten. The publication of the photograph had also affected her honour and dignity and her reputation as a schoolteacher. She requested that the court, with reference to Articles 151 and 152 of the Russian Civil Code (see Relevant domestic law and practice below), award her non-pecuniary damages and order the publishing company to apologise for the publication of the photograph. 16. On 23 April 2008 the District Court held, with the applicant’s consent, that the Centre was not a proper respondent in the case and that the claim should have been made against the publishing company and Mr P. The Centre was invited to take part in the proceedings as a third party. 17. The publishing company contested the applicant’s claims. It submitted that the material which had been presented to the court showed that a certain Mr Sh. had taken the photograph of the applicant’s son with the knowledge of the applicant. Mr Sh. had not informed the applicant of his intentions or the ways in which the photograph might be further used. Nor had he received any written authorisation from the applicant for its use. Mr P., who had been engaged by the company for the preparation of the layout of the booklet, had found the photograph on the Internet and placed it on the cover page of the booklet. 18. The publishing company considered that it had not been obliged to verify whether prior consent had been received for publication of the photograph in the booklet for two reasons. First, it was not responsible for the actions of Mr P., who had been working for the company on a contractual basis. Secondly, under Article 152.1 of the Civil Code (see Relevant domestic law below), consent to the use of a photograph was not required when the image was being used in the interests of the State, or in social or other public interests. By ordering the booklet, the Centre had been pursuing social and public interests and calling for mercy to be shown to orphans. The company concluded that the damage had been caused to the applicant by Mr Sh. and, therefore, the company should be exempted from liability for damage. 19. Mr P. submitted to the court that in 2004 he had gone travelling together with his friend Sh., who was a photographer. Sh. had openly taken photographs of other tourists, including a photograph of the applicant’s son. After their return, Sh. had sent him electronic copies of those photographs and since that time they had been saved in his computer. In 2007 he (Mr P.) had been temporarily working for the publishing company and had been asked to prepare the layout of the booklet. The text and some photographs had been provided by the Centre. He searched in his computer for more photographs to be placed in the booklet and saw the picture of the applicant’s son, which seemed to fit the booklet well. He therefore placed it on the cover page. He did not know who the boy on the photograph was. 20. The representative of the Centre, acting as a third party, submitted that the use of the photograph of the applicant’s son had not been agreed with the Centre. He also submitted that the booklet did not call for adoption; it was intended to provide information about the Centre. He replied to a question put by the court that after publication of the booklet, a number of people had called the Centre and asked whether it was possible to adopt the child whose photograph was on the cover page of the booklet. 21. It appears from the record of the court hearings that the applicant’s representative, G., submitted to the court that it had been established that the photograph of the applicant’s son had been used on the booklet without his parent’s consent, contrary to the requirements of Article 152.1 of the Civil Code. That provision was concordant with the provisions of the European Convention on Human Rights (“the Convention”) protecting private and family life. The publication of the photograph in the booklet constituted unlawful interference with the applicant’s private life and therefore the publishing company was under an obligation to pay compensation for nonpecuniary damage sustained by the applicant. 22. The publishing company contested the application of Article 152.1 of the Civil Code in the case and considered that the applicant’s consent to the publication of her son’s photograph had not been required. 23. On 20 June 2008 the District Court examined and dismissed the applicant’s claims. The judgment consisted of a summary of the submissions of the parties and the third party, a summary of the relevant domestic law, a summary of the witnesses’ submissions and other evidence examined by the court, and several paragraphs of conclusions. In particular, the District Court held as follows: “... The court has established that the honour, dignity and professional reputation of the plaintiff were not affected by the publication of the booklet with the photograph of the plaintiff’s son. Thus, all witnesses submitted that they did not have any hostile feelings towards Mrs Bogomolova, the attitude [towards Mrs Bogomolova] of all those questioned [in the court hearing] remained the same: friendly, amicable; they were not aware of any instances of insults, reproaches in respect of the plaintiff. In the subjective view of the witnesses, the booklet in itself had a positive scope. The plaintiff’s professional reputation was not affected by the publication of the booklet in any way, since the plaintiff had provided the court with positive references from her workplace, where her pedagogical competences were highly appreciated. The content of the booklet had a positive scope aimed at providing information, did not contain any defamatory details; the photograph on the booklet did not have any defects, and the text in the booklet did not contain any defamatory details either. None of the information in the booklet indicated that defamatory information had been disseminated; it did not diminish the honour, dignity and reputation of Mrs Bogomolova or of her minor son. Therefore, the evidence submitted [to the court] has demonstrated [that the booklet had] a strictly value character, and did not contain any defamatory details, diminishing the plaintiff’s and her son’s honour, dignity and reputation in the public’s opinion and the opinion of certain individuals. To make negative assumptions in respect of the booklet with the photograph of the plaintiff’s son on the front page amounts to an individual value judgment, which has not been included in the content and meaning of that information booklet. The court takes into account that on several occasions in 2004 the plaintiff authorised Mr Sh., a photographer familiar to her, to take photographs of her son. Sh. then forwarded the photographs to painter Mr P., who [in his turn] then placed [one of] the photograph[s] in the booklet. Mrs Bogomolova did not place any restrictions or conditions on the use of those photographs, did not seek to find out what had happened to those photographs. In addition, it follows from witness statements that after publication of the booklet, the plaintiff showed it to persons around her and at her workplace and annotated it in an emotionally skewed way, and thus disseminated false information about herself and her son with reference to the photograph [on the booklet]. ... Taking into account that it has not been established in the court hearing that there was any information discrediting the honour, dignity and reputation of the plaintiff and her minor son, her claims of compensation for non-pecuniary damage should be dismissed. The court also considers that the plaintiff’s claims concerning the imposition of an obligation on the defendant to provide public apologies in the SMI [mass media] ... should be dismissed ...” 24. On 25 June 2008 the applicant resigned from her job. 25. In an appeal against the judgment of 20 June 2008 the applicant submitted, in particular, that in taking its decision the District Court had not applied the provisions of Article 152.1 of the Civil Code of the Russian Federation concerning the protection of one’s image or the provisions of Article 8 of the Convention. She argued that in the absence of parental consent to the use of her son’s photograph, her claim should have been granted in accordance with the above provisions. She expanded on her position with the following arguments. 26. The booklet had been distributed in several towns in the Perm region, including Usoliye, where her parents lived, and Berezniki, where she and her son lived. She had worked for a long time in those towns and a lot of people knew her and her family. After seeing her son’s photograph on the booklet, people who knew her, including the parents of her pupils, thought that she could no longer take care of her son because she had been deprived of her parental rights. She had had to explain to her neighbours, friends and colleagues that her family was doing well and that her son was living with her. Since the publication of the booklet, children in the kindergarten had started calling her son “little vagrant” and “poor orphan”. She had been obliged to quit her job because of comments made by the parents of her pupils. The booklet provoked a feeling of pity towards children abandoned by their parents and at the same time it aroused feelings of indignation towards their parents. 27. On 19 August 2008 the Regional Court upheld the decision of 20 June 2008, finding it lawful and duly reasoned. Regarding the applicant’s argument about the District Court’s failure to examine her claims under Article 152.1 of the Civil Code, the Regional Court held that the court had taken a decision on the claims as they had been submitted by the applicant, in accordance with Article 196 § 3 of the Code of Civil Procedure (see Relevant domestic law and practice below). The applicant’s claims were based on the infringement by the defendants of her right to honour, dignity and reputation. She had not raised any claims on the grounds contained in Article 152.1 of the Civil Code. 28. By a judgment of 20 January 2009 the Justice of Peace of the Bereznikovskiy Circuit granted the Centre’s claim for recovery from the applicant of the legal costs it had incurred when it had taken part in the libel proceedings as a third party, in the amount of 5,200 Russian roubles. | 1 |
test | 001-172328 | ENG | SRB | COMMITTEE | 2,017 | CASE OF MARKOVIĆ v. SERBIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Branko Lubarda;Dmitry Dedov;Luis López Guerra | 5. The applicant was born in 1951 and lives in Waldegg, Austria. 6. On 28 September 1994 the applicant initiated civil proceedings requesting the division of a certain estate. 7. On 5 January 2009 the Ivanjica Municipal Court suspended the said proceedings until conclusion of another civil case. 8. It would appear that the said civil proceedings are still pending. 9. On 23 June 2011 the Constitutional Court found a breach of the applicant’s right to a hearing within a reasonable time and ordered the speeding up of the impugned proceedings. The court, additionally, declared that the applicant was entitled to the non-pecuniary damages sought, in accordance with Article 90 of the Constitutional Court Act (see paragraph 13, Article 90, below). 10. It seems that, the applicant contacted the Commission for Compensation on 11 December 2011 and requested the payment of the compensation awarded, but apparently received no response. | 1 |
test | 001-165569 | ENG | NLD | ADMISSIBILITY | 2,016 | HUNDE v. THE NETHERLANDS | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 2. In December 2012 a group of approximately 200 irregular migrants in the Netherlands who – as rejected asylum-seekers – were no longer entitled to State-sponsored care and accommodation for asylum-seekers, squatted the St. Joseph Church in Amsterdam. These irregular migrants formed an action group called “We Are Here / Wij Zijn Hier” seeking attention for and relief from their situation. During their stay there, the St. Joseph Church was colloquially referred to as the Refuge Church (Vluchtkerk). It appears that the group was evicted from the Refuge Church on 31 March 2013. 3. On 4 April 2013 the municipality of Amsterdam offered temporary shelter to the original members of the group “We Are Here” who had been staying in the Refuge Church since December 2012. Accordingly, 159 persons were housed temporarily in a former detention facility on the Havenstraat in Amsterdam – which came to be known as the Refuge Haven (Vluchthaven) – until 31 May 2014. The remaining persons from the Refuge Church who had been evicted from there and not been offered shelter in the Refuge Haven, squatted an indoor car park, which came to be known as the Refuge Garage (Vluchtgarage). 4. A number of residents of the Refuge Garage initiated administrative proceedings against the municipality of Amsterdam demanding that they be provided with shelter, food and clothing. In one of those proceedings, lodged by three residents of the Refuge Garage, not including the applicant, a provisional measure (voorlopige voorziening) was granted on 17 December 2014 pending further appeal proceedings before the Central Appeals Tribunal (Centrale Raad van Beroep). At the request of the three petitioners, the provisional-measures judge (voorzieningenrechter) of the Central Appeals Tribunal ordered the municipality of Amsterdam to provide overnight shelter, a shower, breakfast and dinner to the petitioners. In that decision, account was taken of the fact that the Netherlands Institute for Human Rights (College voor de Rechten van de Mens) had found degrading living conditions in the Refuge Garage. In addition, regard was had to two decisions of the European Committee of Social Rights (hereinafter the “ECSR”) of 1 July 2014, in which the Netherlands was found to have breached Articles 13 § 4 and 31 of the European Social Charter (hereinafter the “Charter”) by failing to provide adult irregular migrants with adequate access to emergency assistance, that is food, clothing and shelter (see paragraph 37 below). 5. In response to this provisional measure, the Association of Netherlands Municipalities (Vereniging van Nederlandse Gemeenten) – in agreement with the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) – set up a scheme to offer basic provisions to irregular migrants, the so-called Bed, Bath and Bread Scheme (bed-bad-broodregeling). That scheme entailed that the central municipalities would provide basic accommodation to irregular migrants including night shelter with shower facilities, breakfast and dinner, starting from 17 December 2014. It was announced from the outset that this scheme would be temporary, awaiting the adoption of a resolution by the Committee of Ministers of the Council of Europe concerning the ECSR’s two decisions, pursuant to Article 9 of the Additional Protocol to the European Charter Providing for a System of Collective Complaints. Although these resolutions were adopted by the Committee of Ministers on 15 April 2015 (see paragraph 38 below), the scheme has been prolonged and is currently still in place. 6. The applicant fled from Ethiopia to the Netherlands in September 2011. His application for asylum was rejected as unfounded. Apart from the fact that, for reasons found imputable to him, the applicant did not hold any identity or travel documents, he was found to have given inconsistent, contradictory, vague and summary statements to the immigration authorities. In July 2013 he was released from immigration detention (vreemdelingendetentie) because, according to the applicant who has not provided any further details, an effective removal to his country of origin proved not possible. As a rejected asylum-seeker who had failed to leave the country within the voluntary return grace period of four weeks, the applicant was no longer entitled to State-sponsored accommodation and care in one of the reception centres for asylum-seekers. 7. In December 2013 the applicant, having joined the group “We Are Here”, took shelter in the Refuge Garage in Amsterdam together with approximately 100 other irregular migrants. It appears that he lived in the Refuge Garage until March 2015. Meanwhile, the applicant instituted the proceedings set out in paragraphs 9-19 and 20-24 below. 8. On 11 February 2015 the applicant filed a fresh asylum application, which was accepted on 30 March 2015. He was provided with a temporary residence permit for asylum purposes valid from 30 March 2015 until 30 March 2020, based on section 29 § 1(a) of the Aliens Act 2000 (Vreemdelingenwet 2000). 9. On 30 December 2013 the applicant requested the municipality of Amsterdam to grant him State-sponsored care and reception facilities similar to the facilities offered to asylum-seekers by the Central Agency for the Reception of Asylum-Seekers (Centraal Orgaan Opvang Asielzoekers; hereinafter “COA”), submitting, inter alia, that he found himself in an emergency situation considering the appalling living conditions in the Refuge Garage. He further submitted that he had applied for shelter in the Refuge Haven but that, unlike other irregular migrants from the Refuge Church in a similar situation, he had not been admitted to the Refuge Haven. 10. The applicant submitted that the living conditions in the Refuge Garage were poor. Housing more than 150 persons, it was overcrowded. A limited, insufficient number of toilets was available and there were no washing facilities. Electricity was not always available. The irregular migrants staying in the garage were dependent on volunteers for food and the atmosphere between them was tense, regularly resulting in confrontations which were sometimes violent. The applicant himself had once been threatened and assaulted by a co-resident in the garage. He had sustained a light stab wound. He had reported that incident to the police. 11. On 31 March 2014 the Mayor and Aldermen (college van Burgemeester en Wethouders) of the municipality of Amsterdam, treating the applicant’s request as an application for access to community shelter services (maatschappelijke opvang) under the Social Support Act (Wet Maatschappelijke Ondersteuning), rejected it as the applicant was neither a Dutch national nor did he hold a residence permit as required by the aforementioned act. An exception to that rule could apply when the right to respect for physical or psychological integrity flowing from Article 8 of the Convention was at stake, in particular if the person concerned was a minor or vulnerable because of a medical emergency. However, as the applicant had not provided any medical information – even though he claimed that he required medical care – he was considered as not falling within the category of vulnerable persons. 12. With regard to the fact that the applicant had been denied access to the Refuge Haven, the Mayor and Aldermen held that accommodation at that location had been offered to the original members of the group “We Are Here” who had stayed in the Refuge Church for an uninterrupted period of time and who were willing to cooperate with the municipality and other institutions in the organisation of their return to the country of origin. The applicant did not fulfil those requirements. 13. The Mayor and Aldermen further made reference to the possibility of the applicant requesting the Repatriation and Departure Service (Dienst Terugkeer en Vertrek) of the Ministry of Security and Justice (Ministerie van Veiligheid en Justitie) to impose a measure on him within the meaning of section 56 of the Aliens Act 2000 in order to gain access to reception facilities at a centre where his liberty would be restricted (vrijheidsbeperkende locatie). In such centres the focus is on departure from the Netherlands of the person concerned, meaning that reception facilities are provided on condition that the person concerned cooperates in the organisation of his or her departure to the country of origin. 14. The applicant lodged an objection (bezwaar) against the decision of 31 March 2014 which was dismissed by the Mayor and Aldermen on 11 July 2014, in accordance with an advice drawn up by the objections committee (Bezwarencommissie) on 9 July 2014 and on the same grounds as those on which the initial decision had been based. The applicant lodged an appeal (beroep) with the Amsterdam Regional Court (rechtbank). 15. On 8 May 2015 the Amsterdam Regional Court accepted the applicant’s appeal and quashed the Mayor and Aldermen’s decision of 11 July 2014. Proceeding to decide on the matter itself, the Regional Court considered that the ECSR’s decisions of 1 July 2014, in which the ECSR had found violations of Articles 13 and 31 of the Charter, could not be overlooked notwithstanding the fact that they were not binding for the State Parties to the Charter. Accordingly, the Regional Court considered that the denial of shelter, food and clothing to irregular migrants touched upon the right to respect for human dignity in such a way as to preclude a person’s enjoyment of private life within the meaning of Article 8 of the Convention. It concluded that the State was under a positive obligation to provide the applicant with shelter, food and clothing and that that provision should not be made conditional on the applicant’s cooperation in the organisation of his departure from the Netherlands. It was noted, however, that the municipality of Amsterdam, simultaneously with other municipalities in major cities of the Netherlands, had established the Bed, Bath and Bread Scheme (see paragraph 5 above), providing, as of 17 December 2014, basic accommodation to irregular migrants including night shelter with shower facilities, breakfast and dinner. As far as the applicant had argued that the Bed, Bath and Bread Scheme was insufficient, he had failed to substantiate that argument with any prima facie evidence. 16. Moreover, the applicant had obtained a residence permit on 30 March 2015 as a consequence of which he was already entitled to State-sponsored social benefits. The applicant’s argument that his right to emergency social assistance should nevertheless be acknowledged retroactively and that he should be granted living allowances (leefgeld) by way of compensation was dismissed. The Regional Court held that although such a right to emergency social benefits should be acknowledged retroactively, that is from 29 November 2013, there was no legal basis on which to conclude that this right included a right to living allowances. It was open to the applicant to claim compensation for damage in separate proceedings. 17. Both the applicant and the Mayor and Aldermen lodged a further appeal (hoger beroep) with the Central Appeals Tribunal. 18. On 26 November 2015 the Central Appeals Tribunal dismissed the applicant’s appeal but accepted the Mayor and Aldermen’s appeal and quashed the Regional Court’s judgment. The Central Appeals Tribunal found that the Mayor and Aldermen’s rejection of the applicant’s request for shelter under the Social Support Act was justified as the applicant had the possibility of receiving shelter at a centre where his liberty would be restricted. Unlike the Regional Court, it agreed with the Mayor and Aldermen that irregular migrants may be denied access to such a centre if they refuse to cooperate in the organisation of their return to their country of origin, unless there existed exceptional circumstances. Such exceptional circumstances could exist when the person concerned had demonstrated that he or she was unable to foresee the consequences of his or her actions or omissions due to his or her psychiatric state of mind. It was, however, incumbent upon the irregular migrant to claim that such exceptional circumstances pertained. 19. No further appeal lay against this decision. 20. In the meantime, on 24 March 2014, the applicant had also requested the Deputy Minister of Security and Justice to grant him, either in cooperation with the municipality of Amsterdam or independently, State-sponsored care and accommodation, in particular to offer him shelter as well as (allowances for) food and clothing. 21. On 25 March 2014 the Deputy Minister rejected the applicant’s request, considering that he could apply for admission in a centre run by the Repatriation and Departure Service where his liberty would be restricted and where he would have to cooperate in the organisation of his departure from the Netherlands. The applicant was reminded of the fact that he was already under a statutory obligation to leave the Netherlands pursuant to section 61 § 1 of the Aliens Act 2000 as his asylum request had been rejected. 22. The applicant filed an objection against this decision, which was dismissed by the Deputy Minister on 16 June 2014. 23. An appeal lodged by the applicant was declared inadmissible by the Regional Court of The Hague on 8 September 2015, which considered that the applicant no longer had any interest in challenging the impugned decision in view of the provisional measure issued by the Central Appeals Tribunal on 17 December 2014, pursuant to which the municipality of Amsterdam had been ordered to provide night shelter, breakfast and dinner to irregular migrants (see paragraph 5 above). 24. Although possible, the applicant did not lodge a further appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) against the decision of the Regional Court. 25. The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000. Section 5 § 1 of the said act reads as follows: “An alien who has been refused entry into the Netherlands shall leave the Netherlands immediately, duly observing such directions as may have been given to him for this purpose by a border control officer.” 26. Section 10 of the Aliens Act 2000 provides as follows: “1. An alien who is not lawfully resident may not claim entitlement to benefits in kind, facilities and social security benefits issued by decision of an administrative authority. The previous sentence shall apply mutatis mutandis to exemptions or licenses designated in an Act of Parliament or Order in Council. 2. The first subsection may be derogated from if the entitlement relates to education, the provision of care that is medically necessary, the prevention of situations that would jeopardise public health or the provision of legal assistance to the alien. 3. The granting of entitlement does not confer a right to lawful residence.” 