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test | 001-162138 | ENG | GBR | ADMISSIBILITY | 2,016 | KOLESNIKOVA v. THE UNITED KINGDOM | 4 | Inadmissible | Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano | 1. The applicant, Ms Ekaterina Kolesnikova, is an Uzbekistan national who was born in 1985 and lives in London. She was represented before the Court by Ms N. Rathbone Pullen of Wilson Solicitors and by Ms C. Meredith of Doughty Street Chambers, lawyers practising in London. 2. The United Kingdom Government (“the Government”) were represented by their Agent, Mr P. McKell of the Foreign and Commonwealth Office. 4. The applicant claims that she was trafficked to the United Kingdom. On 2 June 2011 she was convicted of conspiracy to control prostitution for gain, three offences relating to identity documents, and removing criminal property from the United Kingdom. 5. On 17 June 2011 the applicant claimed asylum on the grounds that she would be at risk on return to Uzbekistan as an Orthodox Christian and because the authorities would have become aware of her criminal conviction in the United Kingdom. She also alleged that she would be at risk of further trafficking. Her application was refused. 6. The applicant was served with an order for deportation in June 2012. She appealed unsuccessfully against the order, invoking the same grounds raised in her asylum application. 7. On 23 September 2013 the applicant applied to revoke the deportation order but the Secretary of State refused her application and certified her asylum and human rights claim as clearly unfounded. Removal directions were set for 25 October 2013. 8. Prior to her deportation, the applicant applied to the Court for an interim measure under Rule 39 of the Rules of Court on the grounds that she would be at risk of ill-treatment at the hands of the Uzbek authorities owing to her criminal conviction for controlling prostitution. Her request was rejected owing to its late submission and she was deported to Uzbekistan. Following her arrival at Tashkent airport, she was detained by the police for forty-eight hours. During this time they took her finger prints in order to check her criminal record. 9. The applicant then asked the Court to grant an interim measure ordering her to be returned to the United Kingdom. Although the Court refused this request, it urgently communicated her complaint under Article 3 of the Convention. However, examination of the complaint was adjourned on 7 November 2014 at the applicant’s request as she had an out-of-country appeal pending before the First Tier Tribunal. 10. On 22 December 2015 the Court was informed that the applicant had been returned to the United Kingdom on 18 September 2015 to pursue her appeal in-country after a High Court judge found the Secretary of State’s decision to certify her claim as clearly unfounded to be unlawful. 11. On 12 January 2016 the Court wrote to both the applicant and Government asking whether, in light of recent developments, they would agree to the application being declared inadmissible, subject to the applicant’s right to reintroduce her complaint if she was not satisfied with the progress or outcome of the domestic proceedings. The parties were asked to contact the Court by 26 January 2016 at the latest. By letter of 21 January the Government informed the Court that they agreed to its proposal. To date, no response has been received from the applicant. | 0 |
test | 001-148719 | ENG | BIH | ADMISSIBILITY | 2,014 | ŽERAJIĆ AND GOJKOVIĆ v. BOSNIA AND HERZEGOVINA | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva | 1. The applicant in the first case, Ms Branka Žerajić, is a citizen of Bosnia and Herzegovina, who was born in 1946 and lives in Serbia. She was represented before the Court by Mr A. Zečević, a lawyer practising in Belgrade. The applicant in the second case, Ms Mira Gojković, is a citizen of Bosnia and Herzegovina, who was born in 1955 and also lives in Serbia. She was represented before the Court by Mr B. Ćupović. 2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people lost their lives and more than 2,000,000 people were displaced in the course of the war. It is estimated that around 30,000 people went missing and that around one quarter of them is still missing. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace in Bosnia and Herzegovina entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska. 5. In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), headquartered in The Hague. More than 70 individuals have already been convicted and proceedings are ongoing for 20 accused. In the period from February 1996 until October 2004, local prosecutors in Bosnia and Herzegovina were required to submit case files to the ICTY for review; no person could be arrested on suspicion of war crimes unless the ICTY Office of the Prosecutor had received the case file beforehand and found it to contain credible charges (the “Rules of the Road” procedure). Moreover, the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice. As part of the ICTY’s completion strategy, in early 2005 war crimes chambers were set up within the Court of Bosnia and Herzegovina (“the State Court”) with primacy over other courts in Bosnia and Herzegovina as regards war crimes. More than 100 persons have been finally convicted by the State Court. Many others have been convicted by the competent Entity courts (see paragraphs 20-22 below). 6. Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. Reportedly, the ICMP has thus far identified by DNA more than 14,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified more than 8,000 missing persons by other methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 14 below). It became operational on 1 January 2008. 7. Mr Božidar Žerajić and Mr Radomir Gojković disappeared in an area of Sarajevo controlled by the ARBH forces on 24 July 1992 and 12 May 1992 respectively. 8. The ICTY has convicted six members of the ARBH forces for various crimes committed against Serbs during the war, including killings and cruel treatment at Čelebići and Kamenica camps (Zdravko Mucić, Hazim Delić, Esad Landžo, Enver Hadžihasanović, Amir Kubura and Rasim Delić), but none of the cases dealt with killings of Serbs in Sarajevo by those forces. 9. Domestic authorities have taken statements from a number of persons. However, no formal charges have been brought yet as the perpetrators in the case of Mr Žerajić have not been identified and the key suspects in the case of Mr Gojković were killed in 1992/93 (namely, S.S., S.K. and J.P). At the same time, domestic authorities have finalised investigations into other war crimes committed by the ARBH forces against Serbs in Sarajevo; indictments have so far been issued against S.B., M.F., I.Č., R. A. and I-N. V. and criminal proceedings are pending. 10. On 6 September 1999 Ms Žerajić sought and obtained a declaration of presumed death with respect to her husband. 11. While many exhumations have been conducted in the Sarajevo area, the applicants’ husbands have not yet been identified. 12. In the case of Ms Žerajić, on 3 November 2004 the Human Rights Commission held that there had been a violation of Articles 3 and 8 of the Convention. It ordered the Federation of Bosnia and Herzegovina to release any and all information in its custody pertaining to the fate or whereabouts of Mr Žerajić as well as to conduct a full, meaningful, thorough and detailed investigation aimed at bringing the responsible to justice. Lastly, it awarded Ms Žerajić 5,000 convertible marks (BAM) for non-pecuniary damage. In the case of Ms Gojković, the Constitutional Court gave a similar decision on 13 September 2007. However, no damages were awarded. 13. The Missing Persons Act 2004 entered into force on 17 November 2004 (Official Gazette of Bosnia and Herzegovina no. 50/04). In accordance with section 3 of the Act, families have the right to know the fate of missing persons (that is, their whereabouts if they are still alive, or the circumstances of death and their place of burial, if they are dead) and to obtain their mortal remains. Under section 4 of the Act, the relevant domestic authorities have the obligation to provide any and all such information in their keeping. 14. Section 7 of that Act provides for the setting up of a Missing Persons Institute. In 2005 the ICMP and the Government of Bosnia and Herzegovina founded the Institute, headquartered in Sarajevo, pursuant to that provision and the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 13/05). It became operational on 1 January 2008. One of the organs of that Institute is an Advisory Board, comprised of six representatives of families of missing persons (see Article 10 of the Agreement mentioned above). 15. In accordance with section 9 of the Act, the status of missing person comes to an end on the date of identification. Therefore, if a missing person is declared dead but the mortal remains have not been found and identified, the process of tracing continues. 16. Pursuant to section 11 of the Act, the families of missing persons are entitled to monthly financial support under some conditions, notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support (in other words, if they are not in paid employment and do not receive welfare benefits beyond 25% of the average salary paid in Bosnia and Herzegovina). Section 15 of the Act provides for the setting up of a Missing Persons Fund for that purpose. However, as the Fund has not yet been established, no payment has been made so far. 17. Families of missing persons are also entitled to, inter alia, temporary administration of the property of missing persons, burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons (section 18 of the Act). 18. Section 21 of the Act provides for the setting up of Central Records with the aim of verifying information about missing persons from different sources (government agencies, associations of families of missing persons, the ICMP and the International Committee of the Red Cross) and creating a single database. While Central Records were founded on 3 February 2011, it would appear that the verification process is still ongoing. Once that process is completed, all those recorded as missing will be declared dead (section 27 of the Act), but the tracing process will nevertheless continue (see paragraph 15 above). 19. Despite the fact that the verification process outlined in paragraph 18 above is pending, any person may request that a declaration of presumed death be issued with respect to a missing person (see the Non-Contentious Procedure Act 1998, Official Gazette of the Federation of Bosnia and Herzegovina, nos. 2/98, 39/04, 73/05; and the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska, no. 36/09). 20. War crimes cases fall, as a general rule, under the jurisdiction of the State Court, but the State Court may transfer any such case to the competent Entity court in accordance with the criteria set out in paragraph 21 below (see Article 27 of the 2003 Code of Criminal Procedure). For example, only in 2012 the State Court transferred 217 cases to 15 Entity courts. 21. In accordance with the Book of Rules on the Review of War Crimes Cases of December 2004 the following types of cases were, as a rule, to be heard before the State Court: (a) cases concerning genocide, extermination, multiple murders, rape and other serious sexual assaults as part of a system (such as in camps), enslavement, torture, persecution on a widespread and systematic scale, mass forced detention in camps; (b) cases against past or present military commanders, past or present political leaders, past or present members of the judiciary, past or present police chiefs, camp commanders, persons with a past or present notorious reputation, multiple rapists; (c) cases with insider or suspect witnesses; (d) if there was a risk of witness intimidation; and (e) cases involving perpetrators in an area which is sympathetic to them or where the authorities have a vested interest in preventing public scrutiny of the crimes. All other war crimes cases were, as a rule, to be heard before the Entity courts. 22. In December 2008 the authorities adopted the National War Crimes Strategy, providing a new set of criteria. However, they are almost identical to those outlined in paragraph 21 above. In addition, the Strategy defines the time-frames, capacities, criteria and mechanisms for managing those cases, standardisation of court practices, issues of regional cooperation, protection and support to victims and witnesses, as well as financial aspects, and supervision over the implementation of the Strategy. One of its objectives is to process the most complex and top priority cases within seven years (that is, by the end of 2015) and other war crimes cases within fifteen years (that is, by the end of 2023). In order to comply with that time-frame, the local authorities have, inter alia, almost doubled the number of State prosecutors in charge of war crimes (from 19 to 37) in the last 12 months. | 0 |
test | 001-170364 | ENG | BGR | CHAMBER | 2,017 | CASE OF DIMOVA AND PEEVA v. BULGARIA | 4 | No violation of 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;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev | 5. The first applicant divorced the second applicant’s father on 22 December 2008 by means of a court-approved divorce agreement. According to the agreement, she was to exercise parental rights and the father had contact rights, the use of the family dwelling and was obliged to pay approximately 50 euros (EUR) a month in child support. The child was to live with her mother, and her father could see her on the first and third weekend of every month, for thirty days during the summer, and for a week during the winter or spring. The agreement did not make reference to a specific address, or even a town or a city where the first applicant was supposed to live with the child. 6. On 25 November 2009, upon a request by the child’s father for a change in the contact regime between him and his daughter, the first instance civil court approved another agreement between the parents, which extended the duration of the father’s weekend contact by a few hours. The parents also agreed that the father would collect the child from her mother’s home in Kazanlak, Bulgaria, and would take her back to the same location; the father could spend his time with the child at one of two specific addresses in Bulgaria, located in Koprivshtitsa and Srednogorovo respectively. If the mother changed her address, she had to inform the father by registered mail within ten days of such a change. 7. On 18 March 2009 the first applicant brought a claim under Article 72 of the 1985 Family Code before the Varna District Court, seeking the court’s authorisation for the child to leave the country in the absence of her father’s agreement. She submitted that she was in a committed relationship with a Bulgarian man who lived in the United Kingdom, where he worked as a ship engineer. They intended to marry and she wished to settle in the United Kingdom, and live with him and her daughter. Notwithstanding the above, the first applicant specified that, in the event that the court did not grant her application for permission for the child to travel, she would remain in Bulgaria to care for her as a responsible parent. 8. On 30 October 2009 the Varna District Court rejected the first applicant’s claim for the child’s unrestricted travel abroad with only her mother, finding that it could not be in the child’s interests. More specifically, the reasons given were that the mother could not show that she had a fixed place of residence abroad, or a secure income with which to ensure her daughter’s well-being, and that the child’s absence from Bulgaria would pose an obstacle to the father’s exercise of his contact rights. 9. The first applicant appealed against the refusal to the Varna Regional Court. She claimed that the father showed no interest in the child and did not pay any child support. His refusal to allow the child to leave the country for any period of time prevented her from taking her on holiday abroad and residing in Montrose in the United Kingdom, where she had a fiancé and could provide her daughter with better material conditions. She and her partner intended to marry that year, but her child’s inability to leave the country with her would make this impossible. 10. The Varna Regional Court allowed her appeal on 22 February 2010. It held that she had the necessary parenting qualities, including the ability to create an emotionally comforting environment for the child and provide her with financial support. That had been decided at the time she had been granted custody of her daughter, and had not been either challenged or refuted subsequently. The first applicant’s parental abilities and the care she provided to her daughter would not change as a result of her crossing the national border. In view of the strained relationship between the two parents, the court considered that permission for the child to travel abroad with only her mother should be granted for the whole of the child’s infancy, that is, until she reached majority. The court also held that the change in the mother’s circumstances constituted grounds for changing the contact regime between father and child, but did not adjudicate on that matter. 11. Following a cassation appeal by the father, in June 2010 the Supreme Court of Cassation suspended enforcement of the second-instance court’s judgment while the issue was pending before it. On 1 November 2010, in a final judgment, it refused to allow the second applicant to travel abroad in the absence of her father’s agreement. 12. The court first observed that there was conflicting domestic jurisprudence on the question of granting unlimited permission for a minor’s travel abroad in the absence of both parents’ agreement. Some courts (including the second instance one in the present case) found that when a parent who had been granted custody (упражняване на родителските права) had the necessary parental skills, such permission could not be refused. Other courts considered that when a parental consensus was missing, granting permission for unlimited travel abroad was only going to cause further disturbance and resentment in the relationship between the parents, which was likely to result in additional disputes between them, and this was not in the interests of the child. 13. Examining the present case, the court relied in particular on its wellestablished and binding case-law, according to which permission for a child’s unrestricted travel abroad with one parent only could not be granted because, as a matter of principle, that could never be in the best interests of the child. More specifically, there was a risk that a parent applying for such permission could take the child to countries which were in a state of war or where there was a high risk of natural disasters, thus endangering the child’s well-being and depriving the State of the opportunity to ensure his or her protection. Also, if the parent took the child to a country which was not a member of the European Union, or with which Bulgaria had no reciprocal agreement regarding legal assistance, the authorities would not be able to ensure that the contact rights of the other parent were enforced. 14. The court held that permission to travel abroad with only one parent could be granted only in respect of fixed destinations and for a limited period of time, and when this was in the interests of the child. 15. Turning to the specific case, the court held that the first applicant had not presented any guarantees as to where the child would be taken or how the father’s contact rights would be exercised. Importantly, the first applicant had not sought in court a change in the regime for contact between the child and the father with a view to her and the child moving their primary place of residence to the United Kingdom. In any event, the first applicant had presented in the proceedings before the court only her personal assertions in respect of her future in the United Kingdom, but no evidence to demonstrate the facts she claimed. She purported that she would get married; however, this was an uncertain future occurrence which did not depend solely on her will. The situation would have been entirely different, if she had been married and had settled in good material conditions in another country. In such a case, the question of whether it would be in the child’s interest to join her mother abroad would be open for discussion. However, as this was not the case, in view of the young age of the child, the court found that it was not in her interest for her mother to be granted permission to take her abroad at any time, for an unlimited duration and to unknown destinations throughout the period before the child reached majority. 16. On 18 December 2011, a little over a year after the final judgment of the Supreme Court of Cassation on the issue of the child’s travel, the first applicant and her partner, who was still living in the UK, married in Bulgaria. Several days earlier, on 1 December 2011, the second applicant’s father had explicitly agreed to her leaving the country with her mother. He signed an initial declaration for the period between 5 January 2012 and 15 June 2012, and has apparently been signing such declarations authorising year-long periods ever since. As a result, the applicants have been able to travel to, live and study in the United Kingdom, where they were at the time of their last correspondence with the Court. 17. Since leaving Bulgaria in January 2012, the child has been in regular contact with her father over the phone and Skype, and has spent time with him every summer. | 0 |
test | 001-179880 | ENG | RUS | COMMITTEE | 2,018 | CASE OF BOGOSYAN v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. The applicant was born in 1981 and lives in Sochi. 5. On 27 November 2010 the applicant, a police captain, was arrested for soliciting a bribe. He was taken into custody and his detention was extended on several occasions. On 4 July 2011 the case was submitted for trial in the Tsentralnyy District Court of Sochi. 6. On 8 July 2011 the District Court determined that the case was not ready for trial and returned the file to the prosecutor. By the same decision, it extended the applicant’s detention until 10 August 2011. 7. On 9 August 2011 the director of the IZ-23/2 remand prison where the applicant was held reported to the Sochi prosecutor and to the president of the Tsentralnyy District Court that, in the absence of an order extending the applicant’s detention beyond 10 August, he would need to be released on that date. On the same date the Sochi prosecutor replied to him that there were no grounds for releasing the applicant because the date for hearing the prosecutor’s appeal against the District Court’s order of 8 July had been fixed for 17 August. The applicant was not released on 10 August. He complained about his unlawful detention to the head of the Investigations Committee and the regional head of the Ministry of the Interior but did not receive any reply. 8. On 17 August 2011 the Krasnodar Regional Court quashed the District Court’s order on appeal. As regards the custodial measure, it held that no extension had been necessary because by virtue of Article 255 § 2 of the Code of Criminal Procedure the applicant could be held in custody for an initial six-month period starting from the date on which the case had been submitted for trial. | 1 |
test | 001-170057 | ENG | CZE | CHAMBER | 2,017 | CASE OF BÁTĚK AND OTHERS v. THE CZECH REPUBLIC | 4 | No 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) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo | 5. The applicants were born in 1969, 1968 and 1972 respectively and live in Lanžhot (Messrs. Bátěk and Elsner) and Břeclav (Mr Blažej). 6. From September 2003 to January 2004 the applicants were employed by the Lanžhot Customs Office on the border with the Slovak Republic. On 1 December 2003, pursuant to Article 158e of the Code of Criminal Procedure (“the CCP”) an undercover police agent infiltrated the team of customs officers. As a result of her observations over the following two months, the customs officers were suspected of corruption, namely taking bribes from truck drivers in exchange for granting priority or trouble-free customs clearance. The undercover agent left the Customs Office on 6 February 2004. 7. During March and April 2004 testimony was taken in the presence of a judge from twenty truck drivers from different countries in accordance with the provisions of Article 158a of the CCP, that is to say this step was taken as an urgent or non-repeatable measure (neodkladný nebo neopakovatelný úkon). The records show that the drivers’ testimonies were similar. According to the applicants, interviews with four of the drivers were of decisive significance. Three of them were of Romanian nationality and one of them was a Bulgarian citizen. The applicants, being not yet charged, were not present at these interviews. 8. Witness I.P.D. testified that it was common practice for the customs officers to ask drivers for documents and to check whether there was some money enclosed. If not, the drivers had to wait for hours to be cleared. He admitted that he had paid bribes on two or three occasions but he could not remember individual customs officers. Witness C.D. testified that he had always had to pay 5 euros (EUR) in order to avoid inconvenience during customs clearance. He described one customs officer as a corpulent person with thinning brown hair. He did not remember any other officer. Witness S.B. testified that he had paid 5 EUR on each of the ten trips he had made to pass the customs control. He was not able to describe any of the customs officers. Witness A.A.U. confirmed the existence of corrupt practices at the customs office in question but could not specify any particular person. 9. On 22 April 2004 the applicants were charged, together with fifteen other individuals, with abuse of the authority of public official and accepting bribes. In February 2005 they were officially indicted. 10. On 14 December 2005 the Břeclav District Court (okresní soud) heard the police agent as an anonymous witness (utajený svědek) under the provisions of Article 55 § 2 and Article 209 of the CCP. She gave her testimony outside the courtroom using an audio streaming device. She did not recount any specific case of the acceptance of a bribe, stating only that her reports and the information therein were fully reliable. The third applicant was present at the hearing. He was represented by a defence counsel. The other two applicants were absent and were represented by a substitute defence counsel. Only the third applicant put a question to the anonymous witness. In the course of the trial, the applicants argued that the agent would have been unable to see any other customs officers from her work-station, that none of the alleged acts had been filmed by the cameras installed at their workplace, and that the officers’ numbered rubber stamps could have been used by other people. 11. On 25 May 2006 the District Court found the applicants and other accused persons guilty as charged. They were sentenced to one year’s imprisonment suspended for two years’ probation and were fined. The court established the factual background to the body of evidence. The agent’s written report constituted directly incriminating evidence. The court further relied on customs documents stamped using the personal rubber stamps of specific customs officers, comparing these with the testimony of the truck drivers, the records of service rotations and the database linking the applicants to the times at which the interviewed truck drivers obtained their customs clearance. The District Court stated: “As regards the defendant Roman Bátěk, he is incriminated by the relevant documentary evidence referring to counts 2 and 3 of the indictment and counts 4 and 5 of the indictment, from which it is apparent that he used a rubber stamp with the number 005 and that his personal number was 20627, these numbers appearing on the relevant documents. When it comes to counts 2 and 3 of the indictment, he is also incriminated by the witness statements of the Bulgarian driver [D.] and the Romanian driver [C.D.] who, according to their records, passed the border crossing point at the time in question, and their papers and travel documents bear the respective numbers of the defendant Bátěk. The above fully corresponds to the report from the defendant’s employer regarding the placement of the defendant, i.e. where ‒ that is to say at which work-station ‒ he was positioned at the time concerned. As to counts 4 and 5 of the indictment, the defendant Bátěk is also incriminated by a police officer of the Czech Republic who saw the defendant accepting a bribe and recorded this fact in the corresponding document, produced in evidence, which also corresponds with the testimony of the undercover agent given before the court. As regards the defendant Radek Blažej, he is incriminated by the documentary evidence produced as regards counts 6 and 7 of the indictment, specifically the control sheets showing his personal number 16898 and rubber stamp number 090. He is also incriminated by the testimony of the Romanian driver [C.D.] and by a report from his former employer stating the defendant’s whereabouts at the time concerned. As to count 7 of the indictment, the defendant Radek Blažej is also incriminated by the undercover police agent of the Czech Republic who saw the defendant accepting a bribe. As regards the defendant Karel Elsner, he is incriminated on counts 8, 9 and 10 of the indictment by the documentary evidence produced, especially by control sheets which were stamped with his personal number and also by other use made of his personal number, as is apparent in the corresponding computer records. He is also incriminated by the witness statement of [S.D.], who submitted details of his border crossing to the authorities and notes of bribes given at a specific time and place. As to count 9 of the indictment in relation to the defendant Karel Elsner, the witness stated that on 10 November 2003 he gave a bribe at a particular time and ‒ by checking the driver and the documentation relating to his border crossing ‒ it was established who had cleared him and who had stamped his documents, from which it is clearly apparent that it was the defendant Elsner who carried out the administrative measures concerned and hence received the bribe. As to count 10 of the indictment, Karel Elsner is also mentioned in the anonymous agent’s report.” 12. The District Court explained that the truck drivers’ statements were read out at the hearing pursuant to Article 211 § 2 b) of the CCP. The drivers had been interviewed in the presence of a judge during the pre-trial stage of the proceedings, because it had been deemed necessary to take the step of obtaining their testimonies as an urgent or non-repeatable measure since they were foreign nationals and it would have been almost impossible for the court to reach them at a later stage. The undercover police agent was heard as an anonymous witness pursuant to Article 209 of the CCP because of her potential future activities. 13. The applicants appealed against the judgment. They firstly argued that the truck drivers could have been questioned under the corresponding international treaties ‒ namely the European Convention on Mutual Assistance in Criminal Matters and bilateral treaties on mutual judicial assistance with Romania (treaty of 25 October 1958) and Bulgaria (treaty of 25 November 1976) ‒ and that they could have been granted immunity in exchange for testifying. They also contested the legal grounds and the necessity for the non-disclosure of the identity of the undercover police agent. According to them, she did not risk bodily harm or any other danger of interference with her fundamental rights as required by Article 55 § 2 of the CCP. The argument about her future activities was not sufficient justification. Moreover, the delays between the questions asked at trial and her replies implied that she had had with her some notes or someone whom she had consulted about her answers before replying. 14. On 22 March 2007 the Brno Regional Court (krajský soud) rejected the applicants’ appeal as unsubstantiated, arguing as follows: “(...) the hearing of an undercover police agent as a witness is in practice exceptional, occurring only in the particular circumstances of a specific case and in the interests of proper clarification and vindication of particularly serious criminal actions and the conviction of the perpetrators thereof. In such circumstances, and when such an agent is heard as a witness, Article 55 § 2, Article 183a § 4, and Article 209 of the CCP would be applicable. In the instant case, the provisions of the CCP regulating the agent’s testimony were not violated and the allegations of some of the defendants that the agent had been heard as an anonymous witness in order to allow her to consult her notes or another person are unsubstantiated. The first-instance court had no doubts about the agent’s reliability as a witness. She reliably described how she had obtained the information about the criminal activity of the accused and how she had evaluated, recorded and processed it (...) Under Article 160 § 4 of the CCP, a non-repeatable measure is a measure which cannot be repeated before the trial court. Questioning a witness who is a foreign national or stateless person without a permanent residence permit in the Czech Republic can be considered to be this kind of measure. None of the witnesses had a link to the Czech Republic of the kind which could have justified the conclusion that they would remain in the country or appear if summoned. The witnesses merely pass through the territory in the course of their work as truck drivers. The interviews with these witnesses were conducted in accordance with the provisions of the Code of Criminal Procedure. The allegations of the defendants that the witnesses did not even know the content of the records they had signed, and that they had been forced to testify and promised immunity if they stated particular facts, are not substantiated by the case file, and no other facts corroborating these allegations have been ascertained. It is apparent from the file that the truck drivers were questioned in the presence of an interpreter and in the presence of judges of the Břeclav District Court (...). Under Article 158a of the CCP, a judge who performs the urgent or nonrepeatable measure of examining a witness or in an identity parade also bears responsibility for the legality thereof." 15. The applicants filed a constitutional appeal alleging a violation of Article 6 §§ 1 and 3 d) of the Convention and complaining about the depositions of the truck drivers and the anonymous witness. 16. On 2 April 2009 the Constitutional Court (Ústavní soud) dismissed the constitutional appeal as manifestly ill-founded. It stated that the complaints raised at the previous instances had been properly addressed and that the courts had provided sufficient justification to show that the evidence had been obtained in accordance with the provisions of the CCP. | 0 |
test | 001-178374 | ENG | RUS | COMMITTEE | 2,017 | CASE OF MEDVEDEV AND OTHERS v. RUSSIA | 4 | 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 - Prohibition of torture;Degrading treatment) | 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 inadequate conditions of their detention. Some applicants also raised complaints under Article 13 of the Convention. | 1 |
test | 001-180654 | ENG | RUS | COMMITTEE | 2,018 | CASE OF KOLESNIKOV AND OTHERS v. RUSSIA | 4 | 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 - Prohibition of torture;Degrading treatment) | 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 alleged, in particular, that they did not receive adequate medical care in detention. Some applicants also raised other complaints under the Convention. | 1 |
test | 001-163799 | ENG | GEO | CHAMBER | 2,016 | CASE OF TCHANKOTADZE v. GEORGIA | 3 | Remainder inadmissible (Article 35-1 - Six month period;Article 35-3 - Manifestly ill-founded);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Helen Keller;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 7. The applicant was born in 1952 and lives in Tbilisi. 8. The applicant was chairperson of the Civil Aviation Agency of Georgia (“the CAA”) between 12 March 2002 and 13 March 2004, when he resigned. The CAA has legal personality under public law. 9. By a judgment dated 10 January 2003, delivered in the case of Airzena Georgian Airlines Ltd. v. Parliament and the Ministry for Transport and Communications, the Constitutional Court declared that it was unconstitutional to use the legal term “annual regulation fee for transport activities” (რეგულირების საფასური), which appeared in various relevant legal acts – the Act of 20 July 2001 on the Rules of State Management and Regulation of Transport and Communications (“the Regulation Act”), and the Orders of 28 December 2001, nos. 109 and 110, of the Minister for Transport and Communications (see paragraphs 5980 below). 10. The Constitutional Court considered that the aforementioned “annual regulation fee for transport activities”, which was a compulsory payment provided for in section 9(5) of the Regulation Act, was strictly speaking neither a tax nor a levy. However, Article 94 of the Constitution only recognised the latter two kinds of compulsory payment to the State. Furthermore, unlike taxes and levies, the regulation fee was not paid into the State’s coffers or to a local authority, but directly to the CAA. The Constitutional Court considered that in those circumstances the fee amounted to a special form of tax, which was a compulsory payment and which had the features of both a traditional levy (payable in exchange for a service or the granting of a right) and of a tax (payable on the annual income of the body concerned). 11. The defendant authorities – Parliament and the Ministry for Transport and Communications – argued before the Constitutional Court that there was a need for some kind of compulsory regulation fee for transport activities because it was not possible for the CAA to sign contracts with civil aviation companies. The Constitutional Court dismissed that argument, pointing out that the regulation of transport activities meant the provision of a service by a public authority in exchange for the payment of a fee for that service. Such relationships could only arise within the framework of a mutual contract, freely entered into by the parties concerned. A fee received by a public authority for a service should therefore take the form of income received for work carried out on a contractual basis, in accordance with section 13(d) of the Public-Law Entities Act. 12. The Constitutional Court further observed that the claimant, a private airline, would obviously never be able to carry out its business without the transport service provided by the CAA. However, regard being had to the principle of the freedom to choose services, even an undeniably necessary service should be the subject of a free agreement between the parties. The Constitutional Court thus concluded that if the matter at issue were settled in that way, then future situations in which the payment of considerable amounts imposed unilaterally by a public authority, in total disregard of the opinions of the companies concerned, would be avoided. The Constitutional Court emphasised that not even constitutional provisions could prevent a public authority in charge of the regulation of civil aviation from signing a contract with a private entity which included conditions and rules for services to be provided under that contract. 13. The Constitutional Court ruled that its judgment of 10 January 2003 would become effective on 1 April 2003. 14. On 13 February 2004 criminal proceedings were instituted for abuse of power against unnamed officers of the Ministry of Transport and Communications, the CAA and two State-owned civil aviation companies. That decision was taken on the basis of information provided by “an investigative journalism organisation carrying out research into corruption”. 15. On 16 March 2004 a charge of repeated abuse of power was brought against the applicant himself, under Article 332 §§ 1 and 3 (a) of the Criminal Code, by the General Public Prosecutor’s Office (“the GPPO”). He was accused in particular of having entered into civil contracts in his capacity as chairperson of the CAA on 28 March and 13 August 2003 with three civil aviation companies – Sakaeronavigatsia, Tbilisi International Airport and Air-GP-Georgia – which undertook to pay the CAA on a monthly basis a “fee for services rendered in relation to the regulation of activities” (მომსახურების საფასური). Accordingly, between April and September 2003 the CAA received 600,000 Georgian laris (GEL) (about 280,000 euros (EUR)). According to the investigator, the applicant’s actions in using the words “fee for services rendered in relation to the regulation of activities” (hereinafter “fee for services”) had concealed what had actually in fact amounted to the old “annual regulation fee for transport activities”, a legal term and obligation which had become unconstitutional after 1 April 2003, when the Constitutional Court judgment of 10 January 2003 had entered into force (see paragraph 13 above). 16. The applicant was further accused of having issued Order no. 1 of 25 November 2003, and of applying it retroactively, again in breach of the Constitutional Court’s judgment of 10 January 2003 (see paragraph 81 below). The order had allowed the CAA to charge Sakaeronavigatsia and Tbilisi International Airport the sum of GEL 134,609 (about EUR 64,000) between 1 October and 5 December 2003 in respect of the regulation fee. 17. Thus, by having wilfully circumvented the legal effects of the Constitutional Court’s judgment of 10 January 2003, the applicant “had acted unlawfully and had therefore committed an abuse of power”. 18. The applicant was arrested on 16 March 2004. He was charged on 17 March 2004 but pleaded not guilty. 19. On 19 March 2004 the Krtsanisi-Mtatsminda District Court of First Instance in Tbilisi (“the Krtsanisi-Mtatsminda Court”), allowing an application by the GPPO, ordered the applicant’s detention for three months, pending investigation and trial. 20. By a final decision of 25 March 2004, the Tbilisi Regional Court dismissed an appeal by the applicant as inadmissible and upheld the detention order of 19 March 2004. 21. On 14 June 2004 the Tbilisi Regional Court, after hearing both parties’ arguments, allowed an application by the GPPO to extend the applicant’s pre-trial detention until 16 September 2004. No appeal lay against that decision, and it was therefore final. 22. On 20 July 2004 an accountancy expert from the crime detection department of the Ministry of the Interior, whose services had been solicited by the GPPO as part of the investigation of the applicant’s case, drew up an audit of the CAA’s regulatory activities (“the audit report of 20 July 2004”). Firstly, the expert listed the acts which constituted the legal basis for the activities of the CAA and which were in force before and after 1 April 2003, when the Constitutional Court’s judgment of 10 January 2003 had entered into force. He then distinguished three periods of activity: (i) the period between 1 January 2002 and 1 April 2003, corresponding to the imposition of “the annual regulation fee for transport activities” by the CAA on the civil aviation companies concerned; (ii) the period between 1 April and 1 October 2003, corresponding to the regulation by the CAA of the activities of the companies in question in accordance with conditions negotiated as part of the contracts it entered into; and (iii) the period between 1 October 2003 and 13 March 2004, when the CAA had collected regulation fees on the basis of Order no. 1, which had been issued by its chairperson, the applicant, on 25 November 2003. 23. The expert noted that the adoption of the Constitutional Court’s judgment of 10 January 2003 had led to “the suppression of the imposition by the CAA, in the form of an order, of the ‘annual regulation fee for transport activities’ on companies operating within civil aviation and the removal of the compulsory nature of the payment of that fee”. However, “the judgment in question had not declared that it was unlawful for the CAA to provide its services to the companies concerned on the basis of negotiated contracts”. According to the expert, the judgment indicated, on the contrary, that there was a “need for such contracts and a legal settlement of the issue in this way”. The expert assumed that the applicant had taken the latter route, “which had been suggested to him by the Constitutional Court”. That had brought him to sign the impugned contracts with Sakaeronavigatsia and Tbilisi International Airport on 28 March 2003, that is to say, three days before the entry into force of the judgment in question. On 13 August 2003 the applicant had signed the same kind of contract with Air-GP-Georgia. In each case, the CAA’s remuneration had been calculated on a monthly basis and was referred to as a fee for services provided in the field of regulation. The three contracts had been terminated on 1 October 2003. 24. As regarded Order no. 1, which had been issued by the applicant on 25 November 2003, the expert noted that the order, approved for entry into force by the Ministry of Justice on 27 November 2003, had been able to be applied retrospectively, that is as of 1 October 2003, which was the date of the termination of the three above-mentioned contracts. He said the order showed good conduct in the financial activities relating to the functioning of civil aviation in the country which, by its very nature, had to be a continuous process. 25. After examining the available evidence, the expert concluded that the CAA’s charging of the fees for the three above-mentioned periods of activity “was based on the relevant laws and regulatory acts”. He established, moreover, that the regulation fee at that time constituted the sole source of revenue for the CAA, a public-law entity not financed by the State. Had it not charged those amounts, the CAA would have been obliged to continue functioning without, though, paying its employees’ salaries. The expert reiterated that the regulation fee paid to the CAA by the companies concerned was included in the price for the service that those companies offered to individuals (air travel tickets) or other companies (carriage of goods). Payment of the fee to the CAA did not therefore cause them any financial damage and, even if there had nevertheless been a loss, it would in the end have been passed on to the consumer. 26. Generally, the expert established that the CAA had received, between 1 April 2003 and 13 March 2004, GEL 630,000 (some 310,000 euros (EUR)) in fees for the regulatory services provided under the three impugned contracts with Tbilisi International Airport, Air-BP-Georgia and Sakaeronavigatsia, and GEL 774,376 (some EUR 380,000) by way of the fee collected on the basis of Order no. 1. In any event, the expert emphasised that the charging of those sums by the CAA to the various private companies had been continuous in time and had been based on valid legal acts (either statutes or other legal instruments). Out of all the abovementioned amounts received by the CAA between 1 April 2003 and 13 March 2004, the applicant had made a personal profit of GEL 15,618 and 17,090 (some EUR 7,500 and 8,200) by way of, respectively, the salary and business trips allowances he had received over the same period of time. A further GEL 490,473.40 (some EUR 225,000) had been paid to the State Budget in income tax and social security charges, while the remaining funds had been spent on the salaries of other CAA employees and various business trips and management expenses. 27. On 31 August 2004 the preliminary investigation was terminated and a bill of indictment was served on the applicant. According to the bill, between 1 April and 1 October 2003 the CAA had carried out three unlawful activities: (i) firstly, it had received, in breach of the judgment of the Constitutional Court of 10 January 2003, a regulation fee from eight civil aviation companies; (ii) secondly, twenty-two companies had paid the CAA the same regulation fee on the basis of Order no. 1, issued by the applicant; (iii) and, thirdly, the three companies – Sakaeronavigatsia (a government-owned undertaking), Tbilisi International Airport and AirBPGeorgia – had paid the fee for services to the CAA on the basis of contracts concluded by the applicant. The pecuniary damage thus incurred by the companies concerned amounted to GEL one million, of which GEL 517,341.51 (some EUR 250,000) was caused to Sakaeronavigatsia. The applicant had used the amounts received to pay salaries and expenses for the management and business trips. 28. On 15 September 2004 the applicant challenged the indictment before the investigator of the Chief Prosecutor’s Office handling the case, arguing that the evidence that had been gathered did not support the charges. In particular, the investigation authorities had not explained how, within the meaning of Article 332 of the Criminal Code, the acts committed had damaged the “interests of the civil service”; what unlawful “personal profit” he had derived; what unlawful personal profit had been derived by third parties and who those people actually were; which of the rights of the companies concerned had been breached by his action; what legal interests of the State had been disregarded; and in what way that “disregard” had been “substantial” (see Article 332 of the Criminal Code, at paragraph 58 below). He again pointed out that the judgment of the Constitutional Court at issue authorised the CAA to continue to charge the fee for services, provided that the payment was based on negotiated contracts and not imposed, as hitherto. Contrary to the argument put forward by the investigator, the companies concerned could not be deemed to have incurred any substantial losses simply by having fulfilled contractual obligations which had been freely negotiated with the CAA. Moreover, those companies had never complained of the unlawfulness of the contracts in question. Lastly, the applicant argued that “none of the State’s legal interests” had been disregarded, given that the State could not claim to be a victim of contractual relationships between two entities which were independent of it. 29. On 16 September 2004 the investigator rejected that complaint as illfounded. He pointed out that the indictment of 31 August 2004 had been based on evidence gathered during the investigation, and that such evidence was sufficient to dispel any doubts that the applicant had committed the offence provided for in Article 332 §§ 1 and 3 (a) of the Criminal Code. In particular, the investigator pointed out that everyone had to comply with the judgment of the Constitutional Court of 10 January 2003, which had the force of law, but which the applicant had failed to do. After 1 April 2003, the date of entry into force of that judgment, the applicant had continued to charge the regulation fee, referring to it as a “fee for services provided in the field of the regulation of activities” in order to conceal the nature of the activity. The Constitutional Court had considered, however, that revenues gained by the CAA in the form of a regulation fee were unconstitutional. The applicant and his employees had derived a personal profit from the amounts at issue in the form of salaries, and management and business trip fees. For example, the applicant had received total salary of GEL 15,618 (some EUR 7,500). According to the investigator, even if most of the companies concerned had declared that they had not incurred any loss from the applicant’s activities, the charging by the CAA of the disguised regulation fee in breach of the judgment of the Constitutional Court had damaged the legal interests of the State. Furthermore, by giving retrospective effect to Order no. 1, registered by the Ministry of Justice on 27 November 2003, the applicant had jeopardised the well-being of the companies concerned. 30. On 18 September 2004 the applicant lodged an appeal against that decision with the Chief Prosecutor. He stated that the investigator had failed properly to the arguments made in his complaint of 15 September 2004 (see paragraph 28 above). 31. On 18 September 2004 a prosecutor from the Chief Prosecutor’s Office replied to the applicant, stating that his appeal had been rejected because the decision of 16 September 2004 had properly and exhaustively addressed all his claims. 32. On 20 September 2004 the indictment was approved by a deputy chief prosecutor and the case sent for trial before the Vake-Saburtalo District Court of First Instance in Tbilisi (“the Vake-Saburtalo Court”). 33. On 1 February 2005 the applicant applied to the Vake-Saburtalo Court, claiming that he had been unlawfully detained since 16 September 2004. In particular, the period of his pre-trial detention had expired on that date and had not been extended. He asked that he be released immediately. 34. On 16 March 2005 the Vake-Saburtalo Court held a pre-trial conference hearing in the case, ruling to commit the applicant for trial as a defendant (Article 417 §§ 1 and 3 of the CCP). Without replying to the applicant’s complaint of 1 February 2005 of the unlawfulness of his pre-trial detention, the court upheld the restraint measure on the basis of the “nature of the charges” and the inability to conduct a comprehensive judicial assessment of his arguments for release at the admissibility stage. 35. On an unspecified date, subsequent to a reform of the judicial system and the associated liquidation of the Vake-Saburtalo District Court, the applicant’s case was assigned for trial to the newly created Tbilisi City Court. 36. When questioned by the Tbilisi City Court during the trial, the acting director and the chief accountant of Sakaeronavigatsia confirmed that their company had paid the relevant fee to the CAA even after the Constitutional Court’s judgment of 10 January 2003, either on the basis of a contract or on the basis of Order no. 1. They did not know at the time that they were exempted from paying the fee by the Constitutional Court’s ruling. 37. The managers of Tbilisi International Airport and Air-BP-Georgia, which specialised in fuel distribution, confirmed to the trial court that their companies had paid the amounts at issue pursuant to contracts that they had freely entered into with the CAA. They specified that in exchange for the fee the CAA licensed their companies’ activities, and that without such certification it would have been impossible for Tbilisi International Airport to host international flights. 38. When questioned by the trial court, Mr Dj.K., the first deputy chairperson of the CAA, explained that at the material time, a new law, which should have been passed following the judgment of the Constitutional Court of 10 January 2003, had been delayed and that, if the applicant had not decided to enter into contracts with companies whose activities were subject to regulation, the CAA, which received no funding from the State, would have had to cease operations. That would have meant that employees of Georgian airports would no longer have been certified, that no aircraft would have been able to land at those airports and that no country would have allowed aircraft that had taken off from those airports onto its territory. By way of an example, Airzena, the airline behind the request which had resulted in the judgment of the Constitutional Court of 10 January 2003, leased its aircraft in Germany on the condition that the CAA, under an agreement entered into with the German civil aviation authority, assumed responsibility for supervising those aircraft and regulating the corresponding activities. If the CAA were to cease operations, Germany would no longer lease its aircraft to Airzena. It was to prevent any such blockages in the field of civil aviation in Georgia that the applicant had entered into the contracts, in accordance with the Public-Law Entities Act and the judgment of the Constitutional Court at issue. 39. The second deputy chairperson of the CAA told the court that he had personally worked on drafting contracts which were subsequently entered into with the three civil aviation companies. He maintained that those contracts, which had become the only source of funding for the CAA, had become necessary after the Constitutional Court had invalidated the relevant legal provisions by declaring them unconstitutional. 40. The CAA’s accountant explained before the trial court that on 1 January 2002 the CAA had been split from the Ministry of Transport, on the recommendation of the World Bank, and that it had become legally fully independent. The exercise of public duties had been delegated to it, including the supervision of flight safety. Since that date, the CAA had not been funded from the State budget, and had therefore been obliged to collect duties from the various private companies working in civil aviation. However, since the relevant legal provisions regulating the collection of “the annual collection fee for transport activities” had been declared invalid by the Constitutional Court, the CAA, pending the passing by Parliament of new legislation on the matter, had been forced to make contracts with civil aviation companies. Subsequently, after the amendment of the Regulation Act on 14 August 2003 (see paragraphs 7780 below), the chairperson of the CAA, the applicant, had become entitled to issue orders setting the amount of fees payable by the companies. 41. When questioned by the trial court, the representatives of various other private companies working in civil aviation, who were contractors of the CAA, stated that prior to 1 April 2003, they had paid the regulation fee in accordance with the law. Following the judgment of the Constitutional Court of 10 January 2003, they had stopped doing so and had only resumed payments on 1 October 2003, as a result of Order no. 1, issued by the applicant. 42. When questioned by the trial court, the accountancy expert from the Ministry of the Interior who had authored the audit report on the CAA’s activities confirmed the conclusions in the report relating to the legality of the CAA’s transactions between 1 April 2003 and 13 March 2004. 43. In his submissions before the court, the applicant first reiterated the arguments he had made during the investigation, notably in his complaint of 15 September 2004 (see paragraph 28 above). The applicant then argued that of the amounts which he had been unjustifiably accused of charging unlawfully, he had paid GEL 490,473 (some EUR 225,000) to the State, while the remainder had been used to fund the CAA’s operations (see the aforementioned expert report cited at paragraphs 22-26 above). Consequently, neither he nor anyone else had derived any personal profit from the amounts in question. The applicant argued that the accountancy expert’s report confirmed the legality of his actions. He explained that the reason the Constitutional Court had delayed the entry into force of its judgment of 10 January 2003 had been to grant Parliament sufficient time to legislate and fill the gap arising from its judgment. In order not to leave the CAA without funds, which would have meant flight safety might have been compromised, the Constitutional Court had clearly indicated in its judgment that the CAA could enter into contractual relationships with the aviation companies concerned, which would thus be able to negotiate conditions freely. 44. It was for the very same reasons as those espoused by the Constitutional Court in its judgment that the Georgian President had issued Decree no. 364 on 25 July 2003 (see paragraph 82 below). That decree, as well as section 13(d) of the Public-Law Entities Act, gave a direct right to the applicant, as chairperson of the CAA, to collect duties by entering into contractual relations with companies working in civil aviation. Furthermore, the new law, required as a result of the judgment of the Constitutional Court of 10 January 2003, had been passed on 14 August 2003 and had entered into force on 15 September 2003. The applicant had issued Order no. 1 in compliance with that law and had subsequently submitted it to the Ministry of Justice for registration. The Ministry of Justice had registered it on 27 November 2003, approving its retrospective application as of 1 October 2003 under sections 33(4) and 54 of the Law on Normative Legal Acts, on the grounds that all the companies covered by the Order had the necessary legal identification numbers and codes. The applicant pointed out that if it had been unlawful to apply the order at issue retrospectively, the Ministry of Justice would have informed the CAA and instructed it to make the necessary amendments, in accordance with the law. The applicant concluded that the actions he had taken in the exercise of his official duties had not been contrary to the judgment of the Constitutional Court in question, or to any other legal provisions applicable at the material time, and thus could not qualify as abuse of power. 45. On 8 August 2005 the Tbilisi City Court found the applicant guilty of two of the three episodes of abuse of power which the GPO had accused him of (see paragraph 27 above), but acquitted him of one. The one he was acquitted of was with respect to the CAA collecting “an annual registration fee for transport activities” from eight private companies working in civil aviation, including Sakaeronavigatsia and Tbilisi International Airport, between 1 April and 1 October 2003. The court established that the relevant amounts corresponded to debts owed to the CAA by those companies for the period prior to 1 April 2003. 46. As for the other two episodes, the Tbilisi City Court considered that the applicant had unlawfully entered into the contracts of 28 March and 13 August 2003 with Sakaeronavigatsia, Tbilisi International Airport and AirBPGeorgia, in breach of the Constitutional Court’s judgment of 10 January 2003. Thus, between 1 April and 1 October 2003, the CAA had unlawfully received the sums of GEL 425,000 (some EUR 208,000), 180,000 (around EUR 83,000) and 25,000 (some EUR 11,000) respectively, from which the applicant had unlawfully paid his own salary and the salaries of his employees, and had financed the CAA’s business trip and management expenses. Furthermore, the applicant was found guilty of unlawfully issuing Order no. 1, to which the applicant had moreover given retrospective effect, which served as the basis for collecting levies between 1 October 2003 and 13 March 2004 from twenty-two companies, amounting to GEL 281,344.23 (some EUR 133,000) which had been spent in the same, unlawful way. 47. The Tbilisi City Court stated that it disagreed with the applicant’s argument that the Constitutional Court judgment of 10 January 2003 had given him the right to enter into contracts with the companies concerned and that the CAA would have been unable to continue to operate if those contracts not been entered into. However, the court did not give any reasons to explain its position. 48. As to the audit report prepared by the accountancy expert on the CAA’s activities, the Tbilisi City Court restricted itself to noting that the expert in question was from the Ministry of the Interior and that he had confirmed his conclusions when he had been questioned during the trial. The court gave no explanation for why it did not take the expert’s statements into consideration. 49. The judgment of 8 August 2005 found the applicant guilty of the crime provided for in Article 332 §§ 1 and 3 (a) of the Criminal Code and sentenced him to five years’ imprisonment. He was also banned from holding public office for two years. 50. The applicant appealed, stating that the Tbilisi City Court had not established which of the impugned actions had breached the notion of public service requirements, within the meaning of Article 332 § 1 of the Criminal Code, what exactly the criminal offence had consisted of, what had been the reasons for it, and what its objectives and consequences had been. Furthermore, the Tbilisi City Court had not explained how his actions had damaged the interests of twenty-two companies, when none of those companies had expressed any interest in joining the criminal proceedings as civil parties or had ever initiated any separate civil proceedings against the CAA. 51. When questioned by the Tbilisi Court of Appeal, representatives of fourteen of the companies concerned stated that they had incurred no financial damage as a result of having paid the fees for the services provided by the CAA, either on the basis of the relevant contracts or Order no. 1. Moreover, the cost of the amounts paid had not been borne by the companies, since it had been included in the price of airplane tickets sold to the end consumer, who was airline passengers (see also the accountancy expert’s report cited at paragraphs 22-26 above). By a judgment of 30 December 2005 the Tbilisi Court of Appeal acquitted the applicant in respect of the charge relating to the aforementioned fourteen companies. It upheld the judgment of the lower court as to the remaining charges, notably the collection by the CAA of fees for services from the remaining eight companies on the basis of either contracts or Order no. 1. The applicant’s prison sentence was amended and set at four years. 52. The applicant appealed on points of law, arguing that his case had been examined superficially and that, amongst other things, the accountancy expert’s report of 20 July 2004 (see paragraphs 22-26 above) had not been taken into consideration. The applicant complained that in examining the question of the existence of a loss to the aforementioned eight companies, the Court of Appeal had failed to consider the case from the same point of view concerning the other companies, especially Sakaeronavigatsia, which had allegedly incurred the biggest loss. In fact, according to the applicant, the Court of Appeal had completely failed to consider that part of the case or the accountancy expert’s view that Sakaeronavigatsia could not have incurred a loss. The applicant concluded that the reasoning given by the lower court to prove his guilt had been manifestly insufficient and arbitrary. 53. On 14 September 2006 the Supreme Court of Georgia dismissed the appeal on points of law by the applicant, stating that by continuing to charge the fees to the various private companies after 1 April 2003 the applicant had misapplied the judgment of the Constitutional Court of 10 January 2003 and had thus committed an abuse of power, infringing the rights of various legal entities and the general legal interests of the State. 54. After serving his sentence in full, the applicant was released on 14 March 2008. 55. In December 2003, well before the applicant had been placed under investigation and arrested, and shortly after the Rose Revolution that led to the resignation of President Shevardnadze (see Georgian Labour Party v. Georgia, no. 9103/04, §§ 11-13, ECHR 2008), Mr M. Saakashvili, who did not hold any State office at the time but was campaigning as a candidate to be elected president, addressed representatives of Georgian companies in Tbilisi’s sports stadium. He stated that the objectives of the abolition of the old, corrupt and unfair regime had not involved simply replacing one political clan with another. In particular, he promised that nepotism, irrespective of where it came from, whether from representatives of the old or the new regime, would no longer be the rule. Amongst other things, he stated in that regard: “I heard more news on the television yesterday: it would appear that Zurab Ts ..., the chairman of a committee of the former parliament, took his son and had him appointed deputy chairman of the Civil Aviation Authority! It is now 3.35. I will give [the applicant]: either he gets rid of Ts ..., or [the applicant] himself goes to jail! ... It is said that we are instructing the prosecution authorities to arrest officials of the old regime but that this seems like a breach of their human rights! Yes, I confirm, all those who should be arrested will be jailed. They only began to remember human rights when their own interests were threatened ... Where does the money come from [for a former governor] to hire lawyers to defend himself and ... live in a fivestar hotel in Moscow, when one night there costs the same as your pensions several times over...? Is not your money, Georgia’s money, being taken from your pockets? ... “ 56. According to the applicant, the events which came after the speech of Mr Saakashvili, who was elected President of Georgia in January 2004, were as follows: the son of Zurab Ts. immediately resigned as deputy chairman of the CAA, the applicant was placed under investigation in March 2004 on the aforementioned charges and the same Zurab Ts. was reelected to parliament from Mr Saakashvili’s presidential party list during the parliamentary elections of March 2004. | 1 |
test | 001-183127 | ENG | SVN | CHAMBER | 2,018 | CASE OF DEVINAR v. SLOVENIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms) | Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani | 5. The applicant was born in 1959 and lives in Nova Gorica. 6. The applicant was working as a cleaning lady when she allegedly developed serious medical complications in her left wrist, which could only partly have been addressed by surgery. This resulted in her using predominantly her right arm, which in turn resulted in the overburdening of that arm, giving rise to a number of medical problems. Because of these medical issues she was found, in 2006, to be incapable of further work and officially recognised as having a partial disability. 7. On 30 December 2011 the applicant applied to the Pensions and Disability Insurance Institute of the Republic of Slovenia (“the Institute”) for a disability allowance in respect of a physical impairment (nadomestilo za invalidnost – hereinafter “disability allowance”). 8. On 12 March 2012 the first-instance disability commission of the Institute, located in Nova Gorica, issued a report to the effect that the applicant was not suffering from any physical impairment stipulated in the Self-Management Agreement on the List of Physical Impairments (Samoupravni sporazum o seznamu telesnih okvar – hereinafter “the List”; see paragraph 22 below). The commission – composed of an occupational medicine specialist, an orthopaedic specialist and a physical medicine and rehabilitation physician – based its opinion on an examination of the medical records submitted by the applicant and a clinical examination of the applicant. 9. On 15 March 2012 the Nova Gorica unit of the Institute, relying on the opinion of the first-instance disability commission, dismissed the applicant’s application for a disability allowance. A copy of the first-instance disability commission’s opinion was attached to the decision. The applicant appealed. 10. On 15 May 2012 the second-instance disability commission of the Institute, located in Ljubljana, composed of an occupational medicine specialist and an orthopaedic specialist, examined the applicant’s medical file and again issued a report to the effect that no physical impairment stipulated in the List could be found. 11. On 7 June 2012 the Central Office of the Institute, referring to the conclusions of the second-instance disability commission, dismissed the applicant’s appeal. A copy of the second-instance disability commission’s opinion was attached to the decision. 12. On 12 July 2012 the applicant initiated court proceedings against the Institute before the Ljubljana Labour and Social Court seeking the annulment of the above-mentioned decisions taken by the Institute, arguing that the facts had been wrongly established, and that the procedure had not been properly conducted. She argued that because of the incapacity of her arms the functioning of her body was inhibited and greater efforts were required to satisfy her daily needs. She also argued that the opposing party should have more seriously examined all her medical problems. In her view her physical impairment amounted to at least 50% incapacity; however, the exact degree could only be determined by a medical expert. She accordingly proposed that a medical expert be appointed. 13. On 6 September 2013 the Ljubljana Labour and Social Court, sitting in a single-judge formation, dismissed the applicant’s application for a disability allowance. It observed that its role was to check whether the impugned administrative decisions had been issued in a procedure that had complied with the procedural rules, and had been based on a proper establishment of fact and proper application of the law. It furthermore observed that the claimed physical impairment was a legally relevant fact, whose degree of severity under the relevant legal provisions (see paragraph 22 below) had to be proved in order for entitlement to a disability allowance to be established. After taking into account the documents in the file and the hearing of the applicant, the court found that the Institute had correctly established the facts. Referring to the findings of the disability commissions and its own direct observation of the applicant at the hearing, it concluded that the impairment to the applicant’s health did not amount to a physical impairment within the meaning of the law. 14. Considering the above-mentioned findings sufficient to reach its conclusion, the court refused the applicant’s request for the appointment of a medical expert as unnecessary. 15. On 17 October 2013 the applicant lodged an appeal against the first-instance court’s finding. She argued that the impairment to both of her arms, her psychological illness and her headaches meant that the normal functioning of her organism was inhibited and that she had to exert greater efforts in order to perform daily tasks; that the List, which was out of date, could not possibly contain a complete list of all illnesses and injuries; that the first-instance court should not have relied on the opinions of the disability commissions and a doctor (opinions which the applicant had disputed); that the first-instance court should have appointed a medical expert, as requested by the applicant; that the applicant could not have explained all her medical issues at the hearing and that the court had not been in a position to assess the flexibility of her arms. 16. On 6 February 2014 the Higher Labour and Social Court dismissed the applicant’s appeal, finding that the facts had been sufficiently established and the substantive law applied correctly. It also found that the refusal of the applicant’s request for the appointment of an expert had not undermined the legality of the decision as that decision would not have been any different had an expert been appointed. The Higher Labour and Social Court further found the following: “A court in a judicial social dispute ... assesses the correctness and lawfulness of the impugned administrative decisions [in question] and having regard to the dispute of the full jurisdiction [the court] when quashing [the administrative decisions] alone decides on the merits. Within the context of the judicial review of the administrative decisions [the court] is of course not obliged to accept evidence [submitted by] a forensic medical expert if the expert opinions of the disability commissions at first and second instance allow for the conclusion that the negative administrative decisions are correct and lawful because they are based on an assessment by both commissions which is convincing in view of the available medical documentation and the report of [the relevant] medical examination. Such a procedural situation is found in the present case, because in the opinion of the appeal court the expert bodies in the pre-judicial administrative proceedings correctly determined that the applicant had no physical impairment.” 17. The court furthermore found that physical impairments could not be determined contrary to what was provided in the List. Moreover, the question of whether a particular condition amounted to an impairment was different to the question of whether it amounted to a disability. In the applicant’s case, although she had a recognised disability, this fact alone – without any functional problems in respect of inflexibility of joints – could not suffice to categorise her condition as one of physical impairment. The Higher Labour and Social Court agreed with the court of first instance that the disability commissions in the pre-judicial administrative proceedings had made the right assessment when concluding that the applicant had not suffered from any physical impairment. It also pointed out that the court had not been obliged to appoint an independent expert if it had been possible to conclude from the disability commissions’ opinions that the Institute’s decisions had been well-founded, as had been so in the instant case. 18. The applicant lodged an application for leave to appeal on points of law. She argued that her right to a fair trial had not been respected because the court had refused to appoint a medical expert and had assessed the applicant’s condition itself, despite lacking the necessary medical knowledge. She had thereby been deprived of her only possibility to challenge the Institute’s decisions. The applicant also drew attention to the fact that in numerous cases court-appointed experts had found the disability commissions’ fact-finding to be erroneous. She moreover argued that the first-instance court should not have based its decision on the List. 19. On 10 June 2014 the Supreme Court dismissed the applicant’s application, holding that there were no grounds for allowing an appeal on points of law. 20. On 21 July 2014 the applicant lodged a constitutional complaint. She complained that the Supreme Court’s decision had not been reasoned. She further argued that she could not have explained all her medical issues at the hearing and that the court had not been in a position to assess the flexibility of her arms. Her only way of effectively challenging the Institute’s decision would have been by way of appointing an independent medical expert; as had been proved in the past, independent medical experts had often reached findings contrary to those of disability commissions. She invoked Article 22 (equal protection of rights) and Article 23 (the right to judicial protection) of the Constitution. She also reiterated her complaint about the reliance on the List. 21. On 10 December 2014 the Constitutional Court decided to not accept the applicant’s constitutional complaint for consideration, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the applicant. | 0 |