27. Section 45 of the said Act provides the following on the legal consequences of a rejection of an application for a residence permit in the Netherlands: “1. The consequences of a decision whereby an application for the issue of a residence permit for a fixed period [...] or a residence permit for an indefinite period [...] is rejected shall, by operation of law, be that: (a) the alien is no longer lawfully resident [...]; (b) the alien should leave the Netherlands of his own volition within the time limit prescribed in section 62, failing which the alien may be expelled; (c) the benefits in kind provided for by or pursuant to the Act on the Central Agency for the Reception of Asylum-Seekers or another statutory provision that regulates benefits in kind of this nature will terminate in the manner provided for by or pursuant to that Act or statutory provision and within the time limit prescribed for this purpose; (d) the aliens’ supervision officers are authorised, after the expiry of the time limit within which the alien must leave the Netherlands of his own volition, to enter every place, including a dwelling, without the consent of the occupant, in order to expel the alien; (e) the aliens’ supervision officers are authorised, after the expiry of the time limit referred to in (c), to compel the vacation of property in order to terminate the accommodation or the stay in the residential premises provided as a benefit in kind as referred to in (c). 2. Subsection 1 shall apply mutatis mutandis if: ... (b) A residence permit has been cancelled or not renewed. 3. The consequences referred to in subsection 1 shall not take effect as long as the application for review lodged by the alien suspends the operation of the decision. 4. [The] Minister may order that, notwithstanding subsection 1, opening words and (c), the benefits in kind provided for by or pursuant to the Act on the Central Reception Organisation for Asylum-Seekers or another statutory provision that regulates benefits in kind of this nature will not terminate for certain categories of alien. The order shall be repealed no later than one year after its notification. 5. An alien to whom an order as referred in subsection 4 is applicable shall be deemed to be lawfully resident as referred to in section 8 (j).” 28. Under the Act on the Central Agency for the Reception of Asylum-Seekers (Wet Centraal Orgaan Opvang Asielzoekers) and related regulations, including the Regulation on Provisions for Asylum-Seekers and Other Categories of Aliens (Regeling verstrekkingen asielzoekers en andere categorieën vreemdelingen), the Central Agency – an autonomous administrative authority – is responsible for the provision of reception facilities which comprise housing, basic subsistence means and health care to asylum-seekers. 29. If no residence permit is granted to an asylum-seeker, he or she will remain entitled to benefit from the reception facilities for asylum-seekers for a grace period of four weeks after the date of the final decision taken on his/her request. The rejected asylum-seeker is given this grace period to leave the Netherlands voluntarily – if need be assisted by the International Organisation for Migration – as he/she is no longer lawfully staying in the Netherlands and under a legal obligation to leave. After the expiry of this period, access to reception facilities is automatically terminated without a specific decision. Nevertheless, an alien in such a situation may apply to the Central Agency for continued reception facilities. If highly exceptional circumstances so require, the Central Agency can take a decision to that effect. A negative decision can be appealed to the Regional Court and, subsequently, to the Administrative Jurisdiction Division. Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure pending the outcome of the appeal proceedings. 30. Rejected asylum-seekers and other migrants in an irregular situation are entitled to health care in cases of medical emergency (as well as legal aid and education for minors). Rejected applicants for a residence permit with physical and/or psychological problems severe enough to make them unfit for travel may furthermore apply for the deferral of their departure from the Netherlands under section 64 of the Aliens Act 2000. The expulsion is then suspended for the duration of the severe medical condition and the migrant concerned is granted a right to accommodation. 31. A migrant, who is under the legal obligation to leave the Netherlands because his or her lawful residence or entitlement to State-sponsored care and accommodation has come to an end, can be offered accommodation in a centre where his or her liberty is restricted. Such accommodation is based on a so-called liberty-restricting measure (vrijheidsbeperkende maatregel) within the meaning of section 56 of the Aliens Act, which measure entails that the person concerned can move in and out of the centre freely but is prohibited from crossing the municipal boundaries where the centre is located. That accommodation is offered for twelve weeks and its main focus is the migrant’s departure from the Netherlands to the country of origin with the Repatriation and Departure Service’s assistance: there has to be a realistic prospect of an effective return within twelve weeks and the migrant must be willing to cooperate by taking steps to effectuate his or her departure from the Netherlands. 32. A temporary residence permit may be issued to migrants who, through no fault of their own, cannot leave the Netherlands (buitenschuldvergunning) pursuant to section 3.48 § 2a of the Aliens Decree 2000 (Vreemdelingenbesluit 2000). Section B8/4.1 of the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000) lays down the conditions with which an alien must comply in order to be eligible for such a residence permit. At the relevant time the conditions were that: “[T]he alien has: - done everything within his power to organise his departure independently; - no doubt exists about his nationality and identity; and - he cannot be blamed for his inability to leave the Netherlands. the alien has: - turned to the International Organisation for Migration in order to facilitate his departure; and - this organisation has indicated that it is not capable of organising the aliens’ departure due to the fact that the alien submits that he is unable to have travel documents at his disposal[;] the alien has: - requested the Repatriation and Departure Service to mediate in obtaining the required documents of the authorities of the country to which departure is possible; and - the mediation has not led to the desired result; and the alien: - is residing in the Netherlands without a valid residence permit; - does not comply with other conditions for being granted a residence permit; and - has not also filed an application for a residence permit for the purpose of residence on other grounds.” 33. From 1 January 2014 onwards, section 8 of the Social Support Act (Wet Maatschappelijke Ondersteuning; “WMO”) has provided as follows: “1. An alien can only be eligible for individual assistance, women’s shelter services or a payment as referred to in section 19a if he is lawfully resident within the meaning of section 8, subsection (a) to (e) inclusive and (l) of the Aliens Act 2000. 2. An alien can only be eligible for community shelter services if he is lawfully resident within the meaning of section 8, subsection (a) to (e) inclusive and (l) of the Aliens Act 2000, except in cases referred to in article 24, paragraph 2 of Directive 2004/38/EC. 3. Notwithstanding subsections 1 and 2, in cases designated by order in council, if necessary notwithstanding section 10 of the Aliens Act 2000, categories of aliens residing unlawfully in the Netherlands specified by or pursuant to that order may be wholly or partially eligible for assistance specified by that order or for a payment as referred to in section 19a. Eligibility for assistance or a payment as referred to in section 19a does not confer any right to lawful residence on an alien. 4. The order referred to in subsection 3 may provide that the municipal executive is responsible for delivering the assistance designated by that order.” 34. Article 13 of the Charter, entitled “The right to social and medical assistance”, provides as follows: “Anyone without adequate resources has the right to social and medical assistance. With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake: 1. to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition; ... 4. to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11 December 1953.” 35. Article 31 of the Charter, entitled “The right to housing”, provides as follows: “Everyone has the right to housing. With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed: ... 2. to prevent and reduce homelessness with a view to its gradual elimination; ...”. 36. The first paragraph of the Appendix to the Social Charter reads: “Without prejudice to Article 12, paragraph 4, and Article 13, paragraph 4, the persons covered by Articles 1 to 17 include foreigners only insofar as they are nationals of other Contracting Parties lawfully resident or working regularly within the territory of the Contracting Party concerned, subject to the understanding that these articles are to be interpreted in the light of the provisions of Articles 18 and 19. This interpretation would not prejudice the extension of similar facilities to other persons by any of the Contracting Parties.” 37. On 1 July 2014 the ECSR adopted two decisions on the merits in the cases of Conference of European Churches (CEC) v. the Netherlands (complaint no. 90/2013) and in European Federation of National Organisations working with the Homeless (FEANTSA) v. the Netherlands (complaint no. 86/2012). It found that the Netherlands had violated Article 13 §§ 1 and 4 of the Charter, which guarantees the right to social assistance, and Article 31 § 2 of the Charter, the right to housing, by failing to provide adequate access to emergency assistance (food, clothing and shelter) to adult migrants in an irregular situation. In CEC v. the Netherlands the ECSR held the following: “73. With regard to Article 13 § 4 in particular, the Committee recalls that emergency social assistance should be provided under the said provision to all foreign nationals without exception (Conclusions 2003, Portugal). Also migrants having exceeded their permitted period of residence within the jurisdiction of the State Party in question have a right to emergency social assistance (Conclusions 2009, Italy). The beneficiaries of the right to emergency social assistance thus include also foreign nationals who are present in a particular country in an irregular manner (Conclusions 2013, Malta). 74. The Committee observes in this connection that the complaint concerns the provision of the necessary food, water, shelter and clothing to adult migrants in an irregular situation. It considers the issues at hand to be closely linked to the realisation of the most fundamental rights of these persons, as well as to their human dignity. 75. Pursuant to the above, Article 13 § 4 applies to migrants in an irregular situation. ... 115. The Committee recalls that human dignity is the fundamental value and the core also of European human rights law (FIDH v. France, cited above, §31). 116. Even though the Convention and the relevant legal rules of the European Union on asylum are applicable only to foreigners staying in a regular manner within the jurisdiction of the States Parties, the Committee observes that both the Court and the Court of Justice in their recent case-law have acknowledged the importance of preserving human dignity in connection with the minimum protection provided to migrants (see paragraphs 28-29, 47-48). 117. The Committee observes in this connection that the scope of the Charter is broader and requires that necessary emergency social assistance be granted also to those who do not, or no longer, fulfil the criteria of entitlement to assistance specified in the above instruments, that is, also to migrants staying in the territory of the States Parties in an irregular manner, for instance pursuant to their expulsion. The Charter requires that emergency social assistance be granted without any conditions to nationals of those States Parties to the Charter who are not Member States of the Union. The Committee equally considers that the provision of emergency assistance cannot be made conditional upon the willingness of the persons concerned to cooperate in the organisation of their own expulsion.” 38. Following the abovementioned decisions of the ECSR, the Committee of Ministers, on 15 April 2015, adopted two substantially the same resolutions (Resolution nos. CM/ResChS(2015)5 and CM/ResChS(2015)4). Taking note of the Netherlands’ Government’s submissions in which they had expressed their concern that the ECSR had not given a correct interpretation of the appendix to the Charter which excludes from the scope of the Charter all aliens who are not lawfully residing on the territory of a State Party, these resolutions read, in so far as relevant: “The Committee of Ministers, ... 2. recalls that the powers entrusted to the ECSR are firmly rooted in the Charter itself and recognises that the decision of the ECSR raises complex issues in this regard and in relation to the obligation of States parties to respect the Charter; 3. recalls the limitation of the scope of the European Social Charter (revised), laid down in paragraph 1 of the appendix to the Charter; 4. looks forward to the Netherlands reporting on any possible developments in the issue.” 39. The information contained on the website of the Repatriation and Departure Service concerning possibilities for migrants in the Netherlands to return to Ethiopia, reads, in so far as relevant: “Voluntary return Voluntary return is possible. The diplomatic representation issues laissez-passers to aliens who wish to return to Ethiopia and who can demonstrate their identity and Ethiopian nationality. The establishment of the identity and nationality depends on the presence of a (copy of) passport or an original and validated birth certificate. The alien must sign the laissez-passer, otherwise it is not valid. Forced return Forced return is possible with an original passport. The diplomatic representation may issue replacing documents if the alien wishes to return.” | 0 |
test | 001-140754 | ENG | POL | COMMITTEE | 2,014 | CASE OF BURCZY v. POLAND | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney | 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The applicant was born in 1955 and lives in Mielec. 7. The applicant is married and has four children born in 1982, 1984, 1986 and 1994. Prior to his application for an early-retirement pension he had been unemployed with no right to unemployment benefit. 8. On 31 May 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the socalled “EWK” pension. 9. Along with his application for a pension, the applicant submitted, among other documents concerning his daughter’s health condition, a medical certificate issued by a specialist medical centre. The certificate stated that the child (born in 1994) suffered from chronic asthma and that she was in need of her parent’s constant care. 10. On 31 July 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension in the net amount of 870.83 Polish zlotys (PLN). The pension was granted with retroactive effect of 1 May 2001. 11. On an unknown date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. The doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 12. On 18 July 2002 the Rzeszów Social Security Board reopened the pension proceedings and, on 8 August 2002, the Board refused the applicant the right to early retirement and discontinued the payment of the pension with effect of 1 August 2002. 13. The applicant appealed against the decision divesting him of the right to an early-retirement pension. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights. 14. On 24 October 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) amended the challenged decisions and granted the applicant the right to early retirement pension with effect of 1 August 2002. The Regional Court found that the applicant could not bear the responsibility for the mistake made by the administrative authorities. It further held that the pension proceedings could not be reopened in this case because no new circumstances had arisen; the reopening decision was based on the same circumstances freshly assessed. 15. The Rzeszów Social Security Board appealed against the firstinstance judgment. 16. On 17 March 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) amended the first-instance judgment and dismissed the applicant’s appeal against the Social Security Board’s decisions. It held, among other things, that the Social Security Board based its decisions on evidence which did not constitute basis for the original decision granting the applicant the early retirement pension, namely medical documentation concerning the applicant’s daughter. 17. On 22 June 2004 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant’s lawyer. 18. Following the social security proceedings the applicant was not ordered to return his early-retirement benefits paid by the Social Security Board, despite the revocation of his right to an early-retirement pension. 19. The Government submitted that after the revocation of the applicant’s pension, he was employed between 6 and 8 August 2002, between 2 October and 31 December 2002, 19 January and 31 May 2003, 10 August and 10 October 2003, 3 November and 31 December 2003, 13 January and 6 November 2004, 30 July and 4 August 2005, 19 and 23 June 2006, 30 July and 8 December 2008. According to the Government’s submissions the applicant was receiving an unemployment benefit for one year between January 2005 and January 2006 and, subsequently for 3 months in 2009. 20. The Government further submitted that the applicant’s income represented some 12.11% of the average remuneration in Poland in 2002 27.99% in 2003, 29.09% in 2004, 21.91% in 2005, 18.88% in 2006, 30.25% in 2007, 33.02% in 2008, 15.09% in 2009 and 52.54% in 2010. 21. The applicant submitted a document issued by the Social Security Board on 17 August 2009 confirming that his early-retirement pension had been revoked with effect of 2 August 2002 and that after that date he had not received any payments from his retirement or disability insurance. 22. The applicant further submitted copies of the Social Security Board’s decisions according to which he was receiving monthly family benefit for his four children. The benefit amounted to PLN 135.96 in August 2001, PLN 469.02 in October 2001, PLN 409 in June 2002 and PLN 333.06 in October 2002. The applicant further produced a certificate issued by the Social Care Centre on 18 August 2008, according to which the applicant’s family was receiving a social care benefit between 1 May 2004 and 31 August 2007. After the latter date the social care centre did not pay the applicant any further benefits. The certificate did not specify the amount of benefit granted. | 1 |
test | 001-182174 | ENG | UKR | COMMITTEE | 2,018 | CASE OF TKACHEV v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | André Potocki;Mārtiņš Mits | 4. The applicant was born in 1977. He is currently serving a life sentence in Dnipro. 5. By the final domestic judgment of 16 July 2002, the applicant was sentenced to life imprisonment for murder and other crimes. 6. Until September 2004 the applicant was detained in the Cherkassy pre-trial detention centre (“the Cherkassy SIZO”) in which, he stated, cells had been overcrowded and had lacked basic amenities. 7. In October 2004 the applicant was transferred to Sokalska Correctional Colony no. 47 in Zhvyrka (“the Sokalska Colony”), where he remained until 15 November 2007. 8. The applicant stated that during his detention in the above Colony, one of his cellmates had been Mr V.M. Guk, a former applicant to the Court, with whom he had shared the cell for three years. Mr Guk’s application has already been examined by the Court, which found, in particular, a violation of Article 3 of the Convention on account of the conditions of his detention in the above Colony (see Guk v. Ukraine [Committee], no. 16995/05, §§ 83-86, 8 December 2016). 9. According to the applicant, during his stay in the Colony he was held in a cell, in which the living space was “extremely insufficient”. As confirmation thereof, he referred to a written statement signed by Mr Guk, which he had submitted to the Court. According to that statement, the cell measured 3.7 by 3.4 metres (12.58 square metres) including a sanitary facility measuring 1.35 by 1.3 metres (1.76 square metres). 10. The cell lacked basic amenities: no furniture for storage of personal belongings and food; a very small table; no rubbish container; and no toilet cleaners. The tap water was of a poor quality and water filters were not provided. Heating in the cell was inadequate; the air was damp and cold; the walls were covered with mould. 11. According to the Government, the equipment in the applicant’s cell corresponded to the domestic standards. Prisoners were provided with all necessary amenities. The quality of the tap water corresponded to the standards. The temperature in the cell was not less than 18 degrees Celsius and the air in the cell was neither damp nor cold. 12. According to the applicant, the washing unit in the Colony had no changing facilities, so the prisoners had first to undress in their cells. A guard watched them wash and hurried them up. The prisoners had to shave with poor-quality razors. Prisoners with tuberculosis washed in the same unit as healthy prisoners; no disinfection measures were taken. Sick and healthy prisoners took their daily walks in the same courtyards, which were also small, damp and dark. 13. Whenever the guards opened the cell, the prisoners had to retreat to its far corner, squat and put their arms behind their heads. When taken out of the cell, the applicant was handcuffed; he was required to walk in a squat or some other unnatural position; his head was covered with a black bag; handcuffs were not disinfected. 14. Until April 2005 the prisoners had been required to roll up their mattresses in the morning. During the daytime they had been prohibited from lying down on the beds. 15. In support of the above submissions, the applicant referred to the written statement of Mr Guk, which confirmed the procedure the prisoners had had to follow when the guards had opened the cell. It also stated that, when taken out of the cell, the prisoners had been handcuffed and escorted in a crouched position; a bag had often been put over a prisoner’s head. Sick and healthy prisoners washed in the same unit and walked in the same courtyard. Mattresses on the beds had to be rolled up during the daytime. 16. The applicant also stated that the administration had carried out searches of personal belongings, leaving them in disorder and often damaged; his watch had been stolen by an unidentified guard. Prisoners had not been provided with adequate medical assistance; they had been constantly ill-treated by the administration. In 2004-2005 the applicant had been regularly beaten by the guards. In 2004-2006 family visits had not been adequately organised. The applicant’s correspondence with relatives had been reviewed and a number of his letters had disappeared. 17. The Government stated that the washing unit had a changing room. Disinfection measures in the Colony had fully complied with the domestic standards. Prisoners with tuberculosis were detained in a separate cell; they washed after others, and the washing unit was disinfected afterwards. 18. Whenever the cell was opened, the prisoners were required to retreat to its far end, but not to squat. When escorted out of the cell, they were handcuffed, but not required to walk in a squat or with the head covered with a bag; handcuffs were in a proper condition and their disinfection was not required. 19. Searches were conducted pursuant to the relevant regulations, and there were no situations alleged by the applicant. Prisoners were not prohibited to use mattresses during the daytime. | 1 |
test | 001-156063 | ENG | RUS | CHAMBER | 2,015 | CASE OF NIKOLAY KOZLOV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1960 and lives in Cheboksary. 6. In 2001 the applicant obtained an award of remuneration arrears in the proceedings against a private company that went under insolvency administration. On 15 May 2003 the applicant sued the insolvency manager of the company seeking the recovery of the remuneration awarded to him by the court. 7. On 30 November 2004 the Novocheboksarskiy Town Court of the Republic of Chuvashiya dismissed the applicant’s claim. The applicant appealed. 8. On 12 January 2005 the Supreme Court of the Republic of Chuvashiya upheld the judgment of 30 November 2004. 9. On 3 July 2004 the applicant lodged a claim with the Supreme Court of the Republic of Chuvashiya against the Novocheboksarskiy Town Court seeking recovery of nonpecuniary damages for excessively long examination of his claim against the insolvency manager. 10. On 8 July 2004 the Supreme Court of the Republic of Chuvashiya returned the applicant’s claim on the ground that it did not have jurisdiction to examine it. The court directed the applicant to lodge the claim with a district court. The applicant appealed. 11. On 17 August 2004 the Supreme Court of Russia amended the decision of 8 July 2004 and dismissed the applicant’s claim without consideration on the merits on the ground that it could not be examined in the course of civil proceedings. The relevant part of the decision reads as follows: “... According to Article 16 of the Federal Law “On the Status of Judges in the Russian Federation” a judge could only be held responsible for actions committed in the course of administration of justice if he or she had been convicted of abuse of powers ... Since the issue of holding a judge responsible for an opinion expressed or a decision taken while administering justice could only be resolved in the course of the procedure established by law, the disputes of such kind could not be examined by courts in the course of civil proceedings. With regard to the issue of compensation for damages caused by unlawful actions ... of a judge in cases when the judge’s fault had been established in the course of other type of proceedings than criminal, the issues of the basis for and the procedure of compensation by the state of the damage caused by unlawful actions ... which manifested themselves, among other things, in the breach of [the requirement of] the reasonable length of court proceedings ... are at present not determined by law [as well as] the courts’ jurisdiction in such cases.” 12. In the meantime on an unspecified date the applicant lodged with the Leninskiy District Court of Cheboksary, as advised by the Supreme Court of the Republic of Chuvashiya (see paragraph 10 above), a claim against the Treasury of the Russian Federation and the Novocheboksarskiy Town Court seeking nonpecuniary damages for the excessive length of the civil proceedings in his case. 13. On 15 July 2004 the District Court dismissed the applicant’s claim without examination on the merits. The court noted that the procedure for challenging the actions of a judge required a special legal framework which had not yet been set up. The applicant appealed. The relevant part of the decision reads as follows: “... Taking into account the nature of the judiciary and the constitutional immunity of the judge, the procedure of appeal against the judge’s acts not resulting in the decision on the merits of a case required an adoption of special legislation. Currently there is no legislative framework in this respect ...” 14. On 23 August 2004 the Supreme Court of the Republic of Chuvashiya dismissed the applicant’s appeal. It stated that procedural rules for resolution of the issue raised by the applicant had not yet been established. The relevant part of the decision reads as follows: “... Taking into account the material law providing responsibility of the judges and judiciary, disputes arising from the applicant’s claim could be resolved only in the course of the civil proceedings established by law. On the date of adoption of the decision disputed by the applicant, the legislator did not provide any legal framework for such cases ...” | 1 |
test | 001-150299 | ENG | DEU | CHAMBER | 2,015 | CASE OF KUPPINGER v. GERMANY | 3 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1953 and lives in Heidelberg. He is the father of a son born out of wedlock on 21 December 2003. Shortly after the child was born, the mother refused the applicant any contact with him. In 2004 the applicant unsuccessfully attempted to establish contact. 6. On 19 May 2005 the applicant lodged a request with the Frankfurt/Main District Court for the regulation of contact rights. The course of proceedings before the District Court is summarised in the Court’s judgment in the case of Kuppinger v. Germany [Committee], no. 41599/09, §§ 6-33, 21 April 2011. By interim order of 22 May 2007 the District Court ordered weekly supervised contact between the applicant and his son. Three supervised contact meetings took place between 14 June and 19 July 2007. 7. On 21 December 2009 the District Court suspended the applicant’s contact rights for one year. This decision was amended on 22 March 2010 with respect to the applicant’s right to be informed about the child’s personal circumstances. 8. By judgment of 21 April 2011 (see Kuppinger, cited above, § 51), the Court found that the length of the proceedings before the Frankfurt District Court, which had lasted from 19 May 2005 to 22 March 2010, violated the applicant’s right to a trial within a reasonable time under Article 6 § 1 of the Convention. The Court further considered that there had been a violation of the right to an effective remedy under Article 13 of the Convention. 9. On 30 December 2009 the applicant lodged an appeal against the decision given by the District Court on 21 December 2009. On 15 April 2010 the Frankfurt Court of Appeal held a hearing. 10. By interim decision of 12 May 2010 the Court of Appeal decided that the applicant had the right to see his son for three hours on six specific dates between 26 May and 6 August 2010. The first three contact meetings were to take place in the presence of a supervisor. The Court of Appeal further ordered the child’s mother to take the child to the meetings on time. Finally, the Court of Appeal warned the mother that an administrative fine (Ordnungsgeld) of up to 25,000 euros (EUR) could be imposed if she did not comply with her obligations under this decision. 11. The Court of Appeal noted that the last contact meeting had taken place in 2007. There was no indication that contact with the applicant would jeopardise the child’s welfare. According to expert opinion, the child’s refusal to meet the applicant was not based on an autonomous decision, but was influenced by the mother’s stance. This was in line with the personal impression the judge rapporteur had gained from hearing both parties and the child. The Court of Appeal acknowledged that the conflict between the parents, and their ensuing lack of communication, posed a risk to successful contact. However, the course of the proceedings had shown that both parents were unwilling to settle these conflicts by availing themselves of specialist help. As it was unlikely that the parents would change their attitude, the granting of contact rights could not await the outcome of successful counselling. 12. The Court of Appeal further considered that the overall course of the proceedings had demonstrated that both parents had contributed to the failure of contact visits. In view of the lengthy proceedings, which imposed an emotional burden on the child, it was particularly important to reestablish contact carefully after a regrettable interruption of two years. 13. On 31 May 2010 the supervisor reported on the first contact meeting, scheduled for 26 May 2010, which had been postponed to 29 May 2010. After a short conversation and some playful interaction with the applicant, the child had decided to go to his mother and subsequently refused to play with his father. The supervisor further informed the Court of Appeal that the mother would be on holiday for the two meetings scheduled for 25 June and 2 July 2010 and that the parties’ counsels would have to agree on alternative dates. 14. On 18 June 2010 the supervisor reported on the second contact meeting scheduled for 11 June 2010. According to the report, the meeting had lasted around 35 minutes during which the applicant and his son had engaged in several play activities. The meeting was interrupted by two interactions between the child and his mother. Subsequently, the child told the applicant that he did not wish to play with him and left with his mother. 15. On 25 May 2010 the mother’s counsel informed the Court of Appeal that it had not been possible to find alternative dates for the meetings scheduled during the mother’s absence and that she expected that the meetings would be re-scheduled for 20 August and 3 September 2010. 16. On 28 June 2010 the applicant requested the Court of Appeal to schedule alternative dates for the meetings which were to take place during the mother’s holidays. 17. On 1 July 2010 the Court of Appeal informed the applicant that it did not see any reason to issue additional orders as to the organisation of the contact meetings, which fell within the competence of the supervisor. Furthermore, there was no room for scheduling alternative meetings. The Court of Appeal further requested the mother to submit proof of her alleged holiday absence. 18. On 21 July 2010 the applicant lodged a request with the District Court to impose an administrative fine of at least EUR 3,000 on the mother for having failed to enable him to exercise his contact rights on 26/29 May and a further EUR 5,000 for having prevented him from exercising his contact rights on 11 June 2010. He submitted that the mother had failed to deliver the child on 26 May 2010, allegedly for professional reasons. On the alternative date, 29 May 2010, the mother had brought the child, but taken him away after approximately five minutes. On 11 June 2010 the mother had left the meeting place with the child after half an hour and had thus prevented further contact. In view of the urgency of the subject matter and relying on the case-law of the Court (the applicant’s counsel referred to the case of Koudelka v. the Czech Republic, no. 1633/05, 20 July 2006), the applicant further requested the District Court to reach a decision speedily. 19. On 29 July 2010 the supervisor reported on the contact scheduled for 23 July 2010. The unsupervised contact ordered by the Court of Appeal had not taken place because the child had refused to go with his father and the supervisor’s mediation attempts had been to no avail. 20. On 30 July 2010 the mother submitted documents to justify her absence. 21. On 11 August 2010 the applicant requested the District Court to impose further administrative fines on the mother for failure to comply with her obligations under the interim decision. Relying on the report by the supervisor, he submitted that the mother had prematurely terminated the contact visit on 18 June 2010. Furthermore, she had failed to appear at the meeting place on 25 June and 2 July 2010. On 23 July 2010 the mother had failed to hand over the child to the supervisor, and induced the child to declare that he did not wish to have any contact. On 6 August 2010 the applicant informed the supervisor that he would be approximately 30 minutes late because of traffic problems. The supervisor informed him that mother and child had left the building after ten minutes. 22. On 25 August 2010 the Youth Office submitted comments. 23. On 26 August 2010 the District Court scheduled a hearing for 10 September 2010. 24. On 9 September 2010 the District Court, on the mother’s counsel’s request, postponed the hearing to 24 September 2009. 25. During the hearing on 24 September 2010 the District Court heard the supervisor’s oral submissions. 26. On 1 September 2010 the District Court informed the applicant that no decision could yet be taken for lack of the main case file on the contact proceedings. 27. On 22 October 2010 the applicant’s counsel requested the District Court to expedite the proceedings. He further submitted that the District Court was in possession of all relevant documents and that it was not necessary to await the return of the main case file. 28. By decision of 12 November 2010 the District Court imposed an overall administrative fine of EUR 300 on the mother for having contravened the contact order six times. The District Court noted that it was not in dispute between the parties that contact did not take place, or took place only for a limited period of time, on the six dates relied upon by the applicant. The District Court further considered that the mother was accountable for the failed contact, albeit to a limited degree. 29. The District Court considered that the fact that contact visits were terminated because of the child’s resistance did not exonerate the mother. The Court of Appeal had repeatedly stated that it was up to the mother to avail herself of the necessary educational measures in order to influence the child and thus to allow contact visits. The mother had failed to establish that she had undertaken such measures. She might have had good reason for requesting the dates to be rescheduled. However, she did not have the right to cancel these dates without the Court of Appeal’s or the applicant’s consent. Finally, the mother was under an obligation to wait for the applicant on 6 August 2010, taking into account that the applicant had informed her beforehand that he would be late. 30. The District Court observed that the relevant provisions prescribed an administrative fine of up to EUR 25,000 for each established contravention of the court order. Based on an overall assessment of the circumstances, the District Court considered that only administrative fines within the lowest range could be envisaged. The District Court took into account that, according to a report submitted by an access custodian on 2 October 2010 (see paragraph 45, below) there were serious indications that it would not even have been possible for a professional counsellor to establish contact. Against this background, the mother’s personal responsibility appeared to be minor. This was even more so as the mother did not completely prevent contact, but took the child to four of the scheduled meetings. The demands on her educational capabilities had been high, as she had not only been obliged to reconsider her own stance on the problems within a period of a few weeks, but also to change the child’s established pattern of behaviour. It had further to be taken into account that comparable contraventions would not have to be sanctioned in the mid-term future, because a contact custodian had been appointed. Against this background, the administrative fine had primarily the character of a sanction for past behaviour, but not of a coercive measure. 31. According to the District Court, account also had to be taken of the fact that the purpose of the first dates, on which the child had prematurely terminated the contact visits, was to institute contact. It was inherent in this constellation that contact could only be established gradually and might fail. The Court of Appeal had pointed out this possibility and had also indicated that no undue pressure should be exerted on the child. 32. With regard to the contact meetings scheduled for 25 June and 2 July 2010, the applicant had been informed beforehand that mother and child would be absent and this fact should also be taken into account. He had thus incurred travel and other expenses on these dates in spite of this knowledge. 33. Considering these circumstances, the Court found it reasonable to impose an administrative fine of EUR 80 for each of the three occasions when contact did not take place at all and of EUR 20 each for the three remaining contraventions. 34. Both parties lodged complaints. The applicant submitted that the administrative fine imposed was far too low and obviously ineffective. He further complained that the length of the administrative fine proceedings had been excessive and had violated his rights under Article 8 of the Convention. 35. On 2 December 2010 the District Court refused to amend its decision of 12 November 2010 and forwarded the complaints to the Frankfurt Court of Appeal. 36. On 17 December 2010 the Court of Appeal invited both parties to submit comments in reply by 6 January 2011. 37. On 2 February 2011 the Court of Appeal rejected both parties’ complaints. In respect of the applicant’s complaint, the Court of Appeal considered that the District Court had exercised its discretion in an acceptable way, taking into account all relevant circumstances. The Court of Appeal further considered that while it was true that the proceedings on administrative fines had to be processed speedily, the courts had to retain the possibility of availing themselves of all relevant information. Even though there were several reasons to assume that the length of the proceedings had been acceptable, the Court of Appeal did not consider it necessary to decide whether the proceedings had been conducted within a reasonable time, as there was no legal basis for establishing that the length of proceedings had been excessive. 38. On 28 February 2011 the applicant lodged an application to be heard (Anhörungsrüge) with the Court of Appeal, which was rejected by that court on 4 May 2011. 39. On 16 August 2011 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for adjudication (no. 1 BvR 1544/11). 40. In the meantime, on 14 February 2011 the applicant requested the District Court to execute its decision of 12 November 2010. On 21 March 2011 the District Court ordered the applicant to advance court fees. On 26 April 2011 the District Court requested the applicant to submit an original version of the decision to be executed. On 4 May 2011 the applicant pointed out that the decision had to be executed ex officio. On 1 June 2011 the mother, who had been granted leave to pay by instalments, had paid the administrative fine in full. On 19 July 2011 the District Court informed the applicant that the administrative fine had already been paid. 41. On 1 September 2010 the Frankfurt Court of Appeal, in the main proceedings, quashed the decision of the District Court of 21 December 2009 (suspension of contact rights) and granted the applicant contact rights on every second Wednesday afternoon for three hours each time, beginning on 29 September 2010. Following four supervised contact meetings, the applicant was to have the right to unsupervised contact meetings of up to eight hours each. The Court of Appeal further appointed Mr. H. as custodian for the implementation of contact rights (Umgangspfleger). The mother was ordered to hand over the child to the custodian for the purpose of contact meetings. Both parents were ordered to have preparatory conversations with the custodian. 42. The Court of Appeal confirmed its previous finding that there was no indication that contact with his father would jeopardise the child’s welfare and that there was thus no reason to suspend contact rights. There was furthermore not sufficient evidence that the child insistently refused to see his father. The Court of Appeal considered that the child’s verbal refusals to meet his father were not based on the child’s own assessment, but stemmed from the child’s loyalty to his mother as his immediate caregiver. It was evident that contact meetings had solely failed because of the mother’s lack of willingness or her inability to allow such contact. 43. The Court of Appeal further observed that both parents had contributed to the lack of communication and to the overall development of the proceedings. 44. In view of the mother’s continuing failure to fulfil her parental duties, the Court of Appeal considered it necessary to appoint a custodian for the implementation of contact rights. The Court of Appeal observed that the custodianship had to be subject to a time-limit. It considered that the time until 31 March 2011 should be sufficient for establishing a stable relationship between the applicant and his son, allowing continued contact. 45. On 2 October 2010 the custodian informed the Court of Appeal that he had met the applicant, who had been uncooperative and did not seem to take an interest in the child’s welfare. Under these circumstances, contact could not take place as scheduled. Nevertheless, in order to allow for contact, he recommended that the applicant seek professional counselling. 46. On 15 November 2010 the applicant requested the District Court to discharge the custodian from his duties. 47. On 16 November 2010 the District Court appointed a curator ad litem to represent the child’s interests and submitted the request to the mother, the custodian and to the Youth Office for comments within one week. 48. On 30 November and 9 December 2010 the Youth Office and the mother asked the District Court to reject the request. 49. On 10 December 2010 the applicant requested the District Court to expedite the proceedings. On the same day, the District Court scheduled a hearing for 21 January 2011. 50. On 17 December 2010 the applicant complained that the District Court, when scheduling the hearing, had not respected the time-limit of one month laid down in section 155 § 2 of the Act on Proceedings in Family Matters (see Relevant Domestic Law, below). 51. On 12 January 2011 the District Court informed the applicant that it had not been possible to schedule an earlier hearing, as the judge in charge had been replaced by 1 January 2011 and the hearing was scheduled immediately after the new judge’s return from holidays. 52. On 21 January 2011 a hearing took place in the absence of the custodian, who had informed the District Court that he was on holiday. 53. On 29 January 2011 the custodian requested the District Court to discharge him from his duties. 54. Between 2 and 9 February 2011 the District Court judge contacted by telephone eight potential custodians. Ms R. was ready to supervise the first contacts, while Ms Z. declared her readiness to hand over the child for the ensuing unsupervised visits. 55. On 11 February 2011 the District Court informed the parties that custodian H. could only be dismissed if a new custodian was appointed. The District Court’s intensive endeavours to find a person who was ready to implement the decision of 1 September 2010 proved difficult. On that same date, the District Court judge wrote letters to 22 potential custodians and enquired about their readiness to take up duties in the instant case. Furthermore, the District Court informed the parties that it had instituted ex officio fresh contact proceedings in order to review the existing regulations (Abänderungsverfahren, see paragraphs 67-81, below). 56. On 16 March 2011 the mother challenged the District Court judge for bias. She withdrew her motion on 12 April 2011. 57. On 12 April 2011 the applicant’s counsel informed the mother’s counsel that the applicant intended to exercise contact rights on 16 April 2011 and that he expected the mother to hand over the child. The applicant expressed the opinion that the Court of Appeal’s decision of 1 September 2010 still provided for unsupervised visits on every second Saturday. On 14 April 2011 the mother’s counsel replied that she considered that the applicant did not have the right to unsupervised contact. 58. Between 16 April and 9 July 2011 the mother did not open the door when the applicant appeared for contact visits. Between 10 May and 11 July 2011 the applicant lodged 6 requests to impose administrative fines on the mother for failure to comply with her obligations to hand over the child to the applicant. He further requested the District Court to expedite the proceedings. 59. On 27 June 2011 the mother’s counsel requested the District Court to suspend proceedings pending the proceedings on the review of contact rights. 60. By decision of 29 June 2011 the District Court established that Mr H.’s custodianship had expired on 31 March 2011. 61. On 5 July 2011 the applicant requested the District Court to decide without further delay. On 8 July 2011 the District Court informed the applicant that the mother still had to be allowed to submit comments on the request of 1 July and on the applicant’s letter of 5 July 2011. 62. On 19 July 2011 the applicant complained that the District Court’s failure to decide on his requests violated his right to an effective legal remedy. 63. On 19 July 2011 the District Court informed the parties of its intention to decide in written proceedings on the basis of submissions lodged by 19 August 2011. 64. On 26 August 2011 the District Court rejected the applicant’s requests to impose administrative fines on the mother. The District Court observed that the supervised contact ordered in the decision of 1 September 2010 had not taken place. There was no indication that unsupervised contact could take place without an initial phase of supervised contact. This question was the subject matter of the new proceedings on the review of contact rights instituted by the District Court. Under these circumstances, it could not be said that the mother had failed to comply with the contact order of 1 September 2010. 65. On 13 September 2011 the applicant lodged a complaint which was rejected by the Frankfurt Court of Appeal on 12 December 2011. 66. On 11 February 2011 the Frankfurt District Court instituted ex officio fresh contact proceedings in order to review the existing regulations and scheduled a hearing in the presence of Ms Z. and Ms R., who had previously declared their readiness to take on duties as custodians, for 16 March 2011. 67. During the hearing on 16 March 2011, the applicant and Ms Z. could not reach an agreement on the modalities of the contact, in particular the envisaged length of the first unsupervised contact meeting. The mother challenged the District Court judge for bias (compare paragraph 56 above for the parallel proceedings). On 31 March 2011 the substitute judge requested the mother’s counsel to submit reasons for this motion. On 12 April 2011 the mother’s counsel withdrew the motion. 68. On 18 May 2011 the District Court judge heard the child. 69. On 29 June 2011 the District Court decided to hear expert opinion on the question of whether the decision on contact rights issued by the Court of Appeal on 1 September 2010 could still be implemented or whether it was in the child’s best interests either to order unsupervised contact or to suspend contact rights. 70. On 15 July 2011 the applicant challenged the court-appointed expert for bias. On 25 July 2011 the District Court rejected the motion as being unfounded. On 5 August 2011 the applicant lodged a complaint. On 3 November 2011 the Court of Appeal accepted the motion. 71. On 19 December 2011 District Court appointed a new expert. On 15 March 2012 the expert informed the court that he had been unable to contact the applicant. The applicant informed the court that he was unavailable for further examination. On 29 March 2012 the applicant’s counsel abandoned his brief. 72. On 17 April 2012 the applicant requested the District Court to schedule a hearing immediately. 73. On 20 April the District Court, having received the expert report on 19 April, scheduled a hearing for 29 May 2012 and informed the parties that the applicant could be assessed on the basis of the expert’s personal impression gained during the hearing. On 22 May 2012 the applicant rejected the District Court judge on grounds of bias and the hearing was cancelled. 74. On 22 June 2012 the challenge for bias was rejected as being unfounded. On 9 July 2012 the applicant lodged an appeal which was rejected by the Court of Appeal on 31 October 2012. 75. On 16 November 2012 the District Court scheduled a hearing for 30 January 2012. On 5 December 2012 the applicant lodged a fresh challenge for bias, which was dismissed on 29 January 2013. On 15 March 2013 the District Court scheduled a hearing for 11 April 2013. Upon the applicant’s request, the hearing was postponed to 6 June 2013. 76. On 1 June 2013 the applicant informed the District Court that health reasons prevented him from attending the hearing. The District Court, taking into account the parties’ absences during the summer months, postponed the hearing to 22 August 2013. 77. On 14 August 2013 the applicant once again requested the District Court to cancel the hearing. He did not appear at the hearing which took place on 22 August 2013. On 11 September 2013 the applicant requested the District Court to re-open the hearing, while at the same time submitting that he was unfit to appear in court. 78. On 12 November 2013 the Frankfurt District Court suspended the applicant’s contact rights until 31 October 2015 on the ground that contact against the child’s expressed will would jeopardise his welfare. The applicant lodged an appeal. 79. The applicant did not appear at the hearing which took place before the Frankfurt/Main Court of Appeal on 11 February 2014. The Court of Appeal scheduled a further hearing for 21 May 2014, to which the court-appointed expert was also summoned. On 20 May 2014 the applicant asked the Court of Appeal to allow him to bring a private expert to the hearing and, at the same time, to postpone the hearing scheduled for the following day as the private expert was unable to attend. The Court of Appeal referring, inter alia, to section 155 of the Act on Procedure in Family Matters, refused the request. On 21 May 2014 counsel for the applicant, who did not attend the hearing in person, challenged the Chamber of the Court of Appeal for bias, which was dismissed on 21 July 2014. 80. On 17 September 2014 the Frankfurt/Main Court of Appeal confirmed the suspension of contact rights until 31 October 2015. It furthermore allowed the father to write monthly letters, which the mother was ordered to hand over to the child. Relying on expert opinion, the Court of Appeal considered that personal contacts against the consistently expressed will of the child, who had now reached the age of eleven, would jeopardise the child’s psychological development and had thus to be temporarily excluded. The Court of Appeal further observed that the administrative fine imposed on the mother might have been insufficient and that the refusal of contacts between father and child, which had already lasted more than a decade, had not only been caused by the parents’ and, in particular, the mother’s failure, but also by a failure of the judiciary and of the children and youth welfare services involved. | 1 |