test | 001-160259 | ENG | TUR | CHAMBER | 2,016 | CASE OF AYDIN ÇETİNKAYA v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano | 6. The applicant was born in 1964. 7. In 1993 the applicant was convicted of murder and sentenced to twenty four years’ imprisonment. 8. On 8 March 2002 the applicant was conditionally released from prison. 9. On 23 March 2002 at 8.40 p.m. the applicant was arrested at his home on suspicion of leading a criminal organisation and involvement in the attempted abduction of a certain Ş.H. and his son, H.H. He was subsequently placed in custody by the organised crime division of the Istanbul Security Directorate. 10. On 24 March 2002 at 8 p.m. the applicant and six other persons were examined at the Haseki Hospital, in Istanbul, by a doctor who recorded on a single sheet of paper that there was no sign of violence on the bodies of these seven persons. 11. On the same day at 10.30 p.m. the applicant was once again examined at the Haseki Hospital by a doctor who noted that he had been told that the applicant had hit his head against a wall. The doctor, a general practitioner, observed the following injuries on the applicant’s body: a swelling on the left side of the forehead and a headache, a hyperaemia of 0.5 cm in width around both wrists and a hyperaemia of 2 cm on the right side of the neck. The doctor considered that the applicant should also be examined by a neurosurgeon, who subsequently carried out a number of tests on the applicant and concluded that the applicant did not show any signs of pathology. 12. On 25 March 2002 at 9.10 p.m. the applicant underwent a further medical examination at the Haseki Hospital by a doctor who noted in a medical report the same injuries as those mentioned in the medical report of 24 March 2002. 13. On 26 March 2002 at 7 p.m. the applicant was once again taken to the Haseki Hospital for an examination. The medical expert noted that there was an erythema of 3 cm in diameter on the right side of the applicant’s forehead, scabbed wounds of 3 cm on the underside of his wrists and a hyperaemia of 2 cm on the right side of his neck. 14. On 27 March 2002 the applicant underwent two medical examinations. The first examination took place at the Haseki Hospital at 9.30 a.m. The doctor observed scabbed wounds on the underside of the wrists, a recovering hyperaemia of 2 cm on the right side of the neck and an erythema of 2 cm in diameter on the right side of the forehead. The second medical examination was carried out by a medical expert at the Forensic Medicine Institute branch responsible for the Istanbul State Security Court at 11 a.m. The doctor who examined the applicant observed the following injuries on his body: a scabbed abrasion of 3 cm on the underside of the left wrist, a scabbed abrasion of 1 cm on the underside of the right wrist, a scabbed abrasion of 0.5 cm on the back of the right wrist, two thin abrasions of 1 cm and 3 cm on the right side of the forehead. The doctor concluded that these injuries did not put the applicant’s life at risk but rendered him unfit to carry out daily activities for three days. 15. According to the applicant, he was subjected to ill-treatment throughout his detention in police custody. In particular, he was kept blindfolded and handcuffed to an iron bar for five days. He was beaten, given electric shocks and made to lie on a bed over which his arms and legs were stretched, and his genitals were squeezed. 16. According to the Government, the applicant sustained his injuries as a result of his own conduct. The scratches and traces on his body were a result of having attempted to break his handcuffs, and he had hit his head on the floor. In support of their submissions, the Government provided video footage from the surveillance camera monitoring the room in which the applicant was detained, recorded between 9.11 p.m. and 9.16 p.m. on 24 March 2002 (see paragraph 21 below). 17. On 24 March 2002 at 9.20 p.m. eight police officers and the applicant signed an incident report according to which the applicant was kept attached to a bed in order to prevent him from harming himself. The report states that at around 9.10 p.m., he managed to break one of his handcuffs and hit his head on the floor. The officers recorded that they had used force to handcuff the applicant and that the applicant had sustained injuries on his wrists as a result. According to the report, the injuries on the applicant’s head had occurred when he hit his head on the floor. 18. On 26 and 27 March 2002 statements were taken from the applicant by two police officers. According to the document drafted at 00.35 a.m. on 27 March 2002 and signed by the applicant, the police told the applicant that he had been in possession of a mobile phone whilst in prison and that the conversations that he had held using this telephone had been intercepted by the police. The police officers alleged that he had given instructions for the abduction of a number of persons by phone and that it was considered that he had been the leader of a criminal organisation. The applicant denied the allegations that he had made the phone calls in question and that he had been involved in criminal activities. In his statements to the police, the applicant accepted that he knew some of the persons who had been arrested on the same day as him and that he knew that two other arrestees had attempted to abduct Ş.H. He stated that he knew Ş.H. personally, but that he had not been involved in his abduction attempt. 19. On 27 March 2002 the applicant appeared before the public prosecutor at the Istanbul State Security Court. He denied the allegations against him and submitted that he had been subjected to torture in police custody. He alleged that he had been beaten, given electric shocks and stretched by his arms and legs, had his testicles squeezed, and been handcuffed to an iron bar for five days. On the same day he was remanded in detention by a judge. 20. Between 23 and 27 March 2002 the six persons who had been taken into police custody on the same day as the applicant also made statements to the police. According to some of these statements, the applicant had been the leader of a criminal organisation and had given instructions for the abduction of Ş.H. These persons were also medically examined during and after their detention in police custody. Some of them were found to have sustained injuries to various parts of their bodies. 21. During the proceedings before the Court, the Government produced a CD-ROM containing a police video recording. The CD-ROM contains images of a room. The part which concerns the applicant was recorded between 9.11 p.m. and 9.16 p.m. on 24 March 2002. It shows that the applicant was kept in a room on a mattress, the top of which is placed on two chairs. The applicant is seen lying down on the mattress with his arms straight out to the sides and attached to the chair legs. He is also blindfolded with a piece of black cloth. On the other side of the room, there are four or five plainclothes police officers standing around a desk and a chair. The applicant begins moving with a view to standing up. Four officers approach the applicant, detach him from the chairs, put him on the floor, kneel around him and for about one and a half minutes keep the applicant under physical restraint on the floor. During this period, the applicant cannot be seen by the camera. Thereafter, another plainclothes officer arrives in the room and instructs the other officers to arrange the mattress and the chairs in a certain way. Subsequently, the applicant is seen without the blindfold and with his arms held behind his back by two officers who are also holding him around his neck. They make the applicant stand in front of the newly-arrived officer, who douses the applicant’s face with water from a plastic bottle. He then hits the applicant on the head with the same bottle. Afterwards, six officers place the top of the mattress on the chairs, force the applicant to lie down on the mattress on his back, handcuff him to the chair legs and blindfold him. 22. On 3 April 2002 the applicant lodged a petition with the Fatih public prosecutor’s office and alleged that he had been subjected to ill-treatment during his detention in police custody. 23. On 22 May 2002 the applicant made statements to the Fatih public prosecutor in which he complained about his alleged ill-treatment while in police custody. He claimed that he had been insulted, threatened, beaten, stripped naked, stretched by his arms and legs, blindfolded, given electric shocks and had his genitals squeezed. The applicant submitted that there were a superintendent, A.İ., and the director of the Department of Organised Crime of the Istanbul Security Directorate, A.S.S., among those who had tortured him. The applicant also provided the names of several persons who had allegedly witnessed his ill-treatment in police custody and asked the public prosecutor to take their statements as witnesses. 24. On 29 July and 6 and 22 August 2002 the Fatih public prosecutor took statements from İ.E., N.K., S.G. and M.G., the police officers who had been on duty at the time of the applicant’s detention in police custody. They all denied the veracity of the applicant’s allegations of ill-treatment. 25. On 17 October 2002 the Fatih public prosecutor further obtained statements from A.İ., who submitted that the applicant had hit his head on the floor. On 20 January 2003 A.S.S. also made statements to the Fatih public prosecutor and maintained that he had not been involved in the applicant’s questioning. 26. On 21 January 2003 the Fatih public prosecutor requested the Department of Organised Crime of the Istanbul Security Directorate to submit any video recording demonstrating that the applicant had resisted the officers, if such recording existed. 27. On 25 February 2003 A.S.S., in his capacity as the director of the Department of Organised Crime, sent the video recording of 24 March 2002 (see paragraph 21 above) along with a letter to the Fatih public prosecutor’s office. In his letter, A.S.S. noted that the applicant had resisted the police officers while in police custody. 28. On 20 June 2003 the Fatih public prosecutor sent the video recording to the Forensic Medicine Institute and requested that a report clarifying whether the applicant could have sustained the injuries noted in the medical reports as a result of his own conduct be drafted. The public prosecutor also submitted the medical reports concerning the applicant to the Institute. 29. On 13 August 2003 six medical experts from the Forensic Medicine Institute, including the president, drafted a report after examining the medical reports issued during the applicant’s police custody and the photographs and video footage submitted to them by the Fatih public prosecutor. In their report, the doctors concluded that the applicant’s injuries had occurred as a result of his own conduct. They considered that, following the applicant’s agitation, the police officers had struggled to lay him down on a camp bed and had handcuffed his hands to the bed. They further stated that the applicant did not appear to have been subjected to any beatings in the video footage. Having considered the position of the applicant’s injuries on his body, they concluded that the injuries must have been caused by the applicant’s own conduct. 30. On 15 October 2003 the Fatih public prosecutor filed a bill of indictment with the Fatih Criminal Court accusing six police officers, A.İ, A.S.S., İ.E, N.K., S.G. and M.G., of inflicting ill-treatment on the applicant and one of his co-accused, Ö.Ç. 31. On 8 December 2003 the applicant testified before the Bolu Criminal Court, acting on letters rogatory. The applicant contended that he had been kept blindfolded throughout his detention, stretched by his arms and legs, given electric shocks, hosed with cold water, stripped naked and had his genitals squeezed. 32. On 12 February 2004 the Fatih Criminal Court held the first hearing on the merits of the case and heard evidence from the accused police officers, except one officer, A.S.S., who did not participate in the hearing. They all maintained that they had not ill-treated the applicant or Ö.Ç. As regards the applicant, they contended that they had handcuffed him upon the instructions of a public prosecutor and subsequently used force with a view to preventing him from harming himself. One of the officers, İ.E., maintained that the applicant had sustained injuries to his head as he had hit his head against the wall. They referred to the video footage recorded on 24 March 2002. During the same hearing, C.A., one of the applicant’s lawyers who represented him along with A.K. Özcan, requested that the applicant be allowed to join the proceedings as an intervening party. His request was granted. The applicant’s representative further requested the court to obtain the entire video recording of the places where the applicant had been held throughout his detention in police custody. The court decided to consider this request subsequently, after obtaining the statements of all accused police officers. 33. Between 12 February 2004 and 5 October 2004 the trial court adjourned the hearings as A.S.S. could not be located. 34. On 5 October 2004 A.S.S. made statements before the Fatih Criminal Court and denied the veracity of the applicant’s allegations. He reiterated that he had not been involved in the questioning of the applicant and Ö.Ç. On the same day the Fatih Criminal Court ordered the Security Directorate to send it the video recordings concerning the applicant’s police custody. 35. On 2 February 2005 the first-instance court adjourned the hearing as the video footage requested during the previous hearing had not been received. One of the applicant’s lawyers, C.A., was present during this hearing. 36. Upon receipt of the video footage of 24 March 2002, during the hearing of 3 March 2005 the Fatih Criminal Court viewed the recording and observed that one person had suddenly bent forwards and the police officers had immediately intervened. The court noted that the video footage was very short, lasting a few seconds, and the people in the images were not identifiable. At the same hearing, one of the accused police officers, İ.E., contended that the person in the footage was the applicant himself, who had hit his head on the floor in order to be able to lodge a complaint against them for ill-treatment in police custody, and that they had intervened to stop him. 37. On 14 June 2005 the Fatih Criminal Court referred the case to the Istanbul Assize Court on account of lack of jurisdiction, pursuant to Article 94 of the new Criminal Code (Law no. 5237), which defined ill-treatment by public servants as torture, an offence that should be tried by assize courts. 38. On 3 October 2005 the Istanbul Assize Court issued a summons requiring the applicant and the accused police officers to attend the hearing to be held on 29 November 2005. The summons issued in respect of the applicant was served on A.K. Özcan. On 29 November and 27 December 2005 the Istanbul Assize Court held two hearings and heard evidence from the accused police officers, who reiterated the statements they had made before the Fatih Criminal Court. Neither the applicant nor his representatives participated in these hearings. 39. During the hearing held on 27 December 2005 the public prosecutor requested that the police officers be acquitted of the charges against them. At the end of the same hearing the Istanbul Assize Court acquitted the accused police officers of the charges of torture. On the basis of the evidence before it, namely the medical reports, the report of the Forensic Medicine Institute dated 13 August 2003, the statements taken from the accused officers, the applicant and Ö.Ç., and the aforementioned video footage, the Istanbul Assize Court found that the applicant had been agitated and the police officers had handcuffed him to a camp bed with a view to preventing him from injuring himself. The court noted that the injuries observed on the applicant’s wrists and other parts of his body had thus occurred as a result of his agitation. The assize court considered that the applicant had not been subjected to beatings. It concluded that the accused officers had not tortured the applicant. 40. On 20 January 2006 the judgment of 27 December 2005 was served on lawyer C.A. As C.A. could not be found in his office, the notification document was left with the mayor of the neighbourhood, in accordance with the provisions of the Law on Notifications. 41. On 21 January 2011 A.K. Özcan, acting on behalf of the applicant, submitted a petition to the Istanbul Assize Court. He maintained that the judgment of 27 December 2005 had been served on a lawyer who had not been involved in the case and asked to be officially served with the judgment in question. 42. On 14 February 2011 another lawyer lodged an appeal with the Istanbul Assize Court, to be submitted to the Court of Cassation, against the judgment of 27 December 2005 on behalf of the applicant, claiming that the judgment of 27 December 2005 had erroneously been served on C.A. 43. On 28 February 2011 the Istanbul Assize Court rejected the petition, holding that C.A. had represented the applicant during the proceedings and his power of attorney was in the case file. It further noted that the judgment had already been served on him and that notification to one of the applicant’s representatives had been sufficient for the judgment to become final. The assize court therefore considered that the appeal dated 14 February 2011 had been submitted outside the time-limit laid down for submission of appeals in Article 310 of the Code of Criminal Procedure. 44. The applicant appealed against the decision of the Istanbul Assize Court. 45. On 22 May 2013 the Court of Cassation upheld the decision of 28 February 2011. 46. According to the documents in the case file, on 18 March 2003 A.S.S. and on an unspecified date A.İ. were dismissed from duty respectively on account of some other criminal convictions. According to the judgment of 27 December 2005 one of the police officers, İ.E., was promoted and became a superintendent during the criminal proceedings brought against him. 47. On 30 April 2002 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and fifteen other individuals. The applicant was charged with leading a criminal organisation and the attempted abduction of Ş.H. and H.H. in order to obtain a ransom. The charges were brought under Article 1 of Law no. 4422 on the Struggle against Profit-oriented Criminal Organisations and Article 499 of the former Criminal Code. The public prosecutor claimed that the applicant had been in possession of a mobile phone while he was in prison, that his conversations had been intercepted by the police following a court decision and that he had given instructions by phone to two of his co-accused for the abduction attempt. In this connection, the public prosecutor referred to the transcripts of the telephone conversations which were included in the investigation file. The public prosecutor further claimed that the applicant had expanded the criminal organisation subsequent to his release from prison and his coaccused had either become members of this organisation or had aided it. In the indictment, the public prosecutor had explained the details of the abduction attempt regarding Ş.H. and H.H., specifying the role of each accused. The applicant was identified as the person who had given the order for this offence to be committed. 48. On 23 July 2002 the Istanbul State Security Court held the first hearing on the merits of the case. During this hearing, the applicant made statements before the court and maintained that he had been tortured while in police custody. He maintained that he had been made to listen to a recording of a telephone conversation by the police and that as he had denied that he had held the conversation in question, he had been tortured. He described the treatment he had allegedly been subjected to in detail and denied the veracity of his police statements. He further submitted that he had not made any phone calls or given instructions when he had been in prison and that these allegations had been invented by the police. He contended that he knew neither his co-accused nor Ş.H. or H.H. During the hearing of 23 July 2002 the applicant’s co-accused also denied the veracity of their police statements, claiming that they had been forced to sign those statements by the police and that they had been ill-treated whilst in police custody. During the hearing, the medical report of 27 March 2002 issued by the Forensic Medicine Institute in respect of the applicant was read out. At the end of the hearing, noting that the applicant had lodged a formal complaint with the Fatih public prosecutor’s office requesting that his allegations of illtreatment be investigated, the Istanbul State Security Court decided to request information from the Fatih public prosecutor as to the outcome of the investigation. 49. During the second hearing in the case, held on 24 September 2002, the applicant once again denied that he had made telephone calls while in prison. One of his lawyers contended that the police reports according to which the applicant had made telephone calls did not reflect the truth and requested his client’s release. At the end of the hearing, as the Fatih public prosecutor’s office had not sent the information requested on 23 July 2002, the first-instance court reiterated its request for information regarding the investigation into the applicant’s allegations of ill-treatment. 50. During the third hearing on 12 December 2002 one of the applicant’s lawyers maintained that it would have been impossible for the applicant to possess a mobile phone whilst detained in an F-type prison. At the end of the hearing, the Istanbul State Security Court once again decided to request information from the Fatih public prosecutor’s office. 51. On 11 March 2003 the fourth hearing in the case was held. During the hearing one of the applicant’s lawyers stated that the information requested from the Fatih public prosecutor’s office had been submitted and the investigation into the applicant’s allegations of ill-treatment was pending. However, the first-instance court neither noted that this document had been submitted nor read it out. 52. During the same hearing, H.H., the son of the person whose abduction had allegedly been ordered by the applicant, made a statement before the trial court and submitted that neither of the accused had been involved in the attempted abduction. During the same hearing, the applicant’s lawyers contended that the only evidence against the applicant was the police statements of his co-accused, which had been obtained through illtreatment and the veracity of which had been denied by each of the accused. 53. On 29 May 2003 the fifth hearing was held, during which the public prosecutor submitted his opinion on the merits of the case and the accused were asked to provide their observations on the public prosecutor’s opinion by the next hearing. During the hearing, the applicant submitted a petition to the first-instance court in which he submitted that he did not have a good relationship with his brother and claimed that he had been the victim of a conspiracy organised by a senior police director who was a friend of his brother. Finally, one of the applicant’s lawyers maintained that the investigation into the applicant’s allegations of ill-treatment was still pending. 54. During the sixth and last hearing in the case, held on 18 July 2003, one of the applicant’s lawyers maintained that there was no evidence against the applicant in the case file other than the statements obtained under torture and that an investigation had been launched into the applicant’s allegations of torture by the Fatih public prosecutor. Another lawyer representing the applicant also made defence statements. He contended that the telephone tapping in question had been illegal and that there had not been a court order authorising it. He further noted that the police statements obtained from the applicant under torture could not be used as evidence. 55. On the same day the Istanbul State Security Court rendered its judgment in the case. The applicant was convicted of leading an armed criminal organisation and of the abduction of Ş.H. and H.H. in order to obtain a ransom as charged and was sentenced to nine years, five months and ten days’ imprisonment. His conditional release in respect of his previous sentence was also revoked. 56. In its judgment, the first-instance court found it established, in the light of the content of the case file as a whole, to which the court repeatedly referred in its reasoning, and the evidence in its possession (which included, inter alia, the following evidence: transcripts of telephone conversations allegedly held by the applicant, material evidence collected where the attempted abduction of Ş.H. and H.H. had occurred, witness statements, the applicant’s and the co-accuseds’ police statements, and statements made to the public prosecutor and a judge at the State Security Court on 27 March 2002), that the applicant had planned the attempted abduction of Ş.H. and had given instructions to two of his co-accused to carry out the abduction in telephone calls he had made using a mobile phone when he was in prison. This telephone had originally been used by other inmates in prison and had been tapped by the police. The police had found out that the applicant had also used it in order to give instructions to the members of his criminal organisation and had subsequently conducted an investigation into the applicant and his coaccused. The first-instance court further noted that, after having assessed all the evidence in the case file, taking into account the legislation and the Court of Cassation’s case-law, it had come to the conclusion that the applicant and his co-accused had already formed a criminal organisation prior to the attempted abduction. The State Security Court therefore found, once again referring to the content of the case file, which included the applicant’s police statements, that the applicant was the leader of the criminal organisation in question and six other co-accused were members of that organisation. 57. On 26 May 2004 the Court of Cassation upheld the judgment. 58. Following the entry into force of the new Criminal Code in 2005, the Istanbul Assize Court reviewed the applicant’s conviction of 18 July 2003 and his sentence in the light of the provisions of the new Code. On 6 April 2006 the assize court amended the applicant’s sentence and imposed on him four years and three months’ imprisonment, holding that the new Code provided more favourable conditions for the applicant. One of the applicant’s lawyers, A.K. Özcan, was present when the assize court pronounced its judgment. 59. On 20 February 2007 the Court of Cassation rejected the applicant’s appeal and upheld the judgment of 6 April 2006. | 1 |
test | 001-183685 | ENG | ROU | CHAMBER | 2,018 | CASE OF AL NASHIRI v. ROMANIA | 3 | Preliminary objections joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-1) Six-month period;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Inhuman treatment);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Impartial tribunal;Independent tribunal;Tribunal established by law);Violation of Article 2+P6-1 - Right to life (Article 2-1 - Death penalty) (Article 1 of Protocol No. 6 - Abolition of the death penalty-{general});Violation of Article 3+P6-1 - Prohibition of torture (Article 3 - Inhuman punishment;Inhuman treatment) (Article 1 of Protocol No. 6 - Abolition of the death penalty-{general});Respondent State to take individual measures (Article 46-1 - Parties to case;Article 46-2 - Individual measures);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Aleš Pejchal;Florin Streteanu;Iulia Motoc;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano | 15. The applicant was born in 1965 and is currently detained in the Internment Facility at the US Guantánamo Bay Naval Base in Cuba 16. It is to be noted that in the present case involving, as the applicant’s previous application before the Court, complaints of secret detention and torture to which he was allegedly subjected during the extraordinary rendition operations by the United States’ authorities (see paragraphs 22-70 and 78-97 below) the Court is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (see Al Nashiri v. Poland, no. 28761/11, § 397, 24 July 2014; see also Husayn (Abu Zubaydah) v. Poland, no. 7511/13, § 397, 24 July 2014). As in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, the facts as adduced by the applicant were to a considerable extent a reconstruction of dates and other elements relevant to his rendition, detention and treatment in the US authorities’ custody, based on various publicly available sources of information. The applicant’s version of the facts as stated in his initial application of 1 June 2012 evolved and partly changed during the proceedings before the Court (see paragraphs 115-116 below). The respondent Government contested the applicant’s version of the facts on all accounts, maintaining that there was no evidence demonstrating that they had occurred in Romania (see paragraphs 395-402 and 419-443 below). 17. Consequently, the facts of the case as set out below (see paragraphs 98-164 below) are based on the applicant’s account supplemented by various items of evidence in the Court’s possession. 98. As regards the events preceding the applicant’s secret detention in Poland, i.e. his capture in Dubai, United Arab Emirates, and initial detention from the end of October 2002 to 4 December 2002, in Al Nashiri v. Poland (§§ 401 and 404) the Court held as follows: “401. The Court notes that the CIA official documents clearly confirm that by November 2002 the Agency had the applicant and Mr Abu Zubaydah, both referred to as ‘High-Value Detainees’, in its custody and that they were interrogated at a CIA black site with the use of the EITs – the applicant immediately after his arrival at that place on 15 November 2002 ... . ... 404. In the light of the above first-hand CIA documentary evidence and clear and convincing expert evidence, the Court finds established beyond reasonable doubt that the applicant, following his capture, was detained in the CIA detention facility in Bangkok from 15 November 2002 to 4 December 2002, that Mr Abu Zubaydah was also held in the same facility at that time and that they were both moved together to ‘another CIA black site’ on 4 December 2002 (see Husayn (Abu Zubaydah), cited above, § 404).” The experts, Mr J.G.S and Senator Marty, heard by the Court at the fact-finding hearing in Al Nashiri v. Poland, identified the detention facility as the one known under the codename “Cat’s Eye” or “Catseye” and located in Bangkok, Thailand (see Al Nashiri v. Poland, cited above, § 403). At “Cat’s Eye” the CIA subjected the applicant to the EITs, including waterboarding from 15 November to 4 December 2002 (ibid. §§ 86-88). 99. As regards the early period of the applicant’s detention, the 2014 US Senate Committee Report includes the following information. It indicates the date of the applicant’s capture as “mid-October 2002”. According to the report, at that time “he provided information while in custody of a foreign government”. On an unspecified date – i.e. redacted in the 2014 US Senate Committee Report – in November 2002 he was rendered by the CIA to a secret detention site code-named “Detention Site Cobalt”. In Al Nashiri v. Poland that site is referred to as being code-named “Salt Pit” and located in Afghanistan (see Al Nashiri v. Poland, cited above, §§ 83-84). The report states that he was held at that site briefly, for a number of days (redacted in the report), before being transferred to another detention site, identified in Al Nashiri v. Poland as “Cat’s Eye” in Thailand (see paragraph 97 above). In the 2014 US Senate Committee Report that facility is referred to as “Detention Site Green”. The report further states that: “In December 2002, when DETENTION SITE GREEN was closed, Al Nashiri and Abu Zubaydah were rendered to DETENTION SITE BLUE.” 100. As regards the events after 4 December 2002, in Al Nashiri v. Poland (§ 417) the Court held: “417. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that: (1) on 5 December 2002 the applicant, together with Mr Abu Zubaydah, arrived in Szymany on board the CIA rendition aircraft N63MU; (2) from 5 December 2002 to 6 June 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename ‘Quartz’ and located in Stare Kiejkuty; (3) during his detention in Poland under the HVD Programme he was interrogated by the CIA and subjected to EITs and also to unauthorised interrogation techniques as described in the 2004 CIA Report, 2009 DOJ Report and the 2007 ICRC Report; 4) on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P.” 101. The events that took place between 5 December 2002 and 6 June 2003 at the CIA detention facility identified in Al Nashiri v. Poland as being code-named “Quartz” and located in Poland, including the use of unauthorised interrogation techniques against the applicant, correspond to the events that the 2014 US Senate Committee Report relates as occurring at “Detention Site Blue”. 102. The 2014 US Senate Committee Report has established that “beginning in June 2003, the CIA transferred Al Nashiri to five different CIA detention facilities before he was transferred to US military custody on 5 September 2006”. 103. On the basis of their investigations, research and various material in the public domain the experts heard by the Court at the fact-finding hearing reconstructed the chronology of the applicant’s transfers and identified countries of his secret detention. 104. Mr J.G.S. stated that the applicant was transported from Poland first to Morocco, second to Guantánamo Bay, third to Romania, then to the fourth site – which, according to him, was with a high degree of probability Lithuania – before being transferred to Afghanistan, the fifth “black site” and, finally back to Guantánamo Bay. In particular, Mr J.G.S. testified as follows: “... [I]n respect of Mr Al Nashiri, it is stated explicitly and unredacted in the Senate Report that from June 2003 Al Nashiri was moved to five different detention facilities before his ultimate transfer to Guantánamo Bay in September 2006. This provides us with a precise timeframe, June 2003 to September 2006, and it provides us with a precise number of transfers which we then have to correlate with his interrogation schedule and the available flight data to determine where he was held. It is on that basis that we have been able to arrive at the conclusion that he was transported from Poland first to Morocco, then onwards to Guantánamo Bay, then onwards to Romania, to one further site, and with a high degree of probability, Lithuania, before being transferred back to Afghanistan as no. 5, and finally to Guantánamo Bay. There are very limited possibilities as to where the CIA could take its detainees because it always maintained a very small range of sites, and because the planes are the same, they operate upon systematic methodologies, notably dummy flight planning, switching of aircraft and all the other tactical elements described. One can narrow down that probability to a certitude, with the right rigour of investigation, and it is that which we have applied to arrive at these conclusions, which have subsequently been validated in the official record.” 105. In the light of the material in the Court’s possession the chronology of the applicant’s detention can be described as follows. 106. In Al Nashiri v. Poland the Court established, inter alia, that in the light of the accumulated evidence, “there [could] be no doubt that the N379P, also known as “Guantánamo Express”, a Gulfstream V with capacity for eighteen passengers but usually configured for eight, arrived in Szymany on 5 June 2003 at 01:00 from Kabul, Afghanistan. It stayed on the runway for over two hours and then departed for Rabat, Morocco” (see Al Nashiri v. Poland, cited above, § 408). It was also established that it had been one of the most notorious rendition aircraft used by the CIA for transportation of its prisoners. The plane N379P set off from Dulles Airport, Washington D.C. on Tuesday 3 June at 23:33 GMT and undertook a four-day flight circuit, during which it landed in and departed from six different foreign countries including Germany, Uzbekistan, Afghanistan, Poland, Morocco and Portugal. The aircraft returned from Portugal back to Dulles Airport on 7 June 2003 (ibid. §§ 103-106 and 291-292). 107. Mr J.G.S. at the fact-finding hearing testified as follows: “As was established in the earlier proceedings, Al Nashiri was taken from Poland to Morocco, to the facility near Rabat in June of 2003, arriving there on 6 June 2003. And after detention there for a period of only 3 months, he was then transferred to the CIA secret facility at Guantánamo Bay. The declassified Senate Committee Report provides extensive detail on the evolution of CIA operations in respect of Morocco and Guantánamo Bay, notably in this passage it refers specifically to Al Nashiri as having been transferred out of a country which is identifiable as Morocco, to the CIA detention facility at Guantánamo Bay, Cuba, after a period of five months beyond the original agreed timeframe. This passage resides within a section of the report which describes difficult and sometimes acrimonious relations between the CIA and its Moroccan counterparts, and it is evident that, in fact, the date, redacted in this passage, is September 2003, which is precisely the time at which our flight information demonstrates an aircraft arriving in Morocco and transporting detainees onwards to Guantánamo Bay.” 108. According to Mr J.G.S., the plane N379P took the applicant, together with another CIA detainee, Ramzi bin al-Shibh, from Szymany, Poland to Rabat, Morocco, to a facility lent to the CIA by their Moroccan counterparts. He testified as follows: “The starting point in assessing Al Nashiri’s own chronology of secret detention in these proceedings should be Poland, because we have it confirmed, as a matter of judicial fact, that Al Nashiri was detained in Poland, having been transported there on the flight of N63MU from Bangkok to Szymany on 4 and 5 December 2002. So he found himself in Poland at the end of 2002, during which he was subjected to all the documented abuse, the enhanced interrogation techniques and the unauthorised techniques described in the earlier proceedings, into the calendar year 2003. In the earlier proceedings we presented a range of flights which brought detainees into Poland. However, the first flight which took detainees out of Poland occurred on 5 and 6 June 2003. Based upon, now, the confirmations in the Senate Committee Report, we can see this outward flight from Poland as the starting point of Mr Nashiri’s next chronology of detention. It is stated explicitly June 2003, from that point onwards, Mr Nashiri was detained in five further sites before ultimately being transferred to Guantánamo in September 2006. The flight on 5 June 2003 took Mr Nashiri, together with another CIA detainee, Ramzi bin al-Shibh, to Rabat, Morocco. Rabat, Morocco, at that time was a facility lent to the Agency, to CIA, by their Moroccan counterparts. It was a facility which resided within the Moroccan system, and it is described in explicit detail in the Senate Report. That facility was the same place to which some persons from Guantánamo would be later taken back, but I will explain why Mr Nashiri was not one of those, with reference to the same material. In 2003, according to the report, it was allowed to operate until September, at which point relations became acrimonious and certain conditions were placed upon it. The CIA collected its detainees who were housed there, which included Mr Al Nashiri, on 23 September 2003 in the rendition circuit I demonstrated. That is the date confirmed from the CIA’s own reporting, and the flight confirmed through our investigations, the rendition circuit I demonstrated. So we are now taking Mr Nashiri from Poland to Morocco as number 1, Guantánamo as number 2.” 109. The 2014 US Senate Committee Report’s section entitled “Country [name redacted] Detains Individuals on the CIA’s Behalf”, in so far as relevant, reads as follows: “Consideration of a detention facility in Country [name blackened] began in [month blackened] 2003, when the CIA sought to transfer Ramzi bin al-Shibh from the custody of a foreign government to CIA custody [blackened] which had not yet informed the country’ political leadership of the CIA’s request to establish a clandestine detention facility in Country [blackened], surveyed potential sites for the facility, while the CIA set aside [USD] [number blackened] million for its construction. In 2003, the CIA arranged for a ‘temporary patch’ involving placing two CIA detainees (Ramzi bin al-Shibh and Abd al-Rahim al-Nashiri) within an already existing Country [blackened] detention facility, until the CIA’s own facility could be built. ... By [day/month blackened] 2003, after an extension of five months beyond the originally agreed upon timeframe for concluding CIA detention activities in Country [blackened], both bin al-Shibh and al-Nashiri had been transferred out of Country [blackened]| to the CIA detention facility at Guantánamo Bay, Cuba.” 110. According to Mr J.G.S, on 23 September 2003 the applicant was transported from Rabat to Guantánamo Bay on the plane N313P. Mr J.G.S., in the course of the above mentioned PowerPoint presentation at the fact-finding hearing (see paragraphs 18 above and 367-376 below), gave the following details concerning N313P’s circuit of 20-24 September 2003: “Having departed from Washington, this aircraft, ... N313P, flew to Prague in the Czech Republic for a stopover before heading eastward to Tashkent, Uzbekistan, where dissident detainees, handed over to the CIA by local intelligence services, were rendered to secret detention in Kabul. From Kabul, on 21 September 2003, the aircraft transported several detainees out of detention in Afghanistan towards detention in Europe. The first stop in Europe was the detention site at Szymany, in northern Poland, which was explicitly described in the [Al Nashiri v. Poland and Husayn (Abu Zubaydah ) v. Poland] proceedings, and this circuit is unprecedented and indeed unique because it is the only occasion on which a rendition flight carrying CIA detainees left one European site and flew directly to another European detention site, in this case in Bucharest, Romania. ... From Bucharest, the rendition plane carried further detainees out to Rabat. These were persons who had boarded on earlier legs, not persons leaving Romania, and from Rabat to Guantánamo Bay, where for four months, in late 2003 and early 2004, the CIA operated a secret detention facility apart from the larger military facility at Guantánamo Bay.” 111. As established in Husayn (Abu Zubaydah) v. Poland, the plane N313P landed in Szymany, Poland on 22 September 2003 en route from Kabul, Afghanistan. On that day Mr Abu Zubaydah was transferred by the CIA from Poland on board that plane. The plane set off from Dulles Airport in Washington, D.C. on Saturday 20 September 2003 at 22h02m GMT and undertook a four-day flight circuit, during which it landed in and departed from six different foreign countries, as well as the U.S. Naval Base at Guantánamo Bay. These six countries, in the order in which the aircraft landed there, were: the Czech Republic, Uzbekistan, Afghanistan, Poland, Romania, and Morocco. The aircraft flew from Rabat, Morocco to Guantánamo Bay on the night of 23 September 2003, landing there in the morning of 24 September 2003. 112. In Husayn (Abu Zubaydah) v. Poland (see § 312) Mr J.G.S. gave the following account of the “final rendition circuit” through Poland executed by the N313P plane, a Boeing 737, on 22 September 2003: “One flight circuit however is of particular significance and this is the final part of our presentation in which we would like to discuss how the detention operations in Poland were brought to an end. In September 2003 the CIA rendition and detention programme underwent another overhaul analogous to the one which had taken place in December 2002 when Mr Nashiri and Mr Zubaydah were transferred from Thailand to Poland. On this occasion, the CIA executed a rendition circuit which entailed visiting no fewer than five secret detention sites at which CIA detainees were held. These included, in sequence, Szymany in Poland, Bucharest in Romania, Rabat in Morocco and Guantánamo Bay, a secret CIA compartment of Guantánamo Bay, having initially commenced in Kabul, Afghanistan. On this particular flight route, it has been found that all of the detainees who remained in Poland at that date were transferred out of Poland and deposited into the successive detention facilities at the onward destinations: Bucharest, Rabat and Guantánamo. Among those persons was one of the applicants today, Mr Zubaydah, who was taken on that date from Poland to Guantánamo Bay. This particular flight circuit was again disguised by dummy flight planning although significantly not in respect of Poland. It was the sole official declaration of Szymany as a destination in the course of all the CIA’s flights into Poland. The reason therefor being that no detainee was being dropped off in Szymany on the night of 22 September and the methodology of disguising flight planning pertained primarily to those renditions which dropped a detainee off at the destination. Since this visit to Szymany was comprised solely of a pick-up of the remaining detainees, the CIA declared Szymany as a destination openly and instead disguised its onward destinations of Bucharest and Rabat, hence demonstrating that the methodology of disguised flight planning continued for the second European site in Bucharest, Romania and indeed for other detention sites situated elsewhere in the world.” 113. The Romanian Civil Aeronautical Authority (Autoritatea Aeronautică Civilă Română – “RCAA”), in its letter of 29 July 2009 (“RCAA letter”) stated that N313P’s itinerary was: Szczytno Airport (which is located in Szymany, Poland) – Constanţa Airport but the airport in Romania at which it landed was Băneasa Airport in Bucharest (see also paragraph 324 below). 114. The 2014 US Senate Committee Report, in the section entitled “US Supreme Court Action in the case of Rasul v. Bush Forces transfer of CIA detainees from Guantánamo to Bay to Country [name blackened]” (see also paragraph 61 above), states: “Beginning in September 2003, the CIA held a number of detainees at CIA facilities on the grounds of, but separate from, the U.S. military detention facilities at Guantánamo Bay, Cuba. In early January 2004, the CIA and the Department of Justice began discussing the possibility that a pending U.S. Supreme Court case Rasul v. Bush, might grant habeas corpus rights to the five CIA detainees then being held at a CIA detention facility at Guantánamo Bay. Shortly after these discussions, CIA officers approached the [REDACTED] in Country [REDACTED] to determine if it would again be willing to host these CIA detainees, who would remain in CIA custody within an already existing Country [REDACTED] facility. By January [day REDACTED] 2004, the [REDACTED] in Country [REDACTED] had agreed to this arrangement for a limited period of time. Meanwhile, CIA General Counsel Scott Muller asked the Department of Justice, the National Security Council, and the White House Counsel for advice on whether the five CIA detainees being held at Guantánamo Bay should remain in Guantánamo Bay or be moved pending the Supreme Court’s decision. After consultation with the U.S. solicitor general in February 2004, the Department of Justice recommended that the CIA move four detainees out of a CIA detention facility at Guantánamo Bay pending the Supreme Court’s resolution of the case. The Department of Justice concluded that a fifth detainee, Ibn Shaykh al-Libi, did not need to be transferred because he had originally been detained under military authority and had been declared to the ICRC. Nonetheless, by April [redacted two-digit number] 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities.” 115. In his application lodged on 1 June 2012 the applicant submitted that sometime between 6 June 2003 and 6 September 2006 Romania had hosted a secret CIA prison, codenamed “Bright Light” and located in Bucharest. The applicant’s rendition and secret detention were related as follows: “Mr Al Nashiri was captured in Dubai in the United Arab Emirates in October 2002. By November 2002, he had been secretly transferred to the custody of the CIA. He was held in various secret locations before being detained in Romania. US agents first took him to a secret CIA prison in Afghanistan known as the ‘Salt Pit’. In Afghanistan, interrogators subjected him to ‘prolonged stress standing positions’, during which his wrists were ‘shackled to a bar or hook in the ceiling above the head’ for ‘at least two days’. US agents then took him to another secret CIA prison in Thailand, where he remained until 5 December 2002. According to a United Nations Report, on 5 December 2002, the CIA transported Mr Al Nashiri on a chartered flight with tail number N63MU from Bangkok to a secret CIA detention site in Poland. On or about 6 June 2003, Polish authorities assisted the CIA in secretly transferring Mr. al Nashiri from Poland. ... After his transfer out of Poland, between 6 June 2003 and 6 September 2006 Mr Al Nashiri was held in various secret detention facilities abroad, including a CIA prison in Bucharest, Romania. He was transferred to Guantánamo Bay by 6 September 2006.” As for the possible date of his rendition to Romania during the period between 6 June 2003 and 6 September 2006 the applicant mentioned 22 September 2003, i.e. the date on which the aircraft N313P executed its “final rendition circuit” through Poland, via Romania and Morocco (see paragraph 115 above). In that regard, he referred to the 2007 Marty Report (see also paragraphs 257-265 below), which had identified N313P as a “rendition plane” and which, according to the flight plans of 22 September 2003 and the Romanian officials, had had as its destination Constanţa and Bucharest. 116. In further observations filed by the applicant’s representatives on 26 April 2013, it was stated that he had been transferred to a CIA “black site” in Romania on the plane N85VM from Guantánamo Bay to Bucharest on 12 April 2004. It was explained that that fact had emerged from a dossier submitted by Mr Hammarberg, the former Council of Europe’s Commissioner for Human Rights, to the Prosecutor General of Romania (see also paragraphs 334-336 below). The dossier and new information about the applicant’s transfers in CIA custody had not been publicly available earlier. 117. The above-mentioned dossier produced by Mr Hammarberg states that on 12 April 2004 the applicant was transferred to the CIA “black site” in Romania on the N85VM flight from Guantánamo Bay to Bucharest. It further states that N85VM landed at 21h47m GMT on the night of 12 April 2004 and was assessed to have been bringing in CIA detainee(s) from the US Naval Base, Guantánamo Bay via a technical stopover in Tenerife, with a false – “dummy” – flight plan filed featuring Constanţa instead of its real destination, which was Bucharest (see paragraphs 334-336 below). 118. The Romanian Government submitted a set of six documents originating from the Romanian Airport Services (“RAS”) at Băneasa – Bucharest City Airport, described as “annex no. 8” to the 2007 Romanian Senate Report (see also paragraph 164 below), which were examined in the course of the Parliamentary inquiry in Romania. They initially asked that that the annex be treated as confidential. At the fact-finding hearing, the Government submitted that they no longer wished the Court to maintain its confidentiality (see paragraph 12 above). The first document, invoice no. 386 dated 13 April 2004, was issued by the handling agent of the RAS for Richmor Aviation and indicated an amount charged of 1,255.00 euros (EUR) due for ground services (basic handling, landing fee, lighting fee and navigation services) relating to the N85VM landing. The second document, ground handling note no. 0036904 dated 12 April 2004 indicated the same amount. The third document was a copy of an Air Routing card issued for Richmor Aviation. The fourth document, air navigation services sheet no. 906 dated 12 April 2004 included navigation services charges. It indicated that N85VM landed at Băneasa Airport at 21h50m on 12 April 2004 and departed at 22h45m on the same day. The fifth document was a partly illegible table containing landing fees for several planes, including N85VM. The sixth document – a control list of navigation records indicated, among other things, the N85VM landing on 12 April 2004 at 21h47m. 119. In the course of the PowerPoint presentation Mr J.G.S. testified as follows: “...[T]he transfer date of Al Nashiri to Romania was 12 April 2004. Our investigations have provided evidence that this transfer took place directly from Guantánamo Bay to the ‘black site’ in Bucharest, Romania. Again, the [US] Senate Committee Report, albeit using code names, coloured code names for the sites in question, describes explicitly where particular detainees were at particular times, and in this passage highlighted, in describing the closure of the Guantánamo Bay facility in the face of probable exposure due to a Supreme Court assessment of the legality of their detention, it states that ‘by a date in April 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities’. The use of ‘facilities’ here in the plural is very important, because the principal destination for those held by the CIA at Guantánamo was in fact back to the facility in Morocco from whence they had come. However, as the Senate inquiry made clear, not all of those held at Guantánamo went back to Morocco, and indeed the date cited here, 12 April 2004, coincides with the flight of N85VM aircraft from Guantánamo to Băneasa, Bucharest, in Romania. This is the flight circuit, again it is backed up by a tranche of documentary evidence which I am prepared to provide to the Court, and in particular this graphic demonstrates that there were two distinct transfers out of Guantánamo. The first on 27 March 2004 carried detainees from Guantánamo back to Rabat, Morocco. The second of these, which is of our principal interest, transported one or more detainees, among them Al Nashiri, via a stopover in Tenerife onto Romania. I have put together a graphic to illustrate that, once again, the CIA had recourse to its systematic practice of disguised flight planning in respect of this flight. We reached a point in our investigations, Madam President, where evidence of dummy flight planning in fact became a tell-tale sign of rendition or detainee transfer activity on such flights. So it is significant, as I will demonstrate, that this was not a simple circuit. The aircraft embarked from Washington and flew to Guantánamo Bay, whereupon the blue line demonstrates the first part of the detainee transfer from Guantánamo to Tenerife, a flight planned and executed. From Tenerife, however, the aviation services provider, in this case Air Rutter International from Houston, Texas, filed a dummy flight plan to the alternative Romanian destination of Constanţa, on the Black Sea Coast. The aircraft, however, flew and landed at Bucharest Băneasa Airport, as documentation from the Romanian authorities demonstrates. It is this flight, depicted here with the blue line, that carried Al Nashiri to detention in Bucharest. From Bucharest, the aircraft flew back to Rabat, Morocco, and it is apparent premise that one or more detainees from the Romanian site, detained prior to April 2004, was at that point taken from Bucharest back to detention in Morocco, after which the aircraft returned to its base at Washington D.C. We have been able to uncover this and other flights planned through the network of private contractors, thanks to a large amount of documentation filed in court proceedings in civil courts in New York State, whereupon several US aviation service providers, contracted to the CIA, ended up in a financial dispute. The case in question, Sportsflight Inc. against [sic] Richmor Aviation, in fact concerns the CIA’s chief aviation contractor, Computer Sciences Corporation, formerly DynCorp, its use of a prime aviation contractor known as Sportsflight Air, previously Capital Aviation, which in turn subcontracted its government mandates to a private company called Richmor Aviation, who were the owners and operators of the aircraft N85VM. I appreciate that this web of corporate relations is quite difficult to understand on its face, but over several years, myself and other investigators have carefully unpicked these relationships to provide the direct link between the tasking of the United States Government on government contracts through the CIA’s rendition group air branch, all the way down to the pilots, crew members and operators of the aircraft in question. It is unambiguously and categorically the case that these are rendition aircraft, operated for the sole purpose of transferring detainees between ‘black sites’ in the CIA’s RDI programme. The flight of N85VM, on the dates in question, belongs in that category.” 120. As regards the circumstances surrounding the applicant’s transfer from Guantánamo to Romania, Mr J.G.S. testified at the fact-finding hearing as follows: “The Guantánamo site operated only for a finite period. As I mentioned, it was due to the judicial scrutiny of the Supreme Court with a case pending in Rasul v. Bush, which was likely to expose CIA detainees to the same reporting obligations, but also the same rights, that detainees in other forms of federal custody would enjoy, and so the CIA deliberately took action to remove its detainees from such scrutiny in advance of the Supreme Court ruling. The Senate Committee Report describes this process, based upon cables and other classified material, and states that by April 2004, the date I assert, 12 April 2004, all of those detainees who were held in Guantánamo were moved out. There were two flights, as I demonstrated, which formed part of this removal process, the first on 27 March 2004, the second on 12 April 2004. But the first of those only went to Rabat, Morocco, and if you recall, the Committee described, based upon its assessment of interrogation schedules, that Mr Nashiri had been to five different sites in that 3-year timeframe, and in order for him to be in five different sites, he, at that moment, could not have gone back to Morocco, because there are not sufficient documented instances of rendition which link the territories in question, Guantánamo, Rabat and Bucharest, in the timeframe in which the report confirms Mr Nashiri’s tour of the sites. The 12th April 2004 site was the sole outward flight linking Guantánamo to Romania. From the report, from the cables regarding Mr Nashiri’s treatment and physical and psychological state, we know that he found himself in Romania in the 3rd quarter and 4th quarter of 2004, and in July 2005, there were specific notes made upon his state and status in those date frames. In order for him to have been in Romania at Detention Site Black or ‘Britelite’ by that time, he had to be brought to Romania on flight N85VM on 12 April 2004. It is a process of elimination, but it is also a process of correlation, which very clearly links to documents filed by contractors, corresponds with the international aviation data that we have analysed, corresponds with the tactics of dummy flight planning and disguise, and ultimately is validated in the public record by the Senate Report.” 121. Mr Black, referring to the applicant’s alleged rendition to Romania testified as follows: “I am aware of two possible flights that could have taken the applicant Al Nashiri into Romania, that [a flight with the tail number N85VM], is one of them. There is a potential other one that occurred in February 2005. We know for a fact that he was in Romania after February 2005, we know from cables referenced in the Senate Report that he was in Romania in June 2005. There are indications that he was held in Romania before that, in late 2004, which leads me, of the two possibilities, that leads me to prefer the April 2004 flight as being the more likely of the two. In terms of my own research, I would say that there is a small ambiguity on that point, I am not prepared to say that the data I have at my fingertips conclusively demonstrates that he was taken on the April flight in 2004 rather than the February one in 2005. I think the balance of probability does lie in favour of that. However, whichever of the two it is, there is no doubt that he was in Romania by the summer of 2005.” 122. The applicant submitted that throughout his detention by the CIA he had been subjected to torture and other forms of ill-treatment prohibited by Article 3 of the Convention. 123. On 15 June 2016 the US authorities disclosed to the public a second, less redacted version of the transcript of the hearing held by the Combatant Status Review Tribunal in Guantánamo on 14 March 2007 (for the first, more extensively redacted version see Al Nashiri v. Poland, cited above, §§ 112-113; see also paragraphs 142-143 below). During that hearing the applicant described the treatment to which he had been subjected in CIA custody from his capture in November 2002 to his transfer to Guantánamo in September 2006. The relevant part of that transcript read, as follows: “From the time I was arrested five years ago, they have been torturing me. It happened during interviews. One time they tortured me one way and another time they tortured me in a different way. By hanging, head was up and legs were pointing downwards. I was hung for almost a month. You doing your things basically and you were hung upside down and drowning and hitting at the wall. There are many scars on my head if I shave my head. If I shave my hair the scars will become obvious. What else do I want to say? I was without clothes. I was sleeping on the floor for about a month. Many things happened. There were doing so many things. What else did they did? There a box half meter by half meter. It was two meters in height They used to put me inside the box. I was standing in that box for about a week and I couldn’t do anything. My feet were swollen. My nails were about fall off because, I was standing on my feet for long time. They do so many things. So so many things. What else did they did? That thing lasted for about six month[s]. After that another method of torture began. They use to put something in the food that use to make the body tired. Before I was arrested I used to be able to run about ten kilometers. Now, I cannot walk for more than ten minutes. My nerves are swollen in my body. Swollen too. They used to ask me questions and the investigator after that used to laugh. And, I used to answer the answer that I knew. And, if I didn’t reply what I heard, he used to put something in my food. And, after I ate it my body felt like, um, strange. After that he used to come back and talk to me. He told you he put anything in the food. He used to deny that but the camera was behind him. And; I would stand in front of the camera and he used to tell you that because camera was on. He could not deny anything. You have to acknowledge to what we are saying. And, I used to say acknowledge what? They used to ask even political questions. One is the solution to the American problem in Iraq. I’m not the American Foreign Minister to answer these questions. So they used to go and put some stuff in my food. These things happen for more than two years. That thing did not stop until here. So many things happened. I don’t in summary, that’s basically what happened. Then, the President of the Combatant Status Review Tribunal says: Alright. Let me ask. So then since the time of capture 2002 until you came to Guantánamo you experienced these types of events? The applicant responds: Yes.” 124. At the fact-finding hearing Mr J.G.S. made the following statements concerning the treatment to which the applicant could be subjected during his alleged detention in Romania: “I find myself somewhat more limited in my ability to describe specific forms of treatment or interrogation techniques to which Mr Nashiri was subjected in Romania than was the case in respect of Poland. And that is because of the natural evolution of the detention cycles to which CIA detainees were subjected. In pursuit of what was described as ‘live actionable intelligence’, the CIA developed its most stringent, harsh interrogation plans for the earliest days and weeks of a detainee’s period in its detention system. Usually, within one to three days of being apprehended, the chief of base at the ‘black site’ in question would appeal to CIA headquarters for authorisation to practise EITs, so called ‘enhanced interrogation techniques’. This was the case in respect of Abu Zubaydah, this was the case in respect of Al Nashiri, this was the case in respect of Khalid Sheikh Mohammed, this we know because of the Inspector General’s reports. As soon as a detainee was in custody, in Abu Zubaydah’s case, was fit enough to undergo interrogation, that plan would commence. We know that Al Nashiri underwent twelve days of harsh interrogation in Thailand including the waterboard, and we know that upon transfer to Poland, because he was assessed as having withheld information or not been compliant, he was then subjected to an intensive period of harsh interrogation during with multiple, unauthorised techniques were used. Those were documented in the earlier proceedings [Al Nashiri v. Poland]. But there arrives a juncture in a CIA detainee’s detention at which his intelligence value is assessed as lower, at which no further approval or authorisation is sought or granted to practise these enhanced interrogation techniques, and in Al Nashiri’s case we can only say that that point arrived sometime in 2003. Thereafter, it is, in my assessment and according to the documentary record, unlikely that the CIA practised further unauthorised techniques or indeed concerted programmes of enhanced interrogation on Mr Nashiri. However, that is not to say that he was not subjected to abuse or indeed that the conditions of his confinement did not amount to violations of the European Convention. In respect of those two latter points, I would aver quite clearly that the treatment did amount to violations of the Convention, purely by virtue of the conditions in which he was held and because of the regular interventions made by persons at the ‘black site’ to gratuitously abuse, punitively or otherwise, certain detainees in their custody. I can give you analogous examples of how detainees were treated in Romania. Hassan Ghul, for example: there is a lengthy description of his having endured 59 hours of sleep deprivation, having been shaved and barbered, stripped naked, placed in standing positions with his hands above his head. There are descriptions of how, notwithstanding medical and psychological problems diagnosed by professionals at the scene, he was subjected to further interrogation to the point of enduring hallucinations. I could also cite the example of Janat Gul, a detainee for whom the CIA sought authorisation to use the waterboard in Romania, an unprecedented move, and who was subsequently subjected to an intensive period of enhanced interrogation in the same site at which Al Nashiri was held. I could also cite the case of Abu Faraj al-Libi who was captured in 2005 and even at that point, three years and more into the programme, was subjected to the same litany of abusive techniques in interrogating him as Al Nashiri and others had been subjected to in 2002 and 2003. And I could also cite, too, some memoranda produced by the CIA General Counsel’s office in the material period in which Al Nashiri was held in Romania, which described conditions of confinement, sensory deprivation as a matter of routine, denial of religious rights, physical and psychological oppression, sleep deprivation as a matter of course, notwithstanding whether a detainee is subject at that time, or not, to EITs. So whilst I cannot give the same level of specificity as I was able to present in respect of Poland, I can aver with a high level of certainty that he endured ill-treatment whilst held in Romania because, in my view, every one of those detainees brought to Romania, held incommunicado, indefinitely, with no idea of their whereabouts or their fate, subjected to frequent renditions, shackled, drugged, often beaten in the process, every one of those persons would have a legitimate claim under our European Convention on Human Rights for violation of their personal integrity.” 125. Mr Black testified as follows: “The question of precise types of treatment is, I would not say it is my specific expertise. It is clear from the Senate Report and other sources that treatment in Romania included very extreme sleep deprivation, which apparently led some of those who suffered it to have very severe mental and physical problems, and it is clear also that the applicant, Mr Nashiri, in particular when he was in Romania, was experiencing serious, let’s say, psychological problems as a result of the treatment that he had received. But my, and I should say also it is clear that around that time, between 2003 and 2005, it is firmly on the record that there were a range of treatments being applied to these people, that the enhanced interrogation techniques were being applied, I think this has all been quite well documented, but it is not really my topic of expertise, I would not say.” 126. Citing as a source two CIA cables of 23 May 2004, the 2014 US Senate Committee Report states that “at one point Al Nashiri launched a short-lived hunger strike that resulted in the CIA feeding him rectally” (see also paragraph 158 below). Referring to an email to Detention Site Black dated 30 October 2004 on the subject “Interrogator Assessments/Request for Endgame Views”, the report states that “an October 2004 psychological assessment of Al Nashiri was used by the CIA to advance its discussions with National Security Council officials on establishing an “endgame” for the [HVD] program” 127. The 2014 US Senate Committee Report further refers to the applicant’s detention at Detention Site Black in June and July 2005 as follows: “In the final years of al-Nashiri’s detention, most of the intelligence requirements for al-Nashiri involved showing al-Nashiri photographs. In June 2005, the DETENTION SITE BLACK chief of Base suspended even these debriefings because it was ‘the very, very rare moment’ that al-Nashiri would recognize a photograph, and because the debriefings often were the ‘catalyst’ for his outbursts.” It also states, with reference to a cable of 5 July 2005, that in July 2005 CIA Headquarters expressed concern regarding Al Nashiri’s “continued state of depression and uncooperative attitude”. Days later a CIA psychologist assessed that the applicant was on the “verge of a breakdown” (see also paragraph 158 below). 