test | 001-179818 | ENG | SRB | COMMITTEE | 2,018 | CASE OF HRUSTIĆ AND OTHERS v. SERBIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Civil proceedings;Article 6-1 - Reasonable time) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. The applicants’ personal details as well as the facts in relation to each case are set out in the Annex to this judgment. 5. The applicants complained of the excessive length of different civil and administrative proceedings under Article 6 § 1 of the Convention. 6. In case of the first and fourth applicant the Constitutional Court rejected their the constitutional appeals, whereas in case of the second and third applicant the Constitutional Court found a violation of a right to a trial within reasonable time, but awarded no damages. | 1 |
test | 001-173607 | ENG | HRV | ADMISSIBILITY | 2,017 | KOMŠO v. CROATIA | 4 | Inadmissible | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković | 1. The applicant, Ms Dragica Komšo, is a Croatian national who was born in 1969 and lives in Benkovac. Her application was lodged on 13 May 2014. 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. On an unspecified date in 2005 the applicant moved with her husband and two children from Drvar in Bosnia and Herzegovina to Benkovac, Croatia. 5. On 24 March 2005 the applicant applied to the Benkovac Social Welfare Centre (Centar za socijalnu skrb Benkovac; “the welfare centre”) for welfare benefits (pravo na pomoć za uzdržavanje). She stated that she was unemployed with no income and had two children who were still minors. 6. On 29 April 2005 a social worker warned the applicant about the need to provide accurate information about her assets and the obligation to report any changes to the welfare centre. 7. On 4 May 2005 the welfare centre granted benefits to the applicant and her family on account of their poor financial situation. 8. On 8 September 2005 the welfare centre received information from an anonymous source that the applicant’s husband had a shop in Drvar. 9. On 16 September 2005 the applicant informed the welfare centre about her husband’s shop. She admitted it existed but argued that she had considered it to be irrelevant because it had been robbed in February 2005 and its earnings had been very low. The applicant was warned about the possibility of criminal and financial liability for providing false statements. 10. On 27 September 2005 the welfare centre decided to stop her benefits. It established that the applicant and her family could provide for themselves through their own work, which in their case was the revenue from their shop. The decision was served on the applicant on 28 September 2005 and she did not lodge an appeal. 11. On the same day, 28 September 2005, the applicant visited the welfare centre and gave a statement about repayment of the social welfare benefits received between 24 March 2005 and 27 September 2005. She was warned that civil proceedings for reimbursement would be instituted against her. The applicant replied that she could not repay the due amount because the earnings from the shop were very low and that she and her husband planned to close it soon. 12. On 13 March 2007 the Benkovac Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Benkovcu; “the State Attorney’s Office”), lodged a civil action against the applicant in the Benkovac Municipal Court (Općinski sud u Benkovcu), relying on the fact that the applicant had failed to disclose that her husband owned a shop in Drvar when she had been granted welfare benefits. The State Attorney’s Office sought repayment of the 8,612 Croatian kunas (HRK) (about 1,170 euros (EUR)) she had received, together with statutory default interest. 13. The applicant argued during the proceedings that the shop had in fact not been in operation since the robbery on 24 January 2005 but that her husband had not been able to close it because of unsettled tax liabilities. She stated that they had not had the means to support themselves and their children. 14. At a hearing on 2 February 2010 the applicant’s lawyer asked for financial information on the husband’s shop to be obtained from the Drvar Tax Authority in order to assess whether the applicant had satisfied the statutory requirements for welfare benefits. The applicant’s lawyer did not provide any reasons why he or the applicant had not been able to obtain the document from the authorities of Bosnia and Herzegovina, nor did he claim that. The first-instance court dismissed the proposal, considering it to be aimed at delaying the proceedings because the data would have had to be requested from Bosnia and Herzegovina via the diplomatic service. The first-instance court pointed out that the applicant had had more than enough time since the institution of the proceedings to obtain the data in question if she deemed it relevant. At the same hearing the court also heard evidence, at the request of the applicant, from the director of the welfare centre, M.B. 15. On 15 February 2010 the Benkovac Municipal Court dismissed the State Attorney’s claim because the applicant had not been given an opportunity to repay the money within a specified time-limit. 16. On 28 April 2011, upon an appeal by the State Attorney’s Office, the Zadar County Court (Županijski sud u Zadru) quashed the first-instance decision and remitted the case for fresh consideration. 17. The court held two hearings in the new proceedings. At a hearing on 25 August 2011 the applicant’s lawyer submitted a certificate from the regional tax office in Drvar dated 4 September 2008 on the applicant’s husband’s unpaid tax liabilities. The State Attorney’s Office argued that the document was irrelevant because a certificate on unpaid tax liabilities could not be proof of earnings. 18. At a hearing held on 8 September 2011 the first-instance court heard evidence from the applicant’s husband at the request of the applicant. He stated that his wife had not disclosed information about their shop because she had been afraid it would prevent them from receiving welfare benefits. At the same hearing the first-instance court dismissed an application from the applicant to be heard in person because it held that she had submitted all her observations in her reply to the claim and that her request to give evidence was aimed at delaying the proceedings. The applicant’s lawyer had no further evidence and the first-instance court concluded the hearing. 19. On 19 September 2011 the Benkovac Municipal Court granted the claim and ordered the applicant to reimburse to the State HRK 8,612, together with statutory default interest, and to pay HRK 5,875 in costs and expenses for the proceedings. It held that while the applicant’s statements about her husband’s shop might in fact have been true, the fact remained that she had not disclosed that information voluntarily and had therefore fraudulently, and undoubtedly unlawfully, obtained social welfare benefits which the court could not make lawful. 20. On 17 October 2011 the applicant lodged an appeal with the Zadar County Court, reiterating her previous arguments. She stated that her husband had owned the shop at issue, not her, and that she had only been employed in her husband’s business, which had been ruined by the robbery. 21. On 19 June 2013 the Zadar County Court, relying on section 196 of the Social Welfare Act, dismissed the applicant’s appeal on the grounds that she had not disclosed the fact that her husband had owned a shop, and that her arguments concerning the actual state of the business and her poor financial situation were of no relevance. 22. The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), alleging that her right to a fair hearing had been violated because the first-instance court had disregarded her request to obtain the data on her husband’s shop from the Drvar Tax Authority, thus failing to correctly establish all the circumstances of her case. She also alleged that she had been discriminated against. 23. On 17 December 2013 the Constitutional Court declared her complaint inadmissible as manifestly ill-founded. 24. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999, 81/2001, 117/2003, 88/2005, 84/2008, 96/2008, 23/2008, 57/2011, 148/2011 consolidated text), as in force at the material time, provided as follows: “Each party is obliged to provide facts and present evidence on which his or her claim is based or to refute the statements and evidence of his or her opponent. ...” “Parties referring to a document as proof of a statement are obliged to submit that document themselves. ... If the document is in the possession of a state authority or a legal or physical person vested with public authority, and the party is not able to arrange for the document to be handed over or shown, the court shall itself obtain the document upon a motion by the party.” 25. The relevant provision of the Social Welfare Act (Zakon o socijalnoj skrbi, Official Gazette nos. 73/1997, 27/2001, 59/2001, 82/2001 and 103/2003), as in force at the material time, provided as follows: “A beneficiary who was granted allowance on the basis of a decision of the Social Welfare Centre shall compensate the damage if: - on the basis of false or inaccurate data which he or she knew or should have known to be false or inaccurate, or in some other unlawful manner, he or she was granted an allowance to which he or she was not entitled, or he or she was granted this allowance in an amount greater than the amount to which he or she was entitled, - he or she was granted an allowance because he or she failed to report a change that affects the loss or the scope of the entitlement, and he or she knew or should have known about this change.” | 0 |
test | 001-174389 | ENG | MNE | COMMITTEE | 2,017 | CASE OF ĐUKOVIĆ v. MONTENEGRO | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Georges Ravarani | 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 25 March 1996 the applicant brought a compensation claim for damages suffered as a consequence of an expropriation of his property against the Municipality of Bar and one of the local primary schools before the Court of First Instance (Osnovni sud) in Bar. 6. On 11 April 1996 the applicant’s representative informed the Court of First Instance that he had initiated a separate set of proceedings to determine the value of the above-mentioned damages. The Court of First Instance suspended the above mentioned civil proceedings pending the final resolution of this matter. 7. No document was submitted by the parties as to whether or not the compensation proceedings have ended in the meantime. Accordingly, it would appear that the said two sets of proceedings are still pending before the Court of First Instance. 8. On 2 February 2004 the applicant instituted proceedings before the Court of First Instance in Bar, against his neighbour, seeking a demarcation between their two plots of land. 9. On 25 March 2004 the applicant amended his proposal to this effect. 10. On 14 September 2004 the applicant and the respondent reached a friendly settlement which was approved by the Court of First Instance on the same day. | 1 |
test | 001-156233 | ENG | NLD | ADMISSIBILITY | 2,015 | OTHYMIA INVESTMENTS BV v. THE NETHERLANDS | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant company, Othymia Investments B.V., is a limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the law of the Netherlands and having its statutory seat in Rotterdam. The applicant company was represented by Mr L.E.C. Neve, a tax consultant practising in Rotterdam. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. 2. summarised as follows. 3. On 14 December 2007 the Deputy Minister of Finance (Staatssecretaris van Financiën) gave notice (kennisgeving) to the applicant company of the fact that he had been requested by the Spanish tax authorities to provide them with information on the relations, the links and transactions between the applicant company and a certain company in Spain as well as information on the bank accounts and the activities of the applicant company with a certain bank. 4. In the notice sent to the applicant company, the Deputy Minister stated that he had complied with this request on 18 August 2007 and 29 November 2007 respectively, pursuant to section 1(1) of the International Assistance (Levying of Taxes) Act (Wet op de internationale bijstandsverlening bij de heffing van belastingen); as appropriate, Article 4 of Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation; and, as appropriate, Article 28 of the Convention on the prevention of double taxation between Spain and the Netherlands. 5. The notice, which had been sent pursuant to section 5(2) of the International Assistance (Levying of Taxes) Act, listed the information and the enclosures sent to the Spanish tax authorities. They included the shareholders’ register (register van aandeelhouders) of the applicant company; the annual accounts (jaarrekeningen) of the applicant company for 2003 and 2004; bank statements; two e-mails; correspondence and other documents concerning the establishment of a certain company; a statement concerning the owners of shares in a certain company; and documents that concerned the sale of shares. Part of the information sent had been gathered in the course of an investigation into the applicant company carried out by the Netherlands Tax and Customs Administration (Belastingdienst) in August 2006 which had been announced to the applicant company beforehand. 6. On 17 December 2007 the applicant company lodged an objection (bezwaar) against the Deputy Minister of Finance’s decision to provide the Spanish tax authorities with the requested information. It argued that the provisions stated by the Deputy Minister in his notice could not be relied on as a legal ground for his decision. 7. After a hearing had been held in the objection proceedings, the applicant company argued additionally that its privacy of correspondence had been violated by the provision of the documents in issue to the Spanish tax authorities. 8. On 29 August 2008 the Deputy Minister dismissed the applicant company’s objection. Its argument in relation to the violation of the right to respect for correspondence was rejected because, firstly, the inquiry had been carried out to provide information under the International Assistance (Levying of Taxes) Act and not under the General Act on State Taxes (Algemene wet inzake rijksbelastingen); secondly, the applicant company had not invoked its right to privacy of correspondence during the inquiry in 2006; and lastly, the correspondence did not concern the applicant company. 9. On 23 September 2008 the applicant company appealed against the decision claiming, inter alia, that its right under Article 8 of the Convention had been violated because there had been no legal basis for the provision of the information to the Spanish tax authorities. It further argued that it might suffer damage as a result of the Deputy Minister’s decision, that it would need a judicial decision in order to submit a claim for compensation, and that it had incurred legal costs in relation to the proceedings. 10. On 29 April 2009 the Dordrecht Regional Court (rechtbank) declared the appeal inadmissible. It held that the applicant company had no standing because it had not substantiated that it had suffered any loss as a result of the Deputy Minister’s decision to supply the information to the Spanish tax authorities. 11. On 4 May 2009 the applicant company lodged a further appeal with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) arguing, among other things, that it had an interest in the examination of the lawfulness of the inquiry because the forwarding of its correspondence to the Spanish tax authorities constituted an interference of Article 8 of the Convention for which there had been no legal basis and the necessity of which in a democratic society was open to serious doubt. The applicant company suggested that this claim warranted an examination on the merits by a judicial authority. 12. Additionally, the applicant company argued that not only had prior judicial examination of the Deputy Minister’s decision been impossible, owing to the fact that for “urgent reasons” the notice had been given to the applicant company after the implementation of the Spanish request, but the Regional Court’s judgment had also made retrospective judicial examination impossible. This lack of an effective remedy appropriate to its complaint under Article 8 of the Convention, so it argued, constituted a violation of Article 13 of the Convention. 13. On 16 June 2010 the Administrative Jurisdiction Division of the Council of State dismissed the applicant company’s arguments and upheld the judgment of the Regional Court. In relation to the alleged violation of Article 8 of the Convention it held that the mere fact that the applicant company wanted a judgment of principle on the issue did not constitute a sufficient interest. It further held that the applicant company had neither substantiated any pecuniary damage nor specified any non-pecuniary damage allegedly suffered as a result of the Deputy’s Minister’s decision. The requirement of actual harm did not impinge on the applicant company’s rights to the point of violating Article 13 of the Convention. 14. At the relevant time, the International Assistance (Levying of Taxes) Act, as applicable to the case before the Court, read as follows: “1. The provisions of this Act serve the interest of complying with obligations flowing from Directives of the Council of the European Union and other international and interregional legal arrangements for the provision of mutual assistance in the levying of taxes, as well as interest thereon and administrative sanctions and fines connected therewith. ...” “1. At the request of a competent authority, Our Minister [of Finance] may decide to provide them with information which they request and which may serve for the levying of taxes within the meaning of section 1, as well as the interest or the administrative sanctions and fines connected therewith. 2. Our Minister shall notify the person from whom the information originated and who is resident or located in the Netherlands of his decision to comply with the request for information. In so doing, Our Minister shall identify the competent authorities who have made the request and specify the information that will be provided. ... 4. Unless urgent reasons have given rise to it, the implementation of the request for information shall not take place within ten days after the date that notice ... is given. 5. When urgent reasons have given rise to it, Our Minister may ... implement the request for information before the person from whom the information originated has been notified. In this case, notice shall be given as soon as possible but not later than four months after the implementation of the request.” “1. Our Minister shall, if necessary, give instructions for an official of the Tax and Customs Administration to make investigations for the purpose of providing information as referred to in [section 5] ...” “1. Our Minister shall provide no information if: a. the provision thereof does not flow from obligations under [Council Directive 77/799/EEC] or other obligations under international and interregional law; b. ordre public of the Netherlands State opposes it; ...” 15. In its relevant parts, the Instruction on mutual international assistance in the levying of taxes (Voorschrift internationale wederzijdse bijstand bij de heffing van belastingen) promulgated on behalf of the Deputy Minister of Finance by the Director General of the Tax and Customs Administration (directeur-generaal Belastingdienst) (Official Gazette (Staatscourant) of 30 May 2002, no. 100, page 9) reads as follows: “1. Introduction ... The relevant international agreements are: the bilateral tax treaties, ..., Council Directive 77/799/EEC (also referred to hereafter as ‘the Mutual Assistance Directive’), ... and the bilateral Memoranda of Understanding between the Netherlands and the various treaty partners. ... 1.1. Definition Mutual assistance in the levying of taxes is the aggregate of possibilities of administrative cooperation between treaty partners. The exchange of fiscal information is a part of that. Carrying out investigations for each other’s taxation, permitting officials onto each other’s territory and the setting up of joint controls for internationally operating enterprises are other forms. The provision of ‘assistance in levying taxes’ (heffingsbijstand) is regulated in the Netherlands by the International Assistance (Levying of Taxes) Act. ... 3.4. Directive 77/799/EEC [European Economic Community] Council Directive of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the fields of direct taxation and indirect taxation (77/799/EEC, as amended by the Directives of 6 December 1979 (79/1070/EEC) for value-added tax and of 25 February 1992 (92/12/EEC) for excise duties), is part of Community, or European Union, legislation (...). The aim of the Mutual Assistance Directive is to strengthen cooperation between the tax authorities of the EU Member States in order better to counter international tax evasion and tax fraud. In the Netherlands, the Mutual Assistance Directive is implemented in the International Assistance (Levying of Taxes) Act. ... ... 5. The provision of data on the basis of the International Assistance (Levying of Taxes) Act The possibility of obtaining information goes hand in hand with the duty to provide information, whether on request, automatically or spontaneously. The agreements which create those duties as regards direct taxes and income tax (inkomstenbelasting) are ... - the bilateral treaties; ... - the Mutual Assistance Directive 77/799/EEC; ... The International Assistance (Levying of Taxes) Act provides for the provision of information on request, the automatic provision of information, the spontaneous provision of information and the presence of officials in another country within the framework of a (simultaneous) bookkeeping investigation. The International Assistance (Levying of Taxes) Act sets out in what cases, on what conditions and in what way the Netherlands Tax and Customs Administration provides these forms of assistance. The point of departure in each case is the scope of the treaty obligations existing in a given treaty relationship. Without an international obligation the Netherlands cannot provide [such] assistance (...). 5.1.1. Speediness and time-limits In view of the time-limits for tax adjustments, which exist also in other states, it is important to deal with a foreign request for information as speedily as possible. Speedy handling of the request by the Netherlands will also increase the willingness of the foreign competent authority to deal with Netherlands requests rapidly. The same applies to the back-reporting of results. It is therefore important that a request for information from abroad is answered within eight weeks after it is received at the Tax and Customs Administration unit (Belastingdiensteenheid). In urgent cases, the aim is to reply within four weeks. ... 5.1.5. Notification If the information can be given, the International Bureau of the Fiscal Intelligence and Information Service (Fiscale Inlichtingen- en Opsporingsdienst, ‘FIOD’) will prepare a notification for the interested party on the basis of section 5(2) of the International Assistance (Levying of Taxes) Act. If there is no fraud or urgency, the interested party will be informed of the information to be provided before this is done. Provision of the information will be suspended for ten days from the date of the notification. In this context, ‘interested party’ means only the person from whom the information derives and who is resident or based in the Netherlands. By means of this notification, the interested party is informed of the decision to provide information concerning them to a foreign competent authority and a description of the information to be provided is given. An objection and an appeal are possible against this notification. An objection and/or an appeal can result in the information to be provided, or actually provided, to be corrected. A request for a provisional measure can suspend the provision of the information to the foreign authority (...). ... 6.2. Mandate to the Director General of the Tax and Customs Administration The Deputy Minister of Finance has appointed the Director General of the Tax and Customs Administration to act in his name as the competent authority ... and to decide in his name on the basis of section 5 of the International Assistance (Levying of Taxes) Act (the provision of information on a request from abroad), ...” 16. As relevant to the case before the Court, and as in force at the time of the events complained of, Council Directive 77/799/EEC of 19 December 1977 provided as follows: “1. In accordance with the provisions of this Directive the competent authorities of the Member States shall exchange any information that may enable them to effect a correct assessment of taxes on income and on capital. 2. There shall be regarded as taxes on income and on capital, irrespective of the manner in which they are levied, all taxes imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the disposal of movable or immovable property, taxes on the amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.” “1. The competent authority of a Member State may request the competent authority of another Member State to forward the information referred to in Article 1 (1) in a particular case. The competent authority of the requested State need not comply with the request if it appears that the competent authority of the State making the request has not exhausted its own usual sources of information, which it could have utilized, according to the circumstances, to obtain the information requested without running the risk of endangering the attainment of the sought after result. 2. For the purpose of forwarding the information referred to in paragraph 1, the competent authority of the requested Member State shall arrange for the conduct of any enquiries necessary to obtain such information.” “1. The competent authority of a Member State shall without prior request forward the information referred to in Article 1 (1), of which it has knowledge, to the competent authority of any other Member State concerned, in the following circumstances: (a) the competent authority of the one Member State has grounds for supposing that there may be a loss of tax in the other Member State; (b) a person liable to tax obtains a reduction in or an exemption from tax in the one Member State which would give rise to an increase in tax or to liability to tax in the other Member State; (c) business dealings between a person liable to tax in a Member State and a person liable to tax in another Member State are conducted through one or more countries in such a way that a saving in tax may result in one or the other Member State or in both; (d) the competent authority of a Member State has grounds for supposing that a saving of tax may result from artificial transfers of profits within groups of enterprises; (e) information forwarded to the one Member State by the competent authority of the other Member State has enabled information to be obtained which may be relevant in assessing liability to tax in the latter Member State. 2. The competent authorities of the Member States may, under the consultation procedure laid down in Article 9, extend the exchange of information provided for in paragraph 1 to cases other than those specified therein. 3. The competent authorities of the Member States may forward to each other in any other case, without prior request, the information referred to in Article 1 (1) of which they have knowledge.” “The competent authority of a Member State which, under the preceding Articles, is called upon to furnish information, shall forward it as swiftly as possible. If it encounters obstacles in furnishing the information or if it refuses to furnish the information, it shall forthwith inform the requesting authority to this effect, indicating the nature of the obstacles or the reasons for its refusal.” “For the purpose of applying the preceding provisions, the competent authority of the Member State providing the information and the competent authority of the Member State for which the information is intended may agree, under the consultation procedure laid down in Article 9, to authorize the presence in the first Member State of officials of the tax administration of the other Member State. The details for applying this provision shall be determined under the same procedure.” 17. In its judgment of 22 October 2013 (Jiří Sabou v Finanční ředitelství pro hlavní město Prahu (Case No. C-276/12), “the Sabou judgment”), the Grand Chamber of the Court of Justice of the European Union held as follows: “38. The Court has previously ruled that observance of the rights of the defence is a general principle of European Union law which applies where the authorities are minded to adopt a measure which will adversely affect an individual (see [Case C349/07 Sopropé [2008] ECR I10369], paragraph 36). In accordance with that principle, the addressees of decisions which significantly affect their interests must therefore be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision (see, inter alia, C‑32/95 P Commission v Lisrestal and Others [1996] ECR I‑5373, paragraph 21, and Sopropé, paragraph 37). The authorities of the Member States are subject to that obligation when they take decisions which come within the scope of European Union law, even though the European Union legislation applicable does not expressly provide for such a procedural requirement (see Sopropé, paragraph 38, and Case C‑383/13 PPU G and R [2013] ECR, paragraph 35). 39. The question arises as to whether the decision of a competent authority of a Member State to request assistance from a competent authority of another Member State and the latter’s decision to examine witnesses for the purposes of responding to that request constitute acts which, because of their consequences for the taxpayer, make it necessary for him to be heard. 40. All the Member States which submitted observations to the Court argued that a request for information by one Member State sent to the tax authorities of another Member State does not constitute an act giving rise to such an obligation. They rightly consider that, in tax inspection procedures, the investigation stage, during which information is collected and which includes the request for information by one tax authority to another, must be distinguished from the contentious stage, between the tax authorities and the taxpayer, which begins when the taxpayer is sent the proposed adjustment. 41. Where the authorities gather information, they are not required to notify the taxpayer of this or to obtain his point of view. 42. A request for assistance made by the tax authorities under Directive 77/799 is part of the process of collecting information. 43. The same applies to the reply made by the requested tax authorities and the inquiries carried out to that end by those authorities, including the examination of witnesses. 44. It follows that respect for the rights of the defence of the taxpayer does not require that the taxpayer should take part in the request for information sent by the requesting Member State to the requested Member State. Nor does it require that the taxpayer should be heard at the point when inquiries, which may include the examination of witnesses, are carried out in the requested Member State or before that Member State sends the information to the requesting Member State. 45. None the less, there is nothing to prevent a Member State from extending the right to be heard to other parts of the investigation stage, by involving the taxpayer in various stages of the gathering of information, in particular the examination of witnesses. 46. Accordingly, the answer to the first and second questions is that European Union law, as it results in particular from Directive 77/799 and the fundamental right to be heard, must be interpreted as not conferring on a taxpayer of a Member State either the right to be informed of a request for assistance from that Member State addressed to another Member State, in particular in order to verify the information provided by that taxpayer in his income tax return, or the right to take part in formulating the request addressed to the requested Member State, or the right to take part in examinations of witnesses organised by the requested Member State.” and ruled as follows: “1. European Union law, as it results in particular from Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation and taxation of insurance premiums, as amended by Council Directive 2006/98/EC of 20 November 2006, and the fundamental right to be heard, must be interpreted as not conferring on a taxpayer of a Member State either the right to be informed of a request for assistance from that Member State addressed to another Member State, in particular in order to verify the information provided by that taxpayer in his income tax return, or the right to take part in formulating the request addressed to the requested Member State, or the right to take part in examinations of witnesses organised by the requested Member State. 2. Directive 77/799, as amended by Directive 2006/98, does not govern the question of the circumstances in which the taxpayer may challenge the accuracy of the information conveyed by the requested Member State, and it does not impose any particular obligation with regard to the content of the information conveyed.” 18. Spain joined the European Communities on 1 January 1986 in accordance with the provisions of an Accession Treaty signed on 12 June 1985. The parties to the Accession Treaty, in addition to the Kingdom of Spain (by this time the successor to the State of Spain) were the existing Member States (including the Kingdom of the Netherlands) and the Portuguese Republic. 19. Appended to the Accession Treaty was an Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties, which, in its relevant part, provides as follows: “From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions of the Communities before accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.” 20. At the time of the events complained of, and in its relevant part, the Convention between the Government of the Kingdom of the Netherlands and the Government of the State of Spain for the avoidance of double taxation with respect to taxes on income and on capital (Tractatenblad (Netherlands Treaty Series) 1971, no. 144), provided as follows (official and authoritative English text): “1. The competent authorities of the States shall exchange such information (being information which such authorities have in proper order at their disposal) as is necessary for the carrying out of this Convention. Any information so exchanged shall be treated as secret and shall not be disclosed to any persons or authorities other than those concerned with the assessment or collection of the taxes which are the subject of this Convention. 2. In no case shall the provisions of paragraph 1 be construed so as to impose on one of the States the obligation: a. to carry out administrative measures at variance with the laws or the administrative practice of that or of the other State; b. to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other State; c. to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy.” | 0 |
test | 001-160823 | ENG | UKR | CHAMBER | 2,016 | CASE OF ZYAKUN v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary | 5. The applicant was born in 1961 and is currently detained. 6. On the night of 12 to 13 June 2003 a house was robbed and three individuals were murdered in the Ivanivka District of the Odessa Region. On 13 June 2003 criminal proceedings were instituted in this respect. 7. According to the applicant, on 27 June 2003 he was arrested in Sumy; the reasons for his arrest were not explained to him, no record of the arrest was drawn up, and there was a delay in charging him. He remained in detention thereafter. On the same day, the applicant was taken to the Sumy Regional Police headquarters, where he was allegedly beaten up by police officers from the Odessa Regional Police. According to the applicant, he had been handcuffed and remained so during the night. 8. On 28 June 2003 the applicant was interviewed in Sumy by an officer of the Odessa Regional Police concerning the circumstances of his business trip to the Odessa Region from 10 to 18 June 2003. According to a written explanation signed by the applicant, he denied any involvement in the murder. 9. According to the applicant, on the same day he was transferred to the Ivanivka police station, where he was allegedly subjected to beatings and psychological pressure by police officers with a view to obtaining a confession. 10. According to the arrest report drawn up by Mr I.G., an investigator from the Odessa regional prosecutor’s office, the applicant was arrested on 30 June 2003 as a suspect in the criminal case. The applicant refused to sign the report. On the same day I.G. apprised the applicant of his right to defence and his right not to incriminate himself. According to a decision issued by I.G. on the same date, the applicant wished to be represented by P., who was formally appointed as his lawyer. Thereafter, the applicant was questioned by I.G. in his lawyer’s presence and confessed to the robbery and murder of three persons. According to the applicant, he was in fact questioned on 3 July 2003 and the record of his questioning was backdated to 30 June 2003. The applicant further maintained that the lawyer had left the interview in protest against the applicant’s poor state of health, but the lawyer’s signature was added to the record of the questioning afterwards. 11. On 2 July 2003 the applicant made a written confession in the Ivanivka police station; his lawyer was not present. 12. On 3 July 2003 another arrest report was drawn up by an officer on duty at the Ivanivka police station. It stated that the applicant had been placed under arrest on suspicion of murder. On the same day the Ivanivka District Court ordered the applicant’s pre-trial detention. His lawyer was not present. 13. According to a statement from the applicant’s wife, on 8 July 2003 the lawyer P. informed her by telephone that her husband, who had been arrested in Sumy on 27 June 2003, was in Ivanivka. 14. On 8 July 2003 the applicant was transferred to the Odessa temporary detention facility (ізолятор тимчасового тримання, “the ITT”). According to the applicant, the ITT had initially refused to admit him because of his injuries and a medical officer arranged for him to attend the local hospital for a medical examination. At the hospital a general surgeon and a neurosurgeon examined the applicant and issued a medical certificate stating that he had bruising on his shoulders and hips, and extensive bruising on his head and face, but that there was no indication of brain damage. Subsequently, the applicant was taken back to the ITT but the medical officer sent him back to the hospital for an additional examination, as not all the injuries on his body had been recorded. However, the hospital doctors refused to issue a new certificate. 15. On an unspecified date the applicant was transferred from the ITT to the Odessa pre-trial detention centre (слідчий ізолятор, “the SIZO”). 16. On 9 July 2003 the investigator charged the applicant and a Mr Y.G. with the robbery and murder of three persons. 17. On the same day, at the applicant’s request, lawyer P. was replaced by lawyer K. 18. On 5 September 2003 the applicant complained to investigator I.G. that the police officers had beaten him and put psychological pressure on him in order to force him to confess. 19. In response to a request from the investigator I.G., on 23 October 2003 the ITT informed him about the injuries observed on the applicant on 8 July 2003 and about the disagreement as to their full extent which had occurred on that day. 20. On 19 December 2003 investigator I.G. refused to institute criminal proceedings into the above complaint for want of proof against the police officers. According to the investigator’s decision, it was impossible to establish the circumstances in which the applicant had sustained his injuries. The investigator relied on a certificate from the SIZO, according to which at the time of the applicant’s admission to the SIZO he had had no injuries, and on the ITT records of 8 July 2003 describing the applicant’s injuries. The investigator stated that despite this information from the ITT, the applicant had not raised any complaints during his questioning at the ITT. The decision was included in the applicant’s criminal case file. 21. On 30 December 2003 the applicant and his representative studied the criminal case file in its entirety. 22. On 16 February 2004 the applicant refused to continue to be represented by lawyer K. and was given time to find a new lawyer. 23. On 18 February 2004 the applicant wrote to the deputy prosecutor of the Odessa Region arguing that the decision of 19 December 2003 had been based on an error and asking that his case be examined impartially and carefully. The applicant alleged that the ITT had originally refused to admit him because of his injuries and had agreed to admit him only after he had presented a written explanation of his injuries to the ITT medical officer. 24. On 4 May 2004 the applicant concluded a contract with Mr P. Sushko, who represented him in the proceedings thereafter. 25. Following remittal of the applicant’s criminal case for an additional investigation, on 2 October 2004 it was transferred to the Odessa Regional Court of Appeal for trial. According to the applicant, he had been allowed to study only part of the case file material. 26. In the course of the trial the applicant and Mr Y.G. retracted all their confessions, which they claimed had been given under duress, and asserted their innocence. The applicant raised the complaint that he had been illtreated. The Court of Appeal questioned the investigator I.G., who stated that the injuries recorded at the ITT could have been inflicted on the applicant in the course of arrest. 27. On 1 August 2005 the Court of Appeal found the applicant and his co-defendant Y.G. guilty of murder and sentenced them to life imprisonment with confiscation of their property. The court based their conviction, among other things, on the testimony of Ms V., who had seen the applicant and Y.G. before and after the murder, on fingerprints from Y.G. found at the scene of crime, on the confessions made by the applicant and Y.G. in the presence of their lawyers, and on the applicant’s written confession of 2 July 2003 made in the absence of his lawyer. Commenting on the applicant’s complaint of ill-treatment, the court also took into account the investigator’s decision of 19 December 2003. It thus found that there was no evidence that the applicant’s confession had been obtained under duress and rejected his complaint as unsubstantiated. 28. The applicant and his lawyer appealed in cassation, complaining, inter alia, of the applicant’s alleged ill-treatment in police custody, as a result of which he had confessed. 29. On 11 April 2006 the Supreme Court upheld the applicant’s conviction. It noted that his complaint of ill-treatment had been thoroughly examined by the Court of Appeal and had been lawfully rejected as unsubstantiated. It also mentioned that the applicant’s guilt had been proved by his confession, among other things. | 1 |
test | 001-152875 | ENG | ROU | COMMITTEE | 2,015 | CASE OF IGNATESCU AND OTHERS v. ROMANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement 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) | Kristina Pardalos | 4. On the dates set out in the appended table domestic courts delivered decisions according to which the applicants were entitled to various pecuniary amounts and/or to have certain actions taken by State authorities in their favour. However, the applicants were unable to obtain the enforcement of the decisions in due time. | 1 |
test | 001-140004 | ENG | ROU | CHAMBER | 2,014 | CASE OF ASSOCIATION OF VICTIMS OF ROMANIAN JUDGES AND OTHERS v. ROMANIA | 3 | Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary and non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 5. On 28 June 2005 the applicant association lodged an application with the Bucharest District Court, seeking to be granted legal personality and to be registered as an association in the Register of Associations and Foundations kept by that court. According to its Articles, the founders of the applicant association were the other nine applicants. The Board of the association had five members, while Ms Neagu was designated as the President of the Association. In support of its application, the applicant association appended a document issued by the Ministry of Justice confirming that the name chosen for the association was available, as well as a copy of its Memorandum (act constitutiv) and Articles (statut), which, in their relevant parts, read: “The goal of the association is to protect the rights and the legitimate interests of its members before all domestic authorities with the capacity to administer, supervise and/or enact justice. The objectives of the association are: - to support and promote the relationship between its members and those authorised by law to protect their rights and interests; - to monitor the activity of the Romanian justice system with the aim of reporting to the relevant authorities any injustice, irregularities or illegalities committed by Romanian judges; - to present in the media any cases of manifest unfairness or bias in the application of the law, in so far as the public has the right to be aware of any negative aspects of the activities of the Romanian justice system; - to support its members in their undertakings before any international court; - to organise any form of protest (marches, public gatherings, picketing), with prior authorisation from the authorities and in accordance with the law; - to signal the gravity and the public danger represented by an non-impartial or an incompetent judicial system; - to create a database of all cases involving its members that are pending before the authorities; - to cooperate with the legislative bodies by providing them with ideas, projects, proposals, etc. with the aim of improving the functioning of the Romanian judicial system.” 6. On 30 November 2005 the court rejected the application, holding that the goal of the applicant association was in breach of Article 40 § 2 of the Romanian Constitution, which states that “an organisation which, by its aims or activity, militates against political pluralism, the principles of a State governed by the rule of law, or against the sovereignty, integrity or independence of Romania shall be unconstitutional”. The court noted as follows: “In its Articles, the applicant [association] starts from the premise that a group of individuals who consider themselves victims of judges – as a result of having had their own cases brought before the judicial authorities – want to form an association which would promote their interests, notably by using any legal means for publicising any alleged injustice, irregularity or illegality, and also by lawfully protesting against all of these aspects. Such a premise, also implicit in the name of the association, is profoundly unconstitutional in that a group of individuals is stating proprio motu that a judgment can be unfair or irregular or an expression of illegality. All these aspects encourage non-compliance with courts’ judgments and represent a form of attack on one of the State’s powers, namely the judiciary.(...) The infringement is prescribed by law ... in so far as the association is not constitutional because of its aims. The measure aims to protect public order and the rights of others. (...) The measure is necessary in so far as the image of the justice system is currently a matter of national interest, and any attack on the courts is therefore an issue of particular gravity which justifies the refusal to grant legal personality to an association that wants to promote an unfavourable image of justice, in the light of the fact that none of its members has the authority to note (calitatea sǎ constate) any “injustice, irregularity or illegality committed by the judges” because it is only the State authorities appointed to make inquiries in that regard which have jurisdiction to pronounce a conclusion on such matters.” The court did not consider it necessary to give the applicant association the opportunity to remedy the impugned irregularity by modifying its Articles, as prescribed by Article 9 of Government Ordinance no. 26/2000, in so far as it considered that any modification of the aims of the applicant association rendering it constitutional would alter the very essence of the association. 7. The applicant association appealed against the judgment before the Bucharest County Court. It stressed that, according to its Articles, all the association’s activities had to be conducted in compliance with the law and its aim could therefore not be regarded as unconstitutional. 8. On 16 February 2006 the Bucharest County Court dismissed the appeal, upholding the reasoning given by the first-instance court. The court referred also to the provisions in the applicant association’s Articles, according to which the Board of the association was competent to accept or reject a membership request on the basis of its own assessment of whether or not the aspiring member was a victim of a breach of his or her rights in a trial before a judge. Such competence was unlawful in so far as the Board thus exercised a form of discretion in assessing whether there were breaches of rights, legitimate interests and/or law by the judges. In claiming to have such competence, the Board was attempting to usurp the domestic and international institutions empowered to make such assessments, which was unconstitutional, illegitimate and unlawful. Furthermore, the court held that the Articles did not comply with legal requirements concerning the disposal of the association’s assets in the event of its dissolution. The Articles prescribed that “in event of dissolution, the disposal of the assets would be decided by the General Meeting, in compliance with the provisions of Article 60”, while the law, namely article 6 § 3 g) of the Ordinance “required that the procedure should be set down in the Articles itself”. | 1 |