128. In his initial submissions the applicant submitted that no later than 6 September 2006 the Romanian authorities had assisted the CIA in secretly transferring him from Bucharest to another CIA “black site”. 129. The experts gave two possible dates for the applicant’s rendition from Romania: 6 October 2005 and 5 November 2005. According to them, the latter date was the final closure of the CIA “black site” on Romania’s territory, prompted by the publication of Dana Priest’s article “CIA Holds Terror Suspects in Secret Prisons” suggesting that such prisons operated in Eastern European countries on 2 November 2005 (see also paragraph 236 below). 130. In the course of the PowerPoint presentation Mr J.G.S. testified as follows: “In terms of [the Black Site in Romania’s] closure, it is stated in the [2014 US Senate Committee Report] that after the publication of the Washington Post article, that is the piece of reporting, the Pulitzer Prize-winning article by Dana Priest, ... dated 2 November 2005, the authorities of this country demanded the closure of Detention Site Black within a number of hours fewer than 100. We can see that from the redaction, it does not state exactly how many hours, but it is no more than four days. And in fact, as I described, 5 November 2005, using its practices of dummy flight planning and a further disguise which I will demonstrate shortly, the CIA transferred all of its remaining CIA detainees out of the facility within this time period. Again, as stated, flights into and out of Romania correspond exactly with the narrative described in the report. It might be pointed out, in relation to this specific package, that in order for the authorities of the host country to demand the closure of a detention facility, they must have known of its existence. Furthermore, in light of the report in The Washington Post, which went into intimate detail of the CIA’s operations including the forms of ill-treatment and interrogation to which detainees therein were subjected, it follows that the authorities of the host country of Detention Site Black – and let me be clear – that is the authorities of Romania, must have known of the nature of operations occurring on their territory. The question has often been posed to us, Honourable Judges, if there were detainees in Romania, how did they leave? There appeared to be no obvious direct flights out of Romania in the critical period, October, November 2005, to any other detention site we were aware of, and this was often put forward by representatives of the Romanian authorities as a reason for decrying, for rejecting, for refuting the content of our reporting [i.e. at the time of the publication of the 2006 and the 2007 Marty Reports]. We have, however, now ascertained how detainees were removed from Romania, and this occurred in two tranches in the months of October 2005 and, as stated, November 2005. I have chosen to illustrate the first of these transfers, which occurred between 5 and 6 of October 2005, because it provides a further segue into detention operations on the territory of another Council of Europe Member State, in this case Lithuania. The CIA used two tactics of deceit in order to provide these flights with the maximum degree of cover, in order that they could not and would not be tracked, traced or held to account. The first of those was its conventional dummy flight planning, but the second of those was a novel tactic involving switching of aircraft. This graphic will demonstrate how this was deployed on 5 and 6 October 2005, involving two aircraft, namely N308AB and N787WH. The first of those aircraft is depicted by red lines, the second by blue, on the graphic, the other symbols follow the earlier pattern of drop-off, transfer and stopover points. The two planes arrived in Europe, the first [N308AB] from provenance of Teterboro, New Jersey, the second [N787WH] from provenance of Keflavik in Iceland on 5 October 2005. While the first flew to Bratislava, in Slovakia, the second flew directly to Tirana, Albania, which would become the staging point for these operations. The first dummy flight plan, filed by the CIA’s aviation services provider, stated a path for N308AB from Bratislava to Constanţa airport, a route which it did not, nor did it intend, to fly. The aircraft instead flew directly to Bucharest Băneasa airport, the servicing airport for the ‘black site’ in Romania, whereupon it would collect detainees. Those detainees referred to in the Senate Committee Report who were cleared from Romania in these critical months were then taken from Bucharest to Tirana, to the staging point where the other CIA aircraft had been waiting for a day in advance. In this staging point, in an unprecedented manoeuvre, according to our investigations, detainees were transferred from the first aircraft onto the second, together with members of the CIA rendition crew. The second aircraft, N787WH, which is also a Boeing 737 business jet, used conventionally for wholesale transfers filed its own dummy flight plan, citing a destination of Tallinn, Estonia, a route which it did not, nor did it intend, to fly. Instead, this aircraft N787WH flew on 6 October 2005 carrying detainees from Romania to Vilnius, Lithuania, thereby providing a link between two detention sites on European territory. The aircraft then departed in their own respective directions, the rendition aircraft N787WH via Oslo, towards the north, and the first aircraft, N308AB from Tirana, via Shannon, back towards New Jersey. Therein the CIA had innovated yet another means, another layer of cover to obstruct proper accounting for the illegal transfer of its detainees, but due to a process which Senator Marty referred to as ‘la dynamique de la vérité’, we have been able, methodically and carefully, to unpick these layers of secrecy and present to this Court what we believe is a truthful and accurate accounting of operations in respect of these ‘black sites’.” 131. In his further testimony, in response to questions from the Court, Mr J.G.S. added: “There are two known and documented junctures at which CIA detainees at the ‘black site’ in Romania were removed from Romania. The first of those, I illustrated with my last set of graphics, on 5 and 6 October, which took detainees from Bucharest, Romania via switching of aircraft in Albania, to Vilnius, Lithuania. The second took place on 5 November 2005, within three to four days of the Washington Post’s report, and at the insistence of the Romanian authorities, which took detainees via Amman, Jordan to Kabul, Afghanistan. We know that at 1 January 2006 there were only two CIA detention sites in active operation, that much is stated in the Senate Report. Those were the sites known as ‘Violet’ and ‘Orange’: the former, ‘Violet’, in Lithuania, the latter, ‘Orange’, in Afghanistan. And so Al Nashiri, in all likelihood and without any other information to refer to, was taken to one of those two destinations on one of those two flights. Based upon my earlier rationale about the five different facilities in which he was held, I would aver that it is more likely than not that he was taken from Romania to Lithuania on 5 and 6 October 2005 and was held there until onwards transfer in March 2006 to Afghanistan and subsequently on to Guantánamo Bay. That would, logically, complete the number and nature of detention experiences chronicled in the Senate Committee Report and other documents released by the United States.” 132. Mr Black testified as follows: “ ... [T]here are two possibilities, and I believe only two possibilities: one is that [the applicant] left [Romania] in October 2005, on 5 October 2005, and the other is that he left on the 5 November 2005. If the flight on 5 October 2005 was a dual flight, it was a kind of a two-plane switch that took prisoners from Romania into Lithuania, and the flight the following month in November 2005 was again a two-plane switch that took prisoners from Romania into Afghanistan. I think there is an indication in the data that we have, based on the Senate Report, that Mr Nashiri was taken to Lithuania, which should mean he was taken in October rather than November, but it is, I would not say it is a hundred per cent clear, unambiguous. I would say it is an indication that seems probable. There is no doubt that the flight in November signalled the end of the Romanian site, I mean it came, I do not know, 72 hours after the existence of the site had been revealed in The Washington Post, the government had demanded the site shut down, the Senate Report is very clear that at that point everyone who was remaining in Romania was shipped out to Afghanistan, so at that point, after the 5 November 2005, the CIA ‘black site’ programme was operating only in Lithuania and in Afghanistan.” 133. The relevant section in the 2014 US Senate Committee Report reads as follows: “After publication of the Washington Post article, [REDACTED] Country [REDACTED] demanded closure of DETENTION SITE BLACK within [two-digit number REDACTED] hours. The CIA transferred the [number REDACTED] remaining CIA detainees out of the facility shortly thereafter.” 134. According to public Eurocontrol flight data based on, among other things, the flight data entered by the Romanian authorities into the Eurocontrol system, which was referred to by Mr J.G.S and Mr Black, the flight circuit of October 2005 involving planes N308AB and N787WH and the circuit of November 2005 involving planes N1HC and N248AB can be described as follows. 135. As regards the circuit of 1-7 October 2005, executed by planes N308AB and N787WH: (a) Eurocontrol data shows N308AB filing a flight plan departing from Teterboro, USA at 13:31 on 4 October 2005 with scheduled arrival time at Bratislava, Slovakia at 22:58 the same day. On the following day it filed a flight plan departing from Bratislava at 19:06 with scheduled arrival time at Mihail Kogălniceanu International Airport, Constanţa, Romania at 20:41. It then filed a plan departing 40 minutes later, at 21:21, from Băneasa Bucharest City Airport. According to the experts, this indicated that the scheduled trip to Constanţa was in fact a false flight plan, and that the plane did not go to Constanţa, but rather to Băneasa. Leaving Băneasa it was scheduled to arrive in Tirana, Albania at 22:38. It filed its next flight plan from Tirana on 6 October at 01:08, with a scheduled arrival time in Shannon, Ireland, at 04:22 (all times are Zulu (i.e. GMT)). (b) Eurocontrol data shows that on 5 October 2005 at 00:45 N787WH filed a flight plan departing from Keflavik, Iceland with scheduled arrival in Tirana International Airport on the same day at 05:52. It then filed a flight plan departing Tirana at 23:44 with scheduled arrival at Tallinn, Estonia the following day at 02:26. It then filed a flight plan leaving 30 minutes later, at 02:56, not from Tallinn but from Vilnius International Airport, Lithuania, with scheduled arrival in Oslo at 04:33 (all times are Zulu (GMT)). Documents from Vilnius airport show that the plane landed in Vilnius at 01:54 Zulu / 04:54 local time, however, indicating that the scheduled trip to Tallinn was in fact a false flight plan, and that the plane did not go to Tallinn, but rather directly from Tirana to Vilnius (see also Abu Zubaydah v. Lithuania, no. 46454/11, § 130, 31 May 2018). As regards the circuit of 5-7 November 2005, executed by planes N1HC and N248AB: (a) Eurocontrol data shows that N1HC filed a flight plan to leave Harrisburg International Airport, USA at 10:30 on 5 November 2005, with scheduled arrival in Porto, Portugal at 16:58 the same day. It then filed a flight plan to leave Porto at 17:59, with scheduled arrival at Mihail Kogălniceanu International Airport, Constanţa, Romania at 21:45. Its next flight plan shows it leaving Băneasa Bucharest City Airport 20 minutes later, at 22:05, with scheduled arrival at Amman, Jordan that night at 00:21 on 6 November. This, according to the experts, indicated that the scheduled trip to Constanţa was in fact a false flight plan, and that the plane did not go to Constanţa, but rather to Băneasa. From Jordan it filed a flight plan to depart Amman at 01:20 with arrival at Keflavik scheduled at 08:25. (b) Eurocontrol data shows that N248AB filed a flight plan to leave Malta International Airport on 5 November 2005 at 21:10 with scheduled arrival in Amman at 23:49. It then filed a flight plan to leave Amman 66 minutes later, at 00:55 on 6 November, with arrival in Kabul scheduled for 05:12. It filed a flight plan to leave Kabul 48 minutes later, at 06:00, with arrival in Athens scheduled at 11:32 the same day. 136. The findings of the Lithuanian Parliament (Seimas) made in the course of an inquiry concerning the alleged detention facilities in Lithuania in 2010-2011 concerned, among other things, the flight N787WH landing in Vilnius, en route from Tirana, on 6 October 2005 (see paragraph 332 below) 137. The list of 43 flights operated in 2001-2005 at the airports of Constanţa, Băneasa and Otopeni submitted by the Government (annex no. 11 to the 2007 Romanian Senate Report; see also paragraph 167 below) included that of N1HC, which departed from Băneasa airport on 5 November 2005. 138. The list of twenty one “suspicious flights”, which was produced by the Government, included N1HC executing a circuit “Harrisburg –București Băneasa-Djibouti-Amman” that departed from Băneasa Airport on 5 November 2005 (see paragraph 327 below). The invoice (no. 1692) for United States Aviation in respect of N1HC issued by RAS on 6 November 2005 included a handwritten note: “Middletown-Băneasa-Djibouti (?) (Amman?)” 139. According the 2014 US Senate Committee Report, in “early January 2006” the CIA was holding twenty-six detainees “in its two remaining facilities, Detention Site Violet, in Country [name REDACTED] and Detention Site Orange, in Country [name REDACTED]”. The applicant, according to the experts, was taken to one of those sites – Detention Site Violet located in Lithuania or Detention Site Orange located in Afghanistan on one of the above-described plane-switching flights circuits of, respectively, 1-7 October 2005 and 5-7 November 2005 (see paragraphs 129-135 above). 140. The 2014 US Senate Committee Report states that the applicant “was transferred to US military custody on September 5, 2006.” 141. On 6 September 2006 President Bush publicly acknowledged that fourteen high-value detainees, including the applicant, had been transferred from the HVD Programme run by the CIA to the custody of the Department of Defense in the Guantánamo Bay Internment Facility (see also paragraph 60 above). 142. On 14 March 2007 the applicant was heard by the Combatant Status Review Tribunal, which purported to review all the information related to the question whether he met the criteria to be designated as an “enemy combatant” (i.e. an individual who was part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners, including one who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces). The hearing was closed to the public. The applicant was not afforded legal counsel at this hearing. A “personal representative” was appointed for him, but this person did not act as counsel and the applicant’s statements to this representative were not privileged. He did not have access to any classified evidence that was introduced against him. Nor did he have the right to confront any of the accusations that were introduced at this hearing. 143. According to a partially redacted transcript of that hearing, the applicant stated that he “[had been] tortured into confession and once he [had] made a confession his captors [had been] happy and they [had] stopped torturing him”. He also stated that he had made up stories during the torture in order to get it to stop (see also paragraph 123 above). 144. On 30 June 2008, the US Government brought charges against the applicant for trial before a military commission, including those relating to the bombing of the USS Cole on 12 October 2000. 145. On 2 October 2008, counsel for the applicant filed a petition for a writ of habeas corpus on his behalf in a federal district court of the District of Columbia. That petition is apparently still pending to date with no decision. 146. On 19 December 2008, the Convening Authority authorised the Government to seek the death penalty at his military commission. 147. Immediately after the referral of charges, the defence filed a motion with the military commission contesting the Government’s method of transporting the applicant to legal proceedings in Guantánamo Bay on the grounds that it was harmful to his health and violated his right to free and unhindered access to his counsel. 148. Shortly after this motion was filed, the applicant’s arraignment –which signified the start of his trial before a military commission – was set for 9 February 2009. 149. On 22 January 2009 President Obama issued an Executive Order requiring that all commission proceedings be halted pending the Administration’s review of all detentions at Guantánamo Bay. In response to this order, the Government requested a 120-day postponement for the 9 February 2009 arraignment. 150. On 25 January 2009 the military judge assigned to the applicant’s military commission denied the Government’s request for postponement of the trial. Moreover, the military judge ordered that a hearing on the defence motion regarding the applicant’s transportation be held immediately after the arraignment. In response to this order, the defence filed a notice that it intended to introduce evidence of how he was treated while in CIA custody. Hours after this notice was filed, on 5 February 2009, the US Government officially withdrew charges from the military commission, thus removing the applicant’s case from the military judge’s jurisdiction. 151. In March 2011 President Obama announced that he would be lifting a 2-year freeze on new military trials for detainees at the US Naval Base in Guantánamo Bay. 152. On 20 April 2011 United States military commission prosecutors brought capital charges against the applicant relating to his alleged role in the attack on the USS Cole in 2000 and the attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002. The charges against him included terrorism, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, hazarding a vessel, using treachery or perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy to commit terrorism and murder in violation of the law of war, destruction of property in violation of the law of war and attempted destruction of property in violation of the law of war. The applicant was designated for trial by military commission despite the fact that the United States Government had previously indicted two of his alleged co-conspirators for the USS Cole bombing – Jamal Ahmed Mohammed Al-Badawi and Fahd Al-Quso – in the US federal court. The relevant indictment, filed on 15 May 2003 while the applicant was secretly held in CIA custody in Poland, identified him as an unindicted со-conspirator in the USS Cole bombing. 153. The military commission prosecutors announced that the capital charges against the applicant would be forwarded for independent review to Bruce MacDonald, the “convening authority” for the military commissions, for a decision whether to reject the charges or to refer some, all or none of them for trial before the military commission. 154. On 27 April 2011 Mr MacDonald informed the US military defence counsel for the applicant that he would accept written submissions against the death penalty until 30 June 2011. On 28 September 2011 the capital charges against the applicant were approved. 155. The military commission hearing in the applicant’s case began on 17 January 2012. The first two days of the trial were devoted mostly to pretrial motions. 156. The proceedings against the applicant before the military commission are pending. According to a statement – “Remarks at Guantánamo Bay” issued by Chief Prosecutor Mark Martins on 17 March 2017, a day before the military commission convened to try Al Nashiri completed a pre-trial session to resolve disputes regarding “outstanding legal and evidentiary issues”. During the session, the Military Judge directed that the military commission would be in session from 31 July to 4 August, from 11 to 29 September and from 6 to 17 November 2017. He also announced that he planned to issue soon a final discovery order as well as a trial order for 2018. 157. On 22 November 2013 the applicant’s representative produced a psychological evaluation of the applicant by US government psychiatrists, which had been conducted at the request of the US government. It states that Mr Al Nashiri suffers from Post-Traumatic Stress Syndrome. 158. In the 2014 US Senate Committee Report, in the chapter “CIA Detainees Exhibit Psychological and Behavioral Issues”, it is stated that psychological and behavioural problems experienced by CIA detainees, who had been held in austere conditions and in solitary confinement, had also posed “management challenges” for the CIA. The section referring to the applicant reads as follows: “... Abd al-Rahim al-Nashiri’s unpredictable and disruptive behavior in detention made him one of the most difficult detainees for the CIA to manage. Al-Nashiri engaged in repeated belligerent acts, including throwing his food tray, attempting to assault detention site personnel, and trying to damage items in his cell. Over a period of years, al-Nashiri accused the CIA staff of drugging or poisoning his food and complained of bodily pain and insomnia. As noted, at one point, al- Nashiri launched a short-lived hunger strike, and the CIA responded by force feeding him rectally. An October 2004 psychological assessment of al-Nashiri was used by the CIA to advance its discussions with National Security Council officials on establishing an ‘endgame’ for the program. In July 2005, CIA Headquarters expressed concern regarding al-Nashiri’s ‘continued state of depression and uncooperative attitude’. Days later a CIA psychologist assessed that al-Nashiri was on the ‘verge of a breakdown’.” 159. The experts heard by the Court identified the locations of the eight colour code-named CIA detention sites (see paragraph 26 above) as follows: Detention Site Green was located in Thailand, Detention Site Cobalt in Afghanistan, Detention Site Blue in Poland, Detention Site Violet in Lithuania, Detention Site Orange in Afghanistan, Detention Site Brown in Afghanistan, Detention Site Gray in Afghanistan and Detention Site Black was identified as having been located in Romania (see also Abu Zubaydah v. Lithuania, cited above, § 166). 160. The 2014 US Senate Committee Report refers to “Detention Site Black” in several sections concerning various events. 161. In chapter entitled “The CIA establishes ‘DETENTION SITE BLACK’ in Country [REDACTED] and DETENTION SITE VIOLET in Country [REDACTED]” the section referring to “Detention Site Black” reads as follows: “[REDACTED] The CIA entered into an agreement with the [REDACTED] in Country [REDACTED] to host a CIA detention facility in [month REDACTED] 2002. In [month REDACTED] 2003 CIA Headquarters invited the CIA Station in Country [REDACTED] to identify ways to support the [REDACTED] in Country [REDACTED] to ‘demonstrate to [REDACTED] and the highest levels of the [Country [REDACTED] government that we deeply appreciate their cooperation and support’ for the detention program. The Station responded with an $ [amount REDACTED] million ‘wish list’ [REDACTED]; CIA Headquarters provided the Station with $ [amount REDACTED] million more than was requested for the purposes of the [REDACTED] subsidy. CIA detainees were transferred to DETENTION SITE BLACK in Country [REDACTED] in the fall of 2003. In August 2003, the U.S. ambassador in Country [REDACTED] sought to contact State Department officials to ensure that the State Department was aware of the CIA detention facility and its ‘potential impact on our policy vis-a-vis the Country [REDACTED] government’. The U.S. ambassador was told by the CIA Station that this was not possible, and that no one at the State Department, including the secretary of state, was informed about the CIA detention facility in Country [REDACTED]. ... Nearly a year later, in May 2004, revelations about U.S. detainee abuses at the U.S. military prison in Abu Ghraib, Iraq, prompted the same U.S. ambassador in Country [REDACTED] to seek information on CIA detention standards and interrogation methods. In the fall of 2004, when [REDACTED] U.S. ambassador to Country [REDACTED] sought documents authorizing the program, the CIA again sought the intervention of Deputy Secretary Armitage, who once again made ‘strong remarks’ to the CIA about how he and the secretary of state were ‘cut out of the NSC [National Security Council] clearance/coordination process’ with regard to the CIA program. ... While it is unclear how the ambassador’s concerns were resolved, he later joined the chief of Station in making a presentation to Country [REDACTED]’s [REDACTED] on the CIA’s Detention and Interrogation Program. The presentation talking points did not describe the CIA’s enhanced interrogation techniques, but represented that ‘[w]ithout the full range of these interrogation measures, we would not have succeeded in overcoming the resistance of [Khalid Shaykh Muhammad] and other equally resistant HVDs’ The talking points included many of the same inaccurate representations made to U.S. policymakers and others, attributing to CIA detainees critical information on the ‘Karachi Plot’ the ‘Heathrow Plot’. the ‘Second Wave Plot’, and the ‘Guraba Cell’; as well as intelligence related to Issa al-Hindi, Abu Talha al-Pakistani, Hambali, Jose Padilla, Binyam Mohammed, Sajid Badat, and Jaffar al-Tayyar. ...” 162. In chapter entitled “CIA Detainees Exhibit Psychological and Behavioural Issues” reference is made to an email from an American authority (name redacted) to “Detention Site Black”, dated 30 October 2004 on the subject: “Interrogator Assessments/Request for Endgame Views”, which concerned Al Nashiri’s psychological assessment (see also paragraph 158 above), which was used by the CIA in the framework of discussions on establishing an “endgame” for the HVD Programme. 163. Chapter “The Pace of CIA Operations Slows; Chief of Base Concerned About ‘Inexperienced, Marginal, Underperforming’ CIA Personnel; Inspector General Describes Lack of Debriefers As ‘Ongoing Problem’” refers to the “Detention Site Black” as follows: “In the fall of 2004, CIA officers began considering ‘end games’ or the final disposition of detainees in CIA custody. ... [REDACTED] In 2004, CIA detainees were being held in three countries: at DETENTION SITE BLACK in Country [REDACTED], at the [REDACTED] facility in Country [REDACTED], as well as at detention facilities in Country [REDACTED]. DETENTION SITE VIOLET in Country [REDACTED] opened in early 2005. On April 15, 2005, the chief of Base at DETENTION SITE BLACK in Country [REDACTED] sent the management of RDG an email expressing his concerns about the detention site and the program in general. He commented that ‘we have seen clear indications that various Headquarters elements are experiencing mission fatigue vis-a-vis their interaction with the program, resulting in a ‘decline in the overall quality and level of experience of deployed personnel’, and a decline in ‘level and quality of requirements’. He wrote that because of the length of time most of the CIA detainees had been in detention, ‘[the] detainees have been all but drained of actionable intelligence’, and their remaining value was in providing ‘information that can be incorporated into strategic, analytical think pieces that deal with motivation, structure and goals’. The chief of Base observed that, during the course of the year, the detention site transitioned from an intelligence production facility to a long-term detention facility, which raised ‘a host of new challenges’. These challenges included the need to address the ‘natural and progressive effects of long-term solitary confinement on detainees’ and ongoing behavioral problems.” 164. According to the report, one of the high-value detainees, AbuFaraj al-Libi, was transferred to Detention Site Black on an unspecified (redacted) date in May 2005 and was subjected to EITs starting from 28 May 2005. The section concerning the closure of Detention Site Black after publication of the Washington Post article (see paragraph 236 below) is rendered in paragraph 133 above. 165. On 21 December 2005, by virtue of the Decree of Romania’s Senate of 21 December 2005 (published on 27 December 2005) the Romanian Parliament set up the Inquiry Committee for investigating statements regarding the existence of CIA detention facilities or of some flights of planes leased by the CIA on the territory of Romania (Comisia de anchetă pentru investigarea afirmaţiilor cu privire la existenţa unor centre de detenţie ale CIA sau a unor zboruri ale avioanelor închiriate de CIA pe teritoriul României) (“the Romanian Senate Inquiry Committee”). It comprised eleven members and was presided over by Ms N. Nicolai. The report of the Romanian Senate Inquiry Committee (“the 2007 Romanian Senate Report”) was published in the Official Monitor on 7 May 2008. The annexes attached to the report remained classified. 166. The 2007 Romanian Senate Report explained that the committee had been established “following the request of Mr Rene van der Linden, the President of the Council of Europe Parliamentary Assembly (PACE), formulated in the speech held in the assembly of the united chambers of Romania’s Parliament on 24 November 2005, to investigate the accusations published in the international press regarding the detention and illegal transfer of prisoners in some of the member states of the Council of Europe”. The terms of reference were defined as follows: “According to Article 1 of the Decree of Romania’s Senate no. 29 of 21 December 2005, the Inquiry Committee was charged with investigating statements regarding the existence of some CIA detention facilities on the territory of Romania or of some flights of some planes leased by CIA, that would have allegedly transported persons accused of having performed terrorist acts”. The initial deadline for presenting a report by the committee was fixed for 15 February 2006 but, given the complexity of the issues involved, that term was eventually extended until 5 March 2007. 167. From January 2006 to January 2007 the Romanian Senate Inquiry Committee held periodic meetings, usually on a monthly basis and carried out some fact-finding missions. According to the 2007 Romanian Senate Report, the committee held twenty-one meetings “for documentation review and analysis with the leaders of institutions and specialised structures” and over forty meetings with official delegations and members of the Council of Europe’s inquiry body, other politicians and journalists. It heard over 200 persons and studied over 4,200 pages of documents. Its delegates also made six visits to the airports and military airbases susceptible to have been used for secret detentions and illegal prisoners’ transfers, including Timișoara- Gearmata; Bucharest-Băneasa; Constanţa-Mihail Kogălniceanu; Tulcea-Cataloi and Fetești-military. Based on the in situ investigations, the Romanian Senate Inquiry Committee found no facility built at the material time (2003-2005) that might have been used as a detention facility, “be it ad hoc”. Also, it concluded that no flight that had passed through Mihail Kogălniceanu airport would raise suspicions of the illegal transport, embarking or disembarking of any passenger. 168. As regards “suspicious flights” in respect of which Senator Marty asked the Romanian authorities for all available evidence in his letter on 7 November 2006, the findings read, in so far as relevant, as follows: “Regarding flight N313P of 25 January 2004, the Committee established that that flight landed on the Airport Bucharest-Băneasa for refuelling and ground services. No passenger embarked or disembarked the plane. There is all evidence that shows beyond this fact, but also the purpose of the stopover. ... Mr Dick Marty states that the declaration of the Inquiry Committee contradicts the information provided by the Romanian Civil Aeronautical Authority, according to which, on 25 January 2004, its destination airport was Timişoara, not Bucharest - Băneasa. Later, the plane took off from Timisoara, and Mr Marty declared that he verified this fact. ... We would like to mention that the initial information provided by the Romanian Civil Aeronautical Authority (RCAA), regarding the landing on the International Аirport Timisoara of the flight N313P of 25 January 2004, is due to the fact that RCAA had access only to the flight plan sent by the operator of the aircraft. The flight plan was modified by the operator in the air, requesting the stop on the International Airport Bucharest-Băneasa. At that date, according to the Romanian legislation, the operators who performed private flights in the national airspace were not under any obligation to request from request from RCAA any overflight authorisation, since it was sufficient to submit the flight plan to the traffic body. ... For N313P of 22-23 September 2003 (classified appendix no. 4): - copy of the extract of the navigation chart ROMATSA associated with the Airport Băneasa, in which the real route of the flight is indicated; - copy of the invoices no. 665 and 666 of 23 September 2003, concerning the flight N313P, issued by the handling agent of the Romanian Airport Services. Flight N478GS of 6 December 2004, which had an accident while landing at the Airport Bucharest-Băneasa, is suspected of being involved in a circuit that would have transported prisoners, due to the fact that it was omitted from the list sent to Mr Dick Marty in April 2006. The event had the following development: On 6 December 2004, at 1:29 PM, the aircraft of the company CENTURION AVIATION, type Gulfstream 4, which was performing a charter flight on the route Bagram/Afganistan-Bucharest/Băneasa, landed on the runway of the Аirport Băneasa, passing the threshold of the runway 07, with a ground speed of approximately 287 km/h. While rolling, the aircraft exceeded the available speed for landing ... and the delayed threshold of the runway, in an area of the runway where the airport was carrying on maintenance works ... .The aircraft rolled with the main left jamb on an unpaved portion with a depth of approximately 15-20 cm and stopped on the edge of the runway. The crew reported massive leaks of fuel from the left wing. The aircraft experienced damages on the left jamb of the main landing train and on the fuel tank in the left plan(classified appendix no. 5). ... Flight N379P of 25 October 2003 raises questions for Mr Dick Marty, thinking that the Romanian Civil Aeronautical Authority indicates the route Prague-Constanţa -Băneasa-Amman. In reality, the flight took place on the route Prague-Bucharest Băneasa-Amman, according to invoice no. 3.314 of 25 October 2003, issued by ROMATSA (classified appendix no. 6). Flights N85VM of 26 January 2004 and 12 April 2004 did not operate in the Airport Mihail Kogălniceanu, but in Airport Bucharest–Băneasa (classified appendices no. 7 and 8); flights N227SV of 1 October, 2004 and N2189M of 13-14 June 2003 operated on the Аirport Mihail Kogălniceanu (classified appendices no. 9 and 10). The appendix to Mr. Dick Marty’s letter of March 31, 2006 requests details regarding 43 flights. The Inquiry Committee presents them in classified appendix no. 11.” 169. The final conclusions of the 2007 Romanian Senate Report were formulated as follows: 1. To the question whether there is or there were American secret detention sites in Romania, the answer is negative. 2. To the question whether in Romania, during the investigated period, there exist or existed facilities for detaining prisoners, other than penitentiary ones (real, secret, ad-hoc, buildings that were used for this purpose on an improvised basis, potentially in the proximity of airports Timişoara, Bucharest – Henri Coanda or Băneasa, and Constanţa, the Inquiry Committee’s answer is negative. 3. To the question whether there are or there were detainees with or without records held in the Romanian penitentiary system, who could have been assimilated with prisoners, the Inquiry Committee’s answer is negative. 4. To the question whether there could have been clefts in the complete control system of the civil or military traffic or whether some flights could have passed inadvertently without being monitored or unrecorded or if in their cases the ground procedures stipulated in the international conventions could have not been applied, the Inquiry Committee’s answer is negative. 5. To the question whether it could have been possible that certain Romanian institutions in Romania would have participated knowingly or by omission or negligence in operations of illegal transport of detainees through the airspace or airports in Romania, the Inquiry Committee’s answer is negative. 6. To the question whether civil American flights or other states’ civil flights could have transported, dropped, or picked up persons that could be assimilated to the detainees on the Romanian territory or under the responsibility of Romanian authorities, in compliance with international regulations, the Inquiry Committee’s answer is negative. 7. To the question whether there existed an in-depth parliamentary investigation to determine the media allegations regarding the existence of some detention facilities or of some flights with illegal prisoners in Romania, the Investigation Committee’s answer is positive. 8. To the question whether the purpose of the stopovers in Romania of the flights referred to in chapter 5, the Inquiry Committee has solid grounds to reply that they had nothing to do with potential illegal transports of prisoners on the territory of Romania.” 170. On 13 October 2008, in reply to a letter by APADOR-CH concerning the purpose of the flights mentioned by the report cited above, the President of the Romanian Senate stated: “... the Inquiry Committee was assigned to investigate the statements regarding the existence of CIA detention facilities or of some flights of planes leased by CIA on the territory of Romania. Consequently, since its mandate was strictly limited to the aforementioned issue, the Inquiry Committee did not request data from appropriate institutions, did not perform any investigation, and does not hold any kind of information regarding the purpose of the flights with the indication mentioned in chapter 5, point 3. ...” 171. On 29 May 2012 the applicant’s lawyer filed a criminal complaint (plângere penală) on his behalf with the Prosecutor General, asking for an investigation into circumstances surrounding the applicant’s rendition, secret detention and ill-treatment in Romania to be opened. It was submitted that the Romanian authorities had allowed the CIA to subject the applicant to torture and unlawful, incommunicado detention on Romanian territory and to transfer him out of the country despite the risk of his facing further torture, unacknowledged detention and death penalty. He relied on Articles 2, 3, 5, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 6 and maintained that the conduct of the Romanian authorities constituted offences of, inter alia, aiding and abetting murder, torture and ill-treatment as defined in the Romanian Criminal Code. 172. On 20 July 2012 the Prosecutor General acknowledged that the complaint had been registered and assigned a file number, and that its review was at a preliminary stage. Some time afterwards, on an unspecified date, the prosecution authorities opened an investigation concerning the applicant’s allegations. 173. At the Court’s request, the Government submitted various materials concerning the investigation asking, under Rule 33 § 2 of the Rules of Court, for public access to those documents to be restricted, in the interests of national security and also on the grounds of secrecy of the investigation (see also paragraph 12 above). Those materials included transcripts of witness evidence obtained in the investigation. They were produced in the Romanian language, with an English translation. The English version is rendered in paragraphs 299-325 below. All these documents were available to the Court and the applicant in full, unredacted versions. The following description of the course of the investigation is based on a summary (redacted version) of annexes containing documents from the investigation file produced by the Government. That summary was prepared by the Government in the English language. 174. On 3 December 2012 the investigating prosecutor analysed the applicant’s complaint and its context, including laws and arrangements regarding bilateral agreements between Romania and the United States and information in the public domain concerning the applicant’s allegations. Also, an initial investigation plan was prepared on that date. The plan included a list of requests for information, clarifications, documents, audio and video recordings and flight data to be addressed to various domestic authorities – among others, the Civil Aviation Authority, Air Traffic Services Administration, Otopeni, Kogălniceanu and Băneasa airports, the Government and the relevant ministries. 175. On 27 December 2012 the Prosecutor’s Office attached to the Court of Cassation (Parchetul de pe lângă Ȋnalta Curte de Casație şi Justiție – “PICCJ”) asked the RCAA to provide, in connection with the investigation the following information concerning certain flights mentioned in an annex to the request (the annex has not been produced): (a) any data, information, documents held with regard to the air traffic control in respect of the flights in question; (b) any audio or video recordings concerning the flights in question (for example: air traffic control or directing); (c) names of individuals who had carried out specific tasks on the dates when the flights in question had allegedly taken place; (d) names of individuals directly involved in facilitating or operating those flights. 176. On 12 January 2013 the RCAA informed the PICCJ that, according to the relevant legislation in force at the relevant time (2003-2005), namely Government Decision no. 1172/2003, they had data concerning only a few flights – which they included in an annex (the annex has not been produced). The RCAA stated that the available data did not clearly show that these flights had taken place and that they did not have any documents which attested that the flights had actually taken place. According to the legislation in force at the material time, information in the RCAA’s possession showed only an intention to operate the flights, which had been planned and notified to them. It further stated that Government Decision no. 1172/2003 had eliminated the need for the RCAA to approve flights which transited the national airspace with no commercial stop (and did not carry troops, military equipment, weapons, munitions, explosives, radioactive or other dangerous materials or did not fall in the category of technical flights) and, also, internal and international flights with civil aircraft registered abroad, landing and taking off from the Romanian territory, which were included in the category of civil air operations of general aviation. These flights were considered authorised if a flight plan on a published ATS (Air Traffic Service) route was submitted and the aircraft used were insured for damage caused to third parties on the ground. As regards audio or video recordings and names of any individuals involved, the RCAA stated that they did not have any such information. 177. In addition, the Government produced copies of the following prosecutor’s letters requesting information or documents from various authorities: (1) letter of 27 December 2012 addressed to the Romanian Government, asking for the classified annexes to the 2007 Romanian Senate Report; (2) letters of 27 December 2012 addressed to Timişoara Airport, Constanţa Mihail Kogălniceanu Airport and Bucharest Băneasa Airport, requesting information about the alleged suspicious flights, including audio or video recordings, and about the airport personnel who had worked on the relevant dates; (3) letter of 3 March 2013 addressed to the Ministry of Transport and Infrastructure, requesting it to the transmit the National Programme of Aeronautical Security to the prosecutor; (4) letters of 18 March 2013 addressed to the Civil Aviation Directorate and the Bucharest Airports National Company requesting information about flights N313P, N85VM, N379P, N478GS, N228KA, N308AB, N789DK, N227SV, N787WH, N1HC, N2189M and N860JB, including general flight data from 2003-2006, types and purposes of flights, type of journey, flight route, flight operator, flight organiser, aircraft type, aircraft capacity, aircraft registration, documents regarding insurance, information about the crew and passengers, initial flight plans, subsequent flight documents, flight or overflight authorisations, specific requests for each flight and handling operator; (5) letter of 24 April 2013 addressed to the Bucharest Airports National Company, requesting information about applications for authorisation of access of persons and vehicles to the airplanes, the relevant records, information about the security personnel and the handling agents who had worked on the relevant dates at Bucharest Băneasa Airport and at Constanţa Mihail Kogălniceanu Airport; (6) letter of 24 April 2013 addressed to the General Inspectorate of the Border Police, requesting information about the personnel who had worked on the relevant dates and any persons who entered, exited or transited the national territory on those dates through Bucharest Băneasa Airport and Constanţa Mihail Kogălniceanu Airport; (7) letter of 29 April 2013 addressed to the Romanian Airport Services (“RAS”), requesting information about the personnel who had worked on the relevant dates and the handling operations performed. 178. On an unspecified date, in response to the prosecutor’s request, the Ministry of Transport-Civil Aviation Directorate provided the following documents: - flight plans of N312ME on 24 April 2003, N175A on 5 May 2003, N58AS on 16 June 2003, N313P on 22 September 2003, N313P on 25 January 2004 and N227SV on 1 October 2004; - control lists of the navigation records; - tables containing handling fees; - invoices issued by the RAS; - ground handling charge notes; - air navigation services sheets; - address no. 6 293 of 4 November 2006 issued by Timișoara Airport informing that, after checking their records, there was no evidence of the landing of the flight N313P operated by Business Jet Solutions. It was also mentioned that the said aircraft had not carried out any flights on Traian Vuia Airport – Timișoara until 14 November 2006. - list of flight plans; - letter no. 239 of 25 March 2013 from the Bucharest Airports National Company, transmitting all relevant information identified in their archives and informing the prosecution that from 2004 to 2005 in Bucharest Băneasa Airport the RAS was in charge of the handling services. The letter also mentioned that the flights concerned had not been identified as having operated at Henri Coandă Airport. - letter no. 2183 of 22 March 2013 from Constanţa Mihail Kogălniceanu Airport confirming, among other things, that N308AB had operated in that airport and that it had landed on 25 August 2004 at 00:03, and departed on 25 August 2004 at 01:33; - letter no. 3461 of 13 June 2006 from Constanţa Mihail Kogălniceanu Airport, confirming that the aircraft Lockheed L382 registered as N2189M had operated at that airport, landing on 13 June 2003 at 09:57, departing on 14 June 2003 at 08:31 and that the aircraft Gulfstream IV registered as N227SV had operated in the airport, landing on 1 October 2004 at 20:39 and departing at 21:26 on the same date. 179. On 26 April 2013 the Bucharest Airports National Company replied to the prosecutor’s request of 18 March 2013. The company stated that it did not have information about general flight data concerning the indicated aircraft in the period 2003-2006, the purpose of the flights, type of journey, flight organiser, aircraft capacity, any documents regarding insurance, information about the crew and passengers, initial flight plans, subsequent flight documents, flight or overflight authorisations or information about handling requests. It informed the prosecutor that the flight plans had been received through the AFTN terminal and had not been subject to archiving and that the RAS had been the handling operator in 2003-2006 at Bucharest Băneasa Airport. A table containing information about the relevant flights was transmitted to the prosecutor. 180. On 21 May 2013 the Bucharest Airports National Company replied to the prosecutor’s request of 24 April 2013. The company transmitted the requested information about the applications for access authorisation to the planes and the relevant records. It also explained to the prosecutor that since the retention periods for the requested documents were from three to five years, it was impossible for it to produce any additional information about the requests for authorisations and the access records. The company also produced information concerning the security personnel who had worked on the relevant dates. 181. On 20 May 2013 the General Inspectorate of the Border Police replied to the prosecutor’s request of 24 April 2013. It forwarded a list containing the names, personal data and the present workplace of the personnel who had worked on the relevant dates. It also informed the prosecutor that flight logs had automatically been erased after five years and that, as a consequence, they could not submit the requested information about the persons who had entered, exited or transited the national territory on those dates at Bucharest Băneasa Airport. 182. On 11 July 2013 the General Inspectorate of the Border Police supplied information concerning the personnel who had worked at Bucharest Băneasa Airport on 22 September 2003 and their personal data. 183. On 13 June 2013 the RAS replied to the prosecutor’s request of 29 April 2013. The RAS informed the prosecutor about the personnel who had worked on the relevant dates and transmitted several tables containing handling fees. They also stated that information about the handling services performed had been retained only for three years. 184. In the meantime, on 24 April 2013, the prosecutor asked the Ministry of National Defence (Ministerul Apărării Naționale) to produce, on an urgent basis, the following information concerning the period of 2003-2006: (a) military flights carried out by US military aircraft or civilian flights carried out by the US air companies, which concerned “the transfer of individuals within the framework of the USA Special Rendition Program” and which had had as a point of transfer, transit or destination “airports on Romania’s territory”; (b) existence or non-existence, on Romania’s territory, of alleged detention facilities set up at the US authorities’ or the US forces’ request and their possible location, including names of legal persons hosting them; (c) detention, interrogation, and subsequent transfer of individuals in the US forces’ or the US authorities’ custody from the alleged detention facilities to other locations; d) names of persons who had been subjected to such treatment. 185. On 24 May 2013 the Ministry of National Defence replied that the requested materials were part of documents sent to the Romanian Senate Inquiry Committee by a note of 31 March 2006, which was classified as “confidential information”. The Ministry stated that they did not have a copy of those documents, that the documents had been sent to the committee in a single copy (exemplar unic) and that they had not yet been returned to them. Moreover, the provision of information concerning civil aircraft which had operated in the Romanian airspace and in the Romanian international civilian airports fell within the competence and responsibility of the relevant departments attached to the Ministry of Transport. The Ministry further stated that, by their letter of 9 May 2008, sent to M. Constantinescu, a State councillor attached to the Prime-Minister’s office, they had agreed that documents classified “confidential information” be sent to the European Commission. Moreover, the Air Force General Staff (Statul Major al Forțelor Aeriene) had stated that it had not had any records of flights operating in the airspace or in the military airports between 2003 and 2006 and transferring individuals in the framework of the US rendition programme; moreover, the representatives of the US authorities had not had access to buildings or air facilities belonging to air bases subordinate to the Air Force or exclusive access to certain areas. Lastly, the Ministry stated that the General Information Agency of the Defence (Direcția Generală de Informații a Apărării) had no information about the existence of secret US bases in Romania, about individuals allegedly detained illegally in Romanian prisons, their interrogation or transport to and from Romania by unmonitored or unauthorised flights. 186. On 24 January 2014 the PICCJ asked the Service for International Judicial Cooperation, Programs and International Relations to forward a request for legal assistance (including 4 annexes) to the relevant US judicial authorities. In the letter of request, the prosecutor asked the US authorities to provide, in connection with the criminal investigation, information concerning, among other things, the period and circumstances of Mr AlNashiri’s arrest and detention, the proceedings against him instituted by the US authorities; whether Mr Al-Nashiri had ever been brought to Romania in the context of his detention imposed by the US authorities under the CIA rendition programme and whether Romania had potentially been involved in that programme. The prosecutor also asked for the date of his arrival on Romanian territory, the means of transport used, the place of his detention on Romanian territory; the date of his departure from Romania, the means of transport used and the relevant documents and whether the Romanian authorities had been aware of his stay in the country. 187. On an unspecified date in March 2014 the US Department of Justice replied to the letter of request, stating that the US authorities were not able to provide the information requested. 188. In the meantime, on 27 February 2014, following the entry into force of the new Romanian Criminal Code and Code of Criminal Procedure (see also paragraph 196 below), the prosecutor had re-analysed the applicant’s criminal complaint in the light of the new legislation and decided that the investigation should also include crimes of unlawful deprivation of liberty and torture. 189. In the course of the investigation, in 2013 and 2015, the prosecutor took evidence from witnesses, including some high-office holders. It also heard other officials, the Border Police officers and the airport staff, including the security personnel. The Government produced transcripts of evidence given by certain witnesses (see paragraphs 298-325 below). 190. The investigation, apparently still directed against persons unknown, is pending. 419. As noted above in respect of the Government’s arguments as to Romania’s lack of jurisdiction and responsibility under the Convention, they denied on all accounts the applicant’s allegations as being unsupported by any evidence and, consequently, having no factual basis. They also challenged the credibility of most part of the evidence gathered in the case and denied Romania’s knowledge of, and complicity in, the operation of the CIA HVD Programme on its territory at the material time (see paragraphs 395-402 above). The Government’s conclusions on the facts and evidence were as follows. 420. First of all, the Government maintained that there had been no evidence demonstrating that a CIA secret detention facility had ever existed in Romania. They maintained that all the applicant’s allegations to that effect were based on inconsistent and contradictory speculations. 421. The sources relied on by the applicant had given contradictory indications regarding the period during which a “secret” detention facility had allegedly operated in Romania. The 2007 Marty Report affirmed that that facility had been opened in 2003 and had become highly important in 2004. It mentioned that it had been closed in November or December 2005 following the Washington Post’s revelations. This contradicted the media sources indicating that the “secret prison” had been closed in the first part of 2006. According to the article published in The Independent on 8 December 2011, secret detention centres in Romania had been closed by May 2006. Reprieve had taken an approach differing from that of ABC News, stating that the detainees had been moved out of identified European “secret” locations prior to Secretary of State Condoleezza Rice’s visit to Romania on 5 December 2005. On the other hand, the Council of Europe’s Commissioner for Human Rights, in his dossier, had described the “lifecycle” of the site as a “period of at least one year, beginning with its opening on 22 September 2003”. Accordingly, the reliability and veracity of information concerning the period during which the alleged “secret” detention site had operated was extremely doubtful. 422. As regards the location of the alleged CIA detention facility in Romania, at first there had been suppositions that it might have been located near Timișoara Airport, Mihail Kogălniceanu Airport or Băneasa Airport. These locations had been mentioned in succession, each for several years. The sources cited by the applicant had changed their assumptions each time it had been established that no “secret” detention facility had ever existed in the indicated place. Thus, a new location had subsequently been discovered. 423. In 2007 the Romanian Senate, following on-site inspections of the locations and after hearing witnesses, had established in its report that there had been no “secret” detention site near Mihail Kogălniceanu Airport in Constanţa, including the military airbase. Despite that fact, in 2011 some journalists had come up with another hypothesis, indicating the basement of the building used by the ORNISS, a public institution, as a secret prison. To justify their speculations, they had not, however, supplied any solid evidence, or even any credible indications. 424. In 2007 Senator Marty had seemed convinced, quoting “reliable sources” within the CIA, that a secure area for the CIA transfers and detentions had been created near Mihail Kogălniceanu Airport. In 2009, the New York Times had quoted “officials” as saying that “one jail was a renovated building on a busy street in Bucharest”. In 2011, other “reliable sources” indicated the ORNISS building – which, the Government added, was located in a residential area and not on a busy street – as the location of the secret CIA detention site in Bucharest. 425. Lastly, in the pending criminal investigation there had so far emerged no evidence that any location in Romania or, especially, in Bucharest as suggested by the applicant’s sources, could have been used by the CIA as a secret prison. In contrast, the prosecution had obtained a statement from an official working for the ORNISS – which had been produced before the Court – confirming that their building could never be, and had never been, used as a detention facility. 426. The Government next argued that the applicant’s account regarding the dates, circumstances and period of his alleged detention in Romania was inconsistent and therefore unreliable. In his application, the applicant had stated that he had been arrested in 2002 in Dubai. Then he had been held in Afghanistan and Thailand and moved to Poland on 5 December 2002. On 6 June 2003 he had been moved from Poland to Rabat, Morocco and, subsequently, on 22 September 2003 to Guantánamo Bay where he had been detained until 2004. On 27 March 2004 he had been transferred to Morocco and afterwards, to Romania. In 2006, the applicant had again been moved to Guantánamo Bay. Finally, he alleged that he had been “secretly” detained on Romanian territory from 6 June 2003 until 6 September 2006. 427. Other sources advanced the idea that the applicant had been transferred to Romania in September 2003 but then Reprieve had indicated 12 April 2004 as the date of his transfer to Romania. According to the 2007 Marty Report, the applicant had been brought to the CIA ”black site” in Bucharest on the flight N313P on 23 September 2003. Mr Hammarberg, for his part, had maintained that the opening of the CIA prison code-named “Bright Light” and the start of the CIA operations at the Romanian “black site” had been marked by the N313P flight on the night of 22 September 2003. However, in his opinion, the applicant had been transferred to Romania on the N85VM flight directly from Guantánamo to Bucharest on 12 April 2004. 428. The Government emphasised that the applicant had indicated no precise date of the flight on which he had allegedly been transferred out of Romania. He only mentioned that he had remained in Romania until around 6 September 2006, when he had been moved to Guantánamo. Nor had the experts heard at the fact-finding hearing been able to give a precise date for his transfer out of Romania. 429. It was therefore clear that there was no conclusive evidence in support of any of the above versions of the possible dates, circumstances or period of the applicant’s alleged detention in Romania. 430. In the Government’s opinion, there was a particular circuit of information concerning the alleged existence on Romanian territory of “secret” detention facilities. To begin with, mass media had launched accusations against certain States. Later on, this information had been reiterated as genuine by non-governmental organisations protecting human rights. These organisations had presented as evidence data extracted from records, invoices, and flight plans of planes allegedly used for transferring detainees. At the same time, these organisations had deliberately ignored the verifications performed by some European countries regarding the flights allegedly connected to the rendition programme. As a consequence, the information contained in official documents was not based on strong evidence, but on the sum of the data given by the mass media based on nonverifiable sources. 431. The Government contested the credibility of sources relied on by Senator Marty in his reports of 2006 and 2007. They said that the Marty Reports included many inconsistencies and contradictions. For instance, even though the reports had stated that the materials analysed, i.e. satellite photographs, aircraft movements and witness accounts, had not constituted evidence in the formal sense of the term, the authors had nevertheless found that these elements had been sufficiently serious to assume that a CIA secret detention facility existed in Romania. In the Government’s opinion, Senator Marty had displayed reluctance to reveal his alleged sources of evidence and protected them under the plea of a strict policy of confidentiality. Statements given by anonymous witnesses were not challengeable and this impeded the Government in properly contesting their reliability and defending themselves against the accusations made in the Marty Reports. 432. Referring to the 2007 Marty Report, the Government saw inconsistencies in many respects. For instance, it was mentioned that the evidence had been obtained through alleged discussions with “well-placed persons from the Government and the intelligence services”. It was also stated that information had been classified by the Americans into “tiny pieces of information” in order to prevent any single foreign official from seeing a “big picture”. But it was further said that only the highly placed officials had been aware of the HVD Programme. In these circumstances, those “well-placed persons” had been in no position to offer any information. The 2007 Marty Report spoke of the alleged “operating agreements” between the CIA and Romania to hold detainees. However, in the next paragraph Senator Marty had admitted that he had not seen the text of any such agreement. Furthermore, statements of Romanian politicians had been taken out of context to support the report’s erroneous conclusions. Even a declaration of the Romanian President had been distorted into a “formal approval” of the agreement for the cooperation in the HVD Programme. In sum, the 2007 Marty Report’s categorical conclusion that it “[had been] finally established that secret detention centres [had] existed for some years in Romania” seemed to have gone beyond the scant indications on which it had been based. 433. As regards Mr Hammarberg’s findings of 2009-2012, in particular those referred to in his affidavit and included in the dossier prepared for the Romanian Prosecutor General, the Government pointed out that they were – like Senator Marty’s conclusions – based on newspaper articles and sources that could not be verified. They were accordingly no more than unsubstantiated allegations. Also, in the same fashion as other experts before the Court, Mr Hammarberg had based his theories on selective materials, without analysing the existing contradictions. For instance, he had found support for his assertions as to the alleged use of the ORNISS building by the CIA in the fact that in Poland a State facility had hosted a secret detention site. This was concluded without having regard to obvious differences between a remote location and a building used on a daily basis by Government officials in a European capital. 434. Referring to Reprieve’s research and findings, the Government said that this non-governmental organisation represented the interests of some of the detainees held in Guantánamo and carried out a humanitarian project concerning persons who had been subjected to extraordinary rendition in the HVD Programme. Reprieve’s current case work involved representing fifteen prisoners from Guantánamo, assisting over seventy prisoners facing the death penalty around the world and conducting ongoing investigations into the rendition and the secret detention of “ghost prisoners” in the so-called “war on terror”. In these circumstances, Reprieve could not objectively state the facts in their documents and respective articles. 435. Lastly, the Government pointed out that the reliability of the CIA sources cited by the experts and various inquiries or media reports was open to doubt because even the 2014 US Senate Committee Report concluded that the CIA had leaked inaccurate information regarding the operation of the HVD Programme. 436. The Government did not deny that several – allegedly “suspicious” – planes had landed at and taken off from Romanian airports; these flights had at least partly been documented by the 2007 Romanian Senate Report. Also, publicly available evidence confirmed their stopovers on Romanian soil. However, the impugned flights had been of a private and non-commercial nature and had been treated accordingly. In all cases invoices, air navigation service sheets or ground handling charge notes had been issued for all the services provided. The flights had been included in the control lists of the navigation records. The declassified annexes to the 2007 Romanian Senate Report supported the conclusion that the purpose of the “N” flights’ stops at Băneasa Airport had been mainly technical in nature. For instance, as regards the alleged “rendition flight” N85VM of 12 April 2004, the available documents attested that the flight had been recorded in the table containing handling fees and in the control list of navigation records, that an invoice had been issued and that the payment had been made by card; a copy of the air routing card having been attached to the relevant documents. 437. Moreover, several witnesses who had worked in Băneasa Airport at the material time and who had made statements in the investigation had identified these flights as having had a technical stop for refuelling at the airport. The vast majority of the witnesses had stated that the “N” flights had been serviced by a civil handling agent as any normal flight. Even the witnesses who had noted aspects that would suggest that the US flights had gone through a different procedure had completed their declarations by stating that they had not seen any persons disembarking from these aircraft. It should be stressed that not all the witnesses had serviced the same flights and that, therefore, their declarations should not be seen as contradictory. 438. In contrast to the circumstances surrounding the CIA planes’ landings as established by the Court in Al Nashiri v. Poland, in Romania there had been no special procedure for receiving the impugned flights. As the documents in the investigation file showed, all the “N” flights had gone through the standard procedure. The procedure, as described in the witnesses’ statements, had been entirely different from what had happened in Szymany in Poland. No foreign vehicles had been seen entering the premises of Băneasa Airport, there had been no military intervention in order to secure the airport perimeter and, most certainly, US officials had not assumed control of the airport on the dates in question. Nor had any HVDs been seen entering the country, as witnesses quoted in the 2007 Marty Report had stated with regard to the aircraft landings in Szymany. 439. As regards the importance attached by the international inquiries, media and experts heard by the Court to changes of flight plans, in the Government’s view this by itself could not suggest any involvement of the State in the applicant’s detention and ill-treatment. The Government did not deny that the initial flight plans for the N313P flight on 22 September 2003 and the N85VM flight on 12 April 2004 indicating Constanţa as their destination had been changed and the planes had eventually landed at Băneasa Airport in Bucharest. Yet this could not be a proof of any consistent practice of the so-called “dummy” flight planning referred to in the Marty 2006 and 2007 Reports and the findings of the Council of Europe’s Commissioner for Human Rights. In accordance with the relevant domestic and international regulations, every flight must have a flight plan, except for emergency issues. Each flight plan must indicate, in addition to the plane’s destination, an alternative destination. The flight plans had been established by the aircraft’s operators. The only potential involvement of the authorities had been limited to their assistance in transmitting the flight plan to the entity managing the integrated initial flight plan processing system. The decision to use the alternative destination or a change in flight plan had been a unilateral action by the flight operator. The acceptance of these changes in the flight plans was not indicative of any complicity of the Romanian authorities since such acceptance had in fact been automatic. 440. Similarly, the alleged STS/STATE indicators for the impugned flights could not be considered meaningful, even though various reports had emphasised their exceptional relevance. According to the applicable rules, that indicator should not automatically qualify for an exemption from any relevant flow regulations. Even Mr J.G.S. they added, although repeatedly asked, could not indicate any special privileges that the STS/STATE designation would entail. 441. In the Government’s submission, the allegations regarding Romanian’s complicity in the HVD Programme, in particular by means of “secret cooperation agreements” were completely baseless. No such agreements existed. In that context, the Government referred to the Romanian high-office holders’ statements, in particular those made by former President of Romania, Ion Iliescu and his former security adviser, Ioan Talpeş in Der Spiegel in 2014 and 2015. Both of them had said that specific agreements had been concluded with the American authorities after 11 September 2001, including the Romanian support at the level of intelligence services – which had actually been very fruitful. This did not mean cooperation in running a secret prison. Furthermore, in the course of the criminal investigation their initially ambiguous statements had later been clarified to the effect that there had been no cooperation and no complicity in the CIA rendition and secret detention operations on the part of Romania. 442. Nor could it be said that the Romanian authorities had otherwise agreed – explicitly or implicitly – to the running of a secret detention facility by the CIA in Romania and that they had made available to them premises for that purpose. These were simply groundless assumptions unsupported by any evidence. Referring again to the statements of Mr Iliescu and Mr Talpeş statements in Der Spiegel, the Government stressed that they had both clearly confirmed that they had had no knowledge of any CIA-run detention facility on Romanian territory. 443. No evidence had been produced to show the slightest degree of knowledge on the part of the Romanian authorities as to the alleged hidden purpose of the flights landing at and taking off from Romanian airports. As attested by Mr J.G.S. at the fact-finding hearing, only at the beginning of November 2005 had there emerged the first information about the alleged existence in some “Eastern European countries” of secret detention facilities designated for suspected terrorists and run by the CIA. Before that time the only information available had concerned the detention facilities in Guantánamo Bay, Afghanistan, Egypt or Jordan and a specific case concerning the surrender of six Algerian men by Bosnian Federal Police into US custody. While information on the setting-up of military commissions for trying persons accused of terrorist acts had been in the public domain, the identities of those persons had been unknown. Nor had it been known what the US authorities’ decision would be as to which of them would actually be tried before military commissions rather than before federal courts. In sum, at the relevant time, from 2003 to 2005, there had been no information that would have allowed the European States to suspect that some of the US flights that had landed in Europe had been used for the transfer of prisoners. 444. The applicant maintained that the international inquiries, the CIA declassified documents, the 2014 US Senate Committee Report, other abundant materials compiling most recent research on the operation of the HVD Programme and expert testimony obtained by the Court provided a wealth of compelling evidence supporting his allegations and rejecting the Government’s arguments as utterly untenable. In his view, it was established beyond reasonable doubt that Romania had hosted a secret CIA prison in 2003-2005 and that he had been detained in that prison. 445. The 2014 US Senate Committee Report and other documentary exhibits before the Court, as well as cogent and credible expert testimony confirmed that the CIA detention site code-named “Bright Light” or “Detention Site Black” had been located in Romania. The fact that a CIA secret prison had been located in Romania had already been confirmed in the 2007 Marty Report. In the Al Nashiri v. Poland judgment the Court had quoted verbatim from the expert testimony of Senator Marty and Mr J.G.S. stating that there had been a secret CIA detention site in Bucharest. 446. As regards evidence that had emerged after the above judgment, the applicant attached particular importance to the 2014 US Senate Committee Report, adding that it fully confirmed the Court’s factual findings in Al Nashiri v. Poland, including those based on expert testimony and documentary evidence. Although the report did not refer to Romania by name, it was established that publicly available information, when cross-referenced with references to Detention Site Black confirmed that this site was “Bright Light”, a secret CIA prison that had operated in Bucharest in 2003-2005. For example, the 2014 US Senate Committee Report stated that detainees had begun arriving at Detention Site Black “in the fall of 2003”. It also stated that after publication on 2 November 2005 of the Washington Post article by Dana Priest disclosing that Eastern European countries had hosted CIA “black sites”, the country concerned had demanded the closure of Detention Site Black within hours and that the CIA had transferred the remaining CIA detainees out of the facility shortly thereafter. 447. Furthermore, the 2015 LIBE Briefing stated that it had been established beyond reasonable doubt that the CIA had used a facility in Romania to hold prisoners, that the first of them had been transferred to this facility on 22 September 2003 and that the last ones had been transferred out of the facility in November 2005. 448. Lastly, the applicant relied on expert testimony at the fact-finding hearing. Senator Marty had stated that there had been no shadow of doubt that Romania had participated in the CIA programme. Mr J.G.S. had testified that with the exception of the “black site” in Afghanistan, the Romanian “black site” had operated for the longest period and held more detainees than any other CIA “black site”. Mr J.G.S. and Mr Black had confirmed that the applicant had been secretly detained in Romania. They had also confirmed that the wealth of details about “Detention Site Black” in the 2014 US Senate Committee Report all corresponded to details about the Bucharest prison that the CIA code-named “Bright Light”, where the applicant had been detained. As such, the report by itself, offered by no less than the United States’ own Senate Intelligence Committee, based on exhaustive review of US Government documents, rendered untenable the Romanian Government’s claim that there was no evidence of a CIA prison on Romanian territory. 449. In response to the Government’s arguments (see paragraphs 426429 above), the applicant said that contrary to their assertions the application had not stated that he had been detained in Romania for the entire period between 6 June 2003 and 6 September 2006. Rather, it stated that he had been detained in Romania for some time during that period. Moreover, after the subsequent disclosure of the dossier submitted by Thomas Hammarberg, the precise date on which the applicant was transferred to a CIA “black site” in Romania had become clear – it had been 12 April 2004, on flight N85VM from Guantánamo Bay to Bucharest. 450. The applicant further emphasised that, as regards the location of the secret prison, it had become known only on 8 December 2011 when a news report had identified for the first time the precise location of the CIA prison in Romania, while at the same time confirming the applicant’s detention there, and providing details of the ill-treatment of detainees. The report had cited US intelligence officials familiar with the location and inner working of the prison. 451. The applicant maintained that it had been established beyond reasonable doubt that planes associated with the CIA rendition operations had landed and taken off from Romania at the material time. The annex to the 2007 Romanian Senate Report listed forty-three flights that had been considered suspicious by the Romanian authorities. 452. The Fava Report had “[e]xpresse[d] serious concern about the 21 stopovers made by CIA-operated aircraft at Romanian airports” which on many occasions had come from or had been bound for countries linked with extraordinary rendition circuits and the transfer of detainees. The list of rendition planes included flight N85VM of 12 April 2004 on which the applicant had been transferred to and from Romania. The Fava Report further noted that a flight with registration number N478GS had suffered an accident on 6 December 2004 when landing in Bucharest. The aircraft had reportedly taken off from Bagram Air Base in Afghanistan, and its seven passengers had disappeared following the accident. The report expressed deep concern “that Romanian authorities [had] not initiate[d] an official investigation process ... into the case of a passenger on the aircraft Gulfstream N478G5, who [had been] found carrying a Beretta 9 mm Parabellum pistol with ammunition”. 453. Furthermore, the applicant pointed out that the international inquiries and the experts heard by the Court had identified the rendition flights on which he had been transferred to and from Romania. The finding in Mr Hammarberg’s dossier for the Romanian Prosecutor General that the applicant had been transferred to Romania on 12 April 2004 on board N85VM, a flight clearly and consistently associated with the rendition operations, had been confirmed by multiple reliable sources, including the 2014 US Senate Committee Report and the reconstruction by those experts of the applicant’s transfers in CIA custody. 454. As regards his possible transfer from Romania, the experts had given two dates, agreeing on the most probable date, which constituted sufficient evidence. 455. The applicant submitted that the Government’s arguments contesting the evidential value of the material before the Court should be rejected in their entirety. In his view, the Government’s submissions simply constituted an attempt to discredit the findings of reputable officials like the Council of Europe’s Commissioner for Human Rights and Senator Dick Marty, by arguing that these findings were based solely on newspaper articles. In doing so, they failed to take into account the fact that Mr Hammarberg and Senator Marty had engaged in independent investigations and analysis of their own. Indeed, Commissioner Hammarberg’s dossier for the Romanian Prosecutor General had expressly drawn on the “original investigation and the analysis undertaken by [his] Office during the six of years of [his] mandate as Commissioner, among other sources of information”. Similarly, the 2007 Marty Report had engaged in “analysis of thousands of international flight records – and a network of sources established in numerous countries”. Further, as regards the statement in the 2007 Marty Report that Romania had entered into a bilateral agreement with the US authorities, the applicant pointed out that, contrary to the Government’s assertion, the fact that Senator Marty had not seen the actual document did not undermine the credibility of his claim that such an agreement had in fact existed, because its existence had been verified by credible sources, some of whom had been directly involved in negotiations that had led to this agreement. The fact that such an agreement had been brokered had recently been corroborated by the 2014 US Senate Committee Report. 456. For the applicant, there was no doubt that the Romanian authorities had cooperated with the CIA in the HVD Programme. They had granted licences and overflight permissions to facilitate the CIA rendition flights. The AACR’s officials had collaborated with Jeppesen (and, by extension, with Jeppesen’s client, the CIA) by accepting the task of navigating disguised flights into Romanian airports. 457. As set forth in the 2007 Marty Report, Romania had entered into a bilateral agreement with the United States. The report had named individual office-holders who had known about, authorised and stood accountable for Romania’s role in the CIA’s operation of secret detention facilities on Romanian territory from 2003 to 2005 as follows: the former President of Romania (up to 20 December 2004), Ion Iliescu; the then President of Romania (20 December 2004 onwards), Traian Băsescu; the Presidential Advisor on National Security (until 20 December 2004). Ioan Talpeş; the Minister of National Defence (ministerial oversight up to 20 December 2004), Ioan Mircea Pascu; and the Head of the Directorate for Military Intelligence, Sergiu Tudor Medar. 458. Romania had therefore participated in the applicant’s ill-treatment and incommunicado detention by entering into that agreement and giving the US the “full extent of permissions and protections it sought” for conducting secret detention and rendition operations on Romanian territory; issuing an order to Romanian military intelligence services on behalf of the President to provide the CIA with all the facilities they had required and to protect their operations in whichever way they had requested; providing the use of a Romanian Government building for hosting the secret prison where Al Nashiri had been detained; actively assisting the landing, departures and stopovers of secret CIA rendition flights including flights which had transported Al Nashiri in and out of Romania; and failing to disclose the truth and effectively investigate the existence of a secret CIA prison and rendition flights in Romania. 459. Consequently, the applicant’s torture and secret detention, as well as his transfer from Romania in the face of real risks of further torture, secret detention and the death penalty could be attributed to the Romanian State because these acts had occurred on Romanian territory with the acquiescence and connivance of the Romanian authorities and because Romania had failed to fulfil its positive obligations to prevent these acts, despite being on notice that they would occur. 460. Lastly, citing Al Nashiri v. Poland the applicant emphasised that in that case the Court had found that CIA rendition operations had “largely depended on cooperation, assistance and active involvement of the countries which put at the USA’s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners and, last but not least, premises on which the prisoners could be securely detained and interrogated” and that “the cooperation and various forms of assistance of those authorities, such as for instance customising the premises for the CIA’s needs, ensuring security and providing the logistics [had been] the necessary condition for the effective operation of the CIA secret detention facilities”. This was true with respect to Romania. Just as the Court had found it inconceivable that Poland had not known about the secret detention of prisoners on its territory, it was simply inconceivable that Romania had not known that it had been hosting a secret prison. 461. The applicant contended that Romania had knowingly, intentionally, and actively collaborated and colluded with the CIA’s extraordinary rendition programme, thereby enabling the CIA to subject him to secret detention and ill-treatment in Romania. 462. The Romanian authorities should have known that high-value detainees would be tortured and ill-treated. Their close degree of cooperation with the CIA’s secret detention operations in Romania must have put Romanian authorities on notice of the prisoners being at risk of secret detention and ill-treatment. In addition, Romania had had notice of the secret detention, torture and mistreatment of prisoners because of international and Romanian news reports, reports of the UN and human rights organisations and European legal cases that had documented US mistreatment of detainees suspected of terrorism at the material time. The Romanian Government were also presumed to have known of the CIA’s secret detention, torture, and ill-treatment of terrorism suspects through its diplomatic missions. 463. As the 2007 Marty Report had concluded, Romania had been “knowingly complicit in the CIA’s secret detention programme” and senior Romanian officials had “[known] about, authorised, and [stood] accountable for Romania’s role” in the CIA’s secret detention and rendition operations on Romanian territory”. 464. Furthermore, the 2014 US Senate Committee Report had confirmed that the Romanian authorities had known that they had been hosting a secret prison and had attempted to cover up this fact. Indeed, the report observed that the Romanian authorities had “entered into an agreement” in 2002 with the US to host the prison, and that the US had paid the Romanian authorities “millions of dollars to host the prison”. It also confirmed that within hours of The Washington Post reporting in November 2005 that Eastern European countries had hosted secret CIA prisons, the Romanian authorities had insisted on closing the CIA prison on their territory. 465. In the applicant’s submission, the evidence before the Court demonstrated that it was the Romanian authorities which had given the CIA permission to run a secret prison in Bucharest, it was the Romanian authorities who had given the CIA permission to use dummy flight plans to secretly land rendition planes carrying prisoners in and out of the country, and it was Romanian authorities who had given the CIA extraordinary security cover for their operations in Romania. As expert J.G.S had said at the fact-finding hearing: “it [was] quite clear that the Romanian authorities not only should have known but did know of the nature and purpose of the CIA’s secret operations on their territory”. He had also testified that this level of cooperation had depended on authorisation by the highest levels in the Romanian Government. The 2014 US Senate Committee Report had confirmed this. Mr J.G.S and Mr Black had testified that the Romanian authorities had known the nature and purpose of the CIA activities on Romanian territory because the CIA had paid Romania millions of dollars as a subsidy to host the prisoners. Moreover, the 2014 US Senate Committee Report had also established that it had been at the insistence of the Romanian Government that Detention Site Black had been ultimately closed. The Romanian Government had demanded closure of the CIA prison within hours from the publication of the November 2005 Washington Post article disclosing that CIA “black sites” had existed in Eastern Europe. This clearly confirmed that for as long as the CIA prison had existed on Romanian territory, it had been there with the Romanian Government’s consent. 466. The applicant referred to the Court’s finding in Al Nashiri v. Poland (cited above) that by June 2003 it was widely known that the US rendition programme had involved secret detention in overseas locations. It stood to reason that Romania, which had hosted a secret CIA prison after Poland and had enabled the applicant’s transfers from its territory well after June 2003, indeed in 2005, had known by then that there had been substantial grounds for believing that the applicant had faced all of these risks. 467. As regards the statements of Mr Iliescu’s and Mr Talpeş, the applicant maintained that the Government’s submission was yet another example of their consistent refusal to acknowledge the truth about their hosting of a secret CIA prison on Romanian territory. In particular, the Government had quoted selectively from the statement of witness Z, denying that Romania had hosted a secret CIA prison. But a closer look at that statement revealed that Z had actually admitted that the Romanian authorities had supplied a “location” to the CIA. 468. In this connection, the applicant further referred to testimony given by witnesses X, Y and Z, saying that their statements expressly conceded that CIA flights had landed in Bucharest. In particular, X had said that Romania had partnership relations with similar institutions from other States, including equivalent structures in the United States of America. He also stated that in the framework of these bilateral relations, civil aircraft hired by the partner services on which their representatives travelled had landed at Bucharest Băneasa Airport. Witness Z had confirmed that US government officials had asked the Romanian authorities to provide some locations on Romania’s territory for the deployment of actions meant to fight the dangers of international terrorism and which were to be used by the CIA and that the authorities had “offer[ed] a location for CIA activities”‘. In his September 2013 statement Z had acknowledged that there had been “concrete agreements” that had made possible the operation of the special US flights in Romania and that those flights had not been “under any obligation to obey usual rules imposed on civil flights”. Moreover, Y testified that, in the context of Romania’s strategic objective of “NATO and European Union integration”, it had been possible that CIA offices had been run on Romanian territory. 469. Lastly, the applicant reiterated that all the experts heard by the Court at the fact-finding hearing had stated, in unambiguous terms, that Romania not only ought to have known but must have known and had known of the nature and the purpose of the CIA’s secret operations occurring on its territory. 470. Referring to any knowledge of the US authorities’ practices in respect of suspected terrorist attributable to any Contracting State to the Convention at the relevant time, AI/ICJ pointed to, among other things, to the following facts that had been a matter of public knowledge. 471. The interveners first emphasised that they had shown in their submissions in El-Masri and Al Nashiri v. Poland (both cited above) that, at least by June 2003, there had been substantial credible evidence in the public domain that in the context of what the USA called the global “war on terror”, US forces had been engaging in enforced disappearances, secret detentions, arbitrary detentions, secret detainee transfers, and torture or other ill-treatment. Further, the submissions showed that, by presidential military order, the USA had established military commissions – executive tribunals with the power to hand down death sentences – for the prosecution of selected non-US nationals accused of involvement in terrorism in proceedings that would not comply with international fair trial standards. 472. A February 2004 confidential report of the ICRC on Coalition abuses in Iraq, leaked in 2004 and published in the media at that time, found that detainees labelled by the USA as “high-value” were at particular risk of torture and other ill-treatment and “high value detainees” had been held for months in a facility at Baghdad International Airport in conditions that violated international law. 473. In its annual reports covering the years 2004 and 2005, distributed widely to governments and the media, AI had reported on the growing body of evidence of human rights violations committed by US forces in the counter- terrorism context and stated that these violations, including secret detention and rendition, were continuing. In addition to individual country entries, the global overview pages of both reports addressed US abuses in the “war on terror”. For example, in the report covering 2005 this overview showed how during the year, it had become “increasingly clear how many countries had colluded or participated in supporting US abusive policies and practices in the ‘war on terror’, including torture, ill-treatment secret and unlimited detentions, and unlawful cross-border transfers”. 474. In June 2004 The Washington Post published a leaked 1 August 2002 memorandum written in the US Department of Justice’s Office of Legal Counsel at the request of the CIA. The memo advised, inter alia, that “under the circumstances of the current war against al Qaeda and its allies”, presidential authority could override the US anti-torture law, that even if an interrogation method did violate that law “necessity or self-defense could provide justifications that would eliminate any criminal liability”, and that there was a “significant range of acts” that, while constituting cruel, inhuman or degrading treatment or punishment, “fail to rise to the level of torture” and need not be criminalised. 475. In October 2004 AI published a 200-page long analysis of US violations in the “war on terror” and of the US Government documents that had come into the public domain, and including case details of secret transfers of detainees, the alleged existence of secret detention facilities and torture and other ill treatment. 476. In May 2005, AI published a 150-page long report on US abuses in the “war on terror”, which included cases of alleged torture or other illtreatment, deaths in custody, military commission proceedings, rendition flights, and the cases of “high-value detainees” allegedly held in CIA custody in secret locations in Afghanistan and elsewhere and being subjected to enforced disappearance. The cases described included those of Tanzanian national Ahmed Khalfan Ghailani and German national Khaled El-Masri. 477. In sum, as the Court held in Al Nashiri v. Poland (cited above), already by June 2003 it had been clear that States had known or should have known about the USA’s rendition and secret detention programme and about the grave human rights violations it entailed as well as allegations of torture and other ill-treatment by US personnel, the indefinite detention regime at Guantánamo and the prospect of unfair trials by the military commission. As detailed above, the body of evidence regarding the USA’s rendition and secret detention programme had only grown between June 2003 and September 2006. The USA’s use of the death penalty remained well-known during this period and the US administration pursued the death penalty from 2002 to 2006 in the high-profile federal prosecution of Zacarias Moussaoui for terrorism offences, as well as moving ahead with a military commission system with the power to hand down death sentences. 478. The parties expressed opposing views on the issues concerning the standard and burden of proof to be applied in the present case. 479. The Government once again reiterated that there was no conclusive evidence that the Romanian authorities had in any way participated in the CIA rendition programme by hosting a secret prison for high-value detainees or by any other means. They agreed with the applicant (see paragraph 488 below) that the Court had accepted that in its establishment of facts and assessment of evidence the co-existence of sufficiently strong, clear and coherent inferences might be considered a proof. Yet in the applicant’s case no such inferences existed. 480. In the Government’s view, the applicant had adopted a strategy of persuading the Court that the Romanian authorities, including the intelligence services and army, had shared the responsibility for gross violations of human rights during the so-called “rendition programme” based on the idea of, in his view, striking similarities between the present case and El-Masri (cited above). However, in order for the Court to shift the burden of proof, the applicant was required to establish a prima facie case in favour of his version of events. In the El-Masri case, that applicant’s presence on Macedonian territory at the material time had not been disputed. His detention and interrogation in “the former Yugoslav Republic of Macedonia”, together with his surrender to the US authorities, had not been refuted either. In contrast, in the instant case no detention facility had been established with certainty, there was no certainty as to the flights on which the applicant had allegedly been transferred to and from Romania, and the exact period of the applicant’s alleged detention in Romania had remained unclear. 481. Furthermore, Mr El-Masri’s description of the circumstances of his detention and torture had been, as the Court held, “very detailed, specific and consistent”. Conversely, in the present case the Court was confronted with the applicant’s incoherent allegations. As opposed to El-Masri, where a significant amount of evidence had corroborated the applicant’s allegations and had given rise to concordant inferences, in the present case no evidence had been put forward, save for the reports which relied on one another. It was true that the Court had held in the El-Masri judgment that it might examine a case by “drawing inferences from the available material and the authorities’ conduct” and had concluded that the applicant had prevailed in his claims. Yet in the instant case there was no such material and the authorities’ conduct had been, if not beyond any criticism, proactive and had demonstrated good faith. Without any intention to attack and discredit the reports of reputable officials or non-governmental organisations, the Government insisted that the truth emerged at the end of a process of gathering evidence, failing which all the allegations remained simple claims. 482. The Government further said that they were fully aware of the Court’s standards of proof in cases involving injuries, death or disappearances that occurred in detention in an area within the exclusive control of the authorities of the respondent State, if there was prima facie evidence that the State might be involved. Nevertheless, they contended that a serious explanation, even if not a final one, had already been provided by the Romanian authorities since a serious and independent investigation was still pending before the national authorities. 483. In view of the foregoing, the Government invited the Court to hold that there was no prima facie evidence in favour of the applicant’s version of events and that, therefore, the burden of proof could not be shifted. They added, however, that they could not give a final version of the facts since the domestic investigation had not yet been completed. 484. The applicant maintained that he had adduced strong, clear and concordant facts in support of his claims. In contrast, the Romanian Government had continued to cover up the truth. The Government had an unprecedented advantage over the applicant. They had all the relevant facts in their possession because they had entered into an agreement to host the secret CIA prison, because they had operationalised that agreement, and because they had covered it all up. In contrast, the applicant, still detained at the remote location of Guantánamo Bay, was gagged from speaking of his treatment in Romania. 485. The applicant reiterated that he had established more than a prima facie case that he had been detained and tortured in Romania under the HVD Programme (see paragraphs 404-405 above). According to the Court’s case-law, the burden of proof now shifted to Romania, particularly because Romania had “exclusive access to information” and witnesses who could corroborate or refute the applicant’s case. However, the Government had failed to provide any such explanation; instead, they engaged in a pattern and practice of obfuscation and denial with respect to the events complained of. They had done so in the context of unprecedented secrecy maintained by the United States and its partner governments with respect to secret detention and extraordinary rendition operations. 486. Where, as in the present case, the events at issue lay wholly or in large part within the exclusive knowledge of the authorities, the burden of proof could be regarded as resting on the authorities to provide a satisfactory and convincing explanation. Where, as in this case, the authorities had failed to provide a convincing explanation and failed to conduct an effective investigation, despite being on notice, at least since November 2005, of the fact that Romania had hosted a secret CIA prison, the Court was entitled to draw inferences adverse to the authorities. 487. The applicant emphasised that the Court had consistently applied these principles in cases involving injuries, death or disappearances that occurred in detention, including cases where, as here, the Government denied that the individual had been in Government custody at the time of the events at issue. It had also applied these principles where persons had been found dead or injured, or had disappeared, in an area within the exclusive control of the authorities of the State and there had been prima facie evidence that the State might be involved. As the Grand Chamber reiterated in El-Masri, prima facie evidence could itself be provided by proof in the form of concordant inferences, based on which the burden of proof was shifted to the respondent Government. 488. Furthermore, in Al Nashiri v. Poland (cited above) the Court had established that it was appropriate to adopt a flexible approach towards the evaluation of evidence. The Court had observed that although it had adopted the “beyond reasonable doubt” standard of proof, it also “adopt[ed] the conclusions that [were], in its view, supported by the free evaluation of all evidence, including such inferences as [might] flow from the facts and the parties submissions”. Proof could thus “follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact”. In addition, in assessing the evidence, the Court had also taken note of the unique set of constraints on the applicant which had precluded him from testifying about his detention before the Court and of “the very nature and extreme secrecy of the CIA operations in the course of the ‘war on terror’”. 489. The applicant argued that the same constraints applied in his case against Romania. Indeed, he had been virtually isolated in Guantánamo and unable to talk publicly about his torture and ill-treatment or even submit a statement to the Court because the US authorities had taken the position that his thoughts and memories about his experiences under torture were classified information. Accordingly, they had prohibited him from sharing these experiences with anyone other than his US lawyers, who were prevented from revealing what they had been told by their client on pain of criminal sanction. Despite the extreme secrecy associated with CIA operations and his inability to address the Court directly, the applicant considered that he had submitted ample evidence in support of his factual claims. Indeed, the documentary and expert evidence offered by him and heard by the Court in the present case was, in his view, akin to the evidence that had been given credence by the Court in Al Nashiri v. Poland. 490. The Court is sensitive to the subsidiary nature of its role and has consistently recognised that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Imakayeva v. Russia, no. 7615/02, § 113, ECHR 2006XIII (extracts); Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 96, 18 December 2012; El-Masri, cited above, § 154; Al Nashiri v. Poland, cited above, § 393; and Husayn (Abu Zubaydah) v. Poland, cited above, § 393). Nonetheless, in cases where there are conflicting accounts of events, the Court’s examination necessarily involves the task of establishing facts on which the parties disagree. In such situations the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court (see El-Masri, cited above, § 151; and Imakayeva, cited above, §§ 111-112). 491. In assessing evidence, the Court 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 which 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 its approach to the issues of evidence and proof. In the proceedings before the Court, 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 the Court’s 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, among other examples, Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005VII; Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012; El-Masri, cited above, § 151; Georgia v. Russia (I) [GC], no. 13255/07, §§ 93-94, ECHR 2014 (extracts); Al Nashiri v. Poland, cited above, § 394; Husayn (Abu Zubaydah) v. Poland, cited above, § 394; and Nasr and Ghali, cited above, § 119). 492. While it is for the applicant to make a prima facie case and adduce appropriate evidence, if the respondent Government in their response to his allegations fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation of how the events in question occurred, strong inferences can be drawn (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 184, ECHR 2009, with further references; Kadirova and Others v. Russia, no. 5432/07, § 94, 27 March 2012; Aslakhanova and Others, cited above, § 97; Al Nashiri v. Poland, cited above, § 395; and Husayn (Abu Zubaydah) v. Poland, cited above, § 395). 493. Furthermore, the Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. According to the Court’s case-law under Articles 2 and 3 of the Convention, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, for instance 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 (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Imakayeva, cited above, §§ 114-115; El-Masri, cited above, § 152; Al Nashiri v. Poland, cited above, § 396; Husayn (Abu Zubaydah) v. Poland, cited above, § 396; and Nasr and Ghali, cited above, § 220). In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see El-Masri, cited above, § 152). 494. The Court has already noted that it is not in a position to receive a direct account of the events complained of from the applicant (see paragraph 16 above; also, compare and contrast with other previous cases involving complaints about torture, ill-treatment in custody or unlawful detention, for example, El-Masri, cited above, §§ 16-36 and 156-167; Selmouni v. France [GC], no. 25803/94, §§ 13-24, ECHR 1999V; Jalloh v. Germany [GC], no. 54810/00, §§ 16-18, ECHR 2006IX; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 188-211, ECHR 2004VII). 495. The regime applied to high-value detainees such as the applicant is described in detail in the CIA declassified documents, the 2014 US Senate Committee Report and also, on the basis, inter alia, of the applicant’s own account, in the 2007 ICRC Report. That regime included transfers of detainees to multiple locations and involved holding them incommunicado in continuous solitary confinement throughout the entire period of their undisclosed detention. The transfers to unknown locations and unpredictable conditions of detention were specifically designed to deepen their sense of disorientation and isolation. The detainees were usually unaware of their exact location (see Al Nashiri v. Poland, cited above, §§ 397-398; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 397-398; and paragraphs 48-58, 85 and 293 above). 496. As held in Al Nashiri v. Poland (cited above, § 399) and as can be seen from the material cited above (see paragraphs 98-140 above), since an unknown date in mid-October 2002 the applicant has not had contact with the outside world, save the ICRC team in October and December 2006, the military commission’s members and his US counsel. It has also been submitted that the applicant’s communications with the outside world are virtually non-existent and that his communications with his US counsel and his account of experiences in CIA custody are presumptively classified (see paragraph 482 above). 497. The above difficulties involved in gathering and producing evidence in the present case caused by the restrictions on the applicant’s contact with the outside world and the extreme secrecy surrounding the US rendition operations have inevitably had an impact on his ability to plead his case before this Court. Indeed, in his application and further written pleadings the events complained of were to a considerable extent reconstructed from threads of information gleaned from numerous public sources. Consequently, the Court’s establishment of the facts of the case is to a great extent based on circumstantial evidence, including a large amount of evidence obtained through the international inquiries, considerably redacted documents released by the CIA, the declassified 2014 US Senate Committee Report, other public sources and the testimony of the experts heard by the Court (see also Al Nashiri v. Poland, cited above, § 400, and Husayn (Abu Zubaydah) v. Poland, cited above, § 400). 498. It is also to be noted that while the Government have firmly denied the applicant’s allegations in so far as they concerned Romania and contested the credibility of various parts of the evidence before the Court, they have not disputed the fact that he was subjected to secret detention and ill-treatment under the HVD Programme. Nor have they disputed his version of the circumstances preceding his alleged rendition to Romania on 12 April 2004 (see paragraphs 395-402 and 419-443 above). However, the facts complained of in the present case are part of a chain of events lasting from mid-October 2002 to 5 September 2006 and concerning various countries. The examination of the case necessarily involves the establishment of links between the dates and periods relevant to the applicant’s detention and a sequence of alleged rendition flights to the countries concerned. As a result, the Court’s establishment of the facts and assessment of evidence cannot be limited to the events that according to the applicant allegedly took place in Romania but must, in so far as it is necessary and relevant for the findings in the present case, take into account the circumstances occurring before and after his alleged detention in Romania (see Al Nashiri v. Poland, cited above, §§ 401-417, and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 401-419). 499. The Court has already established beyond reasonable doubt the facts concerning the applicant’s capture, rendition and secret detention until 6 June 2003, the date of his rendition on plane N379P from Poland to another CIA secret detention facility (see Al Nashiri v. Poland , cited above, §§ 401-417). The relevant passages from Al Nashiri v. Poland containing the Court’s findings of fact are cited above (see paragraph 98 above). Some additional elements, which are all fully consistent with the Court’s establishment of the facts in that case, can also be found in the 2014 US Senate Committee Report (see paragraphs 99-101 above). 500. It is alleged that before being rendered by the CIA on 12 April 2004 from Guantánamo to Romania on board N85VM the applicant had been detained in other CIA secret detention facilities abroad (see paragraphs 115-116 above). 501. In Al Nashiri v. Poland (cited above, §§ 408 and 417) the Court held as follows: “408. In the light of that accumulated evidence, there can be no doubt that: ... 2) the N379P, also known as “Guantánamo Express”, a Gulfstream V with capacity for eighteen passengers but usually configured for eight, arrived in Szymany on 5 June 2003 at 01:00 from Kabul, Afghanistan. It stayed on the runway for over two hours and then departed for Rabat, Morocco. ... 417. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that: ... 4) on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P.” 502. Referring to this point in time, the 2014 US Senate Committee Report states that from June 2003 onwards “the CIA transferred Al Nashiri to five different CIA detention facilities before he was transferred to US military custody on 5 September 2006” (see paragraph 102 above). It further states that in 2003 the CIA arranged for a “temporary patch”, which meant placing the applicant and another detainee – Ramzi bin al-Shibh – in a country whose name was redacted and that by an unspecified – redacted – date in 2003 both of them were transferred out of that country to Guantánamo (see paragraph 109 above). There can therefore be no doubt that between his transfer from Poland on 6 June 2003 and his transfer to Guantánamo on an unspecified later date in 2003 the applicant was for some time held by the CIA in another country – the first one out of five in which he would be secretly detained between 6 June 2003 and 5 September 2006. 503. Mr J.G.S. testified that the country in question was identifiable as Morocco and that on 6 June 2003 the plane N379P had taken the applicant and Ramzi bin al-Shibh from Poland to Rabat, Morocco to a facility that at that time had been let to the CIA by their Moroccan counterparts. He stated that the applicant had remained there until 23 September 2003, the date on which he had been transported on plane N313P from Rabat to Guantánamo (see paragraphs 107-108 and 110 above). 504. The N313P rendition circuit of 20-24 September 2003 was analysed in detail in Husayn (Abu Zubaydah) v. Poland, where the Court held that on 22 September 2003 Mr Abu Zubaydah had been transferred by the CIA from Poland on board that plane to another CIA secret detention facility elsewhere. It also held that this flight had marked the end of CIAassociated aircraft landings in Poland and the closure of the CIA “black site” codenamed “Quartz” in that country (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414 and 419). The collation of data from multiple sources shows that the plane left Washington D.C. on 20 September 2003 and undertook a four-day flight circuit during which it landed in six countries. It flew from Rabat to Guantánamo on the night of 23 September 2003, landing there in the morning of 24 September 2003 (see paragraphs 111-112, 274, 326, 337, 356 and 374 above). According to the RCAA letter of 29 July 2009, N379P’s itinerary was Szczytno airport in Szymany, Poland-Constanţa-Rabat but the airport at which it landed in Romania was Băneasa Airport in Bucharest (see paragraphs 113 and 326 above). This information is consistent with evidence heard from Mr J.G.S., who in Husayn (Abu Zubaydah) v. Poland testified that “this particular flight circuit was again disguised by dummy flight planning although significantly not in respect of Poland” and that “since this visit to Szymany was comprised solely of a pick-up of the remaining detainees, the CIA declared Szymany as a destination openly and instead disguised its onward destinations of Bucharest and Rabat, hence demonstrating that the methodology of disguised flight planning continued for the second European site in Bucharest, Romania” (see Husayn (Abu Zubaydah) v. Poland, cited above, § 312; and paragraph 112 above). 505. The 2014 US Senate Committee Report confirms that “beginning in September 2003” the CIA held its detainees at CIA facilities in Guantánamo and that by a – redacted but clearly two-digit – date in April 2004 “all five CIA detainees were transferred from Guantánamo to other CIA detention facilities” pending the US Supreme Court’s ruling in Rasul v. Bush which, as the US authorities expected, “might grant habeas corpus rights to the five CIA detainees”. The transfer was preceded by consultations among the US authorities in February 2004. It was recommended by the US Department of Justice (see paragraphs 62 and 114 above). 506. In the light of the material in its possession, the Court finds no counter evidence capable of casting doubt on the accuracy of the expert’s conclusions regarding the above sequence of events, the places of the applicant’s secret detention and the dates of his transfers during the relevant period. 507. Accordingly, the Court finds it established beyond reasonable doubt that: (1) on 6 June 2003 on board the rendition plane N379P the applicant was transferred by the CIA from Szymany, Poland to Rabat, Morocco; (2) from 6 June to 23 September 2003 the applicant was detained in Morocco at a facility used by the CIA; (3) on 23 September 2003 on board the rendition plane N313P the applicant was transferred by the CIA from Rabat to Guantánamo; and (4) the applicant was detained in Guantánamo until a two-digit date in April 2004 (redacted in the 2014 US Senate Committee Report), then transferred by the CIA to another detention facility elsewhere. 508. It is alleged that a CIA secret detention facility operated in Romania from 22 September 2003 to the first days of November 2005, when it was closed following the publication of Dana Priest’s report on CIA overseas clandestine prisons in Eastern Europe in The Washington Post on 2 November 2005 (see, in particular, paragraphs 445-448 above). The Government denied that a CIA detention facility had ever existed on Romania’s territory (see, in particular, paragraphs 420-425 above). 509. The Court notes at the outset that the following facts are either uncontested or have been confirmed by the Court’s findings in Husayn (Abu Zubaydah) v. Poland and flight data from numerous sources, including the documents produced by the respondent Government: (a) On 22 September 2003 plane N313P arrived in Szymany, Poland en route from Kabul, left on the same day for Romania and, having indicated in its flight plan Constanţa as its destination, in fact landed at Bucharest Băneasa Airport. On 23 September 2003 the plane took off from Bucharest for Rabat (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 408 and 419; and paragraphs 112-113, 326 and 504 above). (b) On 5 November 2005 plane N1HC, having indicated in its flight plan Mihail Kogălniceanu International Airport in Constanţa as its destination, in fact landed at Băneasa Airport in Bucharest and on the same day took off from Bucharest for Amman. (c) On 5 November 2005 plane N248AB arrived in Amman at 23:49 and on 6 November 2005, on the same night, left for Kabul; (d) On the same night of 5-6 November 2005 both N1HC and N248AB were in the same airport in Amman between 00:21 (N1HC’s landing) and 00:55 (N248AB’s departure) (see paragraph 135 above). 510. It has not been disputed by the Government that the Washington Post publication was the first one in which East European countries were mentioned in the context of the HVD Programme (see paragraphs 236 and 421 above). It was followed by subsequent, more specific reports. On 6 November 2005 Human Rights Watch, in the 2005 HRW Statement, indicated Poland and Romania as the CIA accomplices in the HVD Programme (see paragraphs 226-227 above). That statement was followed by the HRW List of 30 November 2005 which referred to “ghost prisoners”, including the applicant, considered to be possibly held in secret detention by the CIA (see paragraph 228 above). A few days later, on 5 December 2005, an ABC News report named Poland and Romania as countries hosting CIA secret prisons and listed the names of eleven top al-Qaeda terrorist suspects, including the applicant, being held in CIA custody. It also stated that, according to the CIA sources, the US authorities had “scrambled to get all the suspects off the European soil before Secretary of State Condoleezza Rice arrived there today” (see paragraph 237 above). 511. Nor has it been disputed that the above disclosures soon triggered a number of international inquiries into the CIA rendition and secret detention operations and allegations of torture and ill-treatment of prisoners. The multiple investigations by international governmental organisations started with the Council of Europe’s inquiry under Article 52 of the Convention and the Marty Inquiry, followed by the European Parliament’s Fava Inquiry, the 2010 UN Joint Study and the investigative work of the Council of Europe’s Commissioner for Human Rights carried out until 2012. Also, in that context, the ICRC independently prepared its earlier, confidential reports and the 2007 ICRC Report (see paragraphs 246-280, 290 and 294296 above). As a follow-up to the Fava Report, the European Parliament LIBE Committee still continues to investigate the issue of the CIA secret prisons in Europe (see paragraphs 282-290 above). 512. The initial 2006-2007 reports drawn up in the framework of the inquiries conducted by the international governmental organisations confirmed consistently, albeit in various terms, that there was at least a strong suspicion that a CIA clandestine detention site had operated in Romania. (a) The 2006 Marty Report stated that, while the factual elements gathered so far had not provided definitive evidence of secret detention centres, Romania was “thus far the only Council of Europe member state to be located on one of the rendition circuits” which bore “all the characteristics of a detainee drop-off point”. The rendition circuit in question was executed on 25 January 2004 by plane N313P which, before landing in Romania, on 23 January 2004 rendered Mr El-Masri from Skopje to the CIA ”black site” in Kabul (see paragraphs 253 and 327-330 above and El Masri, cited above, §§ 21 and 157-158). (b) The 2007 Marty Report affirmed that there was “now enough evidence to state that secret detention facilities run by the CIA [had] existed in Europe from 2003 to 2005, in particular in Poland and Romania” (see paragraph 258 above). It stated that “Romania [had been] developed into a site in which more detainees were transferred only as the HVD Programme [had] expanded”. It was Senator Marty’s understanding that “the Romanian “black site” [had been] incorporated into the programme in 2003, attained its greatest significance in 2004 and operated until the second half of 2005” (see paragraph 261 above). The report also referred to the “clear inconsistencies in the flight data” provided by various Romanian sources, when compared with data gathered by the Marty Inquiry independently. The disagreement between these sources was found to be “too fundamental and widespread to be explained away by simple administrative glitches, or even by in-flight changes of destinations by Pilots-in-Command, which were communicated to one authority but not to another”. In sum, the report stated that “presently there exist[ed] no truthful account of detainee transfer flights to Romania” (see paragraph 264 above). Senator Marty in the 2006 and 2007 Marty Reports, as well as in his affidavit of 24 April 2013 and testimony given at the fact-finding hearing before the Court explained comprehensively the methodology adopted in his inquiry and the sources of information on the basis of which the respective findings had been made (see paragraphs 258, 262, 354 and 379 above). (c) The Fava Report expressed “serious concern” about twenty-one stopovers made by the CIA-operated aircraft at Romanian airports, which on most occasions had come from or been bound for countries linked with extraordinary rendition circuits. It was also found that five flight plans had been filed with inconsistencies as they had indicated a landing airport which had not corresponded with the subsequent take-off airport (see paragraphs 271 and 274 above). Moreover, the Fava Report identified three aircraft with multiple stopovers in Romania that already at that early stage of the inquiries into the HVD Programme had been known to have been involved in the CIA rendition operations. Among those aircraft was N85VM, conclusively identified as having been used for the rendition of Mr Osama Mustafa Nasr aka Abu Omar from Germany to Egypt on 17 February 2003 (see also Nasr and Ghali, cited above, §§ 39, 112 and 231) and N313P conclusively identified as having been used for the rendition of Mr El-Masri from Skopje to Kabul on 23 January 2004 (see El-Masri, cited above, §§ 67 and 157-159). The report also listed flights from suspicious locations that stopped over in Romania in 2003-2005. The first flight N313P, from Szymany, Poland to Bucharest, en route to Rabat, took place on 22 September 2003, the last one, N1HC, from Bucharest to Amman, took place on 5 November 2005 (see paragraphs 271, 273 and 276 above). The conclusion in the Fava Report was that it could not exclude, “based only on the statements made by Romanian authorities to the Temporary Committee delegation to Romania, the possibility that US secret services [had] operated in Romania and that no definite evidence ha[d] been provided to contradict any of the allegations concerning the running of a secret detention facility on Romanian soil” (see paragraphs 271 and 280 above). With reference to that conclusion, Mr Fava testified at the fact-finding hearing that “the conclusion we reached was a very strong suspicion that [a CIA detention facility] existed, not certainty – there was no smoking gun” (see paragraph 363 above). The Fava Report relied on comprehensive materials from multiple sources, comprising those collected during the TDIP delegation’s visits to the countries concerned, including Romania, extensive flight data, expert evidence, analysis of specific cases of several victims of the CIA extraordinary rendition, interviews with the victims and their lawyers and material acquired in the context of meetings with the national authorities (see paragraphs 268-273 above). 513. The 2010 UN Study, referring to Romania, mentioned that the analysis of complex aeronautical data had demonstrated the circuit flown by N313P in September 2003 and that the experts had not been able to identify “any definite evidence of a detainee transfer into Romania” taking place prior to that flight (see paragraph 296 above). 514. Subsequent reports, which were based on fuller knowledge of the HVD Programme emerging from the CIA documents declassified in 2009 and 2010 and took into account progress in the research into rendition flights, contained more categorical conclusions. (a) Mr Hammarberg, in his dossier of 30 March 2012 addressed to the Romanian Prosecutor General, stated that “sufficient evidence ha[d] now been amassed to allow us to consider the existence of a CIA ”black site” in Romania as a proven fact, and to affirm that serious human rights abuses [had taken] place there”. According to Mr Hammarberg’s findings, the opening of the CIA prison, codenamed “Bright Light” and the start of the CIA detention operations in Bucharest was marked by the plane N313P landing in Bucharest on the night of 22 September 2003. The physical location was identified as the ORNISS building in Bucharest. The dossier included, in chronological order, a list of eight disguised rendition flights into Bucharest in respect of which “dummy” flight plans featuring Constanţa or Timișoara had been filed, starting from the N313P flight on 22 September 2003 and ending with the N860JB flight on 21 August 2005. No specific date of closure of the detention site was given; paragraph 18 of the dossier indicated that it had operated for “a period of at least one year” (see paragraphs 334-339). In response to the Court’s question regarding this point, Mr Hammarberg explained that at that time their research had not managed to establish the precise dates for the closure of the Romanian “black site” nor for the applicant’s transfer from Romania (see paragraph 346 above). Mr Hammarberg, in his written response to the Court’s questions, gave an account of the sources and methodology on which he relied in his findings. The conclusions as to the operation of a secret CIA ”black site” in Romania were based on “a number of different sources which were crossreferenced and not on one piece of evidence in isolation”. This included among other things, official US documents, flight records and aeronautical data amassed from diverse entities across the global aviation sector (see paragraph 345 above). (b) The 2015 LIBE Briefing, which in addition to extensive flight data had been based on an analysis of a large amount of new material disclosed in the 2014 US Senate Committee Report, stated that it had been established beyond reasonable doubt that a facility in Romania had been used by the CIA to hold prisoners, that the first prisoners had been transferred to this facility in September 2003 and that the last prisoners had been transferred out of this facility in November 2005. The dossier included a list of fifteen rendition circuits through Romania, the first of which was executed by N313P on 22-23 September 2003, the last of which was executed on 56 November 2005 and involved two planes N1HC (from Romania to Jordan) and N248AB (from Jordan to Afghanistan) (see paragraphs 355-358 above). 515. Furthermore, in Husayn (Abu Zubaydah) v. Poland Senator Marty and Mr J.G.S., referring in their PowerPoint presentation to the “final rendition circuit” through Poland executed by N313P, testified that this particular circuit had marked the closure of the CIA ”black site” in Poland and the opening of the CIA’s second secret detention site in Europe – located in Romania (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 312 and 414; Al Nashiri v. Poland, cited above, § 414; and paragraph 112 above). 516. At the fact-finding hearing held in the present case the experts heard by the Court confirmed in clear and categorical terms that a secret detention facility had operated in Romania in the period indicated by the applicant. They stated that the N313P flight on 22-23 September 2003 had marked the opening of the site and that a “double-plane switch” circuit involving two planes, identified as N1HC and N248AB had indicated its closure, prompted by the publication of the Washington Post article referred to above (see paragraph 508 above). In the same categorical terms they identified the CIA detention facility located in Romania as the one referred to in the 2014 US Senate Committee Report as “Detention Site Black” (see also paragraphs 160-164 above). (a) Senator Marty and Mr J.G.S in their PowerPoint presentation, in support of the above conclusions, referred to the extensive flight data and their correlation, as well as to the 2014 US Senate Committee Report. In particular, Mr J.G.S. in connection with several specific references in that report stated that the code name “Detention Site Black” in the report corresponded in such “precise and extensive detail” to other multiple data concerning Romania that “Romania, its territory, its airspace, its detention facility, [was] inseparable from Detention Site Black (see paragraphs 131, 371, 374-376 above) (b) Mr Black stated that it was “clear, beyond reasonable doubt that there was a CIA detention facility in Romania” and that he was convinced on “a wide array of different types of evidence” that it operated from September 2003 until November 2005. He testified that there was no doubt that the flight in November 2005 – which had been a two-plane switch taking prisoners to Afghanistan – had signalled the end of the Romanian site and that that flight had come within 72 hours after the existence of the site had been revealed in the Washington Post article. He added that the 2014 US Senate Committee Report was very clear that at that point everyone who had been remaining in Romania had been “shipped out to Afghanistan” (see paragraphs 132 and 390 above). In his testimony, he also mentioned specific HVDs, including the applicant, who had been detained in Romania between September 2003 and 2005, saying that “the fact that those individuals [had been] held in Romania at various points between 2003 and 2005 [was] absolutely beyond reasonable doubt, there [could not] be any alternative narrative to that that [made] any sense”. He further stated that “Detention Site Black [was] the site that fulfil[ed], in terms of its operating times, the flight paths that we [knew] to have been connected to prisoner movements and to the CIA rendition programme. Detention Site Black [was] the one which correlate[d] precisely with those flight paths that our research [had] discovered, [had] reconstructed” (see paragraphs 390 and 392 above). 517. The 2014 US Senate Committee Report includes several references to Detention Site Black. To begin with, the report confirms that CIA detainees were transferred to Detention Site Black in a country whose name was redacted “in the fall of 2003”. It further confirms that the site still operated in “the fall of 2004”, as well as in April and May 2005 (see paragraphs 160-164 above) and that Mr Al Nashiri was held there in October 2004 and June and July 2005 (see paragraphs 127, 158 and 162-163 above). Finally, it indicates that Detention Site Black was closed “after publication of the Washington Post article”, following the pressure from the country concerned, which demanded the closure within a number of hours which, although redacted in the text, clearly comprised two digits (see paragraph 133 above). 518. The Court observes that this indication in theory could mean any time between 10 and 99 hours. However, in reality, given that the CIA had to secure a safe, secret transfer of possibly several detainees by air to another consenting country, such demand could not be dealt with abruptly and immediately and, by the nature of things, inevitably required some preparation and handling of logistical problems. According to the 2014 US Senate Committee Report, the “CIA transferred ... the remaining CIA detainees out of the facility shortly thereafter” (see paragraph 133 above). Having regard to the fact that the Washington Post article was published on 2 November 2005, the dates on which the transfer could realistically have been carried out – that is to say, within the range of 24-99 hours – had to be situated in the short period from 3 to 6 November 2005. This coincides exactly with the flight identified by the experts as the one marking the closure of “Detention Site Black” in Romania, namely N1HC from Bucharest to Amman, executed on 5 November 2005 (see also paragraph 509 above). 519. Furthermore, all the materials in the Court’s possession, including the list of twenty-one “suspicious flights” produced by the Government unambiguously demonstrate that a series of CIA-associated aircraft landings at Bucharest Băneasa Airport started on 22 September 2003 with N313P and ended on 5 November 2005 with N1HC. Markedly, these two particular flight circuits were disguised by the so-called “dummy flight planning”– a practice that, as described by the experts and analysed by the Court in its previous judgments concerning the CIA rendition operations in Poland, consisted in filling false flight plans that indicated a route which the planes did not, or even intend to, fly. Both aircraft’s flight plans indicated Constanţa as their destination but in fact they landed at and took off from Bucharest Băneasa Airport (see paragraphs 112, with references to Husayn (Abu Zubaydah) v. Poland, and 130, 134-135 and 372-373 above; see also Al Nashiri v. Poland, cited above, §§ 419-422). 520. The Government acknowledged that on 22-23 September 2003 the flight plan for N313P, initially indicating Constanţa as its destination, had been changed to Bucharest Băneasa Airport when the plane had been en route (see paragraph 439 above). However, they did not see how the change of flight plans executed by the flight operator – a change on which the Romanian authorities had no influence – could be indicative of their complicity in the CIA rendition operations or, still less, of the existence of a CIA “black site” in Romania (see paragraphs 436-440 above). 521. Addressing the Government’s arguments, the Court finds it appropriate to reiterate certain findings concerning the operation of the CIA-associated flights in Romania emerging from the material in the case file. (a) As already noted above (see paragraph 512 above), the Fava Report referred to twenty-one stopovers made by the CIA-operated aircraft at Romanian airports during the relevant period. Significantly, most stopovers (thirteen) and take-offs (five) found suspicious took place at Bucharest airports. Several of those flights are included in the Government’s list of twenty-one “suspicious flights” (see paragraphs 273 and 327 above). The Fava Inquiry also identified fourteen different CIA aircraft that landed in Romania at the material time and referred to at least five inconsistent flight plans, concerning, among others, the N1HC flight on 5 November 2005. All these plans indicated destinations filed for Constanţa or Timisoara; however, the aircraft real destination was Bucharest Băneasa Airport, at which those flights in fact landed and from which they took off subsequently (see paragraphs 271-274 and 276 above). (b) Mr Hammarberg’s dossier for the Romanian Prosecutor General contained a – non-exhaustive – list of the most significant eight flights into Bucharest, starting from N313P on 22 September 2003. Destinations for all of them were disguised by the “dummy” flight planning. All bore the characteristics of “detainee drop-offs”, i.e. transportation of CIA prisoners into the country. All those planes are on the list of twenty-one “suspicious flights” furnished by the Government (see paragraphs 327 and 337 above). (c) The 2015 LIBE Briefing identified fifteen rendition missions linking Romania to other CIA prison host countries or to known or suspected prisoner transfers. According to that report, the first such mission was executed by N313P on 22 September 2003, the last by N1HC on 5 November 2005 (see paragraphs 357-358 and 514 above). The list of fifteen rendition missions in the 2015 LIBE Briefing overlaps with the Government’s list of twenty-one “suspicious flights” (see paragraphs 327 and 357-358 above). (d) In all the inquiries conducted by the international governmental and non-governmental organisations, which were extensively referred to above, most planes included in the Government’s list have been conclusively and definitely identified as carrying out the CIA rendition missions (see paragraphs 250-264; 268-290; 296; 327-330; 334-336; and 355-358 above). (e) It emerges from the comparison of the list of twenty-one “suspicious flights” with the above reports identifying the aircraft associated with the CIA’s transportation of prisoners that between 23 September 2003 and 5 November 2005 there was a continued, steady and concentrated flow of those planes through Bucharest Băneasa Airport. According to the material produced by the Government themselves, during that period fifteen CIA flights arrived at Bucharest Băneasa Airport and only two were recorded by the Romanian authorities as landing at Constanţa Mihail Kogălniceanu Airport. The CIA flights into Bucharest arrived at fairly regular intervals of between one and some three months (see paragraphs 327 and 357-358 above). 522. Considering the material referred to above as a whole, the Court is satisfied that there is prima facie evidence in favour of the applicant’s allegation that the CIA secret detention site operated in Romania between 22 September 2003 and the beginning of November 2005. Accordingly, the burden of proof should shift to the respondent Government (see El-Masri, cited above, §§ 154-165, and paragraphs 492-493 above). 523. However, the Government have failed to demonstrate why the evidence referred to above cannot serve to corroborate the applicant’s allegations. Apart from their firm, albeit general, denial that the facts as presented by the applicant and disclosed in the international inquiries – to begin with the Marty Inquiry and Mr Hammarberg’s investigative work – never took place or were grossly distorted to Romania’s disadvantage, they have not offered any cogent reasons for the series of landings of CIA-associated aircraft at Bucharest between 22 September 2003 and 5 November 2005 (see also Al Nashiri v. Poland, cited above, § 414; and Husayn (Abu Zubaydah) v. Poland, cited above, § 414). Likewise, the Government have not produced any evidence capable of contradicting the findings of the international inquiries and the experts heard by the Court, categorically stating that the aircraft in question were used by the CIA for transportation of prisoners into Romania. Nor have they refuted expert evidence to the effect that the CIA prison referred to in the 2014 US Senate Report as “Detention Site Black” was located in Romania (see also and compare with Al Nashiri v. Poland, cited above, §§ 414-415; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414-415). 524. In that context, the Court cannot but note that all the international inquiries and other reports challenged by the Government were based on extensive, meticulous work which was done by the experts and politicians of the highest integrity and competence and whose only aim and mission was to reveal the facts and establish the truth about what had occurred in Europe during the CIA rendition operations. Their work was often impeded by the extreme secrecy surrounding the CIA operations, the uncooperative attitude of the national authorities and the lack of access to the necessary information – information which was revealed only gradually, over many years and which still remains incomplete due to the classification of essential documents, in particular the full version of the 2014 US Senate Committee Report. It is worth noting that the inquiries conducted in 20062007 did not have the benefit of access to the CIA declassified documents, which were released in 2009-2010 (see paragraphs 36-58 above) and which provided an important insight into the fate of specific HVDs, including Mr Al Nashiri, with such details as dates of detainees’ transfers between the CIA “black sites” and interrogation schedules. As regards the Government’s challenge to the impartiality and credibility of Reprieve, based on its involvement in ongoing investigations into CIA rendition and secret detention and case work regarding Guantánamo prisoners (see paragraph 434 above), the Court finds no ground whatsoever to consider that Reprieve and its experts, who have – as for instance Mr Black – also been involved in the European Parliament’s inquiry, lack objectivity in representing the facts concerning the operation of the HVD Programme in Europe and the plight of detainees, including the applicant. In so far as the Government can be seen as impliedly contesting the credibility of evidence from other experts heard at the fact-finding hearing (see paragraphs 399 and 430-435 above), the Court would wish to underline that Mr Fava, Senator Marty and Mr J.G.S. already gave evidence in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland. The Court, in its examination of those cases, relied heavily on their testimonies considering them to be one of the most important parts of the evidence and finding them fully reliable and credible (see Al Nashiri v. Poland, cited above, §§ 404, 415, 434-436 and 441; and Husayn (Abu Zubaydah) v Poland, cited above, §§ 404, 415-416, 426-427, 434- 436, 439-440). Furthermore, in El-Masri the Court considered the expert report from Mr J.G.S. to be “compelling evidence” which was duly taken into account in its establishment of the facts in the case (see El-Masri, cited above, §§ 159 and 166). Consequently, in the Court’s eyes, there is nothing in the Government’s submission that would be capable of shedding the doubt on the integrity and dependability of the experts whose testimony was taken in the present case. 525. The Government also argued that the fact that the sources relied on by the applicant, including the 2007 Marty Report and Mr Hammarberg’s dossier, had given different indications as to the exact location of the alleged “black site” in Romania deprived his allegations of credibility. Referring in particular to the ORNISS building, they relied on witness R’s statements obtained in the investigation denying that this location had, or could ever have been, used for the CIA prison (see paragraphs 325 and 422425 above). The Court does not find these arguments convincing. It is true that the applicant, relying on the press disclosures, indicated the ORNISS building as a probable CIA prison. However, considering the secrecy of the CIA operations it cannot be realistically expected that this kind of indication will be absolutely certain, unless the governments concerned decide to disclose such locations and formally “officialise” the information circulating in the public domain. In that regard, the Court would note in passing that the likelihood of the ORNISS building having hosted the CIA facility has also been considered in the inquiry conducted by the European Parliament; however, the Romanian authorities did not enable the LIBE delegation to visit the site during their fact-finding mission in September 2015 (see paragraphs 288-290 above). The Court will not speculate on that likelihood. Nor is it necessary for the purposes of its ruling to establish where the CIA facility was exactly located. Given the coherent and unrefuted evidence corroborating the applicant’s allegations as to the existence of the CIA “black site” in Romania, the fact that he did not state its precise location does not undermine the credibility of his allegations. 526. In view of the foregoing, the Government’s objection to the credibility of the evidence and sources relied on by the applicant (see paragraphs 430-435 above) cannot be upheld. 527. Consequently, the Court considers the applicant’s allegations sufficiently convincing and, having regard to the above evidence from numerous sources corroborating his version, finds it established beyond reasonable doubt that: (a) a CIA detention facility, codenamed Detention Site Black in the 2014 US Senate Committee Report, was located in Romania; (b) the facility operated from 22 September 2003 and its opening was marked by flight N313P which took off from Szymany, Poland on 22 September 2003 and, having disguised its destination by indicating Mihail Kogălniceanu International Airport in Constanţa, landed at Bucharest Băneasa Airport on the same day; and (c) the facility was closed on the Romanian authorities’ demand and its closure was marked by flight N1HC which took off from Porto, Portugal on 5 November 2005 and, having disguised its destination by indicating Mihail Kogălniceanu International Airport in Constanţa, landed at Bucharest Băneasa Airport and on the same day took off for Amman, Jordan. 528. It is alleged that the applicant was transferred to Romania from Guantánamo on board N85VM on 12 April 2004 and that he was detained at Detention Site Black in Romania, also codenamed “Bright Light” or “Britelite” until at least 6 October 2005 or, at the latest, until 5 November 2005 (see paragraphs 115-116 and 445-451 above). The Government firmly contested this (see paragraphs 426-429 and 436-437 above). 529. The Court is mindful that, as regards the applicant’s actual presence in Romania, there is no direct evidence that it was the applicant who was transported on board the N85VM flight from Guantánamo to Bucharest or that he was subsequently transferred from Bucharest to another CIA secret detention facility on 6 October or 5 November 2006, the two possible dates indicated by the experts (see paragraphs 129-135 above). The applicant, who for years on end was held in detention conditions specifically designed to isolate and disorientate a person by transfers to unknown locations, even if he had been allowed to testify before the Court, would not be able to say where he was detained. Nor can it be reasonably expected that he will ever, on his own, be able to identify the places in which he was held. No trace of the applicant can, or will, be found in any official flight or border police records in Romania or in other countries because his presence on the planes and on their territories was, by the very nature of the rendition operations, purposefully not to be recorded. As confirmed by expert J.G.S. in Al Nashiri v. Poland, in the countries concerned the official records showing numbers of passengers and crew arriving and departing on the rendition planes neither included, nor purported to include detainees who were brought into or out of the territory involuntarily, by means of clandestine HVD renditions. Those detainees were never appeared in a record of persons on board filed with any official institution (see Al Nashiri v. Poland, cited above, §§ 410-411). 