test | 001-157765 | ENG | HUN | CHAMBER | 2,015 | CASE OF HAÁSZ AND SZABÓ v. HUNGARY | 3 | Inadmissible (Article 35-1 - Final domestic decision);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;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano | 5. The first applicant was born in 1981 and lives in Siófok. The second applicant was born in 1995 and lives in Lepsény. 6. On 6 August 2012 the applicants were on an excursion to Lake Balaton. In the evening, they decided not to return home, but to spend the night in their car, a Fiat Punto, parked in a car park next to a pizzeria in Zánka. Waking up, they noticed that a car was passing by theirs, coming back and forth several times. They found this frightening and drove on to the village of Tagyon, where they stopped their car in the parking lot of a private house. 7. At the same time, around 3.05 a.m., an unknown person telephoned Mr S., a volunteer law enforcer, to tell him about a Fiat Punto suspiciously moving around in the neighbourhood, near a local grocery store. Mr S. informed off-duty police officer K., who was serving with the Balatonfüred Police Department. 8. Subsequently, officer K., driving his private car and taking a self-defence pistol, went to inspect the grocery store, together with Mr S. Not having found any trace of a criminal offence, they notified the duty officer of Balatonfüred Police Department about the sighting of the suspicious car. They were informed about the identity of the owner of the Fiat Punto, following which they continued to look for the vehicle in the surrounding area. 9. At about 3.30 a.m., they noticed the Fiat Punto parked in front of a private house. Officer K. stopped his vehicle, a black Ford Mondeo, perpendicularly to the applicants’ car, about a metre away. Both officer K. and the volunteer law enforcer started to run towards the applicants’ car, approaching from the back. The police officer shouted: “Police! Get out!” and held up his police identification card. 10. Ms Haász, sitting at the steering wheel, only noticed two people getting out of a dark civilian car and running towards them in civilian clothes. Finding this frightening, she attempted to drive away, forcing the garden gate of the adjacent property and driving into its yard. Inside the garden, the dimensions of which were 67 x 17.6 metres, and noticing that there was no other way to exit, she turned the car around and drove back towards the gate. 11. When the car was on its way out, officer K. waved at the car shouting “Police! Stop!” and fired a warning shot. As it appears from the case file, at this time Mr S. was standing in front of the police officer’s car, rather than in the prospective way of the applicants’ car. When the car passed officer K., he shot twice more, at the car. The first shot was fired downwards from about 6 metres’ distance, hitting the mudguard of the car on the left side at the level of the lights. The other shot was fired from about 4-4.5 metres following a downward trajectory. It went through the rear window, which fell into the car, missed the head of Ms Szabó by 5-10 centimetres and then went through the window of the right front door. 12. Ms Haász continued to drive, trying to leave the garden by passing around the police officer’s car to the left. She finally hit the officer’s car at its right side, at the passenger front door. At this moment Mr S. was standing next to the police officer’s car, at its left side, next to the open driver’s door. 13. Officer K. again called on the applicants to get out of the car, which they did. He put his gun away, presenting his police ID. Since the two men wore plain clothes and neither they nor their car had any police signs, the applicants realised that officer K. was a police officer and his associate a volunteer law enforcer only at this point in time. Thereupon it became clear that the incident was based on a misunderstanding, since the applicants had only been frightened but had had no intention whatsoever of countering a police measure. 14. Subsequently the Veszprém District Investigating Prosecutor’s Office (Veszprémi Nyomozó Ügyészség) initiated proceedings against officer K. on charges of attempted manslaughter (the charge being later on re-characterised as intentional endangerment committed by a public official). The applicants were questioned several times as witnesses, and a confrontation took place. Other witnesses were also heard and the opinion of a forensic firearms expert was obtained. 15. Simultaneously, officer K.’s superior, the Head of Balatonfüred Police Department, investigated the use of a firearm by officer K. He found that the officer had had no intention of endangering human life – his purpose had been to halt the applicants’ car, which had represented a danger for him and his associate – but that the officer’s action, although not criminal, had been unprofessional. According to the superior’s internal report, following a first warning shot, a second, intentional shot had been directed at the car, while the third one had been accidental, endangering the life of Ms Szabó. The supervisor initiated disciplinary proceedings, which were suspended pending the criminal proceedings. 16. The applicants also lodged a complaint formally challenging the lawfulness of the police measures with the Balatonfüred Police Department. These proceedings were suspended on 8 October 2012 pending the outcome of the criminal investigation. 17. On 3 July 2013 the Veszprém District Investigating Prosecutor’s Office discontinued the investigation. It found that officer K.’s use of firearms was lawful in the face of the danger represented by the conduct of the applicants, namely driving, at a speed of 14-16 km/h, in the direction of his associate. The Prosecutor’s Office accepted officer K.’s statements, according to which he had given a warning before shooting and had first shot on perceiving a danger to the life of his associate. It also accepted the police officer’s account of the events, namely that at the material time he could believe that his associate was standing between his car and the car of the applicants, which was approaching rather fast. Nonetheless, relying on the evidence furnished by a ballistic expert, the Prosecutor’s Office dismissed officer K.’s statement that the second shot following the warning had been accidental. The decision also relied on the report of the Chief of the Balatonfüred Police Department stating that officer K.’s conduct had been unprofessional as regards the second shot fired at the applicants’ car. The applicants’ lawyer filed a complaint against the discontinuation. 18. On 22 July 2013 the Veszprém County Public Prosecutor’s Office (Veszprém Megyei Főügyészség) dismissed the complaint, holding that the danger caused by the applicants had directly concerned the life and limb of officer K.’s associate. Relying on section 56 (2) of the Act on the Police, the Prosecutor’s Office found that the risk that the associate might be hit by their car had justified the shots by officer K. even if they had not been preceded by the requisite procedure, in particular a warning about the use of firearms, since any delay caused by the warning could have compromised the success of the measure. According to the decision, the applicants’ behaviour had constituted a direct threat to the life and limb of both Mr S. and officer K. The applicants were informed that the complaint had been dismissed under section 199 (2) point b) of the Criminal Procedure Code and that they had the possibility of filing a motion for prosecution, acting as substitute private prosecutors, under sections 229-230 of the Criminal Procedure Code. The decision was served on the applicants on 29 July 2013. 19. On 15 August 2013 the Veszprém County Public Prosecutor’s Office rejected the applicants’ renewed complaint. The County Public Prosecutor’s Office informed the applicants that the prosecution authorities would not deal with any further complaint unless it disclosed relevant new facts. In a letter of 27 June 2014 the Attorney General’s Office informed the applicants that there was no legal ground to quash the decisions on the discontinuation of the investigation in respect of officer K. 20. Meanwhile, on 14 October 2013 the Head of Balatonfüred Police Department dismissed, in its resumed proceedings (see paragraph 16 above), the applicants’ complaint about the actions of officer K. He concluded that although the latter’s conduct had been unprofessional because of the way he had halted the applicants’ car and the use of a self-defence pistol rather than a service pistol, it had not been unlawful. The applicants’ appeal was dismissed by the Veszprém County Chief Police Department on 19 December 2013. Since the incident, the applicants have been suffering from psychological troubles. | 1 |
test | 001-169472 | ENG | RUS | COMMITTEE | 2,016 | CASE OF SHAGABUTDINOV v. RUSSIA | 4 | Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. The applicant was born in 1976 and lives in Moscow. 5. On 13 October 2006 the Zamoskvoretskiy District Court in Moscow remanded the applicant in custody on the charge of fraud. Subsequently the District Court extended the applicant’s detention on 8 December 2006 and on 2 February, 10 April, 29 May and 18 September 2007. Each time the District Court attached preponderant weight to the gravity of the charges against the applicant. On 21 May and 4 July 2007 the Moscow City Court rejected the appeals against the detention orders of 10 April and 29 May 2007, respectively. 6. The City Court authorised further extensions of the applicant’s detention on 28 September and 26 December 2007. The Supreme Court rejected his appeals on 31 October 2007 and 15 February 2008, respectively. 7. On 14 February 2008 the case was submitted for trial. On 20 February, 30 June and 17 December 2008 and 18 March and 18 June 2009 the District Courts in Moscow prolonged the applicant’s detention pending trial, referring mainly to the gravity of the charges. The most recent extension order was issued for the period until 19 September 2009. 8. Between 27 January 2007 and 16 May 2008 the applicant was detained in the IZ-77/1 remand prison in Moscow. The prison was filled beyond the design capacity and cells were severely overcrowded. He was later transferred to another remand prison in Moscow. | 1 |
test | 001-179845 | ENG | RUS | COMMITTEE | 2,018 | CASE OF BEBUTOV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement 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) | Dmitry Dedov;Luis López Guerra | 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 non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law. | 1 |
test | 001-170460 | ENG | UKR | COMMITTEE | 2,017 | CASE OF LEONOV v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | Erik Møse;Mārtiņš Mits;Yonko Grozev | 4. The applicant was born in 1948 and lives in Donetsk, Ukraine. According to him, at the material time he had obtained a basic education (середня спеціальна освіта) in law and was working as a police officer. 5. On the morning of 23 August 2001 the applicant had a fight with D. in the course of which blows were exchanged. At least three people witnessed the fight. After the fight the applicant went to work for a twentyfour hour shift. The next morning D. was found dead in the vicinity of the applicant’s place of work. 6. According to the applicant, he was arrested on the same day – that is to say 24 August 2001 – and was detained at the police office until the evening of 25 August 2001. The applicant also submits that during this period he was ill-treated by the police, who forced him to plead guilty, and that he was coerced into declining legal representation. The applicant submits that he did not yield to such pressure and did not make any statements nor confess to committing the murder. He further maintains that the police planted evidence against him, putting a blood stain on his shirt. 7. On 25 August 2001 the local police instituted criminal proceedings against the applicant, charging him with inflicting grievous bodily harm on D., which resulted in his death. At the end of that day the applicant was released, having signed a written undertaking not to abscond. 8. Between the end of August and the beginning of September 2001 a hoe was found close to the place where D.’s body had been found. 9. According to the applicant, he was arrested again on 14 September 2001. However, the arrest report refers to 15 September 2001. On 18 September 2001 the Kirovsky District Court of Donetsk (hereafter “the District Court”) extended the applicant’s arrest until 25 September 2001. On the latter date the District Court ordered the applicant’s detention on remand. It is not clear from the applicant’s submissions whether he appealed against that court decision. 10. On 25 August, 15 September and 18 September 2001 the applicant, having been apprised of his right to legal assistance, declined to exercise this right and wished to defend himself in person. On 2 October 2001 he changed his mind and on 16 October 2001 a lawyer was appointed for him (according to the applicant, however, he was only represented by a lawyer from 6 December 2001). 11. By November 2001 the investigator had taken a number of investigative steps including an on-site inspection, a post-mortem examination of the victim’s body and other forensic examinations, questioning of the applicant and witnesses, and face-to-face confrontations between the latter and the applicant. 12. On 26 November 2001 the indictment was approved by the district prosecutor and sent to the District Court. 13. According to the applicant, the decisive evidence against him, namely the aforementioned bloodstained shirt and the hoe, which was believed to be the murder weapon, were not sealed during the investigation, as required by the relevant rules of procedure, and were later replaced with other items more consistent with the charges against him and consequently more incriminating. He denied the charges. 14. On 11 December 2001 the District Court took over the case and commenced the trial. 15. On 25 December 2001 it held the first hearing. The applicant and his lawyer filed several motions and requests, including one to record the hearings using audio and video equipment. In order to arrange the latter, the court postponed the hearings until 12 March 2002. 16. During the trial the applicant filed numerous further requests (for example, to summon additional witnesses, to familiarise himself with the case file, etc.) and challenged the judge and prosecutor on numerous occasions; as to the charges against him, the applicant pleaded not guilty. 17. On 10 September 2002, after four hearings, the District Court found the applicant guilty of the murder of D. and sentenced him to eleven years’ imprisonment. 18. On 9 December 2002, in the course of the applicant’s study of the case file, which at the material time consisted of two volumes, the District Court found that the applicant was abusing this right by requesting simultaneous familiarisation with the court minutes and the audio and video recordings, and challenging the lawfulness of the minutes of the court hearings and how the case file was processed. Eventually on 8 January 2003 the District Court terminated the applicant’s study of the case file. On 27 January 2003 the District Court dismissed the applicant’s complaints concerning the lawfulness of the minutes of the court hearings. 19. The applicant appealed against the rulings of 8 and 27 January 2003, but the result is not clear. According to the applicant, he was not provided with access to the audio and video records of the court hearings, some of the documents in the case file (for instance, minutes of the court hearings) were drafted in an improper manner (in his view he was not provided with the final version of court minutes but only with a draft version) in illegible handwriting, the case file was improperly processed, etc. 20. The applicant and his lawyer appealed against the judgment of 10 September 2002, challenging the conclusions of the forensic examinations and the testimonies of a number of witnesses, and alleging procedural shortcomings in the investigation and the trial. They requested discontinuation of the proceedings in question due to lack of evidence of the applicant’s guilt. 21. On 11 July 2003 the Donetsk Regional Court of Appeal (“the Court of Appeal”), pointing out a number of the inferior court’s shortcomings (for example, failure to establish how D.’s injuries had been caused and how the blood stain had appeared on the applicant’s shirt, failure to address the applicant’s version of events, etc.), found that the applicant’s guilt was not sufficiently proven, and quashed the judgment. Accordingly, the case was remitted for fresh consideration. 22. On 23 September 2003 the District Court resumed the trial. 23. As in the course of his first trial, the applicant again filed a large number of mostly unsuccessful requests and complaints (including some concerning the quality of his defence lawyer’s services) and challenged the judges and prosecutor on numerous occasions. The situation culminated on 26 March 2004 when the applicant was expelled from the court room during the hearing because of his shouting and interrupting the proceedings. After ten hearings had been held, at which, it appears, the applicant’s lawyer was present, the applicant was once again allowed to be present at the court hearing on 21 July 2004. 24. On 13 June 2004 the applicant refused the assistance of his lawyer, alleging the latter’s collusion and incompetence, and on 21 July 2004 the applicant requested that the court appoint another specified lawyer to represent him. The applicant’s lawyer also sought leave to discontinue his services to the applicant, citing the latter’s offensive behaviour and defamatory statements concerning him. On 21 and 30 July 2004 the District Court dismissed all those requests. 25. According to the applicant, on 30 July 2004 the court interrupted him and prohibited him from finishing his last plea. 26. According to the applicant, at several points during the trial and retrial he requested the summoning of certain witnesses (in particular, C., the investigator; an unidentified policeman who on 24 August 2001 escorted the applicant to the police station; A., the policeman in whose office on 25 August 2001 his bloodstained shirt had allegedly been produced; S., the policeman who signed the protocol on the examination and seizure of the aforementioned evidence), but to no avail. On several occasions he also unsuccessfully challenged the judges who were examining his case. 27. In June and July 2004 additional forensic examinations were held. 28. On 2 August 2004, after nineteen hearings, the District Court, having examined the case before it, found the applicant guilty of D.’s murder and sentenced him to eleven years’ imprisonment. In convicting the applicant, the court took into account: (a) the eye-witness testimonies to the fight between the applicant and D. on the morning of 23 August 2001. These stated that D. had sustained no injuries from the fight and that the applicant and D. had had these types of conflicts before; (b) medical evidence of injuries on the applicant’s body. The Court referred to the reports of 25 and 29 August 2001 stating that, according to them, the applicant’s injuries had been caused on “23-24 August 2001” and noted that, according to the applicant’s own explanation to the medical expert, these injuries had been caused by the fight with D. (see paragraph 40 below); (c) the testimonies of those who discovered D.’s body; (d) the testimonies by the applicant’s colleagues, according to which the hoe had been at their workplace on 23 August 2001, before the murder, but could no longer be found there on 24 August 2001, after the murder; (e) the statement by L., the police officer who interrogated the applicant in August 2001, that the applicant had pleaded guilty but refused to confirm his confession in writing; (f) the forensic cytological examination report of 7 September 2001 according to which the blood stain on the applicant’s shirt “could be from any person, including D.” and was not identified as being the applicant’s blood; (g) the post-mortem examination report of 15 September 2001 according to which the injuries to D. could have been caused either by a blunt instrument or by a hoe; (h) the forensic expert report of 9 October 2001 concluding that it was not possible to establish the features of the instrument with which D. was attacked but “the probability that the injuries to D. [had been] caused by the hoe under examination [could] not be excluded”; (i) the additional forensic expert report of 9 July 2004 stating that blood would not have gushed out of D.’s injuries during the assault but could have spattered onto surrounding objects. 29. The court also noted that the procedural shortcomings committed during the pre-trial investigation were not so serious as to prejudice its examination of the case. It did not specify those shortcomings. In addition to the judgment, the court on the same day delivered a special ruling (окрема ухвала) informing the superior investigation authorities of the bad faith and negligence of their subordinates in charge of the applicant’s case. In particular, the court noted that, initially, blood and hair samples had been found on the hoe, but these had subsequently been lost by the investigators at the pre-trial stage. In another special ruling given on the same day, the court informed the head of police of its subordinates’ failure to bring the applicant to the courthouse for the hearings scheduled for 9 March, 28 and 29 July and 2 August 2004 notwithstanding the court’s requests; such a failure, according to the court, had delayed the examination of the applicant’s case. 30. The judgment itself states that the hearing was public and that the defence lawyer was present. According to the applicant, this judgment was pronounced to him “secretly” on 2 August 2004 in the SIZO, that is to say the remand centre, where he was being detained. In support of his claim, the applicant submitted a copy of the District Court’s letter of the same date requesting that the SIZO administration provide them with a room in which to pronounce the judgment to the applicant. 31. From 7 October 2004 to 28 February 2005 the applicant familiarised himself with the case file. On the latter date the District Court, alleging the applicant’s abuse of this right, terminated the applicant’s study of the case file. On 9 December 2005 the Court of Appeal remitted the case to the District Court so that the applicant could be given additional opportunity to familiarise himself with the case file. The applicant studied the file additionally from 27 April to 6 May 2005. 32. At this stage of the proceedings the applicant again challenged the lawfulness of the minutes of the court hearings, obliging the District Court to give interlocutory decisions. 33. The applicant further appealed against the judgment of 2 August 2004. He maintained, inter alia, that the impugned judgment lacked reasoning and had been “secretly” pronounced to him in the SIZO. 34. On 29 March 2005 the applicant repeatedly refused the assistance of his lawyer, alleging his collusion and incompetence. 35. According to the Government, on 9 December 2005 the applicant refused legal assistance from any lawyer. On 17 March 2006, after the applicant had changed his mind, the Court of Appeal ordered that a lawyer be appointed for the applicant and for that reason adjourned the hearing until 31 March 2006. 36. On 31 March 2006 the Court of Appeal, having reiterated the aforesaid pieces of evidence, upheld the judgment of 2 August 2004. It did not address the alleged lack of “publicity” of the criminal proceedings against the applicant as maintained in his appeal. 37. The text of the appellate court’s decision states that the hearing was held in the presence of the applicant and the prosecutor; no indication of the applicant’s lawyer’s presence at the hearing can be found. However, on the same day the applicant, apparently, filed a written statement before the hearing that he rejected the defence lawyer provided to him, and he did not request another one. 38. On 25 October 2007 the Supreme Court of Ukraine, sitting in camera, rejected the applicant’s appeal on points of law. According to the applicant, he familiarised himself with that decision on 28 November 2007. 39. According to the applicant, on 24 and 25 August 2001 he was “beaten” (“избивали”) by police officers and threatened and psychologically pressurised by the investigator, who allegedly coerced him into pleading guilty. 40. On 25 August 2001 a forensic medical expert examined the applicant, found some bruises on his shoulders and right elbow, and classified them as light ones. Forensic expert report no. 2948 (акт судовомедичного освідування) concluded that these injuries had been caused two or three days before the examination, during a fight or in selfdefence. The report contains a typed statement by the expert to the effect that during the examination the applicant had said that he had sustained the injuries in the course of the fight with the victim. The applicant denies that he had made that statement. On 29 August 2001, following an order from the investigator, the same expert re-examined the applicant and came to the same conclusion, stating additionally that the injuries could have been caused between 23 and 24 August 2001 (forensic expert report no. 2948/787). 41. On 9 November 2001 the prosecutor, having examined the matter proprio motu as required by domestic law, noted that, as the injuries caused to the applicant were light ones, the investigation of such offences was a matter for private prosecution. In the absence of a corresponding complaint by the applicant, the prosecutor refused to institute criminal proceedings. 42. According to the Government, the applicant had not complained to the prosecutor of ill-treatment by the police and the investigator until 15 December 2001. In his description of ill-treatment the applicant stated that on 24 August 2001 L. had exerted pressure under the applicant’s ear with his finger, had slapped him with the palm of his hand on his forehead and had hit him on the nose with a passport; at the same time another police officer had pushed the applicant in the back with his hand, and had punched him below the knee and on his head. In reply, on 26 December 2001, after holding a preliminary inquiry, the prosecutor refused to institute criminal proceedings, finding no prima facie case. The applicant states that no copies of that or any other decisions on the matter were served on him and he could therefore not challenge them before the domestic courts. 