530. In view of the foregoing, in order to ascertain whether or not it can be concluded that the applicant was detained at Detention Site Black in Romania at the relevant time, the Court will take into account all the facts that have already been found established beyond reasonable doubt (see paragraphs 499, 507 and 527 above) and analyse all other material in its possession, including, in particular, the 2014 US Senate Committee Report and expert evidence reconstructing the chronology of the applicant’s rendition and detention in 2003-2005 (see paragraphs 102-140, 159-164, 167-190 and 251-393 above). 531. The Court observes that the following facts either are not disputed or have also been confirmed by flight data from numerous sources, including the documents produced by the respondent Government: (a) On 12 April 2004 plane N85VM, having indicated in its flight plans Mihail Kogălniceanu International Airport in Constanţa as its destination, in fact landed in Băneasa Airport in Bucharest and took off from there on the same day (see paragraph 118 above); (b) that on 5 October 2005 plane N308AB, having indicated in its flight plans Mihail Kogălniceanu International Airport in Constanţa as its destination, in fact landed at Băneasa Airport in Bucharest and took off from Bucharest for Tirana on the same day; (c) that on 5 October 2005 plane N787WH landed in Tirana at 05:52 and stayed there until 23:44, at which time it departed for Shannon; (d) that on 5 October 2005 both N308AB and N787WH were in the same airport in Tirana between 22:38 (N308AB’s landing) and 23:44 (N787WH’s departure); (e) that on 6 October 2005 N787WH, having indicated in its flight plans Tallinn, Estonia as its destination, in fact landed at Vilnius International Airport in Lithuania (see paragraphs 135 and 331 above). 532. As regards the rendition circuit of 5-6 November 2005, the Court would reiterate that it has already been established that: - on 5 November 2005 N1HC, having disguised its destination as Constanţa, in fact landed at Bucharest Băneasa Airport and took off from there for Amman, arriving there in the night on 5 November 2005; - N248AB arrived in Amman 6 November 2005, and on the same night, left for Kabul; and - on the same night of 5/6 November 2005 both N1HC and N248AB were in the same airport in Amman between 00:21 and 00:55 (see paragraphs 509 and 527 above). 533. The Court has also established that after his transfers from Poland to Morocco and from Morocco to Guantánamo the applicant was detained in Guantánamo until an unspecified two-digit date in April 2004 (see paragraph 507 above). As noted above, the 2014 US Senate Committee Report states that by that date, “all five CIA detainees were transferred from Guantánamo to other CIA detention facilities” (see paragraphs 114 and 505 above, with further references). 534. Mr J.G.S., in his testimony, explained that the use of the word “facilities” in the plural in the 2014 US Senate Committee Report was significant in the context of the applicant’s detention given that, as the very same report established, following his transfer from Poland, he had been held at five different CIA “black sites” (see also paragraphs 102 and 104108 above). Mr Al Nashiri could not, therefore, have been transferred from Guantánamo back to Morocco. Mr J.G.S. further explained that at the relevant time there had been two distinct detainee transfers from Guantánamo; the first which had taken some detainees to Rabat on 27 March 2004 and the second which had taken the remaining ones on plane N85VM to Romania, via a stopover in Tenerife, on 12 April 2004. This, he said, was the sole outward flight linking Guantánamo with Romania. Also, it emerged from the 2014 US Senate Committee Report and cables regarding the applicant’s treatment that he found himself at Detention Site Black in the third and fourth quarter of 2004 and in July 2005. Mr J.G.S concluded that, in order for the applicant to be at Detention Site Black or “Britelite” by that time, he had to have been brought to Romania on flight N85VM on 12 April 2004 (see paragraphs 119-120 above). Moreover, in respect of that flight the CIA had recourse to its systematic practice of disguised flight planning which, as the expert stated, “in fact became a tell-tale sign of rendition or detainee transfer activity on such flights” (see paragraph 119 above). 535. Mr Black stated that he was aware of two possible flights that could have taken the applicant into Romania and N85VM was one of them. He indicated that there had been a potential other flight that had occurred in February 2005. While it was known for a fact that the applicant had been in Romania after February 2005 and in June 2005, there were also indications that he had been held in Romania before, in late 2004. That led Mr Black to prefer, of these two possibilities, the 12 April 2004 flight as being the more likely of the two (see paragraph 121 above). 536. The Government acknowledged that the flight plan for N85VM, initially indicating Constanţa as its destination, had been changed to Bucharest, Băneasa Airport when the plane had been en route but did not consider that this element could confirm the applicant’s secret detention in Romania (see paragraph 437 above). They produced documents issued by the RAS at Băneasa Airport in connection with the N85VM landing on 12 April 2004 (see paragraph 118 above). As in respect of other allegedly “suspicious” flights, the Government asserted that the flight had been of a “private and non-commercial nature” and had not been executed in connection with the HVD Programme (see paragraph 436 above). 537. However, this assertion does not seem to be supported by the materials gathered in the present case. To the contrary, the Court finds that in addition to the expert evidence referred to above, there is other abundant evidence to the effect that on 12 April 2004 plane N85VM executed a rendition mission to Romania with the purpose of “dropping off” detainees from Guantánamo. In that regard, the Court observes that since at least 2007 the findings of the international inquiries have clearly associated N85VM with the CIA rendition operations (see paragraphs 271- 273, 337, 342 and 358 above). As already noted above, N85VM was conclusively identified as the plane used earlier for the rendition of Osama Mustafa Nasr otherwise known as Abu Omar (see paragraph 512 above). The former Council of Europe’s Commissioner for Human Rights dossier for the Romanian Prosecutor General included that flight among disguised rendition flights into Bucharest, bearing the character of detainee “drop-off” (see paragraph 337 above). The same dossier listed the applicant among HVDs who had been brought to a CIA “black site” in Romania and indicated 12 April 2004 as the date of his transfer to Romania (see paragraph 342 above). The 2015 LIBE Briefing indicated flight N85VM on 12 April 2004 among the missions carried out under rendition contracts (see paragraph 358 above). That flight is also listed among twenty-one “suspicious flights” in the document produced by the Government (see paragraph 327 above). 538. As to the applicant’s rendition by the CIA from Romania, the experts gave 6 October 2005 and 5 November 2005 as two possible dates of the applicant’s transfer (see paragraphs 129-132 above). Mr J.G.S described in detail the CIA “plane-switch” operation that, according to him, had taken place in the course of the flight circuit on 56 October 2005 and involved two aircraft: N308AB and N787WH. On this premise, on 5 October 2005 the applicant was taken on board N308AB from Băneasa Bucharest City Airport to Tirana and, subsequently, on board N787WH to Vilnius to a CIA ”black site” in Lithuania, referred to as “Detention Site Violet” in the 2014 US Senate Committee Report (see paragraphs 130-131 above). Mr Black considered both dates as probable, with the 6 October 2005 transfer of the applicant being more likely (see paragraph 132 above). 539. Having regard to all the various documentary and oral evidence referred to above, the Court is satisfied that there is prima facie evidence in favour of the applicant’s version of the events and that the burden of proof should shift to the Government. 540. Yet again in the Court’s view the Government have failed to give any convincing grounds to explain why the evidence considered above cannot support the applicant’s allegations. They asserted that the applicant’s version of events should be rejected as it was incoherent and that in his account of the facts there had been inconsistencies regarding the dates, circumstances and the exact period of his alleged detention in Romania (see paragraphs 426-429 above). The Court does not share the Government’s assessment. While it is true that, with the passage of time, the applicant adduced newly disclosed facts relevant for his complaints or corrected the dates initially given for his detention (see paragraphs 115-116 above), this does not by itself render his version of events inconsistent or incredible. In that context the Court would again refer to the fact that since his capture in midOctober 2002 the applicant has been continually prevented from giving any direct account of his fate even to the counsel representing him before the Court (see paragraphs 494-497 above). 541. Furthermore, having regard to the above evidence demonstrating clearly, consistently and conclusively the chronology of the events preceding the applicant’s transfer to Romania, his transfer to Romania on 12 April 2004 and his presence at Detention Site Black located in Romania in 2004 and 2005 (see paragraphs 126-127, 158 and 162-163 above and 545 below), as well as expert evidence confirming that there were two – and only two – possible dates on which he could be taken by the CIA out of Romania, the Court does not find it indispensable to determine on which specific date the transfer occurred. It is certain and beyond any reasonable doubt that the applicant, once detained at Detention Site Black and, as confirmed by the 2014 US Senate Committee Report and the experts, still present there at least until July 2005, must have been transferred out of it at some later point before or when the site was definitely closed on 5 November 2005 (see paragraph 527 above). The experts’ conclusions are founded on in-depth analysis of extensive international aviation data, contractual documents pertaining to rendition missions executed by the air companies used by the CIA and large amount of data released by the US authorities, including the CIA. On this basis, they gave a time-frame which is sufficiently accurate for the Court to conclude that the applicant must have been taken out of Romania either on 6 October 2005 or on 5 November 2005 to one of the – at the time two – remaining CIA detention facilities, referred to in the 2014 US Senate Committee Report as Detention Site Violet and Detention Site Brown. 542. Accordingly, the Court finds it established beyond reasonable doubt that: (a) On 12 April 2004 the applicant was transferred by the CIA from Guantánamo to Romania on board N85VM. (b) From 12 April 2004 to 6 October 2005 or, at the latest, 5 November 2005, the applicant was detained in the CIA detention facility in Romania code-named “Detention Site Black” according to the 2014 US Senate Committee Report. (c) On 6 October 2005 on board N308AB or, at the latest, on 5 November 2005, on board N1HC via a double-plane switch the applicant was transferred by the CIA out of Romania to one of the two remaining CIA detention facilities, code-named Detention Site Violet and Detention Site Brown according to the 2014 US Senate Committee Report. 543. It is alleged that during his secret detention in Romania the applicant was subjected to torture and other forms of treatment prohibited by Article 3 of the Convention. The Government have not addressed this issue. 544. The Court observes that, in contrast to Al Nashiri v. Poland where the treatment to which the applicant was subjected by the CIA during his detention in Poland could be established with certainty owing to the CIA’s declassified materials depicting in graphic detail the torture inflicted on him in the course of the interrogations (see Al Nashiri v. Poland, cited above, §§ 416 and 514-516), in the present case there is no evidence demonstrating that at Detention Site Black in Romania he was subjected to EITs in connection with interrogations (see paragraphs 48-55 above). 545. As regards recourse to harsh interrogation techniques at the relevant time, the 2014 US Senate Committee Report mentions in general terms that in mid-2004 the CIA temporarily suspended the use of the EITs. While their use was at some point resumed and they were apparently applied throughout the most part of 2005, such techniques were again temporarily suspended in late 2005 and in 2006 (see paragraph 94 above). In respect of the applicant, the report states that in the “final years” of his detention “most of the intelligence requirements for Al Nashiri involved showing [him] photographs”. Those “debriefings” were suspended in June 2005 apparently because of the low value of intelligence obtained from him and “because debriefings often were the ‘catalyst’ for his outbursts” (see paragraphs 126-127 above). Other heavily redacted passages in the report speak of “feeding him rectally”, which resulted from his “short-lived hunger strike” at some unspecified time in 2004. It is also mentioned that in October 2004 he underwent a psychological assessment in the context of “management challenges” posed to the CIA by psychological problems experienced by the detainees “who had been held in austere conditions and in solitary confinement”. The applicant’s assessment was used by the CIA in discussions on “establishing an endgame” for the HVD Programme (see paragraphs 126, 158 and 162-163 above). In July 2005 the CIA expressed concern regarding the applicant’s “continued state of depression and uncooperative attitude”. Days later a psychologist established that the applicant was “on the verge of a breakdown” (see paragraph 158 above). 546. According to the experts, even though the applicant was in all likelihood no longer interrogated with the use of the EITs, he did, as Mr J.G.S. stated “purely by virtue of the conditions in which he [had been] held” suffer ill-treatment (see paragraph 124 above). Mr Black added that it was clear that the applicant, in particular when he had been in Romania, was experiencing serious psychological problems as a result of the treatment he had received (see paragraph 125 above). 547. As regards the Court’s establishment of the facts of the case, the detailed rules governing the conditions in which the CIA kept its prisoners leave no room for speculation as to the basic aspects of the situation in which the applicant found himself from 12 April 2004 to 6 October 2005 or 5 November 2005. The Court therefore finds it established beyond any reasonable doubt that the applicant was kept – as any other high-value detainee – in conditions described in the DCI Confinement Guidelines, which applied from the end of January 2003 to September 2006 to all CIA detainees (see paragraphs 56-58 above; see also Husayn (Abu Zubaydah) v. Poland, cited above, §§ 418-419 and 510). While at this stage it is premature to characterise the treatment to which the applicant was subjected during his detention at Detention Site Black for the purposes of his complaint under the substantive limb of Article 3 of the Convention, the Court observes that the regime included at least “six standard conditions of confinement”. That meant blindfolding or hooding the detainees, designed to disorient them and keep from learning their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement (see paragraph 56-58 above). 548. The 2014 US Senate Committee Report, in the chapter giving details as to the establishment of Detention Site Black, states that in an unspecified month (redacted the text) in 2002 the CIA “entered into an agreement” with the country concerned “to host a CIA detention facility”. While the terms of that agreement have not been disclosed, it appears from subsequent passages that, in order to demonstrate to the country’s authority (or person) whose name was redacted and to “the highest levels of the Country ... government” that the US authorities “deeply appreciate[d] their cooperation and support for the detention program”, the CIA station in the country was invited by their Headquarters “to identify ways to support the” – again redacted – country’s bodies (presumably, or activities) by financial means, defined as a “subsidy” (see paragraph 161 above). 549. The requested subsidy which was received in appreciation of “cooperation and support” amounted to a sum (redacted in the text) that was a multiple of USD million; in fact, the amount which was initially put on – in the report’s words – “wish list” presented on behalf of the country by the CIA station was later increased by a further (redacted) multiple of USD million (see paragraph 161 above). The fact that such financial rewards were, as a matter of the general policy and practice, offered to the authorities of countries hosting CIA “black sites” is also confirmed in Conclusion 20 of the 2014 US Senate Committee Report. The conclusion states that “to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials” and that “the CIA Headquarters encouraged CIA Stations to construct “wish lists” of proposed financial assistance” and “to ‘think big’ in terms of that assistance” (see paragraph 97 above). 550. In that context, the Court would also wish to refer to its findings regarding the national authorities’ knowledge of the CIA HVD Programme in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland and the issue of the alleged existence of a bilateral agreement between Poland and the USA on the setting up and running of a secret CIA prison. In that case, the Court did not find it necessary for its examination of the case to establish whether such agreement or agreements existed and if so, in what format or what was specifically provided therein. It did, however, consider it inconceivable that the rendition aircraft could have crossed Polish airspace, landed at and departed from a Polish airport and that the CIA could have occupied the premises in Poland without some kind of pre-existing arrangement enabling the CIA operation in Poland to be first prepared and then executed (see Al Nashiri v. Poland, cited above, §§ 423-428; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 425-430). The same conclusion is valid in respect of Romania; moreover, in the present case it has been reinforced by evidence from the 2014 US Senate Committee Report, unambiguously demonstrating the existence of a bilateral agreement between Romania and the USA on hosting Detention Site Black on Romanian territory. 551. The Court would also add that the above-cited sections of the 2014 US Senate Committee Report further support the conclusions of the 2007 Marty Report, stating that “the key arrangements for CIA clandestine operations in Europe were secured on a bilateral level”, that “the CIA brokered ‘operating agreements’ with the Governments of Poland and Romania to hold its high-value detainees ... in secret detention facilities on their respective territories” and that “Poland and Romania agreed to provide the premises in which these facilities were established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference” (see paragraph 260 above; see also Al Nashiri v. Poland, cited above, §§ 423-428; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 425-430). In his affidavit made several years later, on 24 April 2013, Senator Marty stated that his “convictions regarding Romania’s participation in the CIA’s HVD Programme were unambiguous and unwavering”, adding that “up to the present day, I stand by every one of the factual findings I delivered in my 2006 and 2007 PACE Reports” and that his “certitude that a CIA ‘black site’ existed in Romania [had] only increased since that time” (see paragraph 354 above). At the fact-finding hearing he added that, based on “extremely precise testimony” obtained in the course of his inquiry, the Romanian officials “must have known that the CIA used their territory for transfers of prisoners in the context of the war on terror” (see paragraph 380 above) 552. In that regard, the Court notes that the 2007 Marty Report listed by name several individual high-office holders who “knew about, authorised and stand accountable for Romania’s role in the CIA’s operation of ‘outoftheatre’ secret detention facilities on Romanian territory, from 2003 to 2005” (see paragraph 262 above). Two of those identified in the report, namely former President of Romania, Ion Iliescu and his former Advisor on National Security, Ioan Talpeş several years later made public statements relating to the CIA rendition operation in their interviews given to Spiegel Online in 2014 and 2015 (see paragraphs 244 and 245 above). 553. In December 2014, in the first Spiegel Online publication, Mr Talpeş was reported as saying that “there were one or two locations in Romania at which the CIA probably held persons who were subjected to inhuman treatment”. It was further reported that “had, from 2003 onwards, continued discussions with officials of the CIA and the US military about a more intense cooperation” and that in that context “it was agreed that the CIA could carry out its own activities in certain locations”. He did not know where they were and “Romania was, expressly, not interested in what the CIA was doing there”. Mr Talpeş also told Spiegel Online that in 2003 and 2004 he had informed President Iliescu that the CIA had carried out “certain activities” on Romanian territory; at that time “he did not think that the CIA could possibly torture captives” (see paragraph 244 above). 554. In April 2015, in the second Spiegel Online publication, Mr Iliescu was reported as stating that “around the turn of the year 2002-2003, our allies asked us for a site” and that he, as Head of State, had in principle granted that request but the details had been taken care of by Mr Talpeş. He added that “we [had not interfered] with the activities of the USA on this site”. Spiegel Online further reported that Mr Talpeş had confirmed Mr Iliescu’s statements, adding that at the turn of 2002-2003 he had received a request from a representative of the CIA in Romania for premises, which the CIA needed for its own activities. He had arranged for a building in Bucharest to be given to the CIA. The building was used by the CIA from 2003 to 2006 and no longer existed; Mr Talpeş would not reveal its location (see paragraph 245 above). 555. In that context, it is also to be noted that the 2016 EP Resolution states that Mr Talpeş “admitted on record to the European Parliament delegation that he had been fully aware of the CIA’s presence on Romanian territory, acknowledging that he had given permission to ‘lease’ a government building to the CIA” (see paragraph 290 above). 556. Referring to Mr Iliescu’s and Mr Talpeş’ interviews in Spiegel Online, the Government argued that subsequently their initially ambiguous statements had been clarified to the effect that there had been no cooperation and no complicity in the CIA rendition and secret detention operations on the part of Romania. In that regard, the Government also relied on evidence from witnesses obtained in the criminal investigation conducted in Romania (see paragraphs 441-442 above). 557. The Court does not share this assessment. It is true that certain Romanian officials, for instance Y and Z, who testified in the investigation in May and June 2015, denied receiving any such request or having any knowledge of the existence of the CIA prisons in the country (see paragraphs 300-302 above). Yet in that regard the Court cannot but note that witness Z in his testimony given on 18 June 2015 nevertheless confirmed that “USA Government officials [had] asked the Romanian authorities to offer some locations on Romanian territory to be used for actions of combating the international terrorist threats by the representatives of the CIA, on the same pattern as that used in the other NATO Member States” and that “finally one single location [had been] offered”. It was understood “at that stage, in 2003, that it should be an office building in Bucharest” (see paragraph 302 above). 558. The accounts given by Mr Talpeş and Mr Iliescu to Spiegel Online in their interviews and Mr Talpeş’ admission to the European Parliament’s delegation match the disclosures in the 2014 US Senate Committee Report, in particular regarding the date of the agreement to host a CIA secret detention site (2002), the fact that the Romanian authorities were asked for premises for the CIA, the time at which the premises were provided (2003) and the fact that they were informed of the purpose for which the premises that Romania offered were to be used (see paragraphs 161 and 548 above). They also correspond to the Court’s above findings as to the dates marking the opening of Detention Site Black in Romania (see paragraph 527 above). 559. The statements obtained in the investigation relied on by the Government are in a marked contrast to the disclosures made by the US authorities, Romania’s partner under the agreement. The Court does not see how the findings of the US Senate Intelligence Committee, based on a several-year-long investigation and in-depth analysis of first-hand evidence, which in most part came from classified “top secret” sources, including more than six million pages of CIA documents (see paragraphs 78-80 above) could be undermined by the material referred to by the Government. 560. The 2014 US Senate Committee Report, in the chapter concerning the establishment of the CIA Detention Site Black (see paragraphs 161 and 548 above) also refers to several interventions vis-à-vis the CIA made by the US ambassador in the country in the context of the operation of the CIA HVD Programme in that country and public disclosures of ill-treatment of detainees in US custody. First, in August 2003, he expressed concern as to whether the State Department was aware of the CIA detention facility in the country and its “potential impact” on US policy in respect of the State concerned. The second and third interventions, prompted by “revelations about US detainee abuses” were made in May 2004 and in the “fall of 2004”. The report further states that “while it is unclear how the ambassador’s concerns were resolved, he later joined the chief of Station in making a presentation” to the country’s authorities (or representatives) whose names were redacted in the text. The presentation did not describe the EITs but “represented that without the full range of these interrogation measures” the US “would not have succeeded in overcoming [the] resistance “of Khalid Sheikh Mohammed” and “other equally resistant HVDs”. The presentation also included representations “attributing to CIA detainees critical information” on several terror plots, including the “Karachi Plot”, the “Heathrow Plot” and the “Second Wave Plot”. Also, in the context of intelligence obtained, several well-known HVDs in US custody were mentioned by name (see paragraph 161 above). 561. The above information originated in an evidential source to which the Court attributes utmost credibility (see also paragraph 559 above). It gives a description of a concrete event – an oral presentation – that occurred at some time following “the fall of 2004” and during which, in the context of the operation of Detention Site Black in the country, the Romanian authorities were presented with an outline of the CIA HVD Programme by the US officials. Even though the format of the meeting and names or functions of participants representing the host country have not been revealed, the disclosure clearly shows that the presentation included a fairly extensive account of the HVD Programme. To begin with, the US officials clearly spoke of intelligence that had been obtained from high-value detainees through “overcoming resistance” by means of a “full range of interrogation measures”. They also suggested that specific terrorist suspects in CIA custody had provided “critical intelligence” on prominent terror plots. CIA prisoners whose resistance was “overcome” as a result of interrogations were spoken of, to mention only Khalid Sheikh Mohammed, the top HVD in CIA custody, suspected of masterminding the 11 September 2001 terrorist attacks in the USA. 562. In Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland the fact that the national authorities cooperated with the CIA in disguising the rendition aircraft’s actual routes and validated incomplete or false flight plans in order to cover up the CIA activities in the country was considered relevant for the Court’s assessment of the State authorities’ knowledge of, and complicity in, the HVD Programme (see Al Nashiri v. Poland, cited above, §§ 419-422; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 421-424). The Court will follow that approach in analysing the facts of the present case. 563. It is to be reiterated that the Government acknowledged that in respect of two flights, namely N313P on 22 September 2003 and NVM85 on 12 April 2004 the flight plans had been changed when the planes had been in the air. They denied that any role in the process had been played by the Romanian authorities, except for a passive, “automatic” acceptance of the change for which the plane operator had been solely responsible and assistance in transmitting the flight plans to the entity managing the integrated initial flight plan processing system (see paragraph 439 above). 564. However, as already noted above, the clear inconsistencies in the flight data pertaining to destinations where the CIA-associated aircraft were supposed to arrive and from where they actually took off presented by the Romanian authorities were already identified in the 2007 Marty Report and the Fava Report (see paragraphs 264 and 512 above). Also, Mr Hammarberg’s dossier addressed to the Romanian Prosecutor General listed eight rendition flight circuits occurring between 22 September 2003 and 21 August 2005 in respect of which false flight plans had been filed (see paragraph 337 above). 565. The practice of so-called “dummy” flight planning, i.e. a process of intentional disguise of flight plans for rendition aircraft used by the air companies contracted by the CIA, for instance Jeppesen Dataplan Inc. or Richmor Aviation (see paragraphs 63-70 above), was explained by Senator Marty and Mr J.G.S. in their testimony during the PowerPoint presentation on the basis of two examples of the CIA rendition circuits through Romania executed by plane N313P on 20-24 September 2003 and 16-28 January 2004 (see paragraphs 328 and 371 above). The experts described the “dummy” flight planning as “a systematic practice deployed by the CIA and its aviation services providers to disguise CIA flights into and out of its most sensitive operational locations”. They added that the CIA could not execute this tactic alone since it “depended upon, however discrete, a role played by the national counterpart authority”. The Romanian documentary records demonstrated the landing of N313P on 25 January 2004 at Bucharest Băneasa Airport despite the absence of a valid flight plan. According to the experts, “this was part of a systematic practice and through our investigations we [had] generated numerous, up to twelve instances on which CIA rendition aircraft [had] transferred detainees into, and out of, Bucharest, Romania” (see paragraph 373 above). In this connection, the Court would also reiterate its above findings that the flights N313P and N1HC marking the opening and the closure of the CIA detention facility in Romania, flight N85VM, identified as the one that brought the applicant into Romania and flight N308AB, identified as one of the two possible flights on which the applicant was taken out of Romania were concealed by the “dummy” flight planning (see paragraphs 519, 527, 531, 534-537 and 542 above) 566. As the Court found in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, the “dummy” flight planning, a deliberate effort to cover up the CIA flights, required active cooperation on the part of the host countries through which the planes travelled. In addition to granting the CIA rendition aircraft overflight permissions, the national authorities navigated the planes through the country’s airspace to undeclared destinations in contravention of international aviation regulations and issued false landing permits (see Al Nashiri v. Poland, cited above, §§ 419-422; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 421-424). 567. Consequently, the fact that the Romanian aviation authorities navigated the CIA flights into Bucharest, despite the fact that the relevant flight plans named Constanţa or Timișoara as the airports of destination and accepted flight plans naming those destinations but navigated the planes to Bucharest demonstrated that they knowingly assisted in the process of disguise of the CIA planes (ibid.). 568. The Government asserted that, in contrast to the circumstances in Al Nashiri v. Poland, in Romania there had been no special procedure for receiving the impugned flights (see paragraphs 436-440 above). In that regard they relied on evidence from witnesses heard in the investigation, who had not related any special treatment of the US flights that would deviate from routine procedures for any ordinary flight (see paragraphs 437-438 above). 569. The Court notes that, indeed, several witnesses said that they had not heard about or seen any “clandestine passengers”, “detainees” or “any passenger especially of Arab origin” (see paragraphs 306-309 and 317-319 above) or that they had not noted “anything out of the ordinary when the ‘private planes’ [had] landed” or that there had been “no special services provided” (see paragraphs 320 and 323 above). 570. However, the statements of several other witnesses who referred to the “special” or “N” status flights with the US registrations contradict the Government’s assertion. Witness E knew about three or four such flights that landed at night time and parked on the airport platform for about 10-15 minutes. He said that that the only person approaching them had been witness X. Witness G knew of the “N” flights having been announced as special flights for which the staff had not been requested. Witness O spoke of one plane that had been treated differently and the staff had been asked to stay in the office and not go to the plane. Witness P knew that special flights had been “carried out at night”; also, on one night he had seen a plane without a call sign and a man in dark overalls and military boots walking a dog near the plane (see paragraphs 310, 314 and 322-323 above). Witness X, apparently the only person who had been seen approaching the “special planes” did not explain in concrete terms what had in reality been going on but said that his presence in the airport had been connected with “bilateral relations” with the US” equivalent structures” and “aimed at ensuring protocol relations during processing as well as bilateral courtesy-setting according to diplomatic norms and international rules” (see paragraph 299 above). 571. Witness Z, in his statement of 17 September 2013 given to the prosecutor was more explicit. He confirmed that in the context of Romania’s forthcoming accession to NATO “some developments or agreements [had taken] place in relation to the American flights to be operated by the CIA” and that, “from about 2003 onwards several contacts had taken place in that direction and they resulted in concrete agreements that made possible the operation of the special American flights on Romanian territory, in different conditions than those provided for by international customs”. He added that “those flights [had] had a special character and they [had] not [been] under an obligation to obey usual rules imposed on civil flights” (see paragraph 301 above). 572. Lastly, in the Court’s view, the way in which the Romanian authorities dealt with the accident on the landing of the aircraft N478GS that occurred on 6 December 2004 is one more element that contradicts the Government’s above assertion as to the lack of any special treatment of the CIA-associated flights. The incident was described in the Fava Report and the 2007 EP Resolution, and was also related by Mr Fava at the fact-finding hearing (see paragraphs 275, 280 and 362 above). The presence in Romania of seven passengers on the plane which came from Bagram, Afghanistan, was apparently concealed. Only on the TDIP’s considerable insistence did the Romanian authorities give them a list of passengers, all of them US citizens with service passports. One of them was armed with a Beretta gun and had ammunition on him. No questions were asked about the purpose of their trip from Bagram, a place reported as hosting a CIA detention site for the purposes of interrogations of captured terrorist-suspects (see paragraph 362 above). 573. As in Al Nashiri v. Poland (cited above § 434) and Husayn (Abu Zubaydah) v. Poland (cited above § 436) the Court considers the informal transatlantic meeting of the European Union and North Atlantic Treaty Organisation foreign ministers with the then US Secretary of State, Ms Condoleezza Rice, held on 7 December 2005, to be one of the elements relevant for its assessment of the respondent State’s knowledge of the CIA rendition and secret detention operations in 2003-2005. 574. In his testimony in Al Nashiri v. Poland, Mr Fava stated that the meeting had been convened in connection with recent international media reports, including The Washington Post and ABC News disclosures of, respectively, 2 November 2005 and 5 December 2005, naming European countries that had allegedly hosted CIA “black sites” on their territories (see Al Nashiri v. Poland, cited above, §§ 306 and 434). He also described the content of the “debriefing” of that meeting, a document that the TDIP obtained from a credible confidential source in the offices of the European Union. He stated that it had appeared from Ms Rice’s statement “we all know about these techniques” made in the context of the CIA operations and interrogations of terrorist suspects which had been recorded in the debriefing that there had been an attempt on the USA’s part to share the “weight of accusations” (ibid.). 575. In the present case Mr Fava testified that it had emerged from the debriefing that, at that stage, all the governments had known that this “operational means” had been chosen by the CIA and that the extraordinary renditions were a tool in the war against terrorism. Mr Fava further stated that the TDIP had “never had doubts” given the precision of the debriefing notes and the fact that in the course of their further work they had received confirmation from Mr Bellinger, legal advisor to Ms Rice, that the US had “never violated the sovereignty of any EU Member States or indeed any States in in the process of accession to the EU” and that everything what they had done “[had been] done by always informing and asking for cooperation and never trying to prevail over the will of the governments of the Member States” (see paragraph 361 above). 576. In the context of Romania’s knowledge of the CIA HVD Programme, Mr Fava moreover referred to a statement of Mr Pascu, listed in the 2007 Marty Report among the Romanian high-office holders “who knew about, authorised and [stood] accountable” for Romania’s role in the CIA HVD Programme (see paragraph 262 above). According to Mr Fava, Mr Pascu, as Minister of Defence, had been aware that the Romanian authorities had not had access to certain sites which had been under the control of the US army or intelligence services. In Mr Fava’s opinion, this statement, although later rectified by Mr Pascu, was truthful (see paragraph 363 above). 577. The Court considers, as it did in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland (both cited above), that the circumstances and conditions in which HVDs were routinely transferred by the CIA from rendition planes to the CIA “black sites” in the host countries should be taken into account in the context of the State authorities’ alleged knowledge and complicity in the HVD Programme (see Al Nashiri v. Poland, cited above, § 437; and Husayn (Abu Zubaydah) v. Poland, cited above, § 439). It follows from the Court’s findings in the above cases and the CIA materials describing the routine procedure for transfers of detainees between the “black sites” (see paragraphs 48-51 above) that for the duration of his transfer a HVD was “securely shackled” by his hands and feet, deprived of sight and sound by the use of blindfolds, earmuffs and hood and that upon arrival at his destination was moved to the “black site” under the same conditions. 578. The Court finds it implausible that the transportation of prisoners on land from the planes to the CIA detention site could, for all practical purposes, have been effected without at least the minimum assistance of the host country’s authorities, if only to secure the area near and around the landed planes and provide the conditions for the secret and safe transfer of passengers. Inevitably, the Romanian personnel responsible for security arrangements, in particular the reception of the flights and overland transit, must have witnessed at least some elements of the detainees’ transfer to Detention Site Black, for instance the unloading of blindfolded and shackled passengers from the planes (see also Al Nashiri v. Poland, cited above, §§ 330 and 437). Consequently, the Court concludes that the Romanian authorities who received the CIA personnel in the airport could not have been unaware that the persons brought by them to Romania were the CIA prisoners. 579. The Court also attaches importance to various material referring to ill-treatment and abuse of terrorist suspects captured and detained by US authorities in the “war on terror” which were available in the public domain at the relevant time (see El Masri, cited above, § 160; Al Nashiri v. Poland, cited above, § 439; Husayn (Abu Zubaydah) v. Poland, cited above, § 441; and Nasr and Ghali, cited above, § 234). 580. Before analysing that material, the Court wishes to refer to President’s Bush memorandum of 7 February 2002, stating that neither alQaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions (see paragraph 204-209 above), did not apply to them. The White House Press Secretary announced that decision at the press conference on the same day. It was widely commented in the US and international media. That decision, although including a disclaimer that even detainees “not legally entitled” to be treated humanely would be so treated, also spoke of respecting the principles of the Geneva Conventions “to the extent appropriate and consistent with military necessity” (see paragraphs 31-32 above). Consequently, already at this very early stage of the “war on terror” it was well known that “military necessity” was a parameter for determining the treatment to be received by the captured terrorist-suspects. 581. The Court would further note that from at least January 2002, when the UN High Commissioner for Human Rights issued a statement relating to the detention of Taliban and al-Qaeda prisoners in Guantánamo, strong concerns were expressed publicly as to the treatment of detainees, in particular the use of “stress and duress” methods of interrogation and arbitrary and incommunicado detention. From January 2002 to the publication of the Washington Post report on 2 November 2005 the international governmental and non-governmental organisations regularly published reports and statements disclosing ill-treatment and abuse to which captured terrorist suspects were subjected in US custody in various places, for instance in Guantánamo and the US Bagram military base in Afghanistan. The material summarised above and cited in the AI/ICJ’s amicus curiae brief include only some sources selected from a large amount of documents available in the public domain throughout the above period (see paragraphs 212-225 and 470-477 above). Also, in the 2003 PACE Resolution of 26 June 2003 – of which Romania, one of the Council of Europe’s member States must have been aware – the Parliamentary Assembly of the Council of Europe was “deeply concerned at the conditions of detention” of captured “unlawful combatants” held in the custody of the US authorities (see paragraph 216 above). 582. At the material time the ill-treatment, use of harsh interrogation measures, and arbitrary detention of al-Qaeda and Taliban prisoners in US custody, as well as the existence of “US overseas centres” for interrogations was also often reported in the international and Romanian media (see paragraphs 230-243 above). In particular, between January 2002 and May 2003 the Romanian press published a number of articles concerning illtreatment of prisoners and the use of “violent interrogation techniques” against captured terrorists by the CIA (see paragraphs 239-243 above). 583. The Court is mindful of the fact that knowledge of the CIA rendition and secret detention operations and the scale of abuse to which high-value detainees were subjected in CIA custody have evolved over time, from 2002 to the present day. A considerable part of evidence before the Court emerged several years after the events complained of (see paragraphs 36-59, 78-97, 251-297, 333-342 and 355-358 above; see also Al Nashiri, cited above, § 440; and Husayn (Abu Zubaydah), cited above, § 442). Romania’s alleged knowledge and complicity in the HVD Programme must be assessed with reference to the elements that it knew or ought to have known at or closely around the relevant time, that is to say between 22 September 2003 and 5 November 2005. However, the Court, as it has done in respect of the establishment of the facts relating to the applicant’s secret detention in Romania, will also rely on recent evidence which, as for instance the 2014 US Senate Committee Report and expert evidence obtained by the Court, relate, explain or disclose the facts occurring in the past (see Al Nashiri v. Poland, cited above, § 440 ; and Husayn (Abu Zubaydah) v. Poland, cited above, § 442). 584. In its assessment, the Court has considered all the evidence in its possession and the various related circumstances referred to above (see paragraphs 548-582 above). Having regard to all these elements taken as a whole, the Court finds that it has been adequately demonstrated to the required standard of proof that the Romanian authorities knew that the CIA operated on Romanian territory a detention facility for the purposes of secretly detaining and interrogating terrorist suspects captured within the “war on terror” operation by the US authorities. This finding is primarily based on compelling and crucial evidence deriving from the 2014 US Senate Committee Report and, to a considerable extent, evidence from experts. The passages of the report about the agreement brokered between the USA and the country hosting Detention Site Black leave no doubt as to the fact as to the Romanian high-office holders’ prior acceptance of a CIA detention facility on their territory. Nor can there be any doubt that they provided “cooperation and support” for the “detention programme” and that, in appreciation, were offered and accepted a financial reward, referred to as a “subsidy” amounting to a redacted multiple of USD million (see paragraph 548-549 above). The experts, with reference to the reward received by the Romanian authorities, spoke of a “substantial sum, in the region of ten million United States dollars” (see paragraph 384 above) or “more than eight million dollars” (see paragraph 391 above). However, for the purposes of its ruling, the Court does not need, nor does it intend, to determine the sum that was at stake. 585. The Court further attaches importance to the fact that the former Head of State Mr Iliescu and his national-security advisor Mr Talpeş, admitted publicly in the press interviews that the authorities had made available to the CIA premises which, as Mr Talpeş later explained, were located in Bucharest (see paragraphs 553-554 above). While it is true that Witness Y and Witness Z in their testimonies before the prosecutor contradicted the statements of Mr Iliescu and Mr Talpeş reported in Spiegel Online, in the Court’s view their denial cannot be considered credible as being in conflict with all other relevant materials cited above (see paragraphs 548-559 above). In any event, as noted above, Witness Z confirmed that a location “for actions of combating international terrorist threats” was offered to the CIA (see paragraphs 302 and-557 above). 586. Furthermore, the disclosure in the 2014 US Senate Committee Report demonstrates conclusively that in the autumn of 2004, when Detention Site Black had already been operating in Romania for around one year, the national authorities were given a presentation outlining the HVD Programme by the chief of the CIA station and the US ambassador. The content of that presentation as related in the report leaves no doubt as to the fact that at the very least the Romanian authorities had learnt from the CIA of a “full range of interrogation measures” being used against their detainees in order to “overcome resistance” in the context of obtaining intelligence (see paragraphs 560-561 above). 587. Furthermore, the experts, who in the course of their inquiries also had the benefit of contact with various, including confidential, sources unanimously and categorically stated that Romania not only ought to have known but actually did know of the nature and purposes of the CIA activities in the country. Senator Marty said that the authorities “must have known that the CIA had used their territory for transfers of prisoners in the context of the war on terror”. Mr J.G.S. stated that “quite clearly, categorically the Romanian authorities, at the highest level, did know of the existence of secret detention on their territory” and that “they were aware of the precise purpose of the rendition flights entering and exiting the country, and the conditions, or roughly the conditions, under which the detainees were held in between their arrivals and their departures”. Mr Hammarberg stated that “though the operations were conducted under extreme secrecy, it is obvious that the CIA plane could not land with its cargo and depart without agreement from high-level Romanian decision makers”. Mr Black said that it was “clear that the authorities were aware of [the purposes of the CIA aircraft landings in Romania] because, among other things, they received money for it” and that, based on the 2014 US Senate Committee Report, it was “normally common practice ... that the host country’s officials were in the know about these facilities and the purposes of them” (see paragraphs 344, 380, 384 and 391 above). This did not mean, the experts added, that the Romanian authorities had known the details of what exactly went on inside Detention Site Black or witnessed treatment to which the CIA prisoners had been subjected in Romania. As in other countries hosting clandestine prisons, the operation of the site was entirely in the hands of the CIA and the interrogations had been exclusively the CIA’s responsibility (see paragraphs 344, 380 and 384 above; see also Al Nashiri v. Poland, cited above, § 441; and Husayn (Abu Zubaydah) v. Poland, cited above, § 443). 588. However, in the Court’s view, even if the Romanian authorities did not, or could not, have complete knowledge of the HVD Programme, the facts available to them, in particular those presented to them directly by their US partners, taken together with extensive and widely available information about torture, ill-treatment, abuse and harsh interrogation measures inflicted on terrorist suspects in US custody which in 2002-2005 circulated in the public domain, including the Romanian press (see paragraphs 579-582 above), enabled them to conjure up a reasonably accurate image of the CIA’s activities and, more particularly, the treatment to which the CIA were likely to have subjected their prisoners in Romania. In that regard the Court would reiterate that in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland it has found that already in 2002-2003 the public sources reported practices resorted to, or tolerated by, the US authorities that were manifestly contrary to the principles of the Convention. Consequently, the Romanian authorities had good reason to believe that a person detained under the CIA rendition and secret detention programme could be exposed to a serious risk of treatment contrary to those principles on Romanian territory. It further observes that it is – as previously found in respect of Poland – inconceivable that the rendition aircraft could have crossed the country’s airspace, landing at and departing from its airports, that the CIA occupied the premises offered by the national authorities and transported detainees there, without the State authorities being informed of or involved in the preparation and execution of the HVD Programme on its territory. Nor can it stand to reason that activities of such a character and scale, possibly vital for the country’s military and political interests, could have been undertaken on Romanian territory without Romania’s knowledge and without the necessary authorisation and assistance being given at the appropriate level of the State authorities (see Al Nashiri v. Poland, cited above, §§ 441-442; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 443-444). 589. The Court accordingly finds it established beyond reasonable doubt that: (a) Romania knew of the nature and purposes of the CIA’s activities on its territory at the material time. (b) Romania, by entering into an agreement with the CIA on hosting Detention Site Black, enabling the CIA to use its airspace and airports and to disguise the movements of rendition aircraft, providing logistics and services, securing the premises for the CIA and transportation of the CIA teams with detainees on land, cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory. (c) Given its knowledge of the nature and purposes of the CIA’s activities on its territory and its involvement in the execution of that programme, Romania knew that, by enabling the CIA to detain terrorist suspects on its territory, it was exposing them to a serious risk of treatment contrary to the Convention. | 1 |
test | 001-160991 | ENG | UKR | CHAMBER | 2,016 | CASE OF KAPUSTYAK v. UKRAINE | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No 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 - Obtain attendance of witnesses) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary | 5. The applicant was born in 1982 and is currently detained in Gorodyshche prison. 6. On 30 November 2008 the applicant, Mr A.S. and Mr V.S. broke into the home of Mr N., a local businessman, which was located in the Pustomyty District. The applicant had four prior convictions for theft, burglary, robbery and carjacking. According to the findings of the domestic court that subsequently convicted the applicant, Mr N. had fought with the intruders and, unable to overcome his resistance otherwise, they had stabbed him to death. As a result of the attack Ms P., N.’s wife, sustained injuries of medium severity. Numerous valuables and documents were stolen, including some jewelry, a reserve officer’s card belonging to N. and certificates showing his achievements in sports. 7. On 1 December 2008 the Pustomyty District police instituted criminal proceedings in connection with the incident. 8. On 5 December 2008 V.S. was arrested and questioned. He stated that the applicant had stabbed N. in the course of the burglary. V.S. had hit Ms P., who had tried to come to N.’s rescue. 9. At around 9 p.m. on 5 December 2008 I.Kot., V.Ye., I.G. and R.D., detectives from the Lviv Regional Police, located the applicant in Chervonograd and apprehended him in the street. According to the subsequent submissions of the applicant and the detectives to the domestic authorities, the applicant attempted to flee; in order to stop him from fleeing the detectives tripped him up, he fell on the asphalt pavement and was then handcuffed. According to the applicant, after he had been handcuffed the police officers continued to hit and kick him. 10. The applicant also claimed that following his arrest he had been illtreated by the police in order to extract his confession. 11. At 10.30 a.m. on 6 December 2008 an arrest report was drawn up by the Pustomyty Police. According to a document provided by the Government, at the same time the applicant was admitted to the Lviv temporary detention facility (ізолятор тимчасового тримання, “the ITT”). 12. On the same day an investigator, K., asked a forensic medical expert to record any injuries on the applicant’s body and to provide an expert opinion as to when and how they had been inflicted. 13. On the same day the forensic medical expert, G. (referred to as Mr H. by the Government), issued a report stating that the applicant had the following injuries: a bruise on his forehead and, overlapping it, four long, deep, vertical parallel scratches; bruises on the bridge of his nose, his chin, wrists and neck; nine small bruises on the fingers of his right hand; and swelling of the back of his right hand. The bruises on his wrists were soft and pink in colour. The other bruises were covered in dry scabs. The expert classified the injuries as minor and expressed the opinion that they could have been inflicted on 30 November 2008. According to the report, the applicant explained to the expert that he had injured his face and hands when he fell trying to run away from the police. 14. At 2.30 p.m. on the same day K., the investigator from the Pustomyty Police, questioned the applicant as a suspect. The applicant stated that on 29 November 2008 he had agreed with V.S.’s proposal to burgle Mr N.’s home. The applicant had not taken a knife with him and had not seen V.S. or A.S. do so. Once they had broken into the house, the applicant switched off the television set N. had been watching, while V.S. and A.S. started punching N. Hearing N.’s screams, P. tried to enter the room, and the applicant hit and kicked her. Afterwards the applicant kicked N. three or four times. While the others continued hitting N., the applicant started looking for money, then took a knife from V.S. and cut some paintings out of their frames. He also took other valuables from the house. 15. At 9.22 p.m. on the same day, following the applicant’s complaint about his health, an ambulance was called to the ITT for the applicant. The ambulance staff noted that the applicant had bruises on his face and right hand, and was suffering from concussion, hypertension and an oedema. 16. On 8 December 2008 the applicant was charged with aggravated burglary and infliction of grievous bodily harm resulting in the death of the victim. Questioned on the same day as an accused, the applicant confirmed the account of events he had given on 6 December 2008 and added that he had seen V.S. hitting N. but not stabbing him. The applicant reiterated that he had not stabbed N. and had had no intention of murdering him. He had used the knife to cut paintings out of their frames. Prior to the burglary V.S. had promised that he would take it upon himself to force N. to give up the money. 17. On 9 December 2008 the applicant was examined by medical staff on his admission to the Lviv pre-trial detention centre (слідчий ізолятор, hereinafter “the SIZO”). According to a certificate issued by the SIZO on 20 January 2015, the applicant did not raise any complaints during that examination. 18. In the period from 5 February to 8 July 2009 the police took the applicant from the SIZO at least eight times in order to carry out investigative measures with him. 19. On 6 February 2009 Mr Ch. was appointed as the applicant’s defence counsel. On the same day the applicant was questioned in Ch.’s presence. The applicant confirmed the account of events he had given on 6 and 8 December 2008, including the statement that at N.’s house he had used the knife to cut paintings out of their frames, and added that there had been no plan to murder N. but simply to burgle his house. When he and his co-defendants had learned that N. would be home, the plan had been simply to tie him up. 20. According to the Government, on 6 February 2009 the applicant was familiarised with the medical expert’s report of 6 December 2008 and made no comments or requests. 21. On 18 March 2009, having examined the applicant as an inpatient, a panel of psychiatric experts issued a report concluding that the applicant was not suffering from a mental illness. In discussing the applicant’s mental health history the experts noted that in October 2008 he had been involved in a fight, suffered a blow to the head and had received outpatient treatment for the injury. On 17 April 2009 the applicant and his lawyer signed a statement confirming that they had examined the report and had no comments or requests to make. 22. On 7 May 2009 the applicant was questioned again in the presence of his lawyer. He reiterated his earlier statement. In the course of the questioning the investigator asked the applicant why he had not initially joined his co-defendants in attacking N. The applicant refused to answer. 23. In the course of the pre-trial investigation A.S. stated that it had been the applicant who had stabbed N. In the course of a confrontation between the applicant and A.S., the latter reaffirmed his statement. The applicant denied A.S.’s allegations but refused to testify. 24. P. stated that it had been V.S., and not the applicant, who had attacked and hit her. 25. Ms I.M. stated that on 1 December 2008 the applicant had given her a mobile phone and a silver chain which he had stolen from N. and P. 26. On 30 July 2009 the case against the applicant and his co-defendants, A.S. and V.S., was sent for trial to the Lviv Regional Court of Appeal (“the Court of Appeal”), sitting as a trial court. 27. On 16 November 2009 the trial court informed the applicant that the question of whether an additional psychiatric examination should be ordered would be examined in the course of the trial. 28. The applicant pleaded guilty to the charge of theft of documents, guilty in part to the charge of aggravated burglary, and not guilty to the charge of murder. He refused to testify at length, but in response to a question stated that he had used a knife to cut the paintings out of their frames at the victims’ house. V.S. pleaded guilty to the charge of aggravated burglary and A.S. pleaded guilty to that charge in part. They largely reiterated the statements they had given during the pre-trial investigation concerning the applicant’s role in the crime, in particular stating that they had not stabbed N. and had seen the applicant, knife in hand and covered in blood, lead N., also covered in blood, to a safe to extract N.’s money. V.K. also stated that the applicant had told him that he had stabbed N. 29. Ms M.M. and Ms A.V. testified that late on the night of the murder the defendants had left the house where they had been staying together. A.S. had been carrying a knife. The defendants had then returned with various objects, including paintings and documents. M.M. testified that she had seen blood on the applicant’s clothes when he returned that night. A.V. also testified that when the applicant had returned, he had given her his clothes and had instructed her to burn them. However, she had left the clothes in the house. 30. Two other witnesses testified that on 5 December 2008 they had witnessed the owner of the house in question handing over to the police a bag of clothes which had been left there by the defendants. According to DNA expert reports, the applicant’s hair and blood possibly originating from the victims were found on the clothes in the bag. 31. On 11 March 2010 the applicant asked the trial court to call G., the medical expert, as a witness, on the grounds that in her report of 6 December 2008 she had failed to specify exactly when the injuries had been inflicted on the applicant. In support of his request he stated that he had been ill-treated in the course of and following his arrest. The applicant also asked for I.Ku., an investigator from the Pustomyty Police to be called as a witness, arguing that his statements during the pre-trial investigation were untrue and had been dictated to him and given under pressure. He also asked for police detectives I.Kot., V.Ye., I.G. and R.M. of the Lviv Regional Police to be called as witnesses, arguing that they had ill-treated him in the course of arrest and in the course of his initial interrogation, causing the injuries recorded in the medical expert’s report of 6 December 2008. The trial court refused those requests. According to the Government, the grounds for the refusal were that the trial court had in its possession the transcripts of the interviews with the police officers in question conducted during the pre-trial investigation. Moreover, the trial court considered that the applicant’s allegations of ill-treatment had already been examined within the framework of pre-investigation enquiries, in the course of which no corroboration of the applicant’s allegations had been found. 32. On 25 March 2010 the trial court convicted all three applicants of murder, of aggravated burglary, and of theft of documents. In respect of the conviction for murder the applicant was sentenced to life imprisonment with confiscation of all of his property, V.S. to thirteen years’ and A.S. to twelve years’ imprisonment. Additional prison sentences were imposed in respect of the other charges but because of the sentencing rules, the overall sentences imposed were the same as the sentences for murder. 33. The court found it established that the applicant and his two co-defendants, A.S. and V.S., had committed aggravated burglary of Mr N. and Ms P. While it was the applicant who had stabbed N. to death, all the defendants had used violence against N. to overcome his resistance and so were guilty of his murder. As evidence of the applicant’s guilt the court referred to the testimony of the co-defendants, of Ms P., Ms I.M., Ms M.M., Ms A.V. (see paragraphs 24, 25 and 29 above), and of a number of other witnesses who had described how the defendants had disposed of their clothing and of the objects taken from the victims’ house. The court also relied on physical and expert evidence. In reaching its finding that it had been the applicant who had stabbed N., the court referred to the testimony of his co-defendants, noting that it was consistent with P.’s testimony to the extent that all three had testified, contrary to the applicant, that it was V.S., and not the applicant, who had attacked P. The court also referred to the DNA expert evidence which had found blood, possibly originating from N., on the trousers worn by the applicant on the night of the murder and seized by the police at the house where the applicant had left them. The court also referred to the applicant’s admission during the pre-trial investigation that he had used the knife, that is the murder weapon, to cut paintings out of their frames. 34. On 18 January 2011 the Supreme Court upheld the applicant’s conviction and mitigated his sentence to fifteen years’ imprisonment. 35. On 12 July 2009 the applicant wrote to the head of the Security Service of Ukraine in the Lviv Region complaining that he had been illtreated in the course of his arrest and afterwards by the police. In particular, he stated that on the day of his arrest he had been going to a meeting with a certain Ms Z. when he had been approached by a stranger, who had turned out to be a police officer. Thinking that the stranger was trying to steal his phone, the applicant started running away. However, other officers tripped him up. He fell and the officers started kicking and punching him. The police officers continued to kick him once he was in their car and subsequently, in the place to which he was taken after his arrest. 36. On 24 July 2009 the Chervonograd prosecutor’s office and on 27 August 2009 the Pustomyty prosecutor’s office refused to institute criminal proceedings in connection with the applicant’s complaint. 37. On 26 February 2010 the Lviv regional prosecutor’s office (“the LRPO”) quashed the decisions of 24 July and 27 August 2009 and remitted the case to the Chervonograd and Pustomyty prosecutors for further examination. The LRPO concluded that the pre-investigation enquiries had been incomplete. The LRPO indicated that the Chervonograd prosecutor’s office should undertake a number of additional measures to establish the circumstances of the incident, most notably: (i) interview Ms Z. whom the applicant had been going to meet when he had been arrested; (ii) identify the ambulance staff who had visited the applicant on 6 December 2008 and interview them; (iii) interview the forensic medical expert to find out whether the injuries observed by the expert on the applicant on 6 December 2008 were consistent with the applicant’s allegations of ill-treatment. 38. On 26 March 2010 the Chervonograd prosecutor’s office again refused to institute criminal proceedings against detectives I.Kot., V.Ye., I.G., R.M. of the Lviv Regional Police. The decision was based on the statements of the police detectives and the expert report of 6 December 2010. The detectives had stated that they had tripped up the applicant while he had been attempting to escape. The prosecutor’s office concluded that that fall explained the applicant’s injuries. On 28 March 2012 the Chervonograd Court upheld that decision, rejecting as unsubstantiated the applicant’s argument that his injuries had resulted from ill-treatment. 39. On 31 March 2010 the Pustomyty prosecutor’s office refused to institute criminal proceedings against the investigator I.Ku. and two other officers of the Pustomyty Police. The decision was based on the interviews with the officers. The prosecutor’s office also referred to the ITT records and an unspecified forensic medical expert report, according to which the applicant had had no injuries at the relevant time. The applicant was informed of that decision on 5 May 2011. 40. On an unspecified date the decision of 31 March 2010 was overruled. 41. On 18 May 2012 the Pustomyty prosecutor’s office again refused to institute criminal proceedings against the police officers of the Pustomyty Police and of the Lviv Regional Police for lack of corpus delicti in their actions. The decision was based on the statements of the officers, who had denied the applicant’s allegations. 42. On 20 June 2013 the Pustomyty District Court quashed the decision of 18 May 2012. The court found numerous omissions in the pre-investigation inquiry, in particular that the authorities had failed to explore under what circumstances an ambulance had been called for the applicant while he had been in the ITT; they had also failed to examine the records from the facilities where the applicant had been detained. 43. On 19 November 2012 a new Code of Criminal Procedure came into force. Under the new Code an investigation is commenced by creating an entry in the Unified Register of Pre-Trial Investigations (“the Register of Investigations”) (see paragraph 51 below). 44. On 15 March 2013 the Chervonograd Court granted the applicant’s claim and ordered the Chervonograd prosecutor’s office to create an entry in the Register of Investigations in order to investigate the applicant’s allegations of ill-treatment. 45. On 20 March 2013 the entry was created. 46. On 21 March 2013 the Chervonograd prosecutor’s office decided to discontinue the investigation. On an unspecified date the Chervonograd Court overruled that decision. 47. On 2 July 2013 the Chervonograd prosecutor’s office reopened the investigation and the applicant was questioned. He insisted that he had been ill-treated by police detectives I.Kot., V.Ye., I.G. and R.M. in the course of his arrest and on the way to the Pustomyty police station, where his arrest had been recorded. The police detectives were interviewed and denied any ill-treatment, insisting that the applicant had been injured when he had fallen while trying to flee. 48. On 24 September 2013 the Chervonograd prosecutor’s office decided to discontinue the investigation for lack of corpus delicti in the actions of detectives I.Kot., V.Ye, I.G. and R.M. The decision referred to an earlier decision of July 2009 to refuse to institute criminal proceedings, according to which the applicant had fallen while trying to flee from the police. As a result, he had sustained concussion and bruises. The decision also referred to a number of pieces of evidence supporting that version of events, most notably the statements of the police officers and the medical expert’s report of 6 December 2008. 49. The decision of 24 September 2013 was upheld by the Chervonograd Court on 7 February 2014 and by the Court of Appeal on 11 March 2014. | 1 |
test | 001-154537 | ENG | SVN | CHAMBER | 2,015 | CASE OF ZAVODNIK v. SLOVENIA | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Just satisfaction);Non-pecuniary damage - award (Article 41 - Just satisfaction) | Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1938 and lives in Ravne na Koroškem. 6. In 1993 his former employer, company Z. R., transferred him to another company. 7. On 20 April 1993 the applicant instituted proceedings against the company Z.R. before the Maribor Court of Associated Labour, complaining about his transfer. 8. On 28 June 1994 the Convention came into force in respect of Slovenia. 9. In September 1995 the applicant’s case was transferred to the Slovenj Gradec division of the Maribor Labour Court. 10. Between February 1996 and March 1997 the court held five hearings. 11. On 13 March 1997 the Maribor Labour Court established that the applicant’s transfer had never taken effect and that his employment with the defendant had continued. It ordered company Z.R. to re-employ the applicant and to pay him the salary due and the applicable benefits backdated to the day of his transfer. It dismissed the remainder of the claim. The applicant appealed. 12. In a decision of 16 April 1999 the Slovenian Pensions and Disability Insurance Institute recognised the applicant’s right to a pension as of 1 February 1999. His employment relationship with Z.R., which as of that date had still not re-employed him, hence terminated. 13. On 17 June 1999 the judgment of 13 March 1997 was upheld by the Higher Labour and Social Court and became final. 14. As Z.R. had not executed the court’s judgment, on 6 April 2000 the applicant instituted enforcement proceedings before the Slovenj Gradec Local Court. 15. On 12 July 2000 the court suspended the enforcement proceedings pending a final resolution of bankruptcy proceedings which had been instituted in the meantime against Z.R. (see below). 16. On 3 February 2005 the court decided to terminate the enforcement proceedings, since the applicant’s claims had been recognised in the bankruptcy proceedings. The decision became final on 22 February 2005. 17. On 5 July 2000 the Slovenj Gradec District Court decided to institute bankruptcy proceedings against the company Z.R. 18. On 31 August 2000 the applicant lodged a claim in the bankruptcy proceedings, seeking 2,000,000 Slovenian tolars (SIT, approximately 8,346 euros (EUR)) payable under the judgment of 13 March 1997 (see paragraph 11 above). 19. On 11 October 2000 the court held the first main hearing in order to review the claims lodged by the creditors. It was decided that a committee of creditors would not be appointed. According to the applicant, both the receiver and the insolvency panel had assured him and his son, U.Z., who represented him, that they would inform them of any progress in the case, in particular of the scheduling of hearings concerning the distribution of the estate. On the same date the insolvency panel acknowledged part of the applicant’s claims and referred him to the contentious proceedings in respect of the remainder of the claims. The applicant appealed. 20. On 5 December 2000 the Maribor Higher Court upheld the applicant’s appeal and overturned the District Court’s decision by instructing the receiver to institute proceedings in respect of the disputed part of the applicant’s claim. 21. On 22 January 2000 the official receiver instituted proceedings before the Slovenj Gradec District Court, requesting it to declare that the disputed part of the applicant’s claim did not exist. 22. On 20 June 2001 the receiver reported to the insolvency panel that the conclusion of the proceedings was dependent on the conclusion of bankruptcy proceedings in respect T., a company that had been operated by Z.R. It was expected that a large proportion of T.’s property would be transferred back to Z.R., including a hotel and spa complex, R.V. The receiver estimated that until that had been done, the property available for sale would not even cover the costs of the bankruptcy proceedings. 23. On 8 April 2003 the receiver withdrew his claim against the applicant. 24. As a result, on 5 May 2004 the Slovenj Gradec District Court stayed the contentious proceedings. 25. On 1 February 2005 the receiver accepted the applicant’s claim in the full amount. 26. On 18 February 2005 the applicant demanded the payment of his claim. 27. In his regular reports to the insolvency panel submitted between 2004 and 2006, the receiver emphasised that the termination of the present proceedings was dependent on the termination of the bankruptcy proceedings in respect of company T., which in turn were dependent on the pending denationalisation proceedings in respect of the R.V. hotel complex. 28. In 2006 ownership of the hotel complex, R.V., was transferred to the company Z.R. According to the receiver’s reports, it could not be sold until the termination of the denationalisation proceedings. 29. On 24 October 2007 the denationalisation proceedings were finally resolved. 30. On 16 April 2008 the insolvency panel ordered the sale of the R.V. hotel complex. 31. At a public auction held on 18 May 2008, R.V. was sold for EUR 501,426. Reports on the sale were published online on the Bajta.si web portal, on a web portal for accountants, Racunovodja.si, on the Slovenian Press Agency website, and in the daily financial newspaper, Finance. 32. On 17 June 2008 the receiver submitted to the court a draft proposal on the main distribution of the estate. The receiver further proposed that the court issue a decision on the priority payment of the claim of the first creditor, F.F., concerning compensation for damage sustained at work, which had been recognised by a court decision. 33. On 19 June 2008 the Slovenj Gradec District Court issued a decision on the compensation to be paid to F.F. and posted it on the court’s notice board. 34. On 30 June 2008 the insolvency panel of the District Court endorsed a draft proposal on the distribution of the bankrupt company’s estate to the nineteen remaining creditors. It was proposed that each of them receive 2.85% of the claim acknowledged in the proceedings, which in the applicant’s case amounted to EUR 237,86. The court scheduled a further hearing for 10 September 2008 to confirm the distribution of the estate. 35. On the same day, 30 June 2008, the District Court published its decision and posted the notification of the hearing on the court’s notice board. It informed the creditors that they could lodge their objections in respect of the distribution proposal at the hearing itself or in writing before the hearing. 36. On 11 July 2008 the notification of the hearing, with its date and venue, was published in the Official Gazette. 37. On 10 September 2008 the District Court held the hearing on the distribution of the estate and confirmed the receiver’s distribution proposal. Its decision was posted on the court’s notice board on 11 September 2008 and could have been challenged within eight days. 38. As no appeal was lodged against the decision of 10 September 2008, it became final on 20 September 2008. 39. A few weeks later the applicant became aware that the decision on distribution had already been issued. On 24 November 2008 he sent a letter to the District Court, asking it to serve him with the decision of 10 September 2008 so that he could lodge an appeal against it. 40. In its reply of 27 November 2008 the District Court asked the applicant to specify whether it should consider his letter as an appeal against the aforementioned decision. 41. On the same day the court decided to terminate the proceedings. It ruled that since the applicant had refused to accept the sum awarded to him, it should be deposited with the court. 42. On 3 December 2008 the applicant amended his submission in accordance with the court’s inquiry of 27 November 2008, specifying that he was complaining against the decision of 10 September 2008 (see paragraph 37 above). 43. On 4 December 2008 the applicant appealed against the decision of 27 November to terminate the bankruptcy proceedings (see paragraph 41 above). He argued that he had not been properly informed about the hearing of 10 September 2008 on the distribution of the estate (see paragraph 37 above) and that it was unrealistic to expect him to follow for eight years the notices posted on the court’s board and to read all the Official Gazettes in order to be informed of the progress in the proceedings. Moreover, he maintained that he should have been awarded the full amount claimed in the bankruptcy proceedings, since, like all the other employees to whom the company owed salary arrears, he had been a priority creditor in those proceedings. 44. On 18 December 2008 the Slovenj Gradec District Court, considering the applicant’s submissions of 24 November and 3 December as an appeal against the decision of 10 September, rejected the appeal as being out of time. 45. On 29 December 2008 the applicant lodged an appeal against the above decision. He argued that he had not been properly informed about the bankruptcy proceedings, that he should have been treated as a priority creditor, and that the bankruptcy court should have ruled ex officio on whether his claims had been ranked correctly and granted him the full amount claimed. 46. On 4 May 2009 the Maribor Higher Court dismissed the applicant’s appeal against the decision of 27 November 2008 (see paragraph 41 above), holding that he should have challenged the ranking of his claims at the hearing before the first-instance court. Relying on section 164 of the Compulsory Composition, Bankruptcy and Liquidation Act (see paragraph 51 below), it further concluded that the hearing on the distribution of the estate had been correctly scheduled. 47. On 22 June 2009 the Maribor Higher Court dismissed the applicant’s appeal against the decision of 18 December 2008. 48. On 17 July 2009 the applicant lodged a constitutional complaint against the decisions of the Higher Court of 4 May and 22 June 2009, reiterating in substance his complaints before the lower courts. 49. On 4 December 2009 the Constitutional Court rejected the applicant’s constitutional complaint. | 1 |
test | 001-177672 | ENG | SRB | COMMITTEE | 2,017 | CASE OF BATIĆ AND OTHERS 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) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 5. The first applicant was born in 1958 and lives in Vranje. 6. On 19 January 2004 the Vladičin Han Municipal Court ordered a socially-owned company DP PK Delišes (hereinafter “the debtor company”), based in Vladičin Han, to pay the first applicant specified amounts on account of debt, plus the costs of the civil proceedings. This judgment became final on 15 March 2004. 7. On 27 May 2004, upon the first applicant’s request to that effect, the Vladičin Han Municipal Court ordered the enforcement of the said judgment and further ordered the debtor company to pay the first applicant the enforcement costs. 8. On 30 January 2014 the Leskovac Commercial Court opened insolvency proceedings in respect of the debtor company (St. 1/14). 9. As a result, the ongoing enforcement proceedings against the debtor company were stayed by the Municipal Court’s decision of 12 March 2014. 10. The first applicant duly submitted his respective claim. 11. The insolvency proceedings against the debtor company are still ongoing. 12. On 23 January 2013 the first applicant lodged a constitutional appeal. 13. On 28 May 2015 the Constitutional Court found a violation of the first applicant’s right to a hearing within a reasonable time. It further awarded him 500 euros (EUR) as just satisfaction for non-pecuniary damage. The Constitutional Court dismissed the first applicant’s complaint concerning his right to the peaceful enjoyment of his possessions as well as his request for pecuniary damages, since the insolvency proceedings were still pending. That decision was delivered to the first applicant on 13 July 2015. 14. The second applicant was born in 1956 and lives in Niš. 15. He was employed by DOO EI-7 Oktobar, a socially-owned company based in Niš (hereinafter “the debtor company”). 16. On 22 December 2005 the second applicant concluded the settlement with the debtor company before the Niš Municipal Court, by which the debtor company was obliged to pay the second applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This settlement became final on an unspecified date. 17. On 17 December 2010, upon the second applicant’s request to that effect, the Niš Municipal Court ordered the enforcement of the said settlement and further ordered the debtor company to pay the second applicant the enforcement costs. 18. On 5 September 2008 the Niš Municipal Court ordered the debtor company to pay the second applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final by 23 December 2008. 19. On 28 December 2010, upon the second applicant’s request to that effect, the Niš Municipal Court ordered the enforcement of the said judgment and further ordered the debtor company to pay the second applicant the enforcement costs. 20. On 30 June 2007 and 15 October 2007 respectively, the Republic Agency for Peaceful Settlement of Labour Disputes ordered the debtor company to pay the second applicant specified amounts on account of salary arrears and social insurance contributions. These decisions became final on unspecified dates. 21. On 27 December 2010 and 28 December 2010 respectively, upon the second applicant’s request to that effect, the Niš Municipal Court ordered the enforcement of the said decisions and further ordered the debtor company to pay the second applicant the enforcement costs. 22. On 23 May 2012 the Niš Commercial Court opened insolvency proceedings in respect of the debtor company (St. 115/12). As a result, the ongoing enforcement proceedings against the debtor company were stayed. 23. The second applicant duly submitted his respective claims. 24. On 24 December 2015 the second applicant’s claims were formally recognised. 25. The insolvency proceedings against the debtor company are still ongoing. 26. On 11 February 2013 the second applicant lodged a constitutional appeal. 27. On 18 June 2015 the Constitutional Court dismissed his appeal as lodged out of time. It found that the second applicant failed to lodge his appeal within thirty days as of the date when the decisions on the staying of the enforcement proceedings as a result of opening of the insolvency proceedings had been delivered to him. That decision was delivered to the second applicant after 16 July 2015. 28. The third applicant was born in 1953 and lives in Kragujevac. 29. He was employed by DP Industrija Filip Kljajić, a socially-owned company based in Kragujevac (hereinafter “the debtor company”). 30. On 13 May 2002 the third applicant concluded the settlement with the debtor company before the Kragujevac Municipal Court, by which the debtor company was obliged to pay the third applicant specified amounts on account of salary arrears, plus the costs of the civil proceedings. This settlement became final on an unspecified date. 31. On 27 August 2002, upon the third applicant’s request to that effect, the Kragujevac Municipal Court ordered the enforcement of the said settlement and further ordered the debtor company to pay the third applicant the enforcement costs. 32. On 5 March 2010 the Kragujevac Commercial Court opened insolvency proceedings in respect of the debtor company (St. 45/10). 33. The third applicant duly submitted his respective claim. 34. On 25 October 2010 the third applicant’s claim was formally recognised. 35. On 2 August 2012 the third applicant was paid 13.12 % of his recognized claim. 36. The insolvency proceedings against the debtor company are still ongoing. 37. On 10 May 2013 the third applicant lodged a constitutional appeal. 38. On 28 December 2015 the Constitutional Court dismissed his appeal as lodged out of time. It found that the third applicant failed to lodge his appeal within thirty days as of the date when the decision on opening of the insolvency proceedings had been rendered or as of the date when he had submitted his claim in the insolvency proceedings. That decision was delivered to the third applicant on 29 January 2016. | 1 |
test | 001-164923 | ENG | POL | CHAMBER | 2,016 | CASE OF G.N. v. POLAND | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1961 and lives in Mississauga, Canada. 6. In 2009 the applicant got married in Canada to E.N., a Polish national. They continued living in Canada and their son was born there in September 2010. The child obtained Canadian nationality at birth. It is unknown to the Court whether he also holds Polish nationality. The family lived in the applicant’s apartment. The applicant worked full time and was the sole financial provider for the family. In February 2011 he took thirty-three weeks’ parental leave. 7. In April 2011 the family went to Poland on holiday. They agreed to return to Canada in July 2011 and aeroplane tickets were purchased to this end. The couple split up in May 2011 and E.N. refused to return to Canada with the child. Soon afterwards the applicant went back to Canada alone. He briefly returned to Poland in July 2011 when his son underwent emergency surgery. 8. On 31 October 2011 the applicant lodged an application to have his child returned under the Hague Convention. This application was registered with the Kielce District Court on 23 January 2012. 9. On 27 November 2012 the Kielce District Court decided to obtain an expert report from the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny “the RODK”). The experts were ordered to assess whether there was a grave risk that the boy’s return abroad would expose him to physical or psychological harm or otherwise place him in an intolerable situation. A copy of this decision has not been submitted to the Court. 10. The applicant and E.N. were invited to appear at an interview at the RODK which was scheduled for 30 November 2012. It appears that the domestic court’s decision to order the RODK report contained an instruction that the examination should go ahead whether or not the applicant was present. The applicant did not come to the appointment at the RODK. As a result, the report was based only on the statements of the child and his mother and on four volumes of the domestic court’s case file. It was prepared by two experts in psychology and was issued on 7 December 2012. 11. In their report, the RODK experts took notice of the fact that for the past year and a half the child (who was two years old at the time of the psychological examination) had lived away from and almost without any contact with his father. They also observed that the child had a strong emotional bond with his mother; he was developing well and spoke Polish; and that E.N. had ensured the child’s security, well-being and development. 12. The experts concluded that “the child’s separation from his mother would disturb his sense of security, belonging and stability, and [that] it would be adverse to his development – in particular, psychological [development] – [and] it would be against his best interests. In view of the above, moving the child to his father’s care [posed] a grave risk to his emotional [and] social development, [and] could cause a situation [which] for a two-year-old child [would be] difficult to bear.” 13. Apart from the RODK report, the domestic court obtained the following evidence: testimony from the applicant, E.N. and the members of both families and medical reports. 14. On 2 January 2013 the Kielce District Court, with Judge I.G. presiding, dismissed the applicant’s Hague Convention application (IIRNsm 87/12). 15. The first-instance court held that the child had been wrongfully retained in Poland by his mother within the meaning of the Hague Convention. It also considered that, in line with Article 17 of the Hague Convention, the interim orders concerning the issues of custody over the child and his residence which had been granted by the Canadian and Polish family courts (see paragraphs 33, 34 and 36 below) were viewed as irrelevant to the case at hand. 16. The district court also considered that the RODK report was thorough, clear and of a high evidentiary value. Relying on the report and the remaining evidence, the family court established that since his birth the child had been under the constant good care of his mother (who had not worked in Canada). The child had a strong emotional bond with the mother, did not remember the applicant and did not perceive him as a parent. The applicant did not show any interest in the child. Since July 2011, he had seen his son only once, in March 2012, despite the fact that he had been in Poland for a month. He had also stopped paying child support and had not shown any interest in him. The domestic court also made an additional observation that the applicant had sold his apartment in Canada and it was unknown if his new living conditions were adequate for his two-year-old child to move into. 17. In view of the above it was ultimately held that separating the two-year-old boy from the mother and returning him to his father in Canada would be traumatic and hard to bear for the child. This, in turn, would pose a threat to the child’s emotional and social development and would perturb his sense of security and stability. 18. The applicant appealed, arguing that the first-instance court had erred in that, inter alia, it had given a broad and not restrictive interpretation of Article 13 (b) of the Hague Convention and had dismissed his application even though it had not been established that the child was at a grave risk of physical or psychological harm if returned to Canada. The applicant also challenged the RODK experts’ report, arguing that it was unconvincing and inconsistent with the evidence obtained. 19. On 9 July 2013 the Kielce Regional Court (II Ca 551/13) dismissed the appeal in the relevant part. 20. The appellate court observed that international and domestic practice required that Article 13 (b) be given a restrictive reading to the effect that, in principle, any unfavourable consequences of the child’s separation stemming from the order to surrender the child by the abducting parent did not give rise to a grave risk of physical or psychological harm within the meaning of that provision. It also noted that the aim of the Hague Convention would be achieved if the abducting parent returned with the child. If no objective obstacles to the abducting parent’s return were present, it could be inferred that the parent was refusing to return and was acting in his or her own interest and not the interest of the child. 21. The appellate court reasoned that the application of the abovementioned principles was more complex in cases concerning very young children. The Hague Convention stipulated only a maximum age requirement for children whose return could be sought under its provisions (the age of 16). It also protected (under Article 12) very young children from possible harmful effects of the return if it was shown that the parent seeking the return had not taken care of the child before the abduction or that the child had already adapted to the new environment. Following this approach, separating an abducted child from the parent who had a dominant role in the child’s life would not fall within the Article 13 (b) exceptions unless objective obstacles to the parent’s return could be shown to be present. This approach however, was difficult to accept in cases concerning abductions of infants by mothers because of the special relationship between them. This was true even in the absence of any objective obstacles to the mother’s own return because any separation of an infant from his or her mother would inevitably be contrary to the child’s best interests. 22. The appellate court held that the utmost importance had to be attached to the child’s contact with his mother and his separation from her would place the boy in an intolerable situation. The domestic court relied on the following elements of the case: the applicant’s son had arrived in Poland with both parents at the age of six and a half months, in April 2011; since then the child had been taken care of solely by his mother; the most important element in his life was his contact with the mother; he did not have any memories of his life in Canada; and the applicant had not considered the child’s remaining in Poland illegal prior to October 2011. The appellate court also observed that by not appearing at the RODK interview, the applicant had waived his right to demonstrate that he could establish adequate contact with his young child and that the applicant had only seen his child once since the latter’s departure from Canada. 23. Since July 2011, the applicant has visited his son once, in March 2012 during a month-long stay in Poland. 24. In the applicant’s submission, he had made countless attempts to see his son. In particular, he had applied to the courts to have a meeting with his child away from E.N.’s house on 23 November 2011 and on an unspecified date in February 2012. Copies of these applications have not been submitted to the Court. In the Government’s submission, the applicant had not enquired about or sought contact with the child. 25. On 23 February 2012 the applicant lodged an application with the competent domestic court for arrangements to be made to secure the effective exercise of his right of contact during the Hague Convention proceedings. He wished to meet with his son away from E.N.’s house one day before and on the day of the court hearing. He submitted that he had not seen his child since August 2011 and that the child’s mother and grandparents had been very hostile towards the applicant when he had tried to visit his son at home. The applicant submitted that the application had been made under Article 21 of the Hague Convention. A copy of this application has not been submitted to the Court. 26. On 2 March 2012 the Kielce District Court, with I.G. as the presiding judge, decided to return the application for an interim order on the right of contact as unsubstantiated. It was considered that the applicant had not demonstrated that the child’s mother, apart from her allegedly hostile attitude, had obstructed his contact with the child. The domestic court relied on the applicable provisions of the Code of Civil Procedure and did not make any reference to Article 21 of the Hague Convention. 27. The applicant stated without submitting a copy of the relevant document that on 1 July 2013 the domestic court had decided to grant him a right to a supervised visit with his son for two hours daily in E.N.’s house. The applicant had been in Canada at that time and thus had not exercised his right. 28. The applicant also submitted that on 9 July 2013 the appellate court had dismissed his request, presumably for a different schedule of his visits. A copy of this decision is not in the case file. 29. On an unspecified date, the Polish family court granted the applicant a right to contact with his child. The details of this decision are unknown to the Court. 30. On 3 June 2014 the Kielce Regional Court issued a decision, presumably concerning the applicant’s right of contact with his son (IC 2240/11). A copy of this decision has not been submitted by the Court. 31. The applicant lodged an interlocutory appeal against this decision. On 10 September 2014 the applicant’s lawyer completed this appeal by submitting that E.N. had been hindering the father’s right of contact which he had tried to enforce in line with the court’s order. The outcome of these proceedings is unknown. 32. On 1 September 2011 E.N. petitioned for divorce in Poland. Divorce proceedings are currently pending before the Kielce Regional Court. 33. On 22 November 2011 the Kielce Regional Court gave an interim order, establishing the child’s residence as being with the mother. It appears that the applicant participated in the court hearing via a live video link. He refused to answer any questions. 34. On 27 October 2011 the Ontario Superior Court of Justice in Canada held that the child’s retention in Poland was wrongful and issued an interim order granting full custody of the child to the applicant, authorising him and the law-enforcement authorities to apprehend the child and ordering E.N. to surrender the child without delay. To this effect, a wanted notice for E.N. was issued by Interpol for the offence of kidnapping. E.N.’s appeal against this ruling was dismissed on 3 April 2012. 35. On 21 August 2012 the Ontario Superior Court of Justice found E.N. to be in contempt of court for, inter alia, failing to comply with the interim order described above. No sentence was pronounced on that occasion. 36. On 11 September 2012 the Ontario Superior Court of Justice confirmed the interim decision of 27 October 2011, granting a final order of the applicant’s exclusive custody of the child. The Canadian court also requested the assistance of the Polish courts in securing the immediate apprehension and return of the child pursuant to the Hague Convention. 37. On 22 May 2013 the Ontario Superior Court of Justice allowed the divorce between the applicant and E.N. | 1 |
test | 001-150812 | ENG | HRV | ADMISSIBILITY | 2,015 | RUKAVINA v. CROATIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 1. The applicant, Mr Slaven Rukavina, is a Croatian national who was born in 1964 and lives in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 7 July 2007 the applicant married a certain Ms S.L. 5. On 22 August 2007 S.L. gave birth to their daughter L.R. 6. On 4 May 2009 S.L., accusing the applicant of domestic violence, left the matrimonial home and moved to a safe house. In so doing she took their daughter with her. 7. On 10 June 2009 S.L. brought a civil action against the applicant in the Sesvete Municipal Court (Općinski sud u Sesvetama) seeking a divorce and custody of their daughter. 8. After a hearing held in the presence of the parties and the representative of the Sesvete Social Welfare Centre (Centar za socijalnu skrb Sesvete), on 18 June 2009 the Municipal Court issued a decision whereby it regulated interim custody and access rights until the adoption of the final judgment on S.L.’s action. In particular, the court temporarily awarded custody to S.L. and granted the applicant access rights, allowing him to have contact with his daughter twice a month for three hours on the premises of the association Children First. The applicant appealed. 9. On 5 October 2009 the Municipal Court held a hearing at which the applicant did not oppose the divorce but asked the court to award him custody of his daughter. At the same hearing the court decided to refer the parties to mandatory mediation procedure, in accordance with the law. Specifically, the parties were referred to the Sesvete Social Welfare Centre. for the institution of this procedure. 10. After completing the mediation procedure, on 14 December 2009 the Centre submitted its report to the court suggesting that reconciliation of the parties was not possible and stating that they could not agree over custody of and contact with their daughter. 11. At the hearing held on 27 January 2010 the court heard the parties and invited the Sesvete Social Welfare Centre to submit its recommendation as regards custody of the applicant’s daughter and the (extent of) access rights of the non-custodial parent. 12. On 2 March 2010 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance decision of 18 June 2009 (see paragraph 8 above) and remitted the case to the first-instance court, holding that the latter had not provided sufficient reasons for its decision. In particular, the County Court found that no reasons had been given for the interim award of custody to S.L. and saw no reason why the applicant’s contact with his daughter had to be supervised. 13. In the resumed proceedings, on 19 April 2010 the Sesvete Social Welfare Centre informed the court that it could not make the requested recommendation (see paragraph 11 above) and that, in any event, because S.L. had changed the address, the matter was no longer in their competence but fell within the competence of the Trešnjevka Social Welfare Centre. It nevertheless recommended that both parties undergo psychiatric assessment. 14. On 28 April 2010 the Municipal Court invited the Trešnjevka Social Welfare Centre (hereinafter: “the local social welfare centre” or “the Centre”) to submit its recommendation as regards (the extent of) the applicant’s access rights and the manner in which they should be exercised. 15. On 6 May 2010 the Centre recommended that the applicant exercise his access rights under supervision every Wednesday from 5 to 7 p.m. on the premises of another association. The Centre explained that supervision was necessary because criminal proceedings for domestic violence were pending against the applicant (see paragraphs 43-46 below) and because psychiatric assessment of both parents was necessary. 16. At the hearing held on 11 May 2010 the applicant proposed that he be awarded custody or, in the alternative, that he be granted access rights to be exercised without supervision in his home for three hours twice per week, every other weekend, and half of all holidays. 17. At the hearing held on 11 June 2010 the parties agreed that the applicant would have contact with his daughter twice a week for two hours under supervision. 18. On 14 June 2010 the court decided to obtain a joint expert opinion from experts in psychology and psychiatry. 19. At the hearing held on 8 September 2010 the applicant proposed that his access rights be extended from two to four hours per week and also that he should have contact with his daughter every other weekend. 20. On 18 November 2010 the experts in psychology and psychiatry submitted their joint opinion. They recommended that custody be awarded to S.L. and that the applicant have contact with his daughter four times a week for two and a half hours and for two and a half hours on official holidays and other important days (birthdays, etc.), all under supervision. 21. On 9 December 2010 the local social welfare centre submitted its observations on the expert opinion, criticising the contact schedule proposed by the experts as unworkable. It also added that the experts had failed to explain why the applicant should exercise his access rights under supervision. 22. At the hearing held on 14 December 2010 the applicant objected to the expert opinion in so far as it recommended awarding custody to S.L. and supervised contact with his daughter. He also submitted an opinion obtained from another expert in psychology. 23. On the same day the Municipal Court issued a fresh decision regulating interim custody and access rights. In particular, the court again temporarily awarded custody to S.L. and granted the applicant access rights entitling him to have contact with his daughter twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under supervision. The applicant appealed. 24. At the hearing held on 14 January 2011 the court heard the expert in psychiatry who had prepared the aforementioned joint expert opinion of 18 November 2010 (see paragraph 20 above). 25. On 1 February 2011 the Zagreb County Court quashed the first-instance decision of 14 December 2010 (see paragraph 23 above) and remitted the case. 26. In the resumed proceedings, on 9 March 2011 the Sesvete Municipal Court issued another decision regulating interim custody and access rights, the content of which was identical to its decision of 14 December 2010 (see paragraph 23 above). The applicant appealed. 27. On 14 March 2011 the applicant requested the withdrawal of the first-instance single judge sitting in the case. The hearing scheduled for 22 March 2011 was therefore adjourned until the Zagreb County Court decided on the applicant’s withdrawal request. On 13 May 2011 that court dismissed the applicant’s request. 28. On 7 July 2011 a multidisciplinary team of experts composed of a psychologist, a psychiatrist, a paediatrician and a social worker submitted their report on the physical and mental health of the applicant’s daughter, finding that she was healthy but that her mother’s insistence on a vegan diet posed a risk as regards her normal psychophysical development. The report was obtained at the request of the local social welfare centre in response to the applicant’s allegations that S.L. had been emotionally abusing their daughter and endangering her health by subjecting her to a vegan diet. 29. On 13 September 2011 the Zagreb County Court quashed the first-instance decision of 9 March 2011 (see paragraph 26 above) and remitted the case. It again held that the first-instance decision had not been sufficiently reasoned. 30. In the resumed proceedings, the hearing scheduled for 14 November 2011 was adjourned owing to the absence of the judge sitting in the case. 31. On 25 November 2011 the Sesvete Municipal Court issued a new decision regulating interim custody and access rights in a manner identical to its two previous decisions (see paragraphs 23 and 26 above). 32. At the hearing held on 19 December 2011 the court, in accordance with the applicant’s proposal ‒ with which the representative of the local social welfare centre agreed ‒ decided to obtain an expert opinion from another expert on the issue of the custody of the applicant’s daughter and her contact with the non-custodial parent. 33. On 31 January 2012 the Zagreb County Court, following an appeal by the applicant, again quashed the first-instance decision of 25 November 2011 (see paragraph 31 above) and remitted the case. 34. On 26 March 2012 the Municipal Court held a hearing at which it heard the parties and a representative of the local social welfare centre. 35. At the same hearing the Municipal Court issued yet another decision regulating interim custody and access rights in respect of the applicant’s daughter but in a manner different from its three previous decisions (see paragraphs 23, 26 and 31 above). The court firstly, as it had done before, temporarily awarded custody of the applicant’s daughter to her mother S.L. Secondly, for the period between 28 March and 31 May 2012, the court granted the applicant access rights allowing him to have contact with his daughter twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under the supervision of an employee of the social welfare centre, and also without supervision every Friday from 3 to 8.30 p.m. and during the weekends of 20-22 April, 4-6 May and 18-20 May 2012. Both parties appealed against that decision 36. At the next hearing held on 31 May 2012 the Municipal Court issued a new decision regulating the applicant’s access rights on an interim basis. The court granted the applicant access rights twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under the supervision of an employee of the social welfare centre, as well as without supervision every other weekend from 3 p.m. on Friday until 7 p.m. on Sunday The applicant appealed. 37. On 4 June 2012 the Municipal Court received the combined expert opinion of a psychiatrist, a psychologist and a defectologist. The experts recommended that the applicant be awarded custody of his daughter and that the mother be granted extensive access rights. 38. On 11 September 2012 the Zagreb County Court quashed the first-instance decisions of 26 March and 31 May 2012 (see paragraphs 35-36 above) and remitted the case. 39. In the resumed proceedings, at a hearing held on 12 October 2012 the Sesvete Municipal Court heard the experts in psychiatry and psychology who had prepared the expert opinion of 4 June 2012 (see paragraph 37 above). After hearing the experts, the representative of the local social welfare centre agreed with their recommendation and suggested that the court award custody to the applicant while granting the mother extensive access rights. 40. By a judgment of 25 October 2012 the Sesvete Municipal Court definitively awarded the applicant custody of his daughter and granted S.L. access rights to be exercised every Tuesday and Thursday from 3 to 7 p.m., every other weekend from Friday 3 p.m. to Sunday 6 p.m., every other public holiday from 10 a.m. to 7 p.m. and for half of the winter, summer and spring holidays. At the same time the court issued a decision regulating interim custody and access rights in the same way as stipulated in its judgment until such time as that judgment became final. 41. On 9 November 2012 S.L. appealed against that judgment. 42. By a judgment of 19 February 2013 the Zagreb County Court dismissed the appeal and upheld the first-instance judgment, which thereby became final. 43. In 2009 the Sesvete State Attorney’s Office (Općinsko državno odvjetništvo u Sesvetama) indicted the applicant before the Sesvete Municipal Court for the criminal offence of domestic violence allegedly committed against S.L. in the period between October 2006 and May 2009. 44. By a judgment of 13 May 2011 the Sesvete Municipal Court acquitted the applicant. It found that he had not committed the acts of violence with which he had been charged. In its judgment that court also stated that the criminal proceedings against the applicant had been instrumental in the dispute over custody of his daughter and that S.L. had used those proceedings in order to portray the applicant as a violent person and inadequate father, unworthy of that role, and thus prevent him from maintaining contact with his daughter. 45. Following an appeal by the State Attorney, on 5 July 2012 the Bjelovar County Court (Županijski sud u Bjelovaru), quashed the first-instance judgment and remitted the case. 46. It would appear that the proceedings are currently pending before the Sesvete Municipal Court as the first-instance court. 47. In 2010 S.L. brought a private bill of indictment (privatna tužba) against the applicant in the Sesvete Municipal Court accusing him of defamation. In particular, S.L. alleged that in his numerous statements to the media, the applicant had depicted her as mentally ill, a person with whom “something was wrong”, a fanatic and a proponent of eco-feminism. 48. The Sesvete Municipal Court convicted the applicant, on 22 November 2011, but the judgment was subsequently quashed by the second-instance court following his appeal and the case was remitted. 49. In the resumed proceedings, on 3 September 2013 the Sesvete Municipal Court acquitted the applicant, that judgment being upheld by the Rijeka County Court on 8 January 2014. | 0 |
test | 001-154153 | ENG | MDA | CHAMBER | 2,015 | CASE OF DOROSEVA v. THE REPUBLIC OF MOLDOVA | 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) | Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 5. The applicant was born in 1978 and lives in Chisinau. 6. On 11 November 2009 at approximately 11.30 p.m. the applicant was arrested on the street by several police officers wearing plain clothes, on suspicion of possession of drugs. 7. According to the applicant, she was ill-treated by the police officers before being taken to the police station. At the police station she was held until the next morning. 8. In a medical report issued on 13 November 2009 a forensic doctor found that the applicant presented numerous bruises to her face, arms and hips. An x-ray examination of the applicant’s head, which according to the medical report was conducted on the same date, showed that the applicant also had a broken nose. 9. On 15 November 2009 the applicant was examined by a neurologist who determined that she had also suffered concussion. 10. On 14 January 2010 the applicant lodged a criminal complaint with the Prosecutor’s Office concerning her ill-treatment by the police on 11 November 2009. 11. On 1 April 2010 the Rascani Prosecutor’s Office refused to initiate criminal proceedings on the ground that the applicant’s complaint was illfounded. The decision was based on the statements of the accused police officers who had denied having ill-treated the applicant and on the fact that there was a possibility that the applicant’s injuries were the result of her falling over. 12. On 15 October 2010 a superior prosecutor from the same Prosecutor’s Office rejected the applicant’s appeal. 13. On 29 November 2010 an investigating judge from the Rascani District Court upheld the applicant’s appeal on points of law and ordered a re-examination of the applicant’s case. The judge found that the investigation conducted by the Prosecutor’s Office had been superficial and incomplete. 14. After the reopening of the investigation, the Prosecutor’s Office ordered the conduct of a new forensic medical examination. In a report dated 30 December 2010 a forensic doctor found that on 13 November 2009 the applicant had presented numerous bruises on her face and limbs and a broken nose. The applicant’s injuries had been produced by at least six different blows with a hard blunt object and since they were located on different parts of her body, they could not have been a result of a fall from the height of her body. 15. On 20 May 2010 the Rascani Prosecutor’s Office refused again to initiate criminal proceedings. This time the prosecutor argued that according to his verifications in the documents of the hospital where the applicant had undergone an x-ray of her nose, the procedure had been carried out not on 13 but on 10 November 2009. Moreover, the prosecutor found a discrepancy between the records in the forensic medical report of 13 November 2009 where the time of the applicant’s ill-treatment was indicated as 1 a.m. on 12 November and her subsequent statements indicated it as 11.30 p.m. on 11 November 2009. This decision was upheld by a superior prosecutor on 26 September 2011 and by an investigating judge from the Rascani District Court on 1 November 2011. | 1 |
test | 001-159566 | ENG | DEU | GRANDCHAMBER | 2,015 | CASE OF SCHATSCHASCHWILI v. GERMANY | 1 | Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Just satisfaction dismissed (out of time) (Article 41 - Just satisfaction) | Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Egidijus Kūris;Ganna Yudkivska;Helen Keller;Helena Jäderblom;Jon Fridrik Kjølbro;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Kristina Pardalos;Luis López Guerra;Mark Villiger;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 11. The applicant was born in 1978. When he lodged his application he was being detained in Rosdorf Prison, Germany. He now lives in Khashuri /Surami, Georgia. 12. On the evening of 14 October 2006 the applicant and an unidentified accomplice robbed L. and I., two Lithuanian nationals, in the women’s apartment in Kassel. 13. The perpetrators were aware that the apartment was used for prostitution and expected its two female occupants to keep valuables and cash there. They passed by the apartment in the early evening in order to make sure that no clients or a procurer were present. Shortly afterwards they returned and overpowered L., who had answered the doorbell. The applicant pointed a gas pistol which resembled a real gun at both women and threatened to shoot them if they did not disclose where their money was kept. While his accomplice watched over the women, the applicant partly collected in the apartment and partly forced the women to hand over to him some 1,100 euros (EUR) and six mobile phones. 14. On 3 February 2007 the applicant, acting jointly with several accomplices, robbed O. and P., two female Latvian nationals who were temporarily resident in Germany and working as prostitutes, in their apartment in Göttingen. 15. On the evening of 2 February 2007, the day before the offence, one of the applicant’s co-accused had passed by O. and P.’s apartment in Göttingen together with an accomplice, R., an acquaintance of O. and P. They intended to verify whether the two women were the apartment’s only occupants and whether they kept any valuables there, and discovered a safe in the kitchen. 16. On 3 February 2007 at around 8 p.m. the applicant and a further accomplice, B., gained access to O. and P.’s apartment by pretending to be potential clients, while one of their co-accused waited in a car parked close to the apartment building and another waited in front of the building. Once inside the apartment B. produced a knife that he had been carrying in his jacket. P., in order to escape from the perpetrators, jumped from the balcony located approximately two metres off the ground and ran away. The applicant jumped after her but abandoned the chase after some minutes when some passers-by appeared nearby on the street. He then called the co-accused who had been waiting in front of the women’s apartment building on his mobile phone and told him that one of the women had jumped from the balcony and that he had unsuccessfully chased her. The applicant agreed on a meeting point with his co-accused where they would pick him up by car once B. had left the crime scene and joined them. 17. In the meantime inside the apartment, B., after having overpowered O., threatened to kill her with his knife if she did not disclose where the women kept their money or if she refused to open the safe for him. Fearing for her life, O. opened the safe, from which B. removed EUR 300, and also handed over the contents of her wallet, EUR 250. B. left the apartment at around 8.30 p.m., taking the money and P.’s mobile telephone as well as the apartment’s landline telephone with him, and joined the coaccused. The coaccused and B. then picked up the applicant at the agreed meeting point in their car. At approximately 9.30 p.m. P. rejoined O. in the apartment. 18. O. and P. gave an account of the events to their neighbour E. the morning after the offence. They then left their Göttingen apartment out of fear and stayed for several days with their friend L., one of the victims of the offence committed in Kassel, to whom they had also described the offence in detail the day after it occurred. 19. On 12 February 2007 L. informed the police of the offence committed against O. and P. in Göttingen. Between 15 and 18 February 2007 O. and P. were repeatedly questioned by the police as to the events of 2 and 3 February 2007. In those interviews they described the course of events as set out above. The police, having checked O. and P.’s papers, found their residence and occupation in Germany to be in compliance with German immigration and trade law. 20. As the witnesses had explained during their police interviews that they intended to return to Latvia in the days to come, on 19 February 2007 the prosecution asked the investigating judge to question the witnesses in order to obtain a true statement which could be used at the subsequent trial (“eine[r] im späteren Hauptverfahren verwertbare[n] wahrheitsgemäße[n] Aussage”). 21. Thereupon, on 19 February 2007, O. and P. were questioned by an investigating judge and again described the course of events as set out above. At that time, the applicant had not yet been informed about the investigation proceedings initiated against him, so as not to put the investigation at risk. No warrant for his arrest had yet been issued and he was not yet represented by counsel. The investigating judge excluded the applicant from the witness hearing before him in accordance with Article 168c of the Code of Criminal Procedure (see paragraph 56 below) since he was concerned that the witnesses, whom he had found to be considerably shocked and distressed by the offence, would be afraid of telling the truth in the applicant’s presence. The witnesses confirmed at that hearing that they intended to return to Latvia as soon as possible. 22. Witnesses O. and P. returned to Latvia shortly after that hearing. The applicant was subsequently arrested on 6 March 2007. 23. The Göttingen Regional Court summoned O. and P. by registered mail to appear at the trial on 24 August 2007. However, both witnesses refused to attend the hearing before the Regional Court, relying on medical certificates dated 9 August 2007 which indicated that they were in an unstable, post-traumatic emotional and psychological state. 24. On 29 August 2007 the Regional Court therefore sent letters by registered mail to both witnesses informing them that the court, while not being in a position to compel them to appear at a court hearing in Germany, nonetheless wished to hear them as witnesses at the trial. The court stressed that they would receive protection in Germany and that all costs incurred in attending the hearing would be reimbursed and, proposing several options, asked in what circumstances they would be willing to testify at the trial. While an acknowledgement of receipt was returned for both letters, no response was obtained from P. O., for her part, informed the Regional Court in writing that she was still traumatised by the offence and would therefore neither agree to appear at the trial in person nor would she agree to testify by means of an audio-visual link. O. further stated that she had nothing to add to the statements she had made in the course of the interviews carried out by the police and the investigating judge in February 2007. 25. The Regional Court nevertheless decided to request legal assistance from the Latvian authorities under the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, as supplemented by the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (see paragraphs 64-66 below), taking the view that O. and P. were obliged under Latvian law to appear before a court in Latvia following a request for legal assistance. It asked for the witnesses to be summoned before a court in Latvia and for an audio-visual link to be set up in order for the hearing to be conducted by the presiding judge of the Regional Court (audiovisuelle Vernehmung). It considered, by reference to Article 6 § 3 (d) of the Convention, that defence counsel and the accused, just like the judges and the prosecution, should have the right to put questions to the witnesses for the first time. 26. However, the witness hearing of O. and P. scheduled by the competent Latvian court for 13 February 2008 was cancelled shortly before that date by the presiding Latvian judge. The latter found that the witnesses, again relying on medical certificates, had demonstrated that they were still suffering from post-traumatic disorder as a consequence of the offence and that further confrontation with the events in Göttingen would risk aggravating their condition. O. had further claimed that, following threats by the accused, she feared possible acts of revenge. 27. By letter dated 21 February 2008 the Regional Court, which had obtained copies of the medical certificates the witnesses had submitted to the Latvian court at the Regional Court’s request, informed its Latvian counterpart that, according to the standards of German criminal procedure law, the witnesses had not sufficiently substantiated their refusal to testify. The court suggested to the competent Latvian judge that the witnesses be examined by a public medical officer (Amtsarzt) or, alternatively, that they be compelled to attend the hearing. The letter remained unanswered. 28. By decision of 21 February 2008 the Regional Court, dismissing an objection to the admission of the witnesses’ pre-trial statements raised by counsel for one of the co-accused, ordered that the records of O. and P.’s interviews by the police and the investigating judge be read out at the trial in accordance with Article 251 §§ 1 (2) and 2 (1) of the Code of Criminal Procedure (see paragraph 61 below). It considered that, as required by the said provisions, there were insurmountable obstacles which made it impossible to hear the witnesses in the foreseeable future as they were unreachable. It had not been possible to hear witnesses O. and P. in the course of the trial since they had returned to their home country, Latvia, shortly after their interviews at the investigation stage, and all attempts to hear their evidence at the main hearing, which the court had no means of enforcing, had been to no avail. Pointing out that the courts were under an obligation to conduct proceedings involving deprivation of liberty expeditiously, and in view of the fact that the accused had already been in custody for a considerable period of time, the court was of the opinion that it was not justified to further delay the proceedings. 29. The Regional Court emphasised that at the investigation stage there had been no indication that O. and P., who had testified on several occasions before the police and then before the investigating judge, would refuse to repeat their statements at a subsequent trial. It considered that, notwithstanding the resulting restrictions for the defence on account of the admission of O. and P.’s pre-trial statements as evidence in the proceedings, the trial as a whole could be conducted fairly and in compliance with the requirements of Article 6 § 3 (d) of the Convention. 30. By judgment of 25 April 2008 the Göttingen Regional Court, considering the facts established as described above, convicted the applicant of two counts of aggravated robbery combined with aggravated extortion involving coercion, committed jointly with other perpetrators in Kassel on 14 October 2006 and in Göttingen on 3 February 2007, respectively. It sentenced the applicant, who had been represented by counsel at the trial, to nine years and six months’ imprisonment. 31. The Regional Court based its findings of fact concerning the offence committed by the applicant in Kassel on the statements made at the trial by the victims L. and I., who had identified the applicant without any hesitation. It further noted that their statements were supported by the statements made at the trial by the police officers who had attended the crime scene and had interviewed L. and I. in the course of the preliminary investigation. In view of these elements, the Regional Court considered that the submissions made by the applicant, who had initially claimed his innocence and had then admitted that he had been in L. and I.’s flat but had only secretly stolen EUR 750, alone, after a quarrel with the women, had been refuted. 32. In the establishment of the facts concerning the offence in Göttingen, the Regional Court relied in particular on the pre-trial statements made by the victims O. and P., whom it considered to be key witnesses for the prosecution (maßgebliche[n] Belastungszeuginnen), in the course of their police interviews and before the investigating judge. 33. In its judgment, which ran to some 152 pages, the Regional Court pointed out that it was aware of the reduced evidentiary value of the records of O. and P.’s pre-trial testimonies. It further took into account the fact that neither the applicant nor counsel for the defence had been provided with an opportunity to examine the only direct witnesses to the offence in Göttingen at any stage of the proceedings. 34. The Regional Court noted that the records of O. and P.’s interviews at the investigation stage showed that they had given detailed and coherent descriptions of the circumstances of the offence. Minor contradictions in their statements could be explained by their concern not to disclose their residence and activities to the authorities and by the psychological strain to which they had been subjected during and following the incident. The witnesses had feared problems with the police and acts of revenge by the perpetrators. This explained why they had not reported the offence immediately after the events and why the police had only been informed on 12 February 2007 by their friend L. 35. The Regional Court further took note of the fact that O. and P. had failed to identify the applicant when confronted with several photos of potential suspects during the police interviews. It observed that the witnesses’ attention during the incident had been focused on the other perpetrator carrying the knife and that the applicant himself had only stayed a short period of time in the apartment. Their inability to identify the applicant also showed that, contrary to the defence’s allegation, the witnesses had not testified with a view to incriminating him. The court further considered that the fact that the witnesses had failed to attend the trial could be explained by their unease at having to recall, and being questioned about, the offence and therefore did not as such affect their credibility. 36. In its establishment of the facts, the Regional Court further had regard to the following additional evidence: the statements made at the trial by several witnesses to whom O. and P. had reported the offence shortly after it happened, namely the victims’ neighbour E. and their friend L., as well as the police officers and the investigating judge who had examined O. and P. at the pre-trial stage; geographical data and information obtained by tapping the applicant’s and his co-accused’s mobile telephones and by means of a satellite-based global positioning system (“GPS”) receiver in the car of one of the co-accused; the applicant’s admission in the course of the trial that he had been in the victims’ apartment at the relevant time; and the similarity in the way in which the offences in Kassel and Göttingen had been committed. 37. The Regional Court stressed that, once witnesses O. and P. had proved to be unavailable, it had ensured that as many as possible of the witnesses who had been in contact with O. and P. in relation to the events at issue were heard at the trial, in order to verify the victims’ credibility. 38. In the Regional Court’s opinion the fact that the detailed description of the events given in O. and P.’s pre-trial statements was consistent with the account they had given the morning after the offence to their neighbour E. was a strong indication of their credibility and the veracity of their statements. E. had further testified that, on the evening of 3 February 2007 at around 9.30 p.m., another neighbour, an elderly woman who became scared and angry when she saw P. running around in front of her window, had called on her and asked her to accompany her to the women’s apartment to investigate what had happened. O. and P. had, however, not answered the door when the neighbours rang the doorbell. 39. The Regional Court further observed that O. and P.’s description of the events was also consistent with their friend L.’s recollection of her conversations with O. and P. after the offence. 40. In addition, the Regional Court noted that the three police officers and the investigating judge who had examined O. and P. at the pre-trial stage had all testified at the trial that they had found O. and P. to be credible. 41. The Regional Court stressed that since neither the defence nor the court itself had had an opportunity to observe the main witnesses’ demeanour at the trial or during examination by means of an audio-visual link, it had to exercise particular diligence in assessing the evaluation of the witnesses’ credibility by the police officers and the investigating judge. The court further emphasised that, when taking into account the testimonies given by the witnesses’ neighbour E. and their friend L., it had paid special attention to the fact that their statements constituted hearsay evidence and had to be assessed particularly carefully. 42. In this context it had been of relevance that O. and P.’s testimonies as well as the statements of the additional witnesses heard at the trial had been supported by further significant and admissible evidence such as data and information obtained by tapping the applicant’s and the co-accused’s mobile telephones and by means of GPS. The information in question had been gathered in the context of police surveillance measures carried out at the relevant time in the criminal investigation initiated against the accused on suspicion of racketeering and extortion on the Göttingen drug scene. 43. It transpired from the geographical data and the recordings of two mobile telephone conversations between one of the co-accused and the applicant on the evening of 3 February 2007 at 8.29 p.m. and 8.31 p.m. that the latter had been present in the victims’ apartment together with B., and that he had jumped from the balcony in order to chase one of the escaping victims, whom he had failed to capture, while B. had stayed in the apartment. Furthermore, an analysis of the GPS data showed that the car of one of the co-accused had been parked near the crime scene from 7.58 p.m. to 8.32 p.m. on the evening of 3 February 2007, a period that coincided with the timeframe in which the robbery in question had occurred. 44. Furthermore, while the applicant and the co-accused had denied any participation in the robbery as such or any premeditated criminal activity, their own statements at the trial had at least confirmed that one of the coaccused together with R. had visited the victims’ apartment in Göttingen on the evening before the offence and that they had all been present in the car parked close to the victims’ apartment at the time of the offence. The accused had initially stated that a different perpetrator and R. had been in the apartment at the time of the incident the following day. The applicant had subsequently amended his submissions and claimed that it had been he and B. who had gone into the victims’ apartment on 3 February 2007 with a view to making use of the women’s services as prostitutes. He had further conceded that he had followed P. when she escaped over the balcony. He explained that he had done so in order to prevent her from calling the neighbours or the police, since, in view of his criminal record, he had been afraid of getting into trouble and because of the problems he had previously encountered with prostitutes on a similar occasion in Kassel. 45. Finally, the Regional Court considered that the very similar way in which the offences had been committed against two female victims, foreign nationals working as prostitutes in an apartment, was an additional element indicating that the applicant had also participated in the offence committed in Göttingen. 46. In the Regional Court’s view, the body of evidence, taken together, gave a coherent and complete overall picture of events which supported the version provided by witnesses O. and P. and refuted the contradictory versions of events put forward by the applicant and his co-accused in the course of the trial. 47. On 23 June 2008 the applicant, represented by counsel, lodged an appeal on points of law against the judgment of the Göttingen Regional Court. He complained that he had not been able to examine the only direct and key witnesses to the offence committed in Göttingen at any stage of the proceedings, in breach of Article 6 §§ 1 and 3 (d) of the Convention. As the prosecution authorities, contrary to the case-law of the Federal Court of Justice (the applicant referred to a judgment dated 25 July 2000, see paragraphs 58-59 and 62 below), had not requested that defence counsel be appointed for him prior to O. and P.’s hearing before the investigating judge, their statements ought to have been excluded at the trial. 48. In written submissions dated 9 September 2008 the Federal Public Prosecutor General requested that the applicant’s appeal on points of law be dismissed by the Federal Court of Justice as manifestly ill-founded in written proceedings, under Article 349 § 2 of the Code of Criminal Procedure (see paragraph 63 below). The Federal Public Prosecutor General argued that while it was true that the proceedings had been characterised by a “complete loss” of the applicant’s right to examine O. and P. (“Totalausfall des Fragerechts”), they had as a whole been fair and there had been no reason to exclude the witness statements of O. and P. as evidence. 49. The Federal Public Prosecutor General considered that the Regional Court had assessed the content of the records of the witnesses’ testimonies read out at the trial particularly carefully and critically. Furthermore, the victims’ statements had been neither the sole nor the decisive basis for the applicant’s conviction by the Regional Court, as the latter had based its findings on further significant evidence. In view of the various layers of corroborating evidence the applicant had had ample opportunity to challenge the credibility of the two prosecution witnesses and to defend himself effectively. 50. Endorsing the Regional Court’s reasoning, the Federal Public Prosecutor General further pointed out that there was nothing to demonstrate that the restrictions on the defence’s right to examine witnesses O. and P. had been imputable to the domestic authorities. The prosecution authorities had not been obliged to appoint counsel for the applicant in order for counsel to participate in the hearing by the investigating judge. In view of the witnesses’ consistent cooperation, the authorities had had no reason to expect that, despite their return to their home country, they would no longer be available for questioning at the trial, especially as they had been obliged under Latvian law to at least participate in a hearing via video link. 51. By decision of 30 October 2008 the Federal Court of Justice, referring to Article 349 § 2 of the Code of Criminal Procedure, dismissed the applicant’s appeal on points of law as manifestly ill-founded. 52. In its decision of 9 December 2008 rejecting the applicant’s complaint concerning a violation of his right to be heard (Anhörungsrüge) the Federal Court of Justice pointed out that any decision dismissing an appeal on the basis of Article 349 § 2 of the Code of Criminal Procedure necessarily entailed a reference to the reasoned application by the Federal Public Prosecutor General. 53. In a constitutional complaint dated 30 December 2008 against the decisions of the Federal Court of Justice of 30 October and 9 December 2008, the applicant complained, in particular, that there had been a breach of his right to a fair trial and of his defence rights under Article 6 § 3 (d) of the Convention. He argued that neither he nor his counsel had had the opportunity to question O. and P. at any stage of the proceedings. 54. By decision of 8 October 2009 the Federal Constitutional Court, without providing reasons, declined to consider the applicant’s complaint (file no. 2 BvR 78/09). | 1 |
test | 001-169212 | ENG | UKR | COMMITTEE | 2,016 | CASE OF SOSNOVSKIY v. UKRAINE | 4 | 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 - Prohibition of torture;Degrading treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | André Potocki;Ganna Yudkivska;Síofra O’Leary | 5. The applicant was born in 1972 and lives in Kerch. 6. At the material time the applicant worked as an investigation officer in the environmental protection prosecutor’s office (природоохоронна прокуратура). 7. On 4 October 2005 S. complained to the Prosecutor’s Office of the Autonomous Republic of Crimea (“the ARC”) (прокуратура Автономної республіки Крим) that the applicant and U., a prosecutor’s assistant, had extorted 5,000 United States dollars (USD) from him for the purpose of carrying on a fishing business. Later K. and R. lodged similar complaints. 8. On 7 October 2005 at around 3 p.m. the applicant was arrested at his workplace after receiving 2,000 USD from S., and 200 USD and 500 Ukrainian hryvnias (UAH) from R. The applicant’s office was searched and 2,000 USD were found in one of the books on his table. The applicant’s meetings with R. and S. had been taped. On the same day criminal proceedings were instituted against the applicant and U. for bribe-taking. 9. On 10 October 2005 the Tsentralnyy District Court of Simferopol (“the Tsentralnyy Court”) authorised the applicant’s pre-trial detention. The court held that the applicant was accused of committing a serious crime and might escape, or hinder the investigation, or continue his criminal activity. The applicant appealed. 10. On 18 October 2005 the applicant complained to the Kerch Local Court that his arrest on 7 October 2005 had been unlawful since there had been no grounds to arrest him. The court forwarded this complaint to the Kerch Prosecutor’s Office, noting that the court was not competent to consider such complaints while the case was under investigation. The Kerch Prosecutor’s Office transferred the applicant’s complaint to the Prosecutor’s Office of the ARC. 11. On 1 December 2005 the Prosecutor’s Office of the ARC informed the applicant that his arrest was justified and lawful. 12. On the same day the Court of Appeal of the ARC upheld the decision of 10 October 2005. 13. On 5 December 2005 the Tsentralnyy Court extended the applicant’s detention until 7 February 2006 on the same grounds as before. The applicant appealed. 14. On 20 December 2005 the Court of Appeal of the ARC upheld the decision of 5 December 2005. It held that there was sufficient evidence that the applicant had committed a serious crime. If at large, the applicant might continue his criminal activity, or hinder the investigation, or abscond. 15. On 18 January 2006 the Feodosiya Town Court (“the Feodosiya Court”) accepted the applicant’s case for trial. 16. On 6 February 2006, in the committal hearings, the Feodosiya Court maintained the applicant’s detention without giving any reason or setting any time-limit. 17. On 21 February 2006 the Feodosiya Court rejected the applicant’s request to change the preventive measure to an undertaking not to abscond, noting that the applicant was accused of having committed a serious crime, and might abscond or hinder the investigation. The applicant appealed. 18. On 23 May 2006 the Feodosiya Court found the applicant and U. guilty of several counts of bribe-taking and sentenced them to six and five years’ imprisonment, respectively, with confiscation of half of their property. 19. On 14 September 2006 the Court of Appeal of the ARC terminated proceedings in respect of one count of bribery concerning the applicant and upheld the remainder of the judgment. 20. On 24 July 2007 the Supreme Court of Ukraine rejected the applicant’s appeal on points of law. 21. From 10 October 2005 to 4 February 2006 and from 5 February to 5 September 2006 the applicant was detained in Simferopol Pre-Trial Detention Centre no. 15 (Ізолятор тимчасового тримання № 15 м. Сімферополя) (“the Simferopol SIZO”) and in the Feodosiya Temporary Detention Centre (ізолятор тимчасового тримання м. Феодосія) (“the Feodosiya ITT”) respectively. 22. In the Simferopol SIZO the applicant shared cell no. 29, which measured 10 square metres, with four other detainees. There were no chairs in the cell and it was in a poor state of repair. There were cockroaches and other insects. The toilet space was very narrow – around 45-50 centimetres in width – which caused the applicant, who is 1.94 metres tall and weighs 160 kilograms, considerable difficulties. The detainees were able to take a shower only once every seven to ten days. 23. In the Feodosiya ITT the applicant was detained in cell no. 27, which measured 4.7 square metres, together with four or more detainees. The cell had no windows and no furniture. The toilet space was very narrow – around 30 centimetres in width. The applicant had not been able to take a shower, and detainees had had to sleep in turns. 30 minutes’ outside exercise was possible once every ten to fifteen days in a small yard which measured 4.5 square metres. The applicant submitted undated photos of a cell, in which it is apparent that the toilet (a hole in the floor plugged by a plastic bottle) is separated from the living space by a wall approximately one metre high. Beside the toilet there is a sleeping place (allegedly a mattress on a wooden bench or on the floor). 24. According to the Government, cell no. 29 in the Simferopol SIZO had been designed for occupancy by three inmates and had had 9.3 square metres of living space, thus allowing some 3.1 square metres per inmate, which had been in compliance with the domestic standards. In accordance with the relevant regulations, the cell had been disinfected on a daily basis and the detainees had had weekly access to bathing facilities. The statutory regulations did not include chair provision for this cell. 25. As regards the Feodosiya ITT, the applicant’s cell had 5.7 square metres of living space and had been designed to accommodate two inmates. The cell had been lit by electric light, equipped with a ventilating system ensuring circulation of air and furnished with wooden sleeping platform, separated toilet and wash-stand. The detainees had been provided with pillows and mattresses. The detention facility had had a shower room with hot and cold water and a small backyard for daily walks. 26. On 6 March 2006 the applicant lodged a complaint with the Feodosiya Court about the conditions of his detention in the ITT (overcrowding, no windows in the cell, no possibility of taking a shower, lack of out-of-cell activities). He requested that the court find the inaction of the Feodosiya ITT authorities in this respect unlawful and to oblige it to remedy the situation. 27. On 14 March 2006 the court forwarded the complaint to the Feodosiya Prosecutor’s Office as the appropriate decision-making body. 28. On 20 March 2006 the Feodosiya Prosecutor’s Office informed the applicant that some violations of the law by the Feodosiya ITT authorities had been established and that the relevant instructions had been given to remedy the situation, with no further details provided. 29. On 23 June 2006 the applicant again lodged his complaint with the Feodosiyskyy Court, having stated that neither his complaint to the Feodosiya ITT authorities nor to the prosecutor’s office had remedied his situation. He requested that the inaction of the Feodosiya ITT authorities be declared unlawful. This complaint was again forwarded by the court to the Feodosiya Prosecutor’s Office. 30. On 23 and 28 July 2006 the Feodosiya Prosecutor’s Office sent the applicant a reply similar to that in the letter of 20 March 2006. According to the applicant, he did not receive these letters. 31. On 1 July 2006 the applicant complained to the Court of Appeal of the ARC (“Court of Appeal”) about the failure of the Feodosiya Court to consider his complaint on the merits. He requested that the Court of Appeal oblige the latter to consider his complaint against the Feodosiya ITT on the merits and to bring disciplinary measure to bear on the respective judge of the Feodosiya Court. 32. On 1 August 2006 the Court of Appeal assigned the applicant’s complaint to the Leninskiy District Court of the ARC (“the Leninskiy District Court”). 33. On 2 August 2006 the applicant complained to the Prosecutor’s Office of the ARC about the alleged failure of the Feodosiya Prosecutor’s Office to consider his complaints about conditions of detention. 34. On 31 August 2006 the Leninskiy District Court refused to open administrative proceedings concerning the applicant’s complaint as the procedural decisions of a judge in such a case were not subject to appeal under the rules of administrative procedure. Any decision to the contrary would, in the court’s opinion, constitute an unlawful interference with the administration of justice. The court dismissed as unsubstantiated the applicant’s allegations that the failure of the Feodosiya Court to entertain his complaint amounted to a denial of access to a court. It noted in this respect ‒ in accordance with the Criminal Procedure Code and the Prosecutor’s Act (Закон України «Про прокуратуру») ‒ that it was for the prosecutor’s offices to supervise observance of the law in detention centres. The applicant was free to complain to the court about the prosecutor’s inaction, if appropriate, but he had failed to do so. 35. The applicant appealed. 36. On 12 October 2006 the applicant received a letter from the Prosecutor’s Office of the ARC in which it referred to the responses given earlier to the applicant by the Feodosiya Prosecutor’s Office. 37. On 12 December 2006 the Court of Appeal of the ARC upheld the decision of 31 August 2006. It noted in particular that the applicant had submitted to the Feodosiya Court a complaint regarding the poor conditions of detention but not an administrative claim against the Feodosiya ITT for the protection of his rights, as was required by the Code of Administrative Justice. This being so, his complaint had been forwarded to the competent authorities as required by the relevant domestic legislation. 38. On 21 April 2009 the Higher Administrative Court of Ukraine rejected the applicant’s appeal on the points of law. 39. On 17 September 2007 the applicant lodged an administrative claim with the Menskiy District Court of the Chernigiv Region (“the Mesnkiy District Court”) against the Feodosiya ITT authorities claiming, inter alia, damages for the harm inflicted by the inhuman and degrading conditions of his detention. 40. On 15 October 2007 the Menskiy District Court admitted the applicant’s claim for consideration. 41. On 23 November 2007 the Menskiy District Court rejected the claim as having been lodged outside the one-year time-limit set by the law, since the applicant had been transferred from the Feodosiya ITT on 5 September 2006. 42. The Court of Appeal and the Higher Administrative Court upheld the above decisions on 1 April 2008 and 21 December 2010 respectively. | 1 |