43. Subsequently the applicant repeatedly asked the prosecutor to institute criminal proceedings against certain specified policemen and the investigator, but to no avail. In particular, the decision of 26 December 2001 was set aside and an additional investigation was ordered; eventually, by decisions of 13 April and 20 June 2002 the prosecutor refused to institute criminal proceedings, finding no corpus delicti in the behaviour of the investigator or the police officers. In particular, in reaching her conclusions in the latter decision the prosecutor took into account: - the conclusions in the forensic report of 25 August 2001 (see paragraph 40 above), namely that the injuries had been caused before the applicant first came into contact with the police; - the report of 12 June 2002 from the ITT (the police detention facility) that in the period from 15 to 18 September 2001 no bodily injuries had been found on the applicant; - the report of 29 December 2001 from the SIZO (the remand prison), according to which the applicant did not complain and had no bodily injuries upon arrival; - the explanations offered by the police officers and the investigator against whose actions the applicant had complained. 44. The applicant did not appeal against these decisions. According to the Government, both decisions were sent to the SIZO for the applicant’s information. According to the applicant, he was served with a formal notification that the prosecutor had refused to institute criminal proceedings but not with copies of the relevant decisions. On several occasions he asked to be provided with the copies of the relevant prosecutor’s decisions (among others, letters no. Л247 sent on 25 May 2004; no. Л343 sent on 20 July 2004; no. Л23 sent on 18 January 2005; no. Л31 sent on 21 May 2008). In fact, a copy of the decision of 20 June 2002 was not sent to him until 11 June 2008. 45. During the trial the applicant also complained that he had been illtreated, without however alleging that this treatment resulted in a statement and a confession. On 10 September 2002, in the course of examining the charges against the applicant, the District Court declared the complaint to be unfounded. 46. On 11 July 2003 the Court of Appeal remitted the criminal case against the applicant for fresh consideration, pointing out the inferior court’s failure to address the applicant’s complaints of ill-treatment. 47. In its judgment of 2 August 2004 the District Court referred to the applicant’s injuries in the terms set out in paragraph 28 (b) above. 48. On 9 December 2005, having examined the applicant’s appeal against the judgment of 2 August 2004, the Court of Appeal remitted the case to the District Court and ordered the local Prosecutor’s Office to hold an inquiry into the applicant’s complaints of alleged ill-treatment in the course of the pre-trial investigation. On 7 February 2006 the District Court remitted the case to the prosecutor in compliance with the appellate court’s instructions. According to the Government, the prosecutor sent the copies of the earlier decisions of 13 April and 20 June 2002 to the court and the latter was satisfied with them. 49. In their decisions of 31 March 2006 and 25 October 2007 the Court of Appeal and the Supreme Court of Ukraine, respectively, rejected the applicant’s complaints of ill-treatment as unsubstantiated (see paragraphs 36 and 38 above). 50. In the course of the criminal proceedings against the applicant, the applicant or his lawyer applied to the courts on several occasions for release (at least on 27 November and 3 December 2001, 27 August and 21 September 2002) but it is not clear whether the courts examined their requests. 51. On 23 September 2003 the defence lawyer requested that the District Court release the applicant. He argued that the applicant had had no previous convictions, had his permanent residence in Donetsk and had not gone into hiding during the initial stage of the proceedings against him, had not obstructed the investigation, and that the suspicions raised in the detention order were no longer justifiable. The applicant’s lawyer also referred to the principle of the presumption of innocence. On 27 February 2004 the District Court dismissed the request, limiting its reasoning to a statement that “there [were] no grounds for replacing the applicant’s detention on remand with a non-custodial preventive measure”. In the operative part the court noted that its decision could be appealed against to the Court of Appeal. 52. In judgments of 10 September 2002 and 2 August 2004 the District Court and in rulings of 11 July 2003 and 9 December 2005 the Court of Appeal (see paragraphs 17, 28, 21 and 31 respectively) ordered, without any argumentation, that the applicant should remain in detention; they did not specify any time-limit for his detention. 53. On an unspecified date the applicant requested that the local police and the Prosecutor’s Office institute criminal proceedings in respect of the theft of his property which allegedly took place following his detention in 2001. In February 2002 the local police refused to institute the requested proceedings. Subsequently this decision was quashed and the preliminary inquiry was resumed several times. On 12 October 2006, the latest available decision, the local police again refused to institute the requested proceedings. 54. The applicant did not appeal against these refusals to a court. 55. On an unspecified date the applicant requested the local department of the State Pension Fund (hereafter “the SPF”) to grant him a pension in so far as he was eligible due to his age. In a letter of 6 July 2006 the local department of the SPF replied that the applicant was not entitled to a pension under national law as long as he was serving a prison sentence. 56. On 16 August 2006 the local department of the SPF stated that the applicant would be entitled to a pension upon his release from prison. 57. It appears that the applicant did not challenge the aforesaid refusals before any domestic court. | 1 |
test | 001-145733 | ENG | NOR | CHAMBER | 2,014 | CASE OF KAPLAN AND OTHERS v. NORWAY | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Turkey) | Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The first applicant currently lives in Turkey and the second to fifth applicants live in Stavanger, Norway. 6. The first applicant, a mechanics and a professional driver, is of Kurdish ethnic origin coming from south-east Turkey. He was not a member of any political party but like many other members of his family sympathised with the PKK (Kurdistan Workers Party). During the violent conflicts between Turkish authorities and Kurdish people in 1992 and 1993 he lived in the City of Sirnak. The first applicant stated that he had assisted the PKK and that because of several occurrences he felt persecuted by Turkish authorities. Fearing for his life he found it necessary to flee in March 1993. 7. The second applicant, Mrs Naime Kaplan, married the first applicant in the early 1990s. She and the third applicant, their son Azat (born in 1993), continued to live with the first applicant’s parents in Sirnak. After the latter’s house was set on fire, she and the son spent a period as refugees in Iraq. 8. Over a period of more than a year and a half, the first applicant sojourned at several locations in Turkey. He had some contact with his wife and son and applied for visa to visit Denmark, where his older brother had obtained asylum (in 1988). Only the first applicant obtained a visa. In February 1995 he arrived in Denmark and applied for asylum. His wife and son went back to Sirnak, where she gave birth to the couple’s second son, Cemsit, in August 1995 (the fourth applicant). 9. The first applicant’s asylum application in Denmark was refused. He then stayed in several European countries and returned to Denmark where his second asylum application was refused in September 1998. 10. On 23 October 1998 he applied for asylum in Norway. The Directorate of Immigration rejected the application on 30 September 1999. His appeal to the Ministry of Justice was rejected by a decision of 21 January 2000, according to which he was under a duty to leave the country and measures were to be taken to implement this decision. 11. On 7 December 1999 the Sunnhordaland District Court (tingrett) convicted the first applicant on charges of aggravated assault and sentenced him to 90 days’ imprisonment, of which 60 days were suspended. He was found guilty of having inflicted with a kitchen knife a cut in the shoulder of another man which had been mended with three stiches. Even though the extent of the injury was not considerable, the offence was deemed very serious and could easily have had great consequences for the victim. In mitigation, the District Court had regard to its finding that, whilst it was uncertain who had started the row, the victim had gone further than the applicant and had provoked him by hitting his face with his palm and by uttering serious insults against his family. The victim had also withdrawn his criminal complaint against the applicant. The judgment was transmitted to the Directorate of Immigration for consideration of whether there was a ground for ordering his expulsion. 12. On 5 May 2000 the Ministry of Justice refused to revise its earlier rejection (of 21 January 2000) of the first applicant’s asylum application and asked the Stavanger Police to implement the decision. It contained no mention of the judgment of 7 December 1999, but on 5 May 2000 the Ministry also forwarded a copy to the Directorate of Immigration requesting it to assess whether there was a basis for expulsion. The applicant did not leave the country, and the authorities took no specific measures to deport him until he received a warning to this effect issued on 31 October 2006. 13. In 2003 the applicant was fined for driving too fast, and in 2005 and 2006 for driving without a license. 14. The second applicant arrived in Norway with the couple’s two sons and applied for asylum on 24 May 2003, which the Directorate of Immigration rejected on 30 December 2003. The Immigration Appeals Board upheld the rejection on 25 February 2005, stating that unless they left the country voluntarily, the expulsion was to be forcibly implemented, if possible in coordination with that of the first applicant. 15. On 4 August 2005 a daughter of the couple, Rojin, was born (the fifth applicant). 16. Pending amendments to the Immigration Regulations, the Directorate of Immigration decided on 19 September 2006 to stay the implementation of the decision of 25 February 2005 regarding the wife and the sons but in a separate decision, referring inter alia to his conviction of 1999, rejected the first applicant’s request to stay the implementation of the refusal of 5 may 2000 to grant him asylum. 17. Following the warning of 31 October 2006, the first applicant was on 1 November 2006 arrested and detained for two weeks with a view to deportation. On 2 November 2006 the Directorate of Immigration decided, under section 29 of the Immigration Act 1988, to order his expulsion and to prohibit his re-entry in Norway for an indefinite duration. This was because of his criminal conviction and of his long illegal stay and work in Norway. On appeal, the decision was upheld by the Immigration Appeals Board on 2 March 2007. 18. In the meantime, on 1 November 2006, the first applicant requested the Oslo City Court (tingrett) to issue an order that he be granted a residence- and work permit and an interlocutory injunction to stay his deportation pending the outcome of the judicial proceedings. 19. Following a request by the first applicant to the Immigration Appeals Board, the latter granted him on 8 November 2006 a stay of implementation of his expulsion until the City Court had decided on his request for an interim measure to stay his deportation. 20. On 5 July 2007 the Immigration Appeals Board rejected a request to revise its earlier rejection (of 25 February 2005) as there were not sufficient reasons to grant the wife and the children a residence permit on humanitarian grounds. 21. In an appeal of 18 December 2007 the applicants’ lawyer challenged the lawfulness of the decision of 5 July 2007 on the ground that Rojin had been diagnosed as suffering from child autism and had special needs. 22. In the light of this information the parties agreed before the City Court that the immigration authorities should consider the matter anew for all the family members. 23. After having decided on 3 January 2008 not to implement the expulsion with respect to the wife and the children, the Immigration Appeals Board on 28 February 2008 decided (with two votes to one) to alter its decision of 5 July 2007 and granted the second applicant, with the children, a residence- and work-permit under section 8(2) of the Immigration Act 1988 (according to which such a permit could be granted if warranted by weighty humanitarian considerations or particular links to the country, see paragraph 49 below). The majority attached decisive weight to the new information concerning the daughter’s health together with the length of the children’s residence in Norway (four years and nine months in the case of the sons). It also had regard to more recent practice of the Board. The permit was granted for a period of one year and could on certain conditions be renewed, constitute a ground for settlement permit and for family reunification. A prerequisite for the permit was that the wife continued to live in Norway. 24. On 7 April 2008 the Immigration Appeals Board carried out a new assessment of the first applicant’s immigration status. It did not alter its decision of 2 March 2007 upholding the Directorate’s decision of 2 November 2006 to order his expulsion, stating inter alia the following reasons. 25. In the Board’s view, the Directorate could in principle have responded more rapidly with regard to the question of expulsion in connection with the applicant’s conviction. The Directorate had had an occasion to bring this matter up as early as in May 2000, when the Ministry of Justice by a letter of 5 May 2000 forwarded a copy of the judgment with a request for assessment of the question of expulsion (see paragraph 12 above). By the fact that counsel for the applicant was sent a copy of the Ministry’s letter, the applicant had been made aware that the offence could constitute a ground for expulsion. The specific procedural rules concerning expulsion of convicted foreign nationals indicated in principle that a decision to expel should be made as soon as possible after conviction with no further right of appeal or after the serving of a sentence had been commenced (section 126 of the Immigration Regulations of 1990). 26. There was nevertheless nothing to prevent that the offence be taken into account at a later date together with any other factors militating in favour of expulsion in a global assessment. In the Board’s view, it could not be decisive for the applicant’s expulsion from the country pursuant to section 29 (c) of the Immigration Act that his 1999 conviction had not been raised until 2006. In this connection, it referred to the fact that at the date of the Directorate’s expulsion decision the applicant had resided unlawfully in Norway for over six years and had in addition worked without a work permit for large parts of this period. In addition, since his conviction in 1999, he had on three occasions been fined for violation of the Road Traffic Act (on the latter two occasions for driving without a driving license, see paragraph 13 above). Whilst these offences were regarded individually and on principle as being relatively minor, they ought to be viewed in connection with the applicant’s previous conviction for bodily harm, in addition to his failure to respond to the order to leave the country as well as his prolonged unlawful residence and employment throughout several years. These offences, when considered as a whole, indicated a lack of respect for Norwegian law and for Norwegian authorities’ decisions. The Board further observed that intentional or negligent violations of the Immigration Act of 1988 of the nature involved in the instant case in principle constituted a criminal offence (section 47(1)(a) of the Immigration Act of 1988). It reiterated that the legislative bill to Parliament (Ot.prp.nr. 75 (2006-2007)) stated inter alia the following with regard to expulsion on the grounds of violations of the Immigration Act (page 289): “Although such violations [i.e. gross violations of the Immigration Act] normally also may lead to criminal liability, in terms of prosecution costs, it would be advantageous if an expulsion order could be made without requiring a legally enforceable criminal judgment.” 27. On the other hand, the Board altered its decision of 2 March 2007 prohibiting the first applicant to return to Norway indefinitely and limited the prohibition to five years. A decisive consideration for this change was that his spouse and children had been granted a residence permit. The Board observed that as a starting point the first applicant’s expulsion would mean that the family would be split. However, the right of the other family members to reside in Norway did not imply any corresponding duty to do so. The whole family originated from Turkey, where the older children had been born and lived during their childhood. Their family life could in principle be secured either by the whole family moving to Turkey or through the visits of the wife and children of the husband in Turkey. His expulsion was of limited duration and at the expiry of the period it would be possible to apply for a residence permit on family reunification ground. Whether such a permit would be granted would depend on future circumstances. However, an expulsion for five years did not imply a permanent splitting of the family. 28. The Board had particular regard to the daughter’s situation, which was followed up and was to be the subject of measures in Norway, and to the scarcity and low quality of public assistance in Turkey to children suffering from handicaps and other types of illnesses affecting their functional capacities, where assistance to children suffering from autism and their parents was provided primarily by private institutions. Bearing in mind especially the daughter’s interests, the Board had understanding for the fact that the family as a whole did not prefer to return to Turkey. 29. In the light of the above, the City Court discontinued, by decisions of 23 April and 20 November 2008, the proceedings in so far as the spouse and the children were concerned. As regards the first applicant, the City Court found for the Immigration Appeals Board and rejected his request for an interlocutory injunction to stay his deportation, by a judgment and a decision of 23 April 2009. 30. On 10 July 2009 the Borgarting High Court (lagmannsrett) rejected the first applicant’s appeal against the City Court’s decision not to grant an interlocutory injunction, as did the Supreme Court on 1 September 2009. 31. On the other hand, the High Court, by a judgment of 1 March 2010, quashed the Immigration Appeals Board’s decision of 7 April 2008 as being unlawful. 32. The High Court had no doubt, nor was it disputed, that the objective conditions set out in section 29(1)(a) and (c) of the 1988 Immigration Act for ordering the first applicant’s deportation had been fulfilled; the only question was whether the measure would be proportionate as required by section 29(2). In this regard, the High Court observed that his conviction in 1999 for having caused physical injury to a third party with a knife was serious, even though there had been mitigating circumstances and the sentence (90 days of which 60 were suspended) had been relatively short. General considerations of crime prevention suggested that one ought to react to violence of this character. 33. However, the expulsion of a convicted person ought to be effected as soon as possible after the criminal judgment had become enforceable. The fact that more than six years had elapsed before concrete measures had been taken to expel him, which could hardly be due to anything else than a lack of coordination on the part of the immigration authorities, weakened the significance of the judgment. 34. On the other hand, the fact that the first applicant for a number of years had stayed and worked unlawfully in Norway was very serious and was not altered by the authorities’ passiveness. The Board had not incorrectly assessed his attachment to Norway and lack of legitimate expectations of being able to stay there. The fact that his spouse and children had been granted a residence permit would not hinder his expulsion, as this would not in the circumstances be a disproportionate measure vis-à-vis him. Another question was whether his four and half year daughter Rojin with her special care needs ought to be viewed as such extraordinary circumstances as could warrant his being able to stay in Norway. 35. On the evidence the High Court found that Rojin’s chronic and very serious degree of child autism and need for follow-up would affect the other family members strongly in the years to come and entail a burden on them far beyond the normal level. Her functional incapacity meant that she would always be dependent on her parents’ resources. Her mother was exhausted and had a marginal level of functioning. It was the father who had activated Rojin on a daily basis and she was particularly attached to him. Should he be deported it was likely that the disturbance to her development would be aggravated and would cause a further burden to the mother, to the brothers and to others who assumed responsibilities for her. 36. The High Court concluded that the first applicant’s expulsion would expose Rojin to an extraordinary burden that would not be justified by general considerations of crime prevention or immigration policy and would constitute a disproportionate measure. In this context the High Court had regard to the importance of the fact that the residence permit to the mother and the children had so far been limited to one year at a time. 37. The High Court upheld the City Court’s findings that the first applicant had not made it sufficiently probable that he upon return to Turkey would risk such persecution as could justify granting him a refugee status or would otherwise face a real danger of loss of life or exposure to inhuman treatment. 38. Finally, the High Court dismissed the claim for a residence- and work permit from the courts. 39. The State appealed to the Supreme Court (Høyesterett) challenging the High Court’s proportionality assessment under section 29(2) of the 1988 Immigration Act. 40. In its judgment of 26 November 2010 (Norsk Retstidende) (Norwegian Supreme Court Law Reports – “Rt.” p. 1430) the Supreme Court observed inter alia that considerable time had elapsed from the rejection of his asylum application in 2000 until the expulsion decision of 2006 and further to the present review of the case by the Supreme Court. Throughout this time, the first applicant had resided in Norway unlawfully, of which he had also been aware. The time factor could thus not be given particular weight in the assessment. Whilst his residence had naturally resulted in strengthening his attachment to Norway, it had equally aggravated his violations of the Immigration Act. This point of view was particularly valid in a case such as the present one, where the applicant had been aware throughout that he was required to leave the country. 41. Nor had the first applicant had any legitimate expectation of being allowed to remain in the country. Also, his criminal conviction meant that an instruction of 31 August 2006 issued by the Ministry of Labour and Social Inclusion to put certain cases in abeyance, notably cases concerning applications for asylum or residence, involving or relating to children, made by persons who had resided in Norway for more than three years, did not apply to the first applicant. 42. The Supreme Court found it established that the first applicant had committed serious violations of the Immigration Act 1988 which of their own clearly constituted a sufficient ground for expulsion. An additional ground were the offences he had committed under Article 229, cf. Article 232, of the Penal Code and, albeit of lesser importance, under the Road Traffic Act. The Immigration Appeals Board had in its decision of 7 April 2008 pointed out that immigration policy considerations then ought to militate strongly in favour of upholding the expulsion order. Also the background – his unlawful stays in other European countries with unsuccessful asylum applications, including once under a false name – was a factor that to some extent went in the same direction. 43. The Supreme Court further observed that the first applicant lacked a legal basis for residing in Norway and therefore ought to leave the country in any event. What the likely outcome could be of an application for residence permit in the current situation could not enter into the consideration of the case. The disputed decision entailed the consequence for him that he would be expelled from the country for a period of five years and he could not apply for a residence- or work permit during this period. Norway’s participation in the Schengen cooperation meant as a rule that an expulsion from Norway also implied a prohibition to enter the entire Schengen Area. In the case of a foreigner, whose unlawful residence had been so extensive and so long and who had been convicted of violence, it could not be said that an expulsion in such circumstances would constitute an extraordinary burden. 44. The interests pertaining to his wife and his two eldest children could hardly speak in favour of making a different assessment than that which applied to the first applicant. They had for many years lived on their own in Turkey. That the first applicant in the event of an expulsion could not come for visit for a period of five years was a normal consequence of expulsion and did not constitute an extraordinary burden. The family life could be maintained by his wife and children travelling to Turkey for shorter or longer periods. 45. The Supreme Court also noted that, whilst the High Court had relied on the consideration that Rojin was suffering from a chronic and serious degree of child autism, the first applicant had submitted a medical statement of 27 October 2010 from which it appeared that her current diagnosis was “unspecified far-reaching developmental disturbance”. The expulsion applied for a period of five years during which the first applicant would not have the opportunity to help his daughter upon visits in the country. As already mentioned, the family contact would instead be maintained through visits in Turkey. Nor in this respect could there be a question of any extraordinary burden. 46. The Supreme Court, having regard the Court’s case-law, notably Darren Omoregie and Others v. Norway (no. 265/07, §§ 57 and 66, 31 July 2008) and the criteria of “exceptional circumstances” and “insurmountable obstacles” relied on there, concluded that the first applicant’s expulsion would not give rise to a violation of Article 8. His expulsion would not constitute a disproportionate measure vis-à-vis the other family members. 47. On 16 July 2011 the first applicant was expelled to Turkey. 48. The second to fifth applicants were granted Norwegian citizenship on 24 January 2012. | 1 |