test | 001-181076 | ENG | RUS | COMMITTEE | 2,018 | CASE OF MALYGIN AND OTHERS v. RUSSIA | 4 | 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 - Prohibition of torture;Degrading treatment) | 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 inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-172470 | ENG | SRB | COMMITTEE | 2,017 | CASE OF ŽIVKOVIĆ 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) | Branko Lubarda;Dmitry Dedov;Luis López Guerra | 5. The applicant was born in 1941 and lives in Belgrade. 6. On 27 June 2001 the Obrenovac Municipal Court ordered a socially-owned company, Holding - Prva Iskra AD Barič (hereinafter “the debtor”), to pay the applicant specified amounts on account of compensation for expropriated real estate plus the costs of the civil proceedings. 7. On 18 March 2003, upon the applicant’s request to that effect, the Obrenovac Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs. 8. On 23 April 2003 the Privatisation Agency ordered the restructuring of the applicant’s debtor. As a consequence, the ongoing enforcement proceedings against the debtor would appear to have been stayed. 9. On 29 February 2016 the Belgrade Commercial Court opened insolvency proceedings in respect of the debtor. The applicant duly reported her claims based on the above-mentioned judgment to the insolvency administration. 10. The insolvency proceedings are still ongoing and the said court judgment remains unenforced to the present day. 11. According to publically available information the debtor is still, predominantly comprised of socially-owned capital (see http://pretraga2.apr.gov.rs/ObjedinjenePretrage/Search/Search, accessed on 7 February 2017). 12. On 7 October 2011 the applicant lodged an appeal with the Constitutional Court. In terms of redress, relying on the Constitutional Court Act 2007, the applicant sought, inter alia, compensation for the pecuniary and non-pecuniary damage suffered due to the impugned non-enforcement. 13. On 15 May 2012 the applicant noted the adoption of the amendments to the Constitutional Court Act, and specified her compensation claims accordingly. Specifically, on account of the pecuniary damage, the applicant requested the respective amounts awarded to her by the final judgment in question, whilst as regards the nonpecuniary damage sustained she claimed 1,000,000 Serbian dinars (approximately 9,500 euros (EUR)). 14. On 21 May 2014 the Constitutional Court found, in the operative part of its ruling (u izreci), that the applicant had indeed suffered a violation of her right to a fair trial within a reasonable time, as well as a violation of her property rights and awarded her EUR 1,000 in respect of the non-pecuniary damage in question. However, it rejected the compensation claim regarding the pecuniary damages sought by the applicant. The Constitutional Court, lastly, ordered the speeding up of the impugned enforcement proceedings. 15. In its reasoning, the Constitutional Court stated in respect of the compensation issue that the applicant’s pecuniary damage claim had been lodged out of time. In so doing, it merely referred to Article 85 § 3 of the Constitutional Court Act, as amended in 2011, requiring that such claims be brought simultaneously with the lodging of a constitutional appeal. | 1 |
test | 001-160087 | ENG | ROU | CHAMBER | 2,016 | CASE OF AURELIAN OPREA v. ROMANIA | 4 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | András Sajó;Egidijus Kūris;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1943 and lives in Bucharest. 6. At the relevant time the applicant was a member of the teaching staff, as associate professor (“conferenţiar universitar”), of the University of Agronomical Sciences and Veterinary Medicine (hereafter “the University”), which is a State university. 7. Between 2002 and 2005 the applicant submitted many requests to the education authorities of the University and the Ministry of Education for the creation of a position of full professor in his department. He claimed that he met all the required professional criteria for occupying such a position. On 23 March 2005 the rector informed the applicant that for financial and other objective reasons, a new professor position could not be created. 8. The applicant was also a member of a non-profit organisation called the European Association of University Teaching Staff in Romania (“the Association”). Its general aim was to stop the degradation of education and research standards by making known the abuses, unlawful acts and corruption in education. 9. On 8 March 2005, a journalist, S.A., had an article published in the newspaper România liberă entitled “Corruption at university level”. The article stated that intellectual theft and plagiarism had been noted at the University of Agronomical Sciences and Veterinary Medicine. The journalist stated in this connection that O.A.A. had published a book, which was mostly (80%) a copy of another book. She nonetheless enjoyed the status of university lecturer under the protection of the deputy rector, Professor N.C.I., who was also the scientific referent of the book. 10. On 7 June 2005 S.A. had another article published in the same newspaper, entitled “University lecturer ostracised because he denounced university corruption”. The article referred to the applicant, who, having noted that his disclosure about O.A.A.’s plagiarism to the dean and the rector of the University had not been followed up by any measures, had informed the press. Instead of benefiting from the protection provided by Law no. 571/2004 for employees who revealed infringements of the law within public authorities and institutions, the applicant had been invited to a meeting organised by the rector on 14 March 2005 and asked why he had informed the press. On 19 April 2005 another meeting was organised by the deputy rector and the dean of the applicant’s faculty. On the pretext of redistribution of the faculty’s space, they cleared the laboratory used by the applicant for research and practical activities with his students. 11. On 3 August 2005 the Association organised a press conference the main topic of which was corruption at university level. Seven cases of alleged corruption were presented. While other members of the Association referred to the corruption existent in other universities, the applicant, in his capacity as secretary-general of the Association, delivered a speech about corruption in his own university. He referred to the cases of O.A.A., a colleague, and of the deputy rector, N.C.I. The former had published a book called The Chemistry of Wine that according to him was mostly (80%) a copy of another book, Oenology, published in 1994 by another author. The applicant also mentioned that the book had been written under the direct supervision and guidance of N.C.I, who had written a eulogistic foreword to the book. 12. The applicant criticised the way in which N.C.I. had managed the AGRAL programme concerning public funding of scientific research stations; he alleged that N.C.I. had offered funding only to stations from which he could make personal gains. 13. The applicant also stated that N.C.I. was benefiting from a preferential regime because of his past as former secretary of the Romanian Communist Party. According to the applicant, N.C.I. was occupying too many positions to be able to handle them properly: professor at several different universities; deputy rector of the University of Agronomical Sciences and Veterinary Medicine; president of the National Office of Wine and Vineyards; and director of the AGRAL programme for public funding of research stations. He was also the head of the Department of Viticulture and Oenology. 14. The applicant also stated that N.C.I. was involved in sabotaging scientific research and that in the department of Viticulture and Oenology led by N.C.I. there was a mafia-type organisation (“încregătură de tip mafiot”). 15. Most of those statements were repeated in an article entitled “Professor at Piteşti University accused of corruption” published in the weekly newspaper Impact în Argeş of 26-30 September 2005. 16. On 10 November 2005 N.C.I. lodged a joint criminal and civil complaint against the applicant for defamation. He claimed that the newspaper Impact în Argeş had published an article containing the applicant’s views expressed at a press conference on 3 August 2005. 17. The applicant adduced extensive documentary evidence before the Bucharest District Court. He submitted certificates from different universities at which N.C.I. had taught, the statute of the Association, different documents concerning the AGRAL programme, including the composition of the management of the programme, and a few letters issued by the Odobeşti research station at which O.A.A had performed research activity. He also submitted several newspaper articles containing criticism of N.C.I. and O.A.A. 18. N.C.I. gave a statement before the court on 13 February 2006. He acknowledged that he was cumulatively occupying the positions of deputy rector of the University, president of the National Office of Wine and Vineyards and director of the AGRAL programme for public funding of research stations. He also stated that even before the press conference the applicant had made defamatory statements about him in letters addressed to the rector of the University, the dean of the Faculty of Oenology and the Ministry of Education. 19. On 13 March 2006 the court heard as a witness on behalf of the applicant S.A., one of the journalists who had written articles about the alleged corruption in the University (see paragraphs 9 and 10 above). He stated that he had attended the press conference of 3 August 2005. As regards the applicant’s allegation that N.C.I. was responsible for the incorrect manner in which public money had been allocated for scientific research, the journalist pointed out that on the basis of the documents he had seen on that occasion, such as salary slips and reports, it was clear to him that discriminatory treatment had been applied to the researchers working for the research stations and the University. The very high payments received by certain members of the University staff had convinced the applicant that only research stations which had accepted the teaching staff agreed by the plaintiff obtained public funding. The journalist also referred to the fact that the plaintiff was occupying several teaching positions at different universities. Lastly, the journalist stated that he had based his articles about the University not only on the material presented by the Association but also on documents from other sources, which he could not reveal. 20. By a judgment of 17 April 2006, the Bucharest District Court dismissed the criminal complaint. It held that even though the applicant could not prove the veracity of his statements, one element of the crime of defamation was missing, namely an intent to damage the reputation of N.C.I. It also held that the applicant, convinced by the accuracy of his statements, had only intended to present a case of corruption at university level. The most relevant part of the judgment read as follows: “In the instant case, the defendant did not prove the accuracy of his statements despite the fact that on 13 February 2006 the court (taking into account that the morality and legality of the education system at university level is obviously a topic of public interest, and the interest of informing the public opinion and the authorities is serious and legitimate in accordance with Article 207 of the Criminal Code and the Court’s case-law – the case of Castells v. Spain and the case of Colombani v. France) had admitted all the evidence proposed on his behalf. ... Moreover, the documents submitted by the defendant (namely, the foreword of the book signed by the injured party (N.C.I.), copies of the book covers of The Chemistry of Wine and of the original Oenology, chapters from the two books) do not prove that the injured party encouraged plagiarism. Some resemblance in the form and contents of the two works that could be noted by reading in parallel certain chapters cannot lead to the conclusion that the injured party was liable for not denouncing plagiarism. Such a conclusion would mean that the injured party knew perfectly well the previously published book and that he had made a comparative analysis of both works, noting some inconsistencies which he ignored ... However, the role of that foreword (and of any foreword in general) is to express a point of view about a work ... and does not represent an objective and critical opinion.” ... “Moreover, the defendant did not prove that the injured party had blackmailed the research stations ... The documents submitted by the defendant (copies of the pay slips of March 2005 issued by the Odobeşti research station, the records of the salaries paid by the same research station to several collaborators, and the report of an assessment performed at the research station by an authority of the Agriculture Minister on 20 July 2005) could not lead to the conclusion that the injured party had blackmailed the Odobeşti research station”. ... “In addition, the defendant’s allegations that the injured party obtained undeserved profit by unlawfully occupying several positions have not been proved to be true, as the injured party acknowledged that he had several sources of income by lawfully occupying several public offices. As regards the defendant’s allegation about the sabotaging by the injured party of scientific research by damaging different types of hybrids and then selling the greenhouse in which the defendant carried out research was not proved by the adduced evidence. The minute (“proces-verbal”) signed by the Faculty of Horticulture and a private company proved that the latter rented a building and the adjacent greenhouse, in which no plants were cultivated; moreover the minute was not signed by the injured party. Under these circumstances, after the examination of all evidence, it cannot be concluded that the defendant has proved, beyond any reasonable doubt, that the aspects stated by him are true.” 21. As regards the applicant’s intent to commit defamation, the firstinstance court stated the following: “The court notes that the defendant’s statements were made in the context of a press conference organised by the European Association of University Teaching Staff (of which the defendant is secretary-general), the main topic of which was the corruption and unlawful acts committed at university level, it being well known that the main object of the Association is the monitoring and disclosure of irregularities in the academic system. Even though the defendant’s speech was shocking and exaggerated, it should be regarded as part of a topic of public interest – namely, corruption among university teaching staff – and the legislative and moral reform of the teaching system, an objective desired by the whole of society. It should be noted that before the press conference of 3 August 2005, the newspaper România Liberă had published an article concerning the plagiarism of The Chemistry of Wine, and the Association had drafted a report concerning the situation of teaching in Romania. The report denounced the fact that university teachers were simultaneously teaching at several universities (“cu normă întreagă”) and that teachers, guilty of plagiarism and scientific fraud, were maintained in their positions at universities (a report that should have been known by the defendant in his capacity as secretary-general of the Association). These aspects prove that the topic had been previously published and debated in a public context. At the same time, another important aspect is the fact that at the conference the defendant submitted several documents, such as: time sheets (“fişe de pontaj”), reports, the foreword written by the injured party for The Chemistry of Wine and copies of the alleged plagiarised book ..., documents which the defendant considered as evidence of the alleged acts. Notwithstanding that these documents did not directly prove that the injured party had committed the acts of which he had been accused, they formed the basis of the defendant’s intimate conviction that the former was guilty of committing certain irregularities. In this context, even though it is obvious that the honour and reputation of the injured party were objectively harmed, the court considers that this situation was the result of the speech and not an aim in itself, since the speaker had expressed his viewpoint in his capacity as a member of the Association and not as a private person, with the intention of contributing to informing on a topic of extreme public interest, that of corruption at university level, which had already been known by the press. Consequently, the court considers that the defendant did not act with intent to gratuitously harm the injured party’s reputation, but with the conviction that he was revealing a corruption case.” 22. The court partially allowed the civil complaint, ordering the applicant to pay compensation for non-pecuniary damage amounting to 3,000 Romanian lei (RON) (approximately 860 euros (EUR)). It held that under the applicable civil law the applicant could be held liable for even the slightest level of fault. Therefore, the applicant was ordered to pay compensation to N.C.I. for the way he had brought to the attention of journalists the information regarding his professional activity. The relevant passages of the decision read as follows: “The way in which the defendant brought this information to the journalists’ attention, without clear evidence, convinced them that the presented facts were plausible (see in this respect the statements of witness S.A., as well as the articles published in the daily newspapers Impact de Iaşi and Fortune). Consequently, the presentation of superficial information, with a high degree of suggestibility, constitutes an illicit act. ... As regards the defendant’s liability, it must be emphasised that the court’s finding concerning the defendant’s good faith has relevance only in connection with the criminal complaint, given the fact that in order to establish civil liability it is enough for the court to find the slightest level of fault. It is true that according to the ECHR’s case-law, persons acting as whistleblowers can share information concerning topics of public interest, even if shocking and disturbing; however, they should also take into account the protection of the reputation of others, as provided for by Article 10 § 1 of the Convention (see Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999I).” 23. Appeals on points of law lodged by the parties were allowed. By a decision delivered on 11 November 2006 the Bucharest County Court dismissed the criminal complaint, as a direct consequence of an amendment made to the Criminal Code regarding the decriminalisation of defamation. The civil complaint was left unresolved. 24. On 13 December 2006 Professor N.C.I., brought a separate civil action for compensation against the applicant before the Bucharest Civil Court of First Instance. He claimed that certain remarks made by the applicant on 3 August 2005 and other occasions had constituted an attack on his reputation. 25. The applicant produced extensive testimonial and documentary evidence before the court in order to demonstrate the accuracy of his statements. He adduced copies of the books The Chemistry of Wine and Oenology, and underlined the paragraphs he said had been copied by O.A.A. He also proposed that the court hear statements from individuals working for a certain research station in order to prove that the author of the book The Chemistry of Wine, a “protégée” of N.C.I., was registered as an employee and received a salary from the Odobeşti research station, which benefited from funding granted by N.C.I., without ever turning up to work there. He tried to prove that despite the fact that under the applicable law, a professor does not have the right to teach at more than two universities, N.C.I was a professor at at least three universities. 26. On 2 April 2007 the Bucharest Civil Court of First Instance allowed the action and the sum of RON 20,000 was awarded to N.C.I as compensation for non-pecuniary damage. It held that the applicant was liable for the way in which he had presented the above information concerning N.C.I. to journalists, who were convinced of the accuracy of his information and had published it in newspapers. The court endorsed the reasoning of the Bucharest District Court in its judgment of 17 April 2006 by copying most of the paragraphs from the latter judgment. Thus, it held among other things, that the applicant had not proved that N.C.I. had encouraged plagiarism by writing the foreword for the book The Chemistry of Wine as the role of any foreword is to express a point of view about a work and not to represent a critical opinion. The court also held that the applicant had not proved that N.C.I. had obtained undeserved profit by unlawfully occupying several positions. The applicant was also ordered to pay N.C.I.’s legal expenses. 27. The applicant lodged an appeal on points of law against that judgment. He claimed that he had submitted enough evidence to prove the accuracy of his statements about N.C.I. He pointed out that the court had turned his statement that “in the department of oenology there is a mafiatype organisation (“încregătură de tip mafiot”) into the statement that N.C.I. “is involved in a mafia-type organisation”. On 30 October 2007 the Bucharest County Court dismissed the appeal, upholding the judgment of the firstinstance court. The applicant was ordered to pay the N.C.I.’s legal expenses. 28. On 20 March 2008 the University issued a decision by which it ordered the seizure of one third of the applicant’s monthly salary up to RON 27,877 (approximately EUR 7,470), representing compensation for non-pecuniary damage and the legal expenses awarded to N.C.I. by the domestic courts. 29. On an unspecified date the Association lodged a criminal complaint against O.A.A. accusing her of plagiarism. On 20 March 2007 the prosecutor’s office attached to the Bucharest County Court decided not to institute criminal proceedings against O.A.A. on the grounds that the complaint had not been lodged by the aggrieved party. It noted, however, that a significant part of the two books, The Chemistry of Wine and Oenology, was similar. 30. On 6 May 2009 the Association together with the author of the book Oenology lodged another criminal complaint against O.A.A. They also accused N.C.I. of being an accomplice to O.A.A.’s plagiarism in his capacity as scientific coordinator of the book. On 17 November 2010 the prosecutor’s office attached to Bucharest County Court discontinued the investigation on the grounds that the statutory time-limit for prosecuting the offence of plagiarism had expired. 31. On 3 October 2006 the applicant lodged a complaint against the University’s decision to decrease his salary of April and May 2006 on account of his unjustified absence from work. He claimed that the measure was illegal as timesheets for registering presence at work had not been introduced at the University until June 2006. Moreover, he adduced evidence according to which he had been at work on the days in question. Among other aspects, he pointed out that the actual reason for sanctioning him was his conflict with the management of the University because he had made public that the deputy rector had encouraged plagiarism. 32. By a decision of 26 March 2007 the Bucharest County Court – Department of Labour Litigation – allowed the applicant’s complaint and ordered the University to pay him the amounts withdrawn from his salaries of April and May 2006. The court held that under Article 287 of the Labour Code the burden of proof lay with the applicant’s employer but that it had been unable to produce any legal documents which could prove the applicant’s unjustified absence from work. 33. On 19 June 2006 the University issued a decision by which it applied a disciplinary sanction to the applicant consisting in the suspension, for a period of two years, of his right to apply for a higher teaching position, to obtain a teaching degree or take up a management position. The reasons for the sanction were the following: (i) unjustified absences from several classes and teaching activities; (ii) non-compliance with the teaching curriculum; and (iii) contempt and ignorance of the decisions taken by the management of the faculty and of the department concerning the clearance of a space assigned for setting up a research laboratory. 34. The applicant challenged the decision before the Bucharest County Court. 35. On 25 May 2007 the county court noted that the applicant’s action remained without object as the University had decided to revoke its decision of 19 June 2006. | 1 |
test | 001-167091 | ENG | RUS | COMMITTEE | 2,016 | CASE OF SEMENOV AND BACHURINA v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 5. Mr Semenov was born in 1959 and lives in Tver. 6. Ms Bachurina was born on 8 November 1978 and lived before her arrest in the village of Strelnitsa, Voronezh Region. | 1 |
test | 001-171502 | ENG | UKR | COMMITTEE | 2,017 | CASE OF SITNIK AND OTHERS v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time) | Erik Møse;Mārtiņš Mits;Yonko Grozev | 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 criminal proceedings and of the lack of any effective remedy in domestic law. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-177093 | ENG | BGR | ADMISSIBILITY | 2,017 | DIMITROVA AND OTHERS v. BULGARIA | 4 | Inadmissible | Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 1. A list of the applicants is set out in the appendix. 2. Applicants one to seventeen were represented initially by Mr Adam Weiss, from the AIRE Centre, London and, subsequently, by Mr M. Evans, director of the AIRE Centre, London, and a lawyer practising in London. Applicants eighteen to twenty-three were represented, initially, by Mr Adam Weiss from the AIRE Centre, London and, subsequently, by P. Radev, a lawyer practising in Varna. 3. The Bulgarian Government (“the Government”) were represented by their Agent, Ms D. Dramova, from the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicants are members of three Roma families from the Varna municipality in Bulgaria. They were represented during the domestic proceedings by association “Obnovlenie” (hereafter “the association”), a nongovernmental organisation based in Varna which deals with Roma issues and whose chair and representative was Ridvan Saly. 6. The three applicant families indicated that they had been living in dwellings at 1 and 1a Borimechkata Street in the Mladost borough of Varna for up to twenty years. Those dwellings were owned by the municipality and were in a serious state of disrepair. 7. On 22 January 2008 an expert committee, tasked by the municipality with verifying the state of repair of municipal buildings, established that the houses at 1 and 1a Borimechkata Street were unfit for use and recommended their demolition. 8. Once the occupants had been formally put on notice, the mayor of Varna issued two orders on 25 May 2008, ordering the houses’ demolition as they were unsafe for occupation and also posed a threat to passers-by. The orders indicated that the first, second, fifth, sixth, seventh, eight, fourteenth, fifteenth, eighteenth, twentieth, twenty-first and twenty-second applicants were occupying the houses at 1 and 1a Borimechkata Street, unlawfully. 9. The mayor contracted a private company to demolish the two houses. A municipal company was tasked with ensuring that the necessary conditions for the demolition were in place. Representatives of the municipality were instructed to be present during the demolition and the police were asked to send officers to ensure that public order was observed. 10. On 21 November 2008, demolition works started on one of the two houses mentioned above. Following an intervention by the association, the municipality orally granted a ten-day postponement for the demolition in order to find alternative housing for the applicants. They also announced on the radio that alternative accommodation would be found, especially for the children, as it was winter. Press reports described how some of the Roma inhabitants had positioned themselves on the roofs of the houses to prevent demolition. 11. On 5 December 2008, without alternative accommodation having been found, the council proceeded with the demolition, with the police entering the houses at 7 a.m. The applicants were evicted by the police with the help of a private security firm. According to the applicants, disputed by the Government, the police destroyed household items with clubs and poured water over the burning stove. All the applicants were ordered to go out into the street. A record, signed 8 December 2008 by a police officer who was present during the demolition, stated that “on 5 December 2008, between 7 a.m. and 1 p.m., teams of police officers from Varna assisted the municipality with the demolition of the buildings at 1 and 1a Borimechkata Street. No disturbance was observed during the demolition.” Another record drawn up by municipal officials on 5 December 2008 indicated that at 7.30 a.m. both houses were free of items and ready to be demolished. 12. The parties dispute whether Sava Zyumbyulkov Savov, aged oneanda-half months at the time of the events, was among those evicted. He was the youngest child of the Savovi family (applicants eighteen to twentythree); his birth certificate indicated that he was born on 20 October 2008 and lived at 1a Borimechkata Street, Varna. 13. According to the applicants, the officials present, including the mayor of Mladost, made insulting remarks to them, such as “Take that back home” and “You are too dirty, go take a shower and then come back”. In addition, the children witnessed their homes being destroyed and their parents’ distress. 14. The Dimitrovi family (applicants one to four) moved into another municipal dwelling situated at 115 Pop Hariton Street, to which they were directed by the borough authorities after the demolition on 5 December 2008. They were left in the street for approximately six hours before this accommodation was made available. The four members of the family were accommodated in one room in which they lived until 2014, at some point in time with an additional baby. Six months after they moved in the roof collapsed in the Dimitrovi family room. They patched it up themselves but the roof continued to leak. 15. The Savovi family (applicants eighteen to twenty-three) were not directed promptly to alternative housing. At approximately noon on 5 December 2008, the eighteenth applicant, Ms Savova, concerned about the situation of her new-born baby, enquired with the borough authorities where her family could move. The borough authorities directed them to the dwelling at 115 Pop Hariton Street. The Savovi family was only able to move there at 11 p.m. that day. In the meantime they were left in the street for about sixteen hours. They took shelter under a block of flats, where they had to change the baby’s nappies and clean their children in the open. They were finally accommodated in one room of the house at 115 Pop Hariton Street. At that point, ten members of the family occupied the same room. 16. The Atanasovi family (applicants five to seventeen) moved into a makeshift house at 4 Georgi Peyachevich Street which they put together out of wooden blocks and cardboard collected from a rubbish dump. The house did not have a toilet and its inhabitants used an area behind the house for this purpose. There was no running water so they washed in the sea. A certificate provided by the municipal authorities indicated that in 2009 the ninth applicant was listed as an occupant of the house together with the rest of the Atanasovi family. 17. The building at 115 Pop Hariton Street was a single-storey house with a total of three rooms. On 5 December 2008, the third room was uninhabitable. The Savovi family made the room habitable so that three people could live in it, while six others (applicants eighteen to twenty-three) lived in the room to which they originally moved. When the Dimitrovi and Savovi families moved into the house, there was no electricity supply and no hot water. The only toilet was an external one which was extremely dilapidated and there was no place to shower or bath. There was only one sink. The applicants attached photographs of the house to their application. 18. On 8 December 2008 the first and the eighteenth applicants signed typed-up declarations provided by the municipality, stating that they were aware that the dwelling which they occupied at the time, the house at 115 Pop Hariton Street, Varna, was in a state of disrepair and posed a danger to the life and limb of its occupants, and that they undertook to inform the people living with them at that address accordingly. 19. The mayor of Mladost ordered on 22 March 2012 that the house the Atanasovi family occupied be demolished as it posed a danger to human occupation. On 5 November 2013 the municipal authorities proposed to the sixth applicant, Mr Atanasov, to move with his minor children and his wife to a small municipal apartment on the 8th floor of a block of flats. Following hesitations expressed by him, the authorities allegedly informed him that if he refused the offer, something he effectively did, more appropriate housing would be offered to his family. This did not happen. 20. On 21 July 2014 the mayor of Mladost ordered the eviction of the first, third, fourth, eighteenth, nineteenth, twentieth, twenty-first and twentythird applicants from 115 Pop Hariton Street, on the ground that they occupied it unlawfully. On 23 July 2014 the mayor ordered that the Savovi family, plus a baby born on 8 April 2014 to the eighteenth applicant, be allocated subsidised municipal housing. This order was enforced on the same day when the applicants moved into a flat of twenty-three metres squared. 21. The Dimitrovi family was not proposed any shelter after their eviction ordered in July 2014. While officially still registered at 115 Pop Hariton Street, they rented a room in a house at 44 Krayezerna Street where they were living at the time of their last communication with the Court. 22. At about 4 a.m. on 30 December 2008, the eighteenth applicant, the mother of Sava, had called an ambulance as the child was not breathing. Sava Zyumbyulkov Savov, aged two months and ten days, was declared dead by the emergency doctor. A hospital record announcing his death listed 1a Borimechkata Street as his permanent address and another address in Varna as his current address. The same two addresses had been indicated on the hospital record announcing his birth. 23. A preliminary criminal investigation against an unknown perpetrator was immediately opened into his death. A number of investigative measures were carried out. Those included an examination of the dwelling where the child had died and the creation of an album of pictures of the child in his cot, interrogation of the mother, as well as a forensic medical expertise, which comprised an autopsy of the infant’s body. The mother was provided with an ex officio lawyer. 24. The prosecutor terminated proceedings on 24 March 2009 for absence of a crime as the authorities considered that the child had died of natural causes. The death certificate indicated the cause of death as bilateral pneumonia and acute respiratory and cardiac failure. It listed the child’s address as 1 Borimechkata Street, Varna. The child’s mother, the eighteenth applicant, who was provided with legal assistance, did not make of her own motion any explicit complaint before the investigating authorities. Nor did she challenge the termination of the preliminary investigation. 25. On 9 October 2009, the chairman of the association brought an application before the Varna Administrative Court, entitled “complaint”, against Varna municipality. In it he complained of “drastic consequences” endured by the inhabitants of a number of dwellings following their eviction from those dwellings and the latter’s demolition. He claimed that those consequences included the death of one child and the severe psychological traumatism of several other children. He referred to evictions and demolitions carried out by the municipality since November 2008 on six different streets, among which Borimechkata Street, from which the individual applicants in the present case had been evicted. 26. He emphasised, without further detail and without listing the names of the individual applicants, that the actions of the municipality breached the affected persons’ human rights. He submitted that, while those persons would bring proceedings before the Commission for Protection Against Discrimination, that process would take too long and the families under threat of being evicted at that time risked being left in the street without shelter during the winter. He asked the court to order the municipality to provide shelter to the people facing eviction or to halt the planned eviction until shelter was secured. 27. By an order of 9 October 2009 the Varna Administrative Court found that the application did not meet the requirements of Article 150 of the Code of Administrative Procedure (“the 2006 Code”, see paragraph 40 below) and that it was necessary for the representative of the association to correct the irregularities in it. More specifically, the court order stated that he had to clarify the object of his application. If it was a complaint against an individual administrative act then he needed to specify the act, the body which had issued it and in what way the act was unlawful. Similarly, if he was complaining about actions or omissions on the part of an administrative body, then those had to be specified, together with their alleged unlawfulness. Further, it was necessary to indicate what he was asking of the court: the quashing of an unlawful administrative act or the discontinuation of actions or omissions by an administrative body. If he was asking for the latter, then he had to state whether those actions were carried out on the basis of an administrative act, or whether they were carried out without a lawful basis. He further had to provide proof of a paid state fee (of about 5 EUR), as well as of the existence of the association and of its valid representation. The court suspended the case so that the association’s representative could comply with the above instructions. 28. On 21 October 2009 the association’s representative filed a submission entitled “clarifying application” in response to the Varna Administrative Court’s order of 9 October 2009. It indicated that it was brought by Ridvan Sali, acting as a head and representative of association “Obnovlenie”. The modified application specified that it was a complaint representing, on the one hand, a challenge to the implementation by Varna municipality of the ordinance on people’s housing needs. On the other hand, the complaint was a challenge to the authorities’ actions and omissions relating to the eviction of the individual applicants in November and December 2008 from 1a Borimechkata Street in Varna and the authorities’ continued failure thereafter to provide the evicted Roma people with adequate shelter. He identified the authorities in question as Varna municipal council officials, the Varna social assistance directorate, police officials and the private security firm’s staff hired by the municipality to assist during the above-mentioned eviction and demolition. He further complained about the inaction of the social assistance department which, despite having been repeatedly informed by the association of the children’s imminent eviction in November 2008, had contented themselves with the drawing up of a report concluding that it was beyond their mandate to act. 29. The association’s representative further listed the names of the individual members of the Roma families who he claimed had suffered damage as a result of the authorities’ actions and inactions. The latter were enumerated as follows: the forced removal of the named individuals from their dwellings by the police; the humiliating treatment of the former by authorities involved in the eviction and demolition; the selective demolition of dwellings occupied by Roma only; forcing a one-month-old baby to spend a whole winter day in his cot in the open in the street, as a result of which he had died several weeks later from double-sided pneumonia; psychological harassment of the children from the demolished homes and failure to provide them with psychological support for the shock of witnessing their homes being destroyed and the helplessness of their parents; subsequent housing of the Roma families in conditions unsuitable for human occupation; unfair and discriminatory treatment during the last fifteen years of Roma in need of social housing including the families listed; and discriminatory treatment on the basis of people’s social status in the distribution of municipal dwellings. The association’s representative stated that those actions and inactions had breached the Protection Against Discrimination Act (hereafter “the PADA”), the human rights and freedoms provided for in the Convention for the Protection of the Child and the Convention for the Protection of Human Rights and Freedoms and, in particular, Articles 2, 3, 13 and 14. 30. He asked the court to order the municipality to audit its municipal housing policy as regards the ethnicity and social status of the people given municipal dwellings. In addition, he asked the court to compel the municipality to provide normal living conditions to the applicant families. He also asked the court to order the municipality to pay just compensation to them for the humiliating living conditions in which they had been forced to live after the eviction and demolition, as well as for having discriminated against them as regards the provision of housing. He also sought compensation for the family of the dead child, Sava Zyumbyulkov Savov, and for all three families for the insufficient protection provided to the children during the demolition and thereafter. He sought costs and expenses and submitted proof of payment of the state tax due and of the existence of the association. He also listed the written items of evidence which he submitted together with his application. 31. The Varna Administrative Court examined the clarified application on 23 October 2009. The court found, in the first place, that this application had made it clear that the complaint was against the actions and inactions of municipal officials from Varna municipality, of police officers and private contractors at the time of the demolition of dwellings in November-December 2008. The court further concluded that the complaint was against the inaction of the social assistance department for having refused to draw up a report on the living conditions of the children in the Savovi family during the said period. It then observed that the association was seeking, on behalf of three families, pecuniary and non-pecuniary damages stemming from the actions and omissions of the municipal administration in relation with the demolition of the municipal houses in which those families had been living and damages for placing those individuals in inappropriate municipal dwellings. 32. The court noted that the aforementioned actions and omissions had been presented as being unlawful and in breach of the Convention for the Protection of the Child, the Convention for the Protection of Human Rights and Fundamental Freedoms and the PADA. 33. The Varna Administrative Court decided that it had not been seized with a complaint against a specific individual administrative act under Article 145 § 2 of the 2006 Code, nor with a proper complaint against specific actions or omissions under Article 250 of the 2006 Code (see paragraph 37 below), or with a proper claim for damages under the State and Municipalities Responsibility for Damage Act 1988 (hereafter “the SMRDA”, see paragraphs 42-43 below). In particular, neither in the initial application of 9 October 2009 nor in the clarified application thereafter had the association representative specified an individual administrative act against which judicial review proceedings could be brought. Even assuming that this act was the eviction and demolition order in respect of the dwelling at 1a Borimechkata Street, the association was not a party to, or personally affected by, that order and the fourteen-day statutory period for judicial review of such orders had long expired. Furthermore, the claim against the administrative actions or omissions under Article 250 §§ 1 and 5 of the 2006 Code was likewise out of time, given that the authorities’ actions complained of had taken place in November-December 2008. The court further noted that a claim under section 1(1) of the SMRDA was inadmissible due to the lack of standing of the association and because such a claim would require a prior declaration of illegality in accordance with Article 204 of the 2006 Code. The court declared the application inadmissible. 34. Apart from the restating the complaint made by the association that the actions and omissions in question had been unlawful and in breach of the PADA, among other legal instruments (see paragraph 32 above), at no point in its decision did the Varna Administrative Court refer to the PADA – the legislative act to which the association had made explicit reference –, examine the procedural regularity or irregularity of the application from the perspective of the PADA or explain why, for all or any of the association’s complaints made in it, the PADA could not constitute an effective remedy. 35. On 11 December 2009, in the context of a cassation review, the SAC upheld the lower court’s decision in its entirety. 36. It found that the application before it was admissible as submitted within the statutory limitation period. However, it was not well-founded. In particular, the lower court had correctly established that it had not referred to a specific administrative act under Article 150 of the 2006 Code. Neither had it pointed out specific actions or omissions under Article 250 of the 2006 Code. Given that from the applicant association’s submissions it had been clear that the events complained of had taken place in NovemberDecember 2008, it was indisputable that the statutory limitation period had lapsed, which in turn was an additional ground for not examining the application on its merits. Finally, the applicants had not made a valid claim for compensation under section 1 of the SMRDA, given that they had failed to specify the concrete acts, actions and omissions in connection with which compensation was being sought, or its amount. The SAC did not address the applicability of the PADA either. 37. Individuals can seek protection against actions and omissions of administrative bodies under Chapter 11 of the 2006 Code. Article 250 stipulates that everyone with a legal interest can bring a claim before the administrative court, seeking the discontinuation by an administrative body of an action not based on an administrative act or in the law. 38. According to Article 145 §§ 1 and 2 an administrative act may be contested before a court within fourteen days of its communication. 39. All claims for damages stemming from unlawful acts, actions or omissions by public bodies or officials are heard at first instance by the competent administrative court (Article 128 §§ 1 and 5). 40. According to Article 150 § 1, judicial review of an individual administrative act has to be lodged in writing and must indicate, inter alia, the court, personal and contact data of the applicant, the administrative act which is contested and the essence of the request. The administrative court may collect evidence admissible under the Code of Civil Procedure 2007 (Article 171 § 2) and it assists the parties in proceedings before it to correct formal errors and lack of clarity in their submissions (Article 171 § 4). 41. If an irregular application has been made challenging an individual administrative act before a court, the court specifies the irregularity and invites the party to correct it and resubmit the application (Article 158). Thus, in two decisions, the Sofia Administrative Court, referring to the latter provision, returned an application twice to the claimant, indicating each time its irregularities and how to correct them (see опр. на адм. съд София град от 14.05.2010 и 26.06.2010 по адм. д. № 3537/2010). 42. Section 1(1) of the SMRDA provides that the State and, as of July 2006, the municipalities are liable for damage caused to individuals and legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging administrative duties. Pursuant to Article 204 (4) of the 2006 Code, the lawfulness of administrative actions or omissions is established by the court in the context of the same proceedings for damages. 43. Persons seeking redress for damage resulting from acts or omissions falling within the scope of the SMRDA have no claim under general tort law as the SMRDA is a lex specialis and excludes the application of the general regime (section 8(1) of the SMRDA; see also реш. от 29 юли 2002 г. по гр.д. № 169/2002 г. на СГС, ГК, ІVб отд., as well as реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о., referred to in, among others, the case of Iovchev v. Bulgaria, no. 41211/98, § 80, 2 February 2006). 44. Article 6 § 2 of the Constitution bans discrimination on the grounds of race, national origin, ethnicity, sex, religion, education, conviction, political affiliation, personal or public status and property status. 45. The PADA, which was adopted in 2003 and came into force on 1 January 2004, transposes Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180, p. 22) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303, p. 16). 46. It prohibits discrimination on grounds of sex, race, national origin, ethnicity, human genome, nationality, origin, religion or faith, education, beliefs, political affiliation, personal or public status, disability, age, sexual orientation, family status, property status, or any other ground provided for by law or an international treaty to which Bulgaria is a party. The Act also defines racial segregation, explicitly providing that it is a form of discrimination. 47. The PADA is a lex specialis in relation to general administrative and civil law. 48. Section 9 provides for the shifting of the burden of proof in discrimination cases. Under that section, where a claimant is able to prove facts from which an inference may be drawn that there has been discriminatory treatment, it is incumbent on the defendant to prove that there has not been a violation of the right to equal treatment. 49. A complainant may first file a complaint with the Commission for Protection against Discrimination (section 50 of the PADA) or instead bring an action directly in court (section 71 of the PADA). 50. According to section 71(1) of the PADA, every individual who considers himself or herself to be a victim of discrimination can bring a claim before the first-instance civil court, seeking in particular to establish that he or she has been discriminated against, that the defendant be made to discontinue the discriminatory treatment and to refrain for the future from it, and that compensation be paid to the victim. 51. Section 71(2) of the PADA entitles non-governmental organisations to bring claims on behalf of victims complaining of discriminatory treatment and seek compensation on their behalf. Section 71(3) of the PADA authorises non-governmental organisations to bring such proceedings in their own name when a high number of individuals is concerned. In such cases the compensation sought by the non-governmental organisation is in the interest of the individuals allegedly discriminated. 52. Domestic judicial practice on the question which courts have competence to hear discrimination claims under section 71(1) of the PADA has varied considerably in the past. An interpretative decision of a joint bench of judges from the SCC and SAC decided on 19 May 2015 that the administrative, and not civil, courts were competent to hear discrimination claims against public bodies or officials under section 71(1) of the PADA. This decision put an end to the lack of clarity regarding which courts – civil or administrative – were competent to hear such claims. | 0 |
test | 001-145788 | ENG | AZE | CHAMBER | 2,014 | CASE OF TERSHIYEV v. AZERBAIJAN | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Russia);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 6. The applicant was born in 1961 and is of Chechen ethnic origin. He is currently serving a prison sentence in Azerbaijan. 7. The applicant appears to have arrived in Azerbaijan in 2009. In July 2009 he was arrested while attempting to illegally cross the border from Azerbaijan to Russia together with several other individuals. 8. On 5 April 2011 the Assize Court convicted the applicant, together with a number of other accused, of a number of serious criminal offences committed in Azerbaijan in 2009, including: creation of an illegal organised armed unit; illegal border crossing; illegal possession of firearms, explosives and other weapons; and creation of a network of clandestine flats in Baku as temporary accommodation for members of illegal armed units operating in Chechnya. He was sentenced to fourteen years’ imprisonment. His conviction was upheld by the higher courts. The applicant is currently serving his sentence in Prison No. 11 in Baku. 9. By a decision of 6 September 2011, an investigator of the Vedeno district department of the interior of the Russian Federation (“the Vedeno ROVD”) instituted criminal proceedings against the applicant under Article 208 § 2 of the Russian Criminal Code (participation in an armed unit not envisaged by federal law), on suspicion that during the period 2000 to 2007, he had been an active member of an illegal armed unit operating in the Vedeno district of Chechnya under the command of Khuseyn Gakayev, and that he was still a member of that unit at the time of institution of the criminal proceedings. 10. On 10 October 2011 the Vedeno ROVD issued a search warrant in respect of the applicant as a suspect. 11. On 26 April 2012 it formally charged him as an accused person under Article 208 § 2 of the Russian Criminal Code. 12. On 18 July 2012 it issued an international search warrant in respect of him. 13. By a decision of 20 July 2012, the Vedeno District Court of the Chechen Republic remanded him in custody in absentia. 14. In the meantime, in January 2012 the applicant applied to the Baku Office of the United Nations High Commissioner for Refugees (UNHCR) with a request for asylum. It appears that, since the early 2000s, by mutual agreement and understanding between the UNHCR and the Azerbaijani Government, the processing of asylum applications by people originating from Chechnya was separated from the ordinary government procedure, with applications by members of this group being dealt with directly by the UNHCR. In September 2012 the applicant was interviewed by UNHCR representatives but his application was rejected. 15. On 24 August 2012 the Russian Deputy Prosecutor General formally requested the Azerbaijani Prosecutor General’s Office to extradite the applicant under the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”). As an alternative, in the event the extradition was subject to postponement under Article 64 of the Minsk Convention owing to the fact that the applicant was serving a prison sentence in Azerbaijan, he requested the applicant’s “temporary extradition” for a period of three months for the purposes of carrying out necessary procedural steps in the framework of the criminal proceedings pending in Russia. 16. The extradition request contained a number of assurances: that the applicant would only be prosecuted in connection with the criminal offence he was charged with; that he would not be subjected to torture or illtreatment; and that in the event of “temporary extradition” he would be returned to Azerbaijan no later than three months after being handed over to the Russian law-enforcement authorities. 17. By a decision of 26 November 2012, the Azerbaijani First Deputy Prosecutor General granted the extradition request and ordered the applicant’s “temporary extradition” to Russia for a period of three months. 18. The applicant, who had a lawyer, lodged an appeal against that temporary extradition order with the Sabayil District Court, arguing that there was a serious risk that he would be tortured or ill-treated by the Russian law-enforcement authorities if he was extradited. 19. By an inquiry letter of 17 January 2013, the judge of the Sabayil District Court dealing with the case requested the Baku Office of the UNHCR to provide information about the grounds on which the applicant had requested refugee status, and whether any decision had been taken by the UNHCR in this respect. 20. By a letter of 23 January 2013, the Baku Office of the UNHCR informed the judge that the applicant’s asylum application had been rejected by the UNHCR “at first instance”, but that he had lodged an appeal against the decision which was awaiting consideration. The UNHCR therefore “strongly requested” that the applicant’s forced return to Russia should be “prevented” until a final decision had been taken by the UNHCR in respect of his application for refugee status. 21. By a decision of 24 January 2013, the Sabayil District Court dismissed the applicant’s appeal against the temporary extradition order of 26 November 2012. The court noted the following: that there were no grounds in the domestic law or relevant international instruments for precluding his temporary extradition to Russia; that his request for refugee status had been rejected by the UNHCR, therefore he did not have refugee status at the time of examination of his appeal; and that the Russian authorities’ extradition request provided the necessary assurances. The court refused to examine the applicant’s complaints concerning an alleged risk of torture or ill-treatment, noting that he had failed to submit any evidence in that regard. 22. On 28 January 2013 the applicant lodged an appeal against this decision, reiterating his complaint that he would be subjected to a risk of illtreatment if extradited to Russia, and Chechnya in particular. 23. On 1 February 2013 the Baku Court of Appeal dismissed the appeal, finding that the Sabayil District Court had reached the correct decision. The Baku Court of Appeal’s decision was silent as to the pending examination by the UNHCR of the applicant’s asylum request and as to his allegations concerning a risk of torture or ill-treatment in the receiving country. 24. In accordance with the procedural rules concerning appeals against the prosecution authorities’ decisions concerning extradition, no further appeal lay against the Baku Court of Appeal’s decision. 25. According to the Government, on 1 March 2013 the applicant was interviewed again by the UNHCR in Prison No. 11. In his latest communication to the Court (4 November 2013), he provided no update concerning his pending appeal with the UNHCR. | 1 |
test | 001-158243 | ENG | BGR | CHAMBER | 2,015 | CASE OF SIMEONOVI v. BULGARIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6+6 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) (Article 6 - Criminal proceedings;Right to a fair trial;Article 6-1 - Fair hearing) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Yonko Grozev | 4. The applicant was born in 1975. He is currently serving a life sentence in Sofia Prison. 5. On 2 July 1999 two armed individuals burst into a bureau de change in Burgas. Shots were fired and two staff members were killed. The criminals fled with a sum of money. 6. On the same day the Burgas investigatory department instigated criminal proceedings against X for armed robbery and homicide. 7. On 3 October 1999 the applicant, Mr Lyuben Simeonov, was arrested in Sofia by a team from the special unit of the Interior Ministry. He was transferred to Burgas. 8. At 8 p.m. on 4 October 1999, an investigator from the Burgas investigatory department placed the applicant in detention for twenty-four hours. He was suspected of having committed the armed robbery and the two murders of 2 July 1999, aided and abetted by a certain A.S. On the following day a prosecutor from the Burgas regional prosecutor’s office extended his detention by three days. 9. The applicant submitted that despite his express requests he had not been assisted by a lawyer for the first three days of his detention. During that time the officials responsible for the investigation had questioned him about the robbery and the two murders committed in Burgas on 2 July 1999. 10. On 6 October 1999 the investigator appointed an official lawyer to defend the applicant. At 12 noon on the same day, in the presence of his officially appointed lawyer, the applicant was formally charged with committing armed robbery in the Burgas bureau de change and of the murder of two persons, and placed in detention. He refused to answer the investigator’s questions. 11. On 12 October 1999 the applicant was questioned in the presence of two lawyers of his choice. He remained silent. 12. On 21 October 1999, assisted by his two lawyers, he confessed. His presumed accomplice, A.S., also confessed to the criminal offences charged. 13. The officers responsible for the investigation subsequently gathered a substantial body of evidence, including witness accounts and medical, scientific, material and documentary evidence. 14. On 4 January 2000 the applicant and A.S., assisted by their defence lawyers, took cognisance of the documents in the investigation file. They retracted their confessions, and their lawyers requested a fresh interrogation of their clients. 15. On 16 February 2000 the Burgas regional prosecutor referred the file to the investigator for further inquiries. He asked him in particular to conduct a number of investigative measures and once again to formally charge both suspects. 16. On 7 March 2000 the applicant was charged with an additional offence, namely the unlawful purchase of the firearm which had been used during the robbery of 2 July 1999. On the same day the two suspects were questioned in the presence of their lawyers. In his depositions the applicant related a version of events to the effect that the robbery and murders in question had been committed by a certain V., an Iranian national, aided and abetted by an unknown second person. 17. On 17 May 2000 the regional prosecutor’s office drew up the indictment and committed the applicant and his presumed accomplice for trial before the Burgas regional court. 18. The regional court considered the criminal case between 25 July 2000 and 14 June 2001. During the proceedings the applicant, who was assisted by a lawyer, submitted that he and his presumed accomplice had indeed been in Burgas on 1 July 1999 and that they had indeed intended to commit a robbery in the bureau de change, but that they had changed their minds and returned to Sofia the same day. 19. On 14 June 2001 the Burgas regional court delivered its judgment. The applicant was found guilty of armed robbery in the Burgas bureau de change, which crime had been accompanied by the murder of two persons and committed with the complicity of A.S. He was also found guilty of the unlawful purchase of a pistol and ammunition. The regional court imposed the heaviest sentence available under the Bulgarian Criminal Code, namely a whole-life sentence. In accordance with section 127b [1] of the Law on the Execution of Punishments, the regional court ordered the applicant’s placement under the so-called “special” prison regime. 20. Drawing on the evidence gathered during the preliminary investigation and at the hearing, the regional court established the facts as follows: the applicant’s former partner, D.K., had started work as a cashier in the bureau de change in question in 1997 when she was still living with the applicant. While working there she had met the first victim, a certain N.B., who was a close relative of the owner and an employee in the same establishment. In June 1999 D.K. had left the applicant and moved in with N.B. in Burgas. The applicant had then decided to kill N.B. and to steal the cash kept in the bureau de change. He had purchased a “Makarov” pistol, a silencer and ammunition. The applicant had persuaded a friend, A.S., to take part in the robbery. On the afternoon of 1 July 1999 the applicant and A.S. had arrived in Burgas by bus. They had then gone to the building in which the bureau de change was located, and had gone up to the top floor to spend the night. Next morning, just before 9 a.m., they had descended to the floor on which the bureau de change was located and noted that N.B. was in the premises alone. A.S., who had been carrying the pistol, had burst into the premises and fired one point-blank shot at the victim’s left temple. The young man had died instantly. The two accomplices had then placed the money which they had found in the bureau de change in a bag which they had brought with them. Meanwhile the armed security guard of the bureau de change, a certain P.I., had rushed into the premises where the first victim had been killed. A.S. had fired two shots at him, hitting him in the face. The security guard had been killed instantly. A.S. and the applicant had left the building. They had then concealed the murder weapon under a rubbish bin, thrown away the clothes they had been wearing and hidden the stolen money. Some time later the two men had ordered a certain E.E. to fetch the money for them, which he had done. 21. The applicant appealed against that judgment. He complained that insufficient reasons had been given for the conviction, that his guilt had not been established, that the first-instance court had reached an erroneous decision, that there had been several breaches of the procedural and substantive rules under domestic law and that the regional court had shown bias. 22. The applicant’s lawyer requested the withdrawal of all the judges of the Burgas Court of Appeal. He argued that the media coverage of the criminal case had created a climate of intolerance and hostility towards his client. The defence called for an additional witness to be summoned, the re-examination of one of the witnesses already questioned by the court of first instance, and several additional expert opinions. On 4 December 2001 the judge-rapporteur responsible for the criminal case rejected the requests for further evidence-gathering as irrelevant. He dismissed the challenge to the judges of the Court of Appeal for lack of evidence of bias. 23. The Court of Appeal considered the criminal case between February and July 2002. It questioned a new witness and received additional conclusions from psychiatric experts on the mental state of the two accused. 24. On 6 August 2002 the Burgas Court of Appeal upheld the judgment of the court of first instance, giving its full backing to the latter’s factual and legal findings. The evidence gathered during the preliminary investigation, presented before the court of first instance and produced for the first time before the Appeal Court had demonstrated that the two accused had planned and carried out the robbery in the bureau de change and that the two victims had been killed by A.S. Yet the applicant had been the instigator of those murders and had provided the weapon used by his accomplice. The Court of Appeal drew on the depositions of the many witnesses questioned during the assessment of the case, on the results of the ballistic, technical and accountants’ reports and the medical and psychiatric opinions, and also on the material and documentary evidence gathered. 25. The Court of Appeal observed that the accused’s initial depositions during the preliminary investigation had differed considerably from their submissions to the court of first instance. The initial depositions had corroborated the finding concerning their participation in committing the criminal offences in issue, whereas the subsequent ones set out a version of events to the effect that an Iranian national had committed those offences. The Court of Appeal gave credence to the accused’s initial depositions, which had been made to an investigator in their lawyers’ presence after they had been formally charged. The two individuals thus charged had been advised that their statements could be used in court with a view to establishing the facts, and their prior medical examination had revealed no sign of physical violence, which contradicted the defence lawyer’s allegation that the applicant’s initial confession had been extracted from him. 26. The Court of Appeal turned its attention to the applicant’s version of events stating that the two murders and the robbery had been committed by a certain V., an Iranian national, and that the applicant himself had been at his place of work in Sofia at the material time. Verifications carried out in the Interior Ministry database had shown that no Iranian national of that name was present in Bulgaria. It was true that the applicant had been at his place of work in Sofia on 2 July 1999. However, he had been working as a night watchman and the robbery and murders had been committed early in the morning, which had given him enough time to cover the distance between Burgas and Sofia and to arrive at work the same evening. The Court of Appeal deemed unconvincing the statement by the only witness who had corroborated the applicant’s version of events. 27. The Court of Appeal noted that the judgment of the court of first instance displayed none of the procedural defects mentioned by the defence. The factual and legal findings of the regional court had not been exclusively based on the accused’s confessions but on the whole body of consistent evidence gathered during the criminal proceedings. The applicant had participated actively in the proceedings and his lawyers had submitted several requests linked to the progress of the trial and the gathering of evidence. The regional court had responded to all those requests and had provided full reasons for its procedural decisions. There had been no sign of bias on the part of the judges who had examined the case, and the proceedings had been conducted in such a way as to safeguard the parties’ interests. 28. The Court of Appeal excluded a statement by one witness from the evidence for non-compliance with the procedural rules, but did not consider that statement decisive in terms of the factual and legal conclusions in the case. The problem was that the regional court had been dilatory in issuing its grounds of judgment. However, the defence had been able to submit additional observations on appeal after having secured a copy of the grounds of judgment. 29. The applicant lodged an appeal on points of law, reiterating his submissions to the Court of Appeal. 30. By a judgment of 17 December 2003 the Supreme Court of Cassation dismissed the applicant’s appeal on points of law. That court found that none of the circumstances mentioned by the defence demonstrated the existence of bias on the part of the judges who had considered the criminal case. The applicant had had an opportunity to defend himself effectively during the criminal proceedings: he had given evidence and challenged the evidence against him. Some of his requests for further evidence-gathering had been accepted by the lower-level courts, and proper reasons had been given for their rejection of other evidential requests as mentioned by the defence. 31. Furthermore, in adopting the appeal court’s other arguments, the Supreme Court of Cassation considered that the facts had been well established, that the substantive and procedural legislation had been appropriately applied and that the accused’s rights had been fully respected. 32. The applicant was held in Burgas Provisional Detention Facility from 5 October 1999 to 27 January 2000, and again from the beginning of March to 14 April 2000. He was incarcerated in Burgas Prison from 27 January 2000 to the beginning of March 2000, and again from 14 April 2000 to 25 February 2004. On the latter date he was transferred to Sofia Prison, where he is still being held. 33. The applicant submitted that he had been held in a cell without window, toilets or running water. The premises had had poor ventilation and lighting. He had not been allowed to exercise in the open air. Access to sanitation had been restricted and the time allowed for washing had been insufficient. The applicant emphasised that the conditions of hygiene in the detention facility had been deplorable. He had subsequently been moved to another cell with two other detainees. The three detainees had had to take turns sleeping because the cell only had one bench. 34. According to a rapport by the Director General of Prisons submitted by the Government, at the time the only furniture in the cells in Burgas Provisional Detention Facility had been a bench. The cells had had no windows and the only daylight had entered through holes in metal plates affixed to the doors. The facility in question had only had one shared toilet and bathroom and lacked any open-air facilities for detainees. The rapport also mentioned that between 2002 and 2009 the facility had been completely renovated and redeveloped to bring the conditions of detention into line with the detainees’ human dignity. 35. The applicant alleged that his cell in Burgas Prison had had a surface area of 6 m2. It had contained a bed and a metal rack. There had been neither running water nor toilets in his cell. He had used a plastic bucket for his bodily functions. Like all the prisoners he was allowed out of his cell for thirty minutes three times a day, in order to empty the bucket and fill his water bottle. The applicant submitted, in support of those allegations, a statement by his co-accused A.S., who had been detained with him under the same conditions in Burgas Prison. The applicant added that he had been forced to wear a convict’s uniform even though he should have been allowed to wear his own clothes, under the prison rules. 36. The applicant explained that at the beginning of his term in Burgas Prison he had been deprived of open-air exercise. According to A.S.’s statement (see paragraph 35 above), prisoners were allowed one-hour’s open-air exercise every other day. The applicant was not involved in any organised activity in Burgas Prison. He had submitted several requests to the prison authorities to allow him to join in the various vocational training and occupational programmes and had applied for a transfer to Sofia Prison in order to be closer to his family, but no action had ever been taken on his requests. 37. According to a report by the Director of Burgas Prison submitted by the Government, the applicant had problems adapting to the prison regulations; his attitude to the wardens and the prison authorities had been refractory and disrespectful. However, the applicant had enjoyed all the rights afforded to persons deprived of their liberty. He had board and lodging in accordance with normal prison standards. He had open-air exercise every day and free access to the prison library. He had consulted a psychologist on several occasions and had had a number of meetings with the official responsible for activities in the prison. 38. Following his transfer to Sofia Prison the applicant had been subject to a “special” prison regime involving virtually total isolation from the rest of the prison population. 39. The applicant submitted that over the period from February 2004 to summer 2006 he had been confined to a cell measuring 4 x 2 metres which he had shared with another prisoner. The two beds had taken up most of the floor area, leaving the two prisoners with a free area of only 2 m2. There had been no running water in the cell and the prisoners had used a bucket as a toilet. 40. The applicant stated that he had spent most of the day sitting on his bed for lack of free space in the cell. He had eaten his meals in the cell and had been allowed to walk in the prison yard for one hour every day. His access to the prison library had been limited to the few minutes it took to choose and borrow a book, after which he had been immediately taken back to his cell. He had been allowed to attend the prison chapel twice a year, at Easter and Christmas, although not during worship so that he would not meet other prisoners. 41. The applicant added that up until 2005, the high-security wing of the prison had been overcrowded and ill prisoners had not been held separately from other prisoners, which had fostered the transmission of infectious diseases. Material conditions had improved somewhat after the works in the high-security wing in 2005 and 2006. In December 2008, his prison regime had been relaxed. However, like all prisoners in his category, he had still been kept separate from the rest of the prison population and his cell had been kept locked during the day. In 2004 and 2005 he had occasionally worked in his cell folding envelopes. Since 2010 he has been allowed into an activities room where he can talk to other life prisoners and read books. 42. According to a report by the Director of Sofia Prison dated 11 October 2011, the high-security wing of Sofia Prison had been completely renovated in 2005 and 2006. On the date of the report in question the applicant had been held in an individual cell measuring 7.7 m2 and containing a bed, a table, a rack, a shower and private toilets. His cell had been heated and had running water and proper lighting. 43. Apart from the restrictions imposed by his prison regime, the applicant benefited from all the activities provided to other prisoners: he could work, visit the library and the prison chapel, receive visits from his relatives, write and receive letters. He was also eligible for relaxation of his prison regime under section 198 of the Prisons Act, subject to a favourable opinion from the relevant special commission, and could ultimately be accommodated with the rest of the prison population. 44. Furthermore, in 2010 the applicant applied for the annulment of a number of the provisions of the implementing regulations of the Prisons Act concerning the manner and method of execution of his life sentence. His application was finally dismissed by a judgment of 14 September 2011 delivered by the Supreme Administrative Court, which found that the challenged provisions of the implementing regulations were not contrary to the Prisons Act and that the adoption of the regulations had not involved any irregularities justifying their annulment. 45. In June 2001, while in Burgas Prison, the applicant began a hunger strike in protest against the authorities’ refusal to transfer him to Sofia Prison. He was monitored by the prison medical team while on hunger strike. In July 2001 his state of health worsened and he was transferred, on the initiative of the prison authorities, to the Sofia Prison hospital. On recovery he returned to Burgas Prison. 46. On 26 October 2004 the applicant was taken to the Sofia Prison hospital. Medical examinations revealed that he was suffering from tuberculosis. He received medicinal treatment at the hospital until 15 November 2004. He subsequently asked the prison authorities to allow him to take more exercise in the open air, which request was rejected. The applicant submitted that he had been unable to obtain a diet suited to his state of health either during or after his treatment in the prison hospital. 47. According to the 11 October 2011 report by the Director of Sofia Prison, after his stay in the prison hospital in 2004 the applicant had been given regular medical examinations and biological control analyses. The results of his latest examinations in 2011 had shown that his illness had not returned. 48. In August 2010 and January 2011 the applicant was taken into hospital for headaches and insomnia. He was examined and biological analyses were carried out. The doctors concluded that he was suffering from chronic headaches. No serious complications were detected. The applicant received medicinal treatment and the headaches ceased on release from hospital. 49. According to the same report, the applicant had several appointments with the prison dentist and another dentist chosen by his relatives. 50. Furthermore, according to the above-mentioned reports by the Directors of Sofia and Burgas Prisons, the prisons run a prevention and screening programme for tuberculosis comprising prophylactic examinations, medical analyses in cases of suspected infection and hospitalisation of prisoners positively diagnosed with the disease. Specific groups of prisoners such as drug addicts, HIV-positive persons, persons having previously suffered from tuberculosis and diabetics are the subject of special monitoring by the prison doctors. | 1 |