test | 001-154527 | ENG | UKR | COMMITTEE | 2,015 | CASE OF VOLOVOD v. UKRAINE | 4 | No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | André Potocki;Ganna Yudkivska;Vincent A. De Gaetano | 4. The applicant was born in 1929 and lives in Krasnyy Liman. He had a son, V., who lived in Severodonetsk, Lugansk Region. 5. On the evening of 11 August 2002, V. was sitting in the courtyard of the apartment block in which he lived. At about 7.45 p.m. a man approached V., shot him in the head, and ran away. Several people witnessed the incident. V. died an hour later in hospital. 6. On the same date the police instituted a criminal investigation into the murder and questioned the eyewitnesses, who stated that the killer had been 25-30 years old and around 175-180 centimetres tall. He had been wearing sunglasses, dark jeans, a red T-shirt and a cap. 7. On the same date the police examined the crime scene, found the bullet and sent it for forensic examination, and collected fingerprints and biological material. 8. On 12 August 2002 the police searched V.’s apartment and questioned his wife, T. She did not know who might have wanted to kill V. or for what reason. He never spoke to her about his business or other activities. 9. On the same date the forensic experts established that V. had been shot with a TT pistol. 10. On 13 August 2002 the police questioned K.Y., who had previously stolen money from V., and established that he had an alibi for the period of time when V. had been murdered. His fingerprints did not match those found on the crime scene. The police thus concluded that K.Y. was not involved in the murder. 11. On the same date the police questioned employees of the bar owned by V., who stated that on 10 August 2002 P. – a member of the criminal gang led by a certain Bo. – had been looking for the applicant’s son. P. was 25-30 years old and 180 centimetres tall. 12. The Severodonetsk Prosecutors’ Office established that P. had been wanted by the police since 1999 as they suspected that he had killed a certain L. with a TT pistol on Bo.’s instructions. The Office concluded that P. might have been involved in V.’s murder and declared P. and Bo. wanted. 13. On 14 August 2002 the police recognised T. as an injured party to the proceedings. The next day, it identified the telephone numbers from which V. had received calls on the day of his death and proceeded to identify the names and whereabouts of the people who had called him. 14. On 16 August 2002, V.’s business partner K. was questioned. He stated that Bo. had threatened V. with violence. On the same date a list of Bo.’s acquaintances was drawn up which included P. (see paragraph 11 above), Lu., Kl., Lit., Kr. and R. 15. In August 2002 the police established that there was no match between the fingerprints of Kl., Lit., Kr. and P. and those found on and near the crime scene. The police searched Lit.’s home and seized his clothes. The clothes were later destroyed, not being needed as evidence. 16. On 23 and 26 August 2002 the police searched the apartments of V.’s acquaintances, but found no evidence that they might have been involved in his murder. 17. On 27 August 2002 K. was questioned again. He said that a certain Vo. and Bu. both worked for Bo. After V.’s murder, Bo. had called K. and had threatened that he would be “broken”. 18. The police searched Vo.’s home, but found no evidence of his involvement in V.’s killing. 19. On 5 September 2002 the police showed the eyewitnesses several persons suspected of the murder, including Vo. The witnesses did not recognise the man who had shot V. amongst them. 20. By 2 October 2002 the police had identified and questioned everyone who had called V. on 10 and 11 August 2002. There was no evidence that any of them had been involved in the murder. 21. Later in October 2002, the police found the TT pistol with which V. had been killed in the possession of a certain Sh. The latter explained that he had bought the gun in September 2002 from A., a boy aged under 18. 22. The police questioned A., who stated that he had found the gun and some sunglasses on 12 August 2002 near garages in Lisichansk Town. He had subsequently sold the gun to Sh. 23. The police questioned the owners of the garages and individuals living near the garages. None of them had seen who had left the gun near the garages. There was no evidence that the boy, Sh., or the garage owners had known Bo. or V. or had had a motive for killing V. 24. On 22 October 2002 the police questioned Lit., who said that he knew nothing about the murder. 25. During November 2002 the police continued questioning V.’s acquaintances and checking whether their biological material and fingerprints matched those found at the crime scene. 26. On 14 November 2002 the police collected blood and saliva from Lu. and a certain Buk., whom the eyewitnesses had seen near the crime-scene on 11 August 2002. They also questioned Lu., who stated that on 11 August 2002 he had been in hospital, where many people had seen him. Lu. did not know anything about the murder. 27. The forensic medical examination established that both Lu. and Buk. might have smoked one of the cigarettes found near the crime scene. 28. On 22 November 2002 the police organised an identity parade and showed Sh. to the eyewitnesses of the murder. However, they did not identify him as the man who had shot V. 29. On 25 February 2003 the police suspended the investigation on the grounds that it had proved impossible to establish who had committed the murder. 30. On 5 August 2003 the investigation was resumed but suspended again on 8 August 2003. 31. On 27 October 2003 the Lugansk Regional Prosecutor quashed the decision to suspend the investigation, observing that it was necessary to carry out “additional investigative measures”. However, he did not specify what those measures were. The case was sent to the Severodonetsk Prosecutors’ Office for further investigation. 32. On 27 November 2003 the police arrested Bo. within the framework of the investigation into the murder of L. (see paragraph 12 above). In December 2003 it questioned Bo. in connection with the death of V. He stated that V. had been his friend, and he had known nothing about his killing. 33. In 2004 the Severodonetsk Prosecutors’ Office examined a number of witnesses who had been questioned earlier and collected information about people who had stayed in hotels in Severodonetsk on 11 and 12 August 2002. 34. On 29 September 2004 the prosecutors prepared a plan of additional investigative measures to be carried out. In particular, they suspected that V. had been involved in illegal metal trafficking and proposed finding his partners in that business. It was also planned to question Ly. with whom the applicant’s son had had “tense relations”, and to find and question Lu., Li. and R. 35. On an unspecified date the prosecutors questioned Ly. and K. and found no evidence that they had been involved in V.’s murder. K. and several other of V.’s acquaintances who were questioned by the police denied that the applicant’s son had been involved in any illegal business, including metal trafficking. 36. On 25 May 2005 the Severodonetsk Prosecutors’ Office suspended the investigation, stating that despite all the measures taken it had proved impossible to find V.’s killer. 37. On 2 August 2005 the police arrested P. within the framework of investigation into the death of L. (see paragraphs 11 and 12 above). 38. On 12 August 2005 the Severodonetsk Prosecutors’ Office resumed the investigation into the death of V. because it was planned to question P., Li., R. and Bu. 39. On 2 September 2005 the police compared P.’s fingerprints to those collected at the crime scene and found that they did not match. 40. On 15 October 2005 it showed P.’s photo to the eyewitnesses of V.’s killing. They were unable to say whether it was P. who had shot V. because the murder had occurred a long time before. 41. The Severodonetsk Prosecutors’ Office informed the police that since July 2005 a certain F. had been wanted for killing H. with a TT pistol in the Lugansk Region. The prosecutors instructed the police to check whether F. could have been involved in V.’s murder. The police informed the prosecutors that it would look into F.’s involvement in the killing after establishing his whereabouts. 42. On 27 October 2005 the Severodonetsk Prosecutors’ Office instructed the Lisichansk Prosecutors’ Office to find and question Kl., R., Kr., and Li. 43. On 3 November 2005 the Severodonetsk Police questioned P., who stated that he had been living in Moldova in 2000-2003 and had not been involved in V.’s murder. 44. On 13 November 2005 the Lisichansk Police stated that R. and Li. had not been found at their permanent places of residence. 45. In November 2005 the Lisichansk Police questioned Kl., who stated that he did not know V. or anything about his murder. He had heard about Bo., but had not known him personally. 46. On 15 November 2005 the Lisichansk Police informed the Severodonetsk Police that it could not question Li. and R. because their whereabouts were unknown. Kr. could not be questioned because he was in prison. No further steps were taken to find and question Li., R., and Kr. 47. On 22 December 2005 the police questioned Bo., who said that V. had been his friend and denied that he was involved in the murder. 48. On 8 August 2006 the Severodonetsk Prosecutors’ Office suspended the investigation but resumed it on 19 July 2007 and transferred the case to the Severodonetsk Police. 49. On 21 August 2007 the Lugansk Regional Police Directorate noted that not all the necessary measures had been taken in order to investigate V.’s murder and ordered that the investigation be accelerated. The Severodonetsk Police were ordered to: i) show photos of F. to the eyewitnesses; ii) search the homes of R., Lu. and Li.; iii) investigate whether Sh. might have been involved in V.’s murder; iv) continue to search for persons who might have been involved in the murder. 50. On 2 June 2008 the Severodonetsk Police suspended the investigation, stating that it had proved impossible to find V.’s killer. On 1 September 2008 the proceedings were resumed but were suspended once again on 30 September 2008. 51. On 29 May 2009 the Lugansk Regional Prosecutor’s Office quashed the decision of 30 September 2008, stating that not all the necessary measures had been taken in order to investigate the murder. The case was submitted to the Severodonetsk Prosecutors’ Office for further investigation. 52. On 10 September 2009 the Severodonetsk Prosecutors’ Office suspended the investigation stating that it had proved impossible to identify the killer. 53. On 27 January 2010 the higher prosecutors quashed that decision, and ordered the Severodonetsk Prosecutors’ Office to carry out further investigative measures. 54. On 11 February 2010 the Severodonetsk Prosecutors’ Office gave instructions to find and question V.’s parents and wife. 55. On 3 March 2010 the police questioned the applicant, who stated that he did not know who had killed his son. 56. On 15 March 2010 the prosecutors suspended the investigation, stating that it had proved impossible to find the killer of the applicant’s son. The applicant was informed on 23 March 2010. 57. On unspecified dates the applicant asked the authorities to inform him about the progress of the investigation. He received the following replies. 58. On 9 December 2002 the Severodonetsk Prosecutor’s Office informed him that the police had found and examined the crime weapon and were looking for Bo.’s acquaintances. On 26 December 2003 the prosecutors informed the applicant that the police had questioned Bo. in connection with V.’s murder. On 25 February 2005 the prosecutors informed the applicant that they were looking for Bo.’s acquaintances. | 0 |
test | 001-168845 | ENG | RUS | COMMITTEE | 2,016 | CASE OF FEDORIN v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing;Equality of arms) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. The applicant was born in 1980 and lives in Samara. 5. At about 8.35 p.m. on 14 October 2009 the applicant was apprehended by officers of the Federal Service for Drug Control (ФСKН, “the drugs police”) during a test purchase of drugs from him. According to the applicant, he was brought to their premises at around 11 p.m. His account was corroborated by two drug police officers and two attesting witnesses. An arrest record was not compiled. Furthermore, at around 2 a.m. on the following day he was put in a cell that had not bed or stool, light, lavatory or running water, and was smeared with dirt and faeces. During his detention he had not been provided with food or drink, or permitted to use the toilet, but had had to urinate in a plastic bottle. At 6.30 p.m. a criminal case was instituted against the applicant, and thirty minutes later an investigator drew the arrest record, thus formally remanding the applicant in custody. At 11.55 p.m. on the same day he was transferred to a temporary detention centre. 6. On 16 October 2009 the Oktyabrskiy District Court of Samara remanded the applicant in custody. In particular, the court mentioned the following arguments: seriousness and nature of charges; previous conviction not being expunged; absence of “regular source of income”; hence possibility of continuing criminal activities or absconding or obstructing justice in any other manner. The applicant did not appeal. 7. On 11 December 2009 the District Court extended the applicant’s detention until 15 January 2010 finding that the grounds on which the preventive measure had previously been imposed still persisted and there was no reason to vary the preventive measure. Additionally, the court mentioned that the applicant had permanent place of residence and employment but it further stated that the applicant “did not have a regular source of income”. 8. On 22 December 2009 the Samara Regional Court dismissed the applicant’s appeal, endorsing the reasoning of the district court. The prosecutor was present at the appeal hearing unlike both the applicant and his counsel. 9. On 12 February 2010 the Kuybyshevskiy District Court of Samara found the applicant guilty of selling large quantities of narcotics and sentenced him to eight years’ imprisonment in a strict-security institution. 10. On 4 May 2010 the Samara Regional Court upheld the conviction. The prosecutor was present at the appeal hearing whereas both the applicant and his counsel were absent. | 1 |
test | 001-178503 | ENG | TUR | COMMITTEE | 2,017 | CASE OF DELİBAŞ v. TURKEY | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Substantive aspect) | Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström | 4. The applicant was born in 1945 and lives in Manisa. 5. On 17 August 1999 the applicant’s daughter, Nesrin Delibaş, lost her life following the collapse of the building where she resided in Düzce as the result of an earthquake (see M. Özel and Others v. Turkey, nos. 14350/05 and 2 others, § 16, 17 November 2015 for further details regarding that earthquake). According to official records, fourteen other people lost their lives as a result of the collapse of the same building. 6. Shortly after the incident, criminal proceedings were brought against the contractor (H.E.) and the architect (S.D.) of the building in question. On 27 August and 31 August 1999 H.E. and S.D. were questioned by the police and the Düzce public prosecutor, respectively. They denied all accusations in respect of the collapse of the building. 7. During an expert examination of the remains of the building on 26 August 1999, certain problems were noted with the building’s reinforcing rods. It was also noted that the metal brackets had not been properly fastened to the girders. Apart from H.E. and S.D., against whom charges had already been brought in connection with the collapse of the building, the experts also identified the involvement of T.A., a civil engineer, and İ.Ö., the Head of Technical Services of the Municipality of Düzce (“the Municipality”), in the preparation and authorisation of the respective construction project. 8. On 31 August 1999 the police questioned İ.Ö., the Head of Technical Services of the Municipality. He denied all accusations in respect of the collapse of the building. 9. According to another report dated 7 September 1999, the expert examination of the collapsed building revealed that the granulometry of the concrete used in the building was very poor, that the concrete contained a very high proportion of pebbles, that the water-to-cement ratio in the concrete mix was not appropriate and had resulted in the formation of pores in the concrete, and that the ironwork had worked loose from the concrete because the metal brackets had corroded. 10. On 14 September 1999 the applicant asked to join the proceedings as a civil party. He added that he wished to lodge a criminal complaint against all individuals who had been involved in the construction of the defective building in their different capacities, including the public officials who had authorised its construction and occupation. 11. On 23 September 1999 the Düzce public prosecutor disjoined the investigation against the Head of Technical Services of the Municipality (İ.Ö.) from those against H.E. and S.D. in view of the special judicial procedures that had to be followed in respect of the prosecution of civil servants under the Law on the Prosecution of Civil Servants and Public Officials (Law no. 4483). 12. On 24 September 1999 the Düzce public prosecutor’s office filed a bill of indictment with the Düzce Assize Court against H.E. and S.D. in respect of the deaths caused by the collapse of the building in question on 17 August 1999. The public prosecutor accused them of endangering the lives of others by carelessness, negligence or inexperience under Article 383 § 2 of the Turkish Criminal Code in force at the material time (Law no. 765), emphasising in particular the structural shortcomings in the building noted by the experts (see paragraph 7 and 9 above). 13. At the hearing held on 21 October 1999 the applicant requested the investigation of all municipal officials who had authorised the construction and occupation of the building despite its failure to comply with the relevant technical regulations. Over the course of the criminal proceedings, the applicant repeated this request at least ten times. 14. According to an expert report added to the criminal case file on 29 April 2001, the following people had responsibility for all private construction undertaken within the municipal boundaries: (i) the contractor, who was responsible for the realisation of the project in compliance with the technical and work safety standards; (ii) the project engineer, who was responsible for all technical aspects of the project, including compliance with all relevant rules and regulations; (iii) the municipal representative, who was responsible for examining the calculations and the plan prepared by the project manager, verifying the compatibility of the project with the regulations in force, and authorising the project; and (iv) the technical implementation officer, who was in charge of inspecting the construction work on behalf of the Municipality. On this basis, the experts concluded that H.E. and S.D. bore 25% and 37.5% responsibility for the collapse of the building. The experts stated that they could not, however, offer opinions on the responsibility of anyone other than the two defendants in the case (H.E. and S.D.). 15. On 21 June 2001 the Düzce Assize Court held that the statutory period during which H.E. and S.D. could be held criminally liable in connection with a collapse of the building had started running in 1985 – when the last official licence for the building was obtained – and had already expired by the date of the earthquake. The case was accordingly discontinued for having become timebarred. The applicant appealed. 16. On 21 October 2002 the Court of Cassation quashed the judgment of the first-instance court. It held that the statutory time-limit was to be calculated from the date on which the building collapsed, that is to say from 17 August 1999, the date on which the offence in question had been committed. 17. On 14 August 2003 an additional indictment was filed against T.A., the civil engineer who had taken part in the construction of the building in question (see paragraph 7 above). It was noted in the indictment that T.A. had obtained licences to secure the illegal extension of the building subsequent to its construction. 18. On 11 December 2003 the Düzce Assize Court convicted H.E., S.D. and T.A. as charged and sentenced each of them to 10 months’ imprisonment and a fine, but decided to suspend execution of the sentences under Section 6 of the Execution of Sentences Act (Law no. 647). The applicant appealed against this judgment and once again requested an investigation into the responsibility of the relevant municipal officials in relation to the collapse of the building. 19. On 6 July 2004 the Court of Cassation once again quashed the firstinstance court’s judgment, this time as the court had not taken any decision as regards the applicant’s request to join the proceedings as a civil party in respect of the case subsequently brought against T.A. 20. On 5 October 2004 the Düzce Assize Court commissioned a new expert report from the Yıldız Technical University in Istanbul. The expert report subsequently released on 21 April 2005 found that the building in question had collapsed on account of the structural problems noted in the earlier expert reports, as well as its illegal extension subsequent to its construction. It was also stated in the report that the defendants jointly bore 75% of the responsibility for the collapse of the building. The remaining 25% responsibility lay with the Municipality officials on account of their failure to duly inspect the building before issuing it with the necessary permits for occupation. 21. On 7 June 2005 the Düzce Assize Court convicted H.E., S.D. and T.A. as charged, and sentenced each of them, once again, to 10 months’ imprisonment and a fine. Execution of the sentences was suspended pursuant to Article 51 § 1 of the new Criminal Code (Law no. 5237). Relying on the findings of the later expert report as regards the responsibility of the municipal officials for the collapse of the building, it also decided that a criminal complaint should be filed against the relevant officials with the Düzce public prosecutor’s office. The defendant H.E lodged an appeal against this judgment. 22. On 5 December 2005 the Court of Cassation quashed the judgment for the third time. It found that the assize court had failed to evaluate the case in the light of the new Criminal Code (Law no. 5237) which had entered into force on 1 June 2005. 23. On 21 February 2007 the Düzce Assize Court decided to discontinue the criminal proceedings in respect of all three of the defendants as the prosecution of the offence in question had become time-barred. 24. On 23 October 2007 the Court of Cassation held firstly that the decision of the first-instance court, in so far as it concerned S.E. and T.A., was null and void, since the earlier judgment of 7 June 2005 had already become final in their regard as they had not lodged an appeal. It then went on to uphold the decision to discontinue the proceedings in respect of H.E. only. 25. On 16 August 2000 the applicant, along with his wife and other daughter, instituted compensation proceedings before the Sakarya Administrative Court against the the Ministry of Public Works and Settlement (Bayındırlık ve İskan Bakanlığı), the Düzce governor’s office and the Municipality of Düzce, in respect of the death of their daughter Nesrin Delibaş. The applicant and his wife each claimed 2,000 Turkish liras (TRY) in respect of pecuniary damage and TRY 1,000 in respect of non-pecuniary damage. Their daughter claimed TRY 500 in respect of non-pecuniary damage only. 26. On 29 December 2005 the Sakarya Administrative Court commissioned an expert report to determine responsibility on the part of the administration for the collapse of the building. 27. As regards the findings in the reports adduced to the criminal case file, the experts noted that the quality of the concrete used in the construction and certain structural elements of the building had been below the required standard. The building had, moreover, been illegally extended after its construction. The municipal officials had failed to duly inspect the building during its construction phase or before issuing the necessary permit for its occupation. They had also failed to carry out a soil survey in the area and to identify the potential “disaster zones” in the event of an earthquake, with a view to limiting the height of buildings in such areas. The experts concluded that, in view of such failures, the Municipality had been 50% responsible for the collapse of the building in question. On the other hand, it found that the other two defendants had not been at fault. 28. Relying on that expert report, on 27 June 2007 the Sakarya Administrative Court partially accepted the applicant’s claims against the Municipality, and awarded him TRY 1,000 in respect of non-pecuniary damage in accordance with his request, plus interest. It also awarded his wife and daughter TRY 1,000 and TRY 500, respectively, in respect of nonpecuniary damage. It rejected their claims in respect of pecuniary damage as being unfounded. 29. On 14 September 2007 the applicant and his family received a total of TRY 11,371.80 (approximately 6,455 euros (EUR) at the material time) from the Municipality as compensation. In the meantime, the Municipality appealed against the judgment of the Sakarya Administrative Court. 30. On 23 May 2012 the Supreme Administrative Court upheld the judgment of the lower administrative court. | 1 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.