test | 001-160020 | ENG | HUN | CHAMBER | 2,016 | CASE OF SZABÓ AND VISSY v. HUNGARY | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for home;Respect for private life);No violation of Article 13+8 - Right to an effective remedy (Article 8 - Right to respect for private and family life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 6. The applicants were born in 1976 and 1986 respectively and live in Budapest. 7. When introducing the application, the applicants were staff members of Eötvös Károly Közpolitikai Intézet, a non-governmental, “watchdog” organisation voicing criticism of the Government. The subsequent employer of one of the applicants was subjected to financial control measures by the Government in 2014, which according to the applicants verged on vexation. 8. Act no. CXLVII of 2010 defines combating terrorism as one of the tasks of the police. Within the force, a specific Anti-Terrorism Task Force (“TEK”) was established as of 1 January 2011. Its competence is defined in section 7/E of Act no. XXXIV of 1994 on the Police, as amended by Act no. CCVII of 2011 (the “Police Act”). 9. Under this legislation, TEK’s prerogatives in the field of secret intelligence gathering include secret house search and surveillance with recording, opening of letters and parcels, as well as checking and recording the contents of electronic or computerised communications, all this without the consent of the persons concerned. 10. The authorisation process for these activities is dependent on the actual competence exercised by TEK, namely whether it is within the framework of secret surveillance linked to the investigation of certain specific crimes enumerated in the law (section 7/E (2)) or to secret surveillance within the framework of intelligence gathering for national security (section 7/E (3)). 11. Whereas the scenario under section 7/E (2) is as such subject to judicial authorisation, the one under section 7/E (3) is authorised by the Minister in charge of justice, (i) in order to prevent terrorist acts or in the interests of Hungary’s national security or (ii) in order to rescue Hungarian citizens from capture abroad in war zones or in the context of terrorist acts. 12. “Section 7/E (3) surveillance” takes place under the rules of the National Security Act under the condition that the necessary intelligence cannot be obtained in any other way. Otherwise, the law does not contain any particular rules on the circumstances in which this measure can be ordered, as opposed to “section 7/E (2) surveillance”, which is conditional on the suspicion of certain serious crimes. The time-frame of “section 7/E (3) surveillance” is 90 days, which can be prolonged for another 90-day period by the Minister; however, the latter has no right to know about the results of the ongoing surveillance when called on to decide on its prolongation. Once the surveillance is terminated, the law imposes no specific obligation on the authorities to destroy any irrelevant intelligence obtained. 13. The applicants filed a constitutional complaint on 15 June 2012, arguing in essence that the sweeping prerogatives under section 7/E (3) infringed their constitutional right to privacy. They emphasised that the legislation on secret surveillance measures for national security purposes provided fewer safeguards for the protection of the right to privacy than the provision on secret surveillance linked to the investigation of particular crimes. They pointed out that (i) “section 7/E (2) surveillance” was always linked to a particular crime and could only be ordered for the purposes of identifying or locating suspects, whereas “section 7/E (3) surveillance” was not linked to any particular crime; (ii) “section 7/E (2) surveillance” was always ordered by the court, whereas “section 7/E (3) surveillance” was authorised by the government minister in charge of justice; (iii) the decision on ordering “section 7/E (2) surveillance” was subject to detailed reasoning, whereas no reasoning was included in the minister’s decision on ordering “section 7/E (3) surveillance”; and (iv) under the legislation relating to “section 7/E (2) surveillance”, all collected but irrelevant information had to be destroyed within eight days, unlike in the case of “section 7/E (3) surveillance”. 14. On 18 November 2013 the Constitutional Court dismissed the majority of the applicants’ complaints. In one aspect the Constitutional Court agreed with the applicants, namely, it held that the decision of the minister ordering secret intelligence gathering had to be supported by reasons. However, the Constitutional Court held in essence that the scope of national security-related tasks was much broader that the scope of the tasks related to the investigation of particular crimes. For the purpose of national security, the events of real life were examined not for their criminal law relevance; therefore they might not necessarily be linked to a particular crime. Furthermore, in the context of national security, the external control of any surveillance authorised by the minister was exercised by Parliament’s National Security Committee (which had the right to call the minister to give account both in general terms and in concrete cases) and by the Ombudsman, and that this scheme was sufficient to guarantee respect for the constitutional right to privacy of those concerned. Finally, the Constitutional Court was of the opinion that the National Security Act, which applies to “section 7/E (3) surveillance”, contained general provisions on ex officio deletion of any data unnecessary for achieving the aim underlying the gathering of intelligence. 15. This decision was published in the Official Gazette on 22 November 2013. | 1 |
test | 001-172547 | ENG | CZE | CHAMBER | 2,017 | CASE OF ŽÁKOVÁ v. THE CZECH REPUBLIC | 4 | Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Aleš Pejchal;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo;Robert Spano | 7. On 23 March 2014 Týden.cz, an internet news portal, published an article with the headline “A ‘European’ dispute. She escaped communism and lost her property. Czech Republic reluctant to compensate her” (“‘Evropský’ spor. Utekla před komunisty a přišla o majetek. ČR ji nechce odškodnit”). The journalist introduced the applicant’s case by saying that she had been struggling against the Czech State for more than ten years because her land had been confiscated following her escape. Up to the present day, she had repeatedly won her case before the European Court of Human Rights. However, the issue of her compensation had become more complicated. The article contained the following statement: “An appeal to the Constitutional Court did not help either. So she applied to the European Court of Human Rights, which noted ‘The Court is struck by the fact that in 1997 the municipality of Třebíč was able to take possession of the property on the basis of a 1971 judgment that had been quashed because, in the words of the Judicial Rehabilitation Act, it was incompatible with the principles of a democratic society’. Eventually, the Czech Republic applied for a review of the judgment, which is the equivalent of an appeal, but was unsuccessful. Since then, complicated negotiations as to how the Government would compensate Ms Žáková have been underway. ‘I approached the Government Agent with a proposal for settlement regarding the provision of just satisfaction, which among other things is for pecuniary damage because there had been an interference with her property rights,’ stated Žáková’s lawyer [V.K.], adding that she had been deprived of her property in 1997 in breach of the Additional Protocol to the Convention on Human Rights. The State is back tracking ‘That’s why I suggested providing her with compensation in the amount of the market value of the seized property and compensation for the loss of rent since 1997’, [V.K.] said. But in fact, Sylva Žáková was willing, according to him, to accept one tenth of the market rent. However, the State refused [this proposal], noting that the Government were prepared to accept only compensation for the plots of land in the amount of their market value in 1997. Thus, it would be essentially lower than the current value; moreover, such compensation would not include reparation for the period when Sylvia Žáková had been unable to dispose of the land. ‘I confess that the Government’s approach in this regard seems to me at least dishonest and contravenes the basic principles of justice and our law, too,’ added lawyer [V.K.]. The Agent of the State, or more precisely, the Ministry of Justice for which he works, has refused to comment as the negotiations, according to him, are confidential.” 8. The original version of the article is as follows: “Nepomohla ani stížnost k Ústavnímu soudu. Obrátila se proto na Evropský soud pro lidská práva. ‘Soudní dvůr je udiven skutečností, že v roce 1997 byla obec Třebíč schopna zmocnit se majetku na základě rozsudku z roku 1971, který byl zrušen, protože byl podle zákona o soudní rehabilitaci neslučitelný s principy demokratické společnosti,’ konstatoval soud. Česká republika nakonec podala k soudu žádost o přezkoumání rozsudku, což je obdoba odvolání, ale bezúspěšně. Od té doby probíhají složitá jednání o tom, jakým způsobem vláda paní Žákovou odškodní. ‘Obrátil jsem se na vládního zmocněnce s návrhem dohody ohledně poskytnutí přiměřeného zadostiučinění, které mimo jiné spočívá ve způsobení majetkové škody, neboť došlo k zásahu do jejích majetkových práv,’ konstatoval advokát Žákové [V.K.] s tím, že její majetek jí byl v roce 1997 odňat v rozporu s Dodatkovým protokolem k Úmluvě o lidských právech. Stát se cuká ‘Proto jsem navrhl, aby jí byla poskytnuta náhrada ve výši tržní ceny odňatého majetku a náhrada za ušlý nájem za dobu od roku 1997 do současnosti,’ řekl [V.K.] Sylvia Žáková byla přitom podle jeho slov ochotná přistoupit na desetinu tržního nájemného. To však stát odmítl s tím, že je vláda ochotná přistoupit pouze na náhradu pozemků ve výši jejich tržní ceny v roce 1997. Tedy podstatně nižší než nyní, navíc by tato náhrada neobsahovala odškodnění za dobu, kdy s nimi Sylvia Žáková nemohla disponovat. ‘Přiznávám, že postoj vlády mi v tomto ohledu připadá mírně řečeno neseriózní a je v rozporu se základními zásady spravedlnosti a také s našimi zákony,’ dodal advokát [V.K.]. Zmocněnec státu, respektive ministerstvo spravedlnosti, pro které pracuje, se k tomu odmítl vyjádřit, protože jsou podle něj tato jednání důvěrná.” | 0 |
test | 001-181146 | ENG | POL | ADMISSIBILITY | 2,018 | WYSOWSKA v. POLAND | 4 | Inadmissible | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo | 1. The applicant, Ms Aurelia Wysowska, is a Polish national who was born in 1939 and lives in Cracow. She was represented before the Court by Mr R. Skowron, a lawyer practising in Cracow. 2. The Polish Government (“the Government”) were represented by their Agent, Mrs J.Chrzanowska of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant’s mother and father, W.S. and W.B. respectively, lived in Lwów (now Lviv’ in Ukraine) before the Second World War. They were not married as W.B already had a wife, a certain J.L. The applicant was born into her parents’ relationship on 28 September 1939. 5. W.B. was indicated as the applicant’s natural father (pater naturalis) in her baptism certificate of 20 July 1941. 6. W.B. died in Lwów on 28 September 1944. Following his death, the applicant’s mother married a certain M.S. 7. In 1949 the applicant’s last name was changed to that of her stepfather and in 1957 her birth certificate was again amended to include M.S.’s first name as the father’s name. 8. On an unknown date the applicant instituted proceedings aimed at amending further her birth certificate. 9. On 9 August 2007 the Cracow District Court allowed the change and put W.B. down as her father. 10. On 28 June 2005 the applicant instituted inheritance proceedings regarding W.B.’s estate before the Warsaw District Court. On 12 September 2005 the court found that the Cracow District Court had jurisdiction. 11. On 23 July 2008 the Cracow District Court dismissed the applicant’s claim. The court established that W.B. had died intestate on 28 September 1944 in Lwów. He had been married to J.L., however, they had separated. Instead, W.B had been in a relationship for ten years with the applicant’s mother. The applicant was W.B.’s only child, he had no siblings and his parents had died before him. 12. However, the court held that the applicant could not inherit her natural father’s estate as she had been born out of wedlock. It found that according to the Introductory Provisions of the Civil Code, the law applicable to the proceedings was the law in force at the time of W.B.’s death (see paragraph 29 below). W.B. had been a Polish citizen who had lived in Lwów. Lwów had been part of Poland until 16 April 1945 and the law in force in that province had been the Austrian Civil Code of 1811 (Algemeines bürgerliches Gesetzbuch – “the ABGB”). Under Article 754 of the ABGB illegitimate children could not inherit ab intestato from their father or father’s family. As the applicant was in that position, she could not inherit her father’s property. 13. The applicant appealed to the Cracow Regional Court. 14. On 3 February 2009 the Cracow Regional Court quashed the firstinstance decision and remitted the case. The court held that the District Court had failed to establish a list of all W.B.’s potential heirs. It further instructed the lower court to set out all the heirs, including the State Treasury. 15. In accordance with those instructions, the Cracow District Court summoned the State Treasury on 4 January 2011 to participate as a party to the proceedings. 16. On 23 February 2011 the State Treasury, represented by the Minister of the State Treasury, filed a submission that the relevant material law applicable to the proceedings was the Digest of Laws of the Russian Empire (Zwód Praw Cesarstwa Rosyjskiego). 17. On 8 March 2011 the Cracow District Court issued a decision and declared that the State Treasury had acquired W.B.’s estate. The District Court established that W.B. had died on 28 September 1944 in Lwów. He had been married to J.L but had separated from her. W.B. and the applicant’s mother W.S. had been in a relationship but they had never married. W.B. had no siblings and had not had any children with J.L. The applicant was his only child. He had not left a will and had no other heirs. 18. The court further maintained that according to the Introductory Provisions of the Civil Code the law applicable to the proceedings was the law in force at the time of a person’s death. In that regard it was first necessary to establish on which country’s territory the applicant’s father had been at the time of his death on 28 September 1944. The court held that between 1920 and 1944 Lwów had been part of Poland and the capital of Lwów Province (województwo lwowskie). On 22 July 1944 the Lwów uprising had begun, lasting until 27 July 1944. Lwów had then been occupied by the forces of the former Soviet Union. Following the Yalta Conference, the Provisional Government of National Unity (Tymczasowy Rząd Jedności Narodowej) had signed a border agreement with the government of the Soviet Union on 16 August 1945. In that treaty, Poland had formally ceded its pre-war eastern territory to the Soviet Union, agreeing to the Polish-Soviet border drawn according to the so-called Curzon Line. Consequently, Lwów had been part of Poland until 1945. 19. The court concluded that as Lwów had been within Polish borders at the time of W.B.’s death, the relevant law was the ABGB, the law in force in the province of Galicia. Under Article 754 of the ABGB illegitimate children could not inherit from a father who had died intestate. Consequently, the applicant could not inherit her father’s property and, as there were no other heirs, the State Treasury had acquired W.B.’s estate. 20. The applicant appealed, submitting that while she was aware of the provisions referred to by the District Court, she thought they were unfair and ran counter to the principles of community life (zasady współżycia społecznego) (see paragraph 31 below) and contemporary conditions. 21. On 20 January 2012 the Cracow Regional Court, in a briefly worded decision, dismissed the applicant’s appeal. The court referred to the reasons given by the District Court and held that there was no doubt that Article 754 of the ABGB had been applicable to the proceedings. It further considered that no matter how unfair the old regulations concerning illegitimate children might seem it was not possible to disregard them. That meant that under the Introductory Provisions of the Civil Code, the law applicable to the inheritance proceedings was the law in force when the father had died. 22. The applicant lodged a cassation appeal, relying in general on the case-law and provisions of the European Convention on Human Rights 23. On 21 November 2012 the Supreme Court refused to admit the applicant’s cassation appeal. It held that it was not justified to raise the issue of a significant legal question only by making a general reference to Convention case-law. A mere statement that the intertemporal rule – which meant that the law in force at the time of opening the succession was the relevant law – was incompatible with unspecified Convention provisions was not enough to qualify as a legal issue. The legal issue raised by the applicant had concerned in principle the interpretation of intertemporal provisions, however, she had not specified why Article LI of the Introductory Provisions (see paragraph 29 below) should not have been interpreted literally in her case. The court stated further that there were no grounds to rely on the provisions and values of the Convention as Poland had not been bound by it at the time of the opening of the succession. 24. On 29 December 2008 the applicant initiated proceedings under the Law on the Realisation of the Right to Compensation for Property left beyond the present Borders of the Polish State (Ustawa o realizacji prawa do rekompensaty z tytułu pozostawienia nieruchomości poza obecnymi granicami państwa polskiego) of 8 July 2005 (“the July 2005 Act”) in order to obtain compensation for property left by W.B. in Lwów. 25. On 21 March 2014 the Małopolski Governor (Wojewoda) refused to grant her request on the grounds that she was not W.B.’s heir. 26. On 25 April 2014 the Minister of the State Treasury quashed the first-instance decision on procedural grounds and remitted the case. 27. On 14 July 2014 the Małopolski Governor again refused the applicant’s request on the grounds that she had not inherited her father’s estate. The Governor referred to the Cracow District Court’s decision of 8 March 2011 (see paragraph 17 above). The Governor’s decision was upheld by the Minister of the State Treasury on 5 August 2014. The Minister noted that section 6(2) of the July 2005 Act provided that in the event of a former owner’s death an application for compensation should include a decision on acquiring the inheritance or on division of the inheritance. On 10 December 2014 the Warsaw Administrative Court dismissed a further appeal by the applicant. 28. On 3 November 2015 the Supreme Administrative Court dismissed a cassation appeal by the applicant. Referring to the decision given in the inheritance proceedings (see paragraph 17 above), the court held that the applicant had not inherited W.B.’s estate. 29. Article LI of the Introductory Provisions Act of 1964 (Ustawa przepisy wprowadząjace kodeks cywilny) (“the Introductory Provisions”), provides that the law applicable to inheritance proceedings is the one which was in force at the time of death. 30. In case of doubt as to the relevant law, Article LXIV provides that the Civil Code of 1964 should apply. 31. Article 5 of the Civil Code relates to the so-called “principles of community life” and reads as follows: “Rights may not be exercised in a manner which contradicts their socioeconomic purpose (społeczno-gospodarcze przeznaczenie prawa) or the principles of community life (zasady współżycia społecznego). Such an act or omission on the part of a person so entitled shall not be considered as an exercise of that right and shall not be protected by law.” 32. The provisions relating to inheritance are laid out in Articles 922-1057 of the Civil Code. Article 922, provides in so far as relevant: “§ 1. The property rights and obligations of a deceased person pass, upon his death, to one or several persons in accordance with the provisions of this Book [Book Four, Inheritance]....” Article 924 provides: “The succession is opened on the date of the deceased’s death”. Article 931 of the Civil Code provides, in so far as relevant: “§ 1. The deceased’s children and spouse are by law admitted first to succession; they inherit in equal shares. ...” 33. After Poland regained its independence in 1918 different civil codes were in use in various regions. The ABGB was in force on former Austrian territory (Galicia). Its last applicable provisions were repealed on 1 January 1947. 34. Under Article 754, as applicable at the material time, illegitimate children could not inherit an intestate father’s estate. 35. Pursuant to Article 760, as in force at the material time, the estate was to pass to the State if no heir was found. 36. The Convention on the Legal Status of Children Born out of Wedlock, drawn up within the Council of Europe entered into force on 11 August 1978. It entered into force in respect of Poland on 22 September 1996. Article 9 provides in respect of succession rights as follows: “A child born out of wedlock shall have the same right of succession in the estate of its father and its mother and of a member of its father’s or mother’s family, as if it had been born in wedlock.” 37. Article 28 of the Vienna Convention on the Law of Treaties of 23 May 1969 (“the Vienna Convention”) provides: Non-retroactivity of treaties “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.” | 0 |
test | 001-179416 | ENG | RUS | CHAMBER | 2,017 | CASE OF ZADUMOV v. RUSSIA | 3 | 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);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1980 and is detained in Bezhetsk, Tver Region. 6. According to the indictment, on 15 October 2010 Ms K., who had not been previously known to the applicant, invited him and Mr A. to the apartment of Mr X. In the apartment they found Mr X. lying on the floor in a state of heavy alcoholic intoxication. For reasons which the investigation failed to ascertain, the applicant demanded X.’s passport, but the latter did not react to the demand in any way. Enraged by X.’s inaction, the applicant and Mr A. started violently kicking him in the shoulder, chest, stomach and legs until he stopped breathing. The applicant told Ms K., who witnessed the attack, to “forget everything” and gave her 100 Russian roubles (RUB) (2.5 euros (EUR)). 7. On 18 October 2010 Ms K., aged twenty-four at the time, was voluntarily hospitalised for treatment of alcohol-induced psychosis and seizures after she had an epileptic seizure on the street. 8. On 21 October 2010, while undergoing treatment, Ms K. was taken to an investigator for questioning. Prior to the interview, the investigator had received permission to interview Ms K. from the head doctor of the medical facility and satisfied herself as to the witness’s ability to testify, relying on the opinion of the doctor treating her. According to a medical certificate, Ms K. was “conscious, accessible for contact, answer[ed] questions following their direction” and had “no acute psychiatric disorders”. 9. According to the interview records, Ms K. alleged that on 11 October 2014 her encounter with Mr X. had resulted in a drinking spree, which had lasted several days until 14 or 15 October 2010, when Mr X. had refused to consume any more alcohol because he could no longer stand up. On the day of the attack, she had witnessed the applicant entering the apartment with Mr A. and immediately starting to violently kick Mr X., who had been lying on the floor. After an unsuccessful search for X.’s passport, they had resumed the attack and had kicked the victim about forty times until he died. 10. On 22 October 2010 the applicant and Mr A. were arrested and detained on suspicion of manslaughter. On the same day Mr A. confessed to manslaughter committed together with the applicant. On 29 October 2010 during questioning, he stated that the applicant’s insistence on obtaining X.’s passport had been induced by the desire to coerce the latter to sell his apartment and to share the proceeds. 11. In the course of questioning on 13 and 17 December 2010 the applicant admitted his presence in X.’s apartment during the attack, but denied any involvement in it. In his opinion Mr A. had committed perjury for an unknown reason. 12. The criminal case against the applicant and Mr A. was examined by the Tsentralniy District Court of Tver (Центральный районный суд г. Твери) (hereinafter “the District Court”). 13. On 17 January 2011 during a pre-trial hearing the District Court granted applications lodged by the applicant’s defence lawyer to have the medical records of Ms K. produced in court at trial. 14. On 24 January 2011 the District Court received extracts of Ms K.’s medical history provided by a regional psychiatric hospital. According to the medical records, she suffered from long-term alcohol abuse and had a tendency of having compulsive heavy drinking episodes. In October 2010, during the sixth hospitalisation since 2008, she had been hallucinating, anxious, aggressive, rude and unaware of the current date. When discharged from hospital in November 2010, the symptoms of withdrawal syndrome had receded and there were no signs of acute psychiatric disorders. 15. On 27 January 2011 the District Court received a certificate from a regional psychoneurology clinic. According to the certificate, in 2008 Ms K. had been diagnosed with an organic mental disorder of complex origin (perinatal and alcohol induced), hallucino-paranoid syndrome with mild personality changes, and alcohol-withdrawal symptoms. 16. On 2 and 8 February 2011 the District Court heard several prosecution witnesses, mostly relatives, neighbours and acquaintances of the persons involved. The witnesses either attested to the reputation or character of the victim and the accused, or provided hearsay and circumstantial evidence on the events prior and subsequent to the alleged crime. Ms K. was duly summoned to both hearings, but did not appear and provided no reasons for her absence. 17. On 10 February 2011 at the request of the defence the District Court issued a subpoena ordering the bailiffs to ensure Ms K.’s presence at the next hearing. 18. On 17 February 2011 the bailiffs submitted to the trial court a report that the witness could not be found at her place of residence and according to her mother “might be undergoing treatment” in a psychoneurology clinic. 19. On the same day the District Court examined a prosecution witness, Ms D., an investigator during the pre-trial stages of the proceedings. She testified to the circumstances of Ms K.’s interview on 21 October 2010 and her identification of the applicant, as well as to her psychological state and ability to give answers at the time. Ms D. stated that the witness had been “rational”, had given coherent testimony, had correctly recounted the events and, according to the doctor treating her at the time, had been capable of answering questions. 20. During the hearing the trial court was notified over the phone that the applicant had been undergoing in-patient treatment for alcohol dependency since 22 January 2011. The prosecutor’s request that Ms K.’s pre-trial statements be read out in court was denied and the hearing was adjourned until further information on the witness’s health had been received from the doctors. 21. On 18 February 2011 the psychoneurology clinic sent a letter to the District Court confirming the information previously submitted and stating that Ms K. was due to be discharged in early March 2011. 22. On the same day during the hearing, the prosecutor, referring to the above-mentioned letter, repeatedly requested that Ms K.’s pre-trial statements be read out in court on account of her in-patient treatment, the fact that her presence at trial could not be ensured, and because the date of her discharge from the clinic was unclear. The applicant’s defence lawyers objected, referring to Article 281 of the Code of Criminal Procedure, which proscribed the reading out of witness statements except in cases of “grave illness”. The District Court, without providing further reasons, allowed the reading out of the testimony with reference to Article 281 of the Code. 23. Between 24 February and 6 April 2011 the District Court held at least six further hearings. During those hearings the applicant and his coaccused were examined and essentially confirmed their conflicting pre-trial statements. The District Court also heard two character witnesses called by the defence, who attested to Mr A.’s bad reputation and speculated about his involvement in illegal activities. The trial court also considered the following documentary evidence presented by the prosecution: (a) crime scene inspection records; (b) the confession of Mr A. and verification records; (c) records of identification procedures; and (d) reports of the medical examiner and forensic experts on the victim’s injuries and the cause of death. 24. On 8 April 2011 during the closing argument the applicant’s defence lawyer, Mr V., argued that the statements of Ms K., which were “the only evidence”, could not qualify as eyewitness statements due to her state of mental health. He submitted that in the absence of a forensic psychiatric examination, it was impossible to rely on the testimony of a person suffering from an organic mental disorder and alcohol dependency. Her hospitalisation in a psychiatric facility in a delusional state and her interrogation less than one week after the alleged crime had made any testimony unreliable. He further stated that in any event, the reading out of her testimony had been unlawful under Article 281 of the Code of Criminal Procedure as interpreted by the Supreme Court of the Russian Federation, and in violation of the applicant’s right to examine witnesses under Article 6 § 3 (d) of the Convention. Accordingly, her testimony could not be used as evidence in the case against the applicant. 25. On 12 April 2011 the District Court convicted the applicant and Mr A. of manslaughter and sentenced them to ten and eight years’ imprisonment respectively in a high-security correctional facility. The District Court, confronted with the conflicting positions of the two coaccused, referred several times to Ms K.’s testimony as a significant, if not decisive, factor. In respect of the reliability of the testimony and its reading out, it stated: “... The statements of Ms K. made during the pre-trial investigation were read out under Article 281 of the Code of Criminal Procedure ... The court does not accept Mr Zadumov’s argument that [according to the medical records] the mental state of Ms K. casts doubt on her ability to correctly perceive and recount the events and that [her questioning during treatment in a psychoneurology facility] also casts doubt on the veracity and reliability of her testimony ... The medical records referred to by the defence do not suggest that Ms K. has any psychiatric disorder. [Moreover, the available certificates state that she was accessible for contact, answered questions following their direction and had no acute psychiatric disorders. This fact is further confirmed by the testimony of Ms D., the investigator, given at trial.] The court also considers that Ms K.’s statements are consistent with the confession of Mr A.” 26. The applicant’s defence lawyers lodged an appeal, restating among others their arguments concerning the reading out of Ms K.’s pre-trial statements. 27. On 3 June 2011 the Tver Regional Court (Тверской областной суд) upheld the judgment on appeal. In respect of Ms K.’s statements the Regional Court stated: “... The involvement of Mr Zadumov [the applicant] in the committed crime is steadfastly confirmed by the testimony of Ms K. [The appeal court] like the trial court finds no grounds to doubt the testimony of this witness, because it is coherent, detailed, logical and authentic. [From] the information provided by Ms K. on the victim’s state before and after the infliction of bodily injuries by Mr A. and Mr Zadumov, the sequence of events is consistent with [expert evidence and the testimony of other witnesses and the co-accused]. Accordingly there are no reasons to consider that the witness could not correctly perceive or recount the events. Moreover [her] mental state received consideration during the hearing. [According to the investigator’s statements she was rational, gave coherent testimony, correctly recounted the events, and according to her doctor was capable of answering questions.] ... [Therefore] the trial court reached a correct conclusion that this evidence was admissible. [The appeal court] cannot consider justified the arguments of the defence that criminal procedure legislation had been breached by the reading out of Ms K.’s pretrial statements, [since her presence at hearings was impossible as she was undergoing treatment in a clinic].” | 1 |
test | 001-144362 | ENG | SVN | CHAMBER | 2,014 | CASE OF HIT D.D. NOVA GORICA v. SLOVENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal) | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Mark Villiger;Paul Martens;Vincent A. De Gaetano | 5. The Slovenian-based applicant company operates gaming and entertainment centres. 6. On 19 June 1996, the applicant company’s then new managing director instituted disciplinary proceedings against one of its employees, N.N., in respect of the disciplinary offence of excessive and irresponsible use of the company’s funds. The new managing director had been informed about the alleged offence two days earlier. On 21 October 1996 the disciplinary board terminated N.N.’s employment on the grounds that she had seriously breached her employment obligations. An appeal lodged by N.N. against that decision was dismissed. On 24 December 1996 N.N. brought a claim before the Koper Labour Court, requesting that the termination of her employment be declared null and void. She alleged, inter alia, that the disciplinary proceedings against her were time-barred. 7. In a judgment of 30 September 1997 the Labour Court dismissed N.N.’s request. Having considered that the applicant company’s former managing director had not had sufficient knowledge of the acts constituting the disciplinary offence, the Labour Court concluded that the three-month time-limit for the institution of disciplinary proceedings had started to run from the date on which N.N.’s disciplinary offences had been discovered by the new management of the applicant company. The court therefore held that disciplinary proceedings had not been time-barred. N.N. appealed against the judgment. 8. On 17 December 1999 the Higher Labour and Social Court, sitting in a panel of three judges, which included judge M.K., upheld N.N.’s appeal and ordered the applicant company to reinstate her. Relying on a statement made by the applicant company’s former managing director, it concluded that he had had sufficient knowledge of N.N.’s actions to be able to institute disciplinary proceedings against her if he had considered that to be necessary. Accordingly, the higher court held that the disciplinary proceedings against N.N. had in fact been time-barred. The applicant company lodged an appeal on points of law before the Supreme Court. 9. On 7 November 2000 the Supreme Court upheld the applicant company’s appeal on points of law, as the higher court had established the facts differently from the first-instance court without having conducted an oral hearing. The Supreme Court therefore found that the adversarial principle had been breached in the appeal proceedings and set aside the second-instance judgment. The case was remitted to the Higher Labour and Social Court for fresh consideration. 10. On 7 December 2000 the Higher Labour and Social Court, sitting in a panel presided by judge M.K., held that the facts which had affected the expiry of the statutory limitation period for commencing disciplinary proceedings had not been duly established, and remitted the case to the first-instance court for fresh consideration. 11. On 12 April 2001 the Koper Labour Court rendered an interim judgment, finding again that the disciplinary proceedings had not been time-barred and thus dismissing N.N.’s request for annulment of the decision to terminate her employment. N.N. appealed against the judgment. 12. On 3 July 2003 the Higher Labour and Social Court again established quite the opposite, namely that the disciplinary proceedings had been time-barred, and upheld N.N.’s appeal. Judge M.K. did not take part in the proceedings. The applicant company appealed on points of law. 13. On 15 June 2004 the Supreme Court again upheld the applicant company’s appeal on the grounds that the adversarial principle had been breached in the appeal proceedings. The case was remitted for fresh consideration to the Higher Labour and Social Court, sitting in a panel composed of different judges. 14. On 3 February 2005 the Higher Labour and Social Court found that the facts of the case had still not been sufficiently established, and remitted the case to the first-instance court for fresh consideration. 15. On 10 November 2006 the Koper Labour Court found, in its third consideration of the case, that the disciplinary proceedings had been time-barred, as the former managing director had been fully informed about N.N.’s actions that had constituted the disciplinary offence. Accordingly, the court granted N.N.’s claim and declared the termination of her employment null and void. The decision on her compensation claim against the applicant company was postponed. Both parties appealed. 16. On 29 March 2007 the Higher Labour and Social Court upheld the appeal lodged by N.N. and dismissed the applicant company’s appeal in which it contended, inter alia, that the statements made by the former managing director of the applicant company in the later stages of the proceedings had conflicted with his earlier accounts of the facts and had obviously been made in order to exculpate N.N., with whom he had close personal ties. 17. The applicant company lodged an appeal on points of law. On 26 February 2008 the Supreme Court dismissed the applicant company’s appeal and reaffirmed the judgment of the lower courts that the disciplinary proceedings had been time-barred. 18. On 7 May 2008 the applicant company, represented by a lawyer, lodged a constitutional appeal alleging, inter alia, that in the determination of whether disciplinary proceedings against N.N. had been time-barred, the principle of equality of arms had been breached. In addition, the applicant company contended that the labour courts’ position regarding the limitation period for commencing disciplinary proceedings in the particular circumstances at issue had contravened its free economic initiative enshrined in the Constitution. It argued that if the former managing director had known about N.N.’s actions, that in itself had constituted a disciplinary offence and should not have been interpreted in her favour. On 8 May 2008 the Constitutional Court informed the applicant company that its constitutional appeal had been assigned to judge rapporteur M.M. 19. On 15 May 2008 the Koper Labour Court decided on N.N.’s claim for compensation for the unlawful termination of her employment. It ordered the applicant company to pay N.N. compensation for lost wages and various benefits for the period when she had not been employed or had been paid a lower salary by other employers. The remainder of N.N.’s claim was dismissed. 20. On 23 September 2008 the Constitutional Court, in a three-judge panel in charge of the examination of constitutional appeals in the field of administrative law, which included judge M.K., refused to accept the applicant company’s constitutional appeal for consideration, stating that its fundamental rights and freedoms had not been violated. The decision, which included the information on the composition of the panel, was taken in camera and without the attendance of the applicant company or the respondent party. 21. The relevant provisions of the Constitutional Court Act on the disqualification of judges read as follows: “(1) In deciding on an individual case, the Constitutional Court may disqualify a Constitutional Court judge by applying, mutatis mutandis, the reasons for disqualification in court proceedings. ...” “Immediately upon a Constitutional Court judge learning of any reason for his disqualification as referred to in the preceding article, he must stop working on the case and notify the President of the Constitutional Court of such.” “(1) A motion for disqualification may be submitted by the participants in the proceedings until the beginning of the public hearing, if such hearing is scheduled, or respectively until the beginning of the closed session of the Constitutional Court at which the case is to be decided. The motion must include a statement of reasons. ...” 22. The relevant provisions of the Civil Procedure Act on this issue, applicable to the proceedings before the Constitutional Court, read as follows: “A judge or a lay judge shall be prohibited from exercising judicial functions: ... (5) if he or she participated in the same proceedings before a lower court ...” “Immediately after learning of the existence of any ground for disqualification under clauses 1 to 5 of the preceding Article, the judge or lay judge shall discontinue forthwith any activity in the proceedings and shall notify thereupon the president of the court, who shall appoint a substitute judge or lay judge. ...” “The disqualification of a judge may also be requested by the parties. A party shall be required to bring a motion to disqualify a judge or a lay judge immediately after learning of any grounds for disqualification and not later than before the end of the hearing before the competent court or, if there is no hearing, before the judgment is passed. ...” 23. The Constitutional Court is composed of nine judges. In the constitutional appeal proceedings, the admissibility, and in cases involving well-established case-law also the merits, of individual cases are considered by three panels of three judges each. Pursuant to the Rules of Procedure of the Constitutional Court, information regarding the division of work by areas between the civil, criminal and administrative panels and their respective composition is accessible on the court’s website. It is also included in the “Work Schedule of the Constitutional Court” published twice a year, for the autumn and spring terms, in the Official Gazette. The work schedule includes the names of the judges who sit in the individual panels, as well as the names of the substitute judges designated to replace individual members of the three panels in the event of their absence or disqualification. According to the court’s Work Schedule, the administrative panel adjudicates on, inter alia, constitutional appeals against individual acts issued in labour dispute proceedings. | 1 |
test | 001-172543 | ENG | UKR | COMMITTEE | 2,017 | CASE OF MALCHENKO AND OTHERS v. UKRAINE | 4 | 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 - Prohibition of torture;Degrading treatment);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) | Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-152624 | ENG | BGR | CHAMBER | 2,015 | CASE OF DIMITROVI v. BULGARIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicants were born in 1973 and 2004 respectively and live in Sofia. 6. The applicants are the widow and the son of Mr Konstantin Dimitrov Dimitrov, who died in December 2003. 7. In 2001, following publications in the media concerning the income of the first applicant and her husband, the Sofia regional public prosecutor’s office opened proceedings against them under Chapter Three of the Citizens’ Property Act (“the CPA”, see paragraphs 23-28 below). In a decision of 23 August 2002 a prosecutor from that office discontinued the proceedings. 8. The prosecutor found, first, that for the period from 1990 to 1992 Mr Dimitrov’s expenditure had exceeded his income, but that in 2002 he had paid the difference to the State budget. Accordingly, there was no ground to pursue the proceedings for that period (section 45 of the CPA, see paragraph 27 below). 9. Next, the prosecutor described the income and the expenditure of the first applicant and Mr Dimitrov for the period from 1993 to 1997, but did not make an explicit finding as to whether she considered their income lawful within the meaning of the CPA. 10. Lastly, analysing the couple’s income and expenditure for the period from 1997 to 2001, the prosecutor concluded that they were equivalent, and that there were no grounds for bringing forfeiture proceedings under the CPA. 11. On an unspecified date the Sofia regional public prosecutor’s office opened new proceedings under Chapter Three of the CPA. On 18 November 2004 it brought an action in the Sofia Regional Court against the two applicants, seeking the forfeiture of two flats, one in Varna and one in Sofia, a garage, an office and a share in a plot of land in Sofia, a holiday house in the Borovets resort and a Toyota Land Cruiser car, all acquired by the first applicant and Mr Dimitrov with income received between 1990 and 1999, which was allegedly “unlawful” within the meaning of section 34 of the CPA (see paragraph 25 below). 12. The Sofia Regional Court gave a judgment on 28 November 2006. It analysed in detail the income received by the first applicant and her husband and their expenditure during the period at issue. Due to the difficulties in making an assessment because of the high inflation of that time, the court relied on expert conclusions, calculating all the amounts in United States dollars (USD). 13. The Regional Court accepted in particular, referring to rent contracts, the tax declaration submitted by the first applicant in 1998 and witness statements by those involved, that in 1997 the first applicant and her husband had received substantial income from farming. 14. On the basis of its calculations, the Regional Court concluded that the couple’s expenditure for the period at issue had exceeded their proved income by approximately USD 40,000, which by virtue of section 34 of the CPA represented “unlawful” income. Accordingly, allowing the action brought before it in part, the Sofia Regional Court ordered the forfeiture of property of that value, namely the flat in Varna, the share in a plot of land in Sofia and approximately one-quarter of the flat in Sofia. 15. Both parties lodged appeals. 16. On 17 March 2008 the second-instance Sofia Court of Appeal gave a judgment. It found that the applicants had not established all the income considered proven by the Regional Court, in particular as concerns the family’s farming business. According to the Court of Appeal it was unacceptable to prove such income on the basis of the evidence presented before the lower court, without any further documents showing, for example, expenditure and revenue received. It also considered unproven two monetary gifts, one of them allegedly made by the first applicant’s parents and the other allegedly received on the occasion of her wedding to Mr Dimitrov in 1997. 17. The Court of Appeal calculated that the expenditure of the first applicant and her husband for the period from 1990 to 1999 had exceeded their income by approximately USD 286,000. It considered further that the properties for which the prosecution authorities sought forfeiture had been acquired with this “unlawful” income, and accordingly ordered the forfeiture of the flats in Sofia and Varna and the office, the garage and the share in a plot of land in Sofia. As to the remaining properties at issue, namely a holiday house in Borovets and a car, given that they had in the meantime been transferred to third parties, the Court of Appeal ordered the applicants to pay their monetary value to the State. 18. The applicants lodged an appeal on points of law. In a final decision of 28 July 2008 the Supreme Court of Cassation refused to accept the appeal for examination. 19. On the basis of the judgment of 17 March 2008, on 28 January 2010 the regional governor of Varna issued a decision declaring the flat in Varna State property. Similar decisions concerning the properties in Sofia were issued by the Sofia regional governor on 27 July and 4 August 2011. Following these decisions the applicants surrendered possession to the State. 20. On 20 July 2010 the applicants paid 178,815 Bulgarian levs (BGN) to the State budget, representing the value of the remaining forfeited properties, namely the holiday house in Borovets and the car, and the court fees and other costs due by them. In the domestic proceedings they had been ordered to pay BGN 14,019.34 in total in fees and other expenses. 21. In 2003 and 2004 the relevant tax authorities carried out probes into the income received by the first applicant and her husband between 1997 and 2002. Their decisions, calculating the income tax due, were given on 23 June and 26 November 2004. 22. In respect of the first applicant the respective decision was partly quashed on 20 June 2007 by the Supreme Administrative Court. | 1 |
test | 001-175475 | ENG | TUR | COMMITTEE | 2,017 | CASE OF HAZNI BAYAM v. TURKEY | 4 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court) | Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens | 5. The applicant, who was born in 1992, was detained at the Gaziantep Prison at the time when the application was lodged. 6. On 26 December 2011 the Mersin Magistrates’ Court decided to restrict access to the file regarding an ongoing investigation against a terrorist organisation. 7. On 29 December 2011 the applicant was arrested on suspicion of being a member of a terrorist organisation and making its propaganda. 8. On the same day the applicant’s police statement was taken at the Anti-Terror Branch of the Mersin Security Directorate, in the presence of his lawyer. He was mainly questioned about several records of telephone conversations as well as allegations about the burning of vehicles and throwing Molotov cocktails. He was questioned at length about the telephone conversations that had been intercepted. The police read out the transcripts of the telephone conversations and asked the applicant to comment on them. He was further asked questions about the incriminating statements of one of his co-accused. The applicant used his right to remain silent. 9. On 30 December 2011 the Mersin Magistrates’ Court ordered the applicant’s detention on remand. 10. On 16 March 2012 the applicant’s representative lodged an objection against the decision on the applicant’s detention, and requested his release. She also asked the court to lift the restriction of access to the investigation file. On 19 March 2012 the Mersin Magistrates’ Court dismissed the objection, without holding a hearing. The applicant’s representative filed a further objection against that decision. 11. On 26 March 2012 the Mersin Assize Court dismissed the objection on the basis of the case file, without holding a hearing. 12. On 20 April 2012 the Mersin Magistrates’ Court ex officio examined the applicant’s detention on remand on the basis of the case-file and decided to extend it. 13. On 10 September 2012 the Adana public prosecutor filed a bill of indictment against the applicant, accusing him mainly of being a member of a terrorist organisation, making propaganda in its favour, illegal possession of explosives, causing damage to property and having participated in an illegal armed demonstration. 14. On 1 October 2012 the Adana Assize Court accepted the indictment. On the same date the restriction on the investigation file was lifted. 15. According to the latest information in the case file, the proceedings against the applicant are still pending before assize court. | 1 |
test | 001-153475 | ENG | GBR | COMMITTEE | 2,015 | CASE OF HILL v. THE UNITED KINGDOM | 4 | No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | Krzysztof Wojtyczek;Nona Tsotsoria;Paul Mahoney | 4. The applicant was born in 1967 and lives in Arundel. 5. In 2006 he was convicted of assault occasioning grievous bodily harm. He had a previous conviction for a similar offence against the same victim. A pre-sentencing report identified the Enhanced Thinking Skills (“ETS”) course followed by the Controlling Anger and Learning to Manage It (“CALM”) course as potentially appropriate courses for the applicant to complete during a sentence of imprisonment and explained that attendance at these courses would take around two years. On 23 November 2006 an indeterminate sentence for public protection (“IPP sentence”) was imposed. A minimum term (“tariff”) of fourteen months and twelve days was fixed. 6. The applicant was detained in HMP Lewes. On 20 March 2007 a postsentence report by his probation officers confirmed that the ETS and CALM courses were, in principle, appropriate and that completion would take around two years. At a sentence planning board on 31 October 2007, following completion of an assessment using the Offender Assessment System (“OASys”), his targets were identified as: positive use of his time in custody; improved awareness of appropriate behaviour (thinking skills); and completion of a course on Victim Awareness, the latter of which, it was noted, had already been completed. 7. A progress report dated 20 December 2007 noted: “Mr Hall has taken the only opportunities offered to him to address his offending and appears to have modified his attitude, which was a big step for him.” 8. On 4 February 2008 the applicant’s tariff expired. 9. On 15 February 2008 a first Parole Board Review was held. On 21 February 2008 the Parole Board informed the applicant of its decision not to direct his release or recommend his transfer to open conditions. The panel considered that the applicant still posed a high risk to his victim, particularly as the victim had been also been detained in HMP Lewes and the applicant had received an adjudication for assaulting him. In order to address this risk, the applicant was required to complete the ETS course and to be assessed for the CALM course, in closed conditions. The panel continued: “Your supervisors considered that you should be assessed for ETS and Anger Management, but this has not been possible at HMP Lewes, where you are considered to be a polite and respectful Enhanced Prisoner.” 10. The Parole Board referred to the applicant’s submission that he would control himself and avoid the victim in future and that he was prepared to respect non-contact and exclusion zone conditions to secure his release. It concluded: “The Panel accepts without reservation, that your high level of risk relates solely to your involvement with [the victim], but this is a risk which cannot be ignored, despite your determination to avoid him. Any such involvement is a real concern and cannot be ignored. It is the view of the Panel, having taken into account the varying views of your supervisors, that prior to your release you should have the opportunity to carry out all outstanding offending behavior work, namely ETS and to be assessed for CALM, and that the appropriate place for this to be done, is in Closed Conditions.” 11. On 5 March 2008 the Secretary of State approved the Parole Board’s recommendation and set the review period at eighteen months to complete outstanding offender behaviour work, with a hearing to take place in August 2009. 12. On 16 April 2008 the applicant was transferred to HMP Erlestoke. His targets were reviewed with his offender supervisor and on 25 April 2008, after a review of an initially negative decision, he was referred for assessments for the ETS and CALM courses and the Healthy Relationships Programme (“HRP”). 13. In May 2008, the applicant was deemed suitable to progress to the second stage of the assessment for the ETS course. 14. In the applicant’s Sentence Planning and Review Report dated 30 June 2008, prepared by his offender manager, it was recorded that he was to be assessed for and, if suitable, complete the ETS and CALM courses and the HRP. The report added as regards the HRP: “I am also of the opinion that consideration needs to be given to completing this work in the community as a condition of his licence because the waiting list is extremely long.” 15. At a sentence planning and review meeting on 14 August 2008, the applicant’s sentence targets recorded that he should be assessed for and complete the ETS and CALM courses and the HRP programme. It was noted that he required extra psychological assessment as he appeared to be afraid of participating in group activities, which might hinder his eventual participation in the courses recommended to him. 16. A report of an interview with his offender supervisor dated 20 January 2009 notes: “When the question of his current sentence plan targets was raised, he stated that he would not do any of the courses as he hates classrooms and he will not be forced into doing them. When it was explained that this attitude would make it extremely difficult for him to make any progress in his sentence and through the prison system, he stated that he did not care and would stay here ‘for thirty years’ ... Mr Hill did not want to discuss any of his specific sentence plan targets with me and this is clearly an area that needs to be addressed in order for him to progress.” 17. In his Parole Assessment Report of 27 January 2009, the applicant’s offender manager stated that she could not support the applicant’s release because at that stage he had not undertaken any work to address his behaviour. She noted his resistance to offending programmes and reported that it was “absolutely imperative” that arrangements be made for him to be psychologically assessed, adding: “Mr Hill faces the potential of being left serving an IPP sentence with no means of working towards his release.” 18. She further noted that she had made enquiries at the prison as to whether the applicant might undergo psychological assessment but that the chances of this occurring were seen as slight. She stated that if this was not available at his current institution, the applicant would need to be moved to a facility where it could be undertaken. 19. In February 2009 the applicant’s case was referred to the Parole Board. 20. A Sentence Planning and Review Report dated 2 February 2009 recorded the applicant’s refusal to engage with his sentence plan targets to reduce his risk. It recommended that the ETS, CALM and HRP courses be undertaken in closed conditions and that counselling be provided. 21. On 5 February 2009 the applicant confirmed that he was prepared to do the ETS course in a one-to-one basis. 22. On 28 April 2009 he met with the ETS facilitators and on 29 April was notified that he had been identified as a potential participant of the ETS course scheduled to begin on 13 May 2009. 23. The applicant was duly enrolled on the May 2009 ETS course. He completed the course in June 2009. A post-programme review took place on 11 August 2009. 24. The applicant was subsequently informed by his probation officer that there was a two-year wait for access to the CALM course. 25. On an unknown date the Parole Board hearing scheduled for August 2009 was deferred to November 2009 in order to allow for the completion of the post-ETS course report. It was subsequently deferred again until 9 February 2010. 26. Meanwhile, at some point in 2009 or 2010, the applicant was assessed for the HRP and was found to be unsuitable. 27. On 29 January 2010 the applicant’s solicitors informed the Parole Board that they had commissioned an independent psychologist’s report on the applicant and that it might not be completed by the time of the scheduled hearing. As a result, on 1 February 2010 the Parole Board Panel Chair issued directions deferring the hearing and imposing deadlines for the provision of the psychiatric report (9 March) and any report in response by the Secretary of State (8 June). The target month for the hearing was September 2010. 28. The independent psychology report was completed on 7 February 2010 and filed with the Parole Board on 9 March 2010. The report supported the applicant’s release on licence into the community. It explained that the applicant had tried to complete his treatment goals but that his fear of group settings combined with his low IQ had made this very difficult. It further stated: “5.1 I strongly recommend irrespective of the outcome of any future Parole Board hearing that Mr Hill receives one-to-one counselling as a matter of urgency... 5.3 There has been much debate regarding Mr Hill’s need for further treatment and indeed his ability to benefit from such treatment. In my opinion a prerequisite for deciding the issue is that Mr Hill undergo further cognitive and/or psychoneurological assessment.” 29. In an addendum to the report dated 14 May 2010, it was noted that the applicant was not capable of benefitting from group work but was fully capable of one-to-one coursework. 30. The prison was not notified that a report was required until 20 July 2010. Because of other reporting commitments, it informed the parties that it would be unable to deliver the necessary report before May 2011. 31. The Parole Board hearing was subsequently further deferred until 13 January 2011. 32. In an addendum to the Sentence Planning and Review Report, the applicant’s offender supervisor explained: “There have been problems getting Mr Hill assessed for the CALM course, some of which relate to his reluctance to participate and others due to issues relating to availability of staff.” 33. On 10 January 2011 the applicant was informed that his Parole Board hearing had been cancelled because the applicant’s offender supervisor was unable to attend and that the earliest possible date for the hearing would be March 2011. 34. The deferred Parole Board hearing took place on 19 April 2011. By letter dated 28 April 2011, the Parole Board noted that the applicant had not cooperated with a prison transfer to allow him to be assessed for the CALM course and that he appeared to prioritise his work over addressing his areas of risk. The Parole Board further noted that the applicant was still, five years into his sentence, providing new and important background to the motivations and triggers for his violence. It said that this had limited the assessment of his risk factors. 35. The applicant subsequently sought judicial review of the Parole Board’s decision not to recommend his transfer to open conditions. On 21 January 2012 the Administrative Court granted the judicial review application on the basis that the panel had failed to carry out the correct balancing exercise when considering whether to accede to the applicant’s request for a transfer to open conditions. The Parole Board was instructed to reconsider this aspect of the applicant’s case. 36. The applicant subsequently undertook the CALM course and completed it in October 2011. 37. The Parole Board held an oral hearing on 13 April 2012. By letter dated 4 May 2012, it directed the applicant’s release. He was released on 15 May 2012. | 1 |
test | 001-181404 | ENG | AUT | ADMISSIBILITY | 2,018 | KRAUSS v. AUSTRIA | 4 | Inadmissible | André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 1. The applicant, Ms Anke Eva-Maria Krauss, is a German national who was born in 1979 and lives in Kulmbach. She was represented before the Court by Mr K. Schelling, a lawyer practising in Dornbirn. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Department at the Federal Ministry for Europe, Integration and International Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 20 May 2009 at 2.08 p.m. the car registered in the applicant’s name was recorded by a radar speed detector as travelling at a speed of 133 k.p.h. on the Tauernmotorway, thus exceeding the speed limit of 100 k.p.h. 4. On 7 July 2009 the Tamsweg District Administrative Authority (Bezirkshauptmannschaft) issued a provisional penal order (Strafverfügung) and fined the applicant 210 euros (EUR) with a three-day suspended sentence for speeding. 5. On 20 July 2009 the applicant filed an (unreasoned) objection against this decision, whereupon ordinary administrative proceedings were opened. 6. On 22 February 2010 the District Administrative Authority dismissed the applicant’s objection and issued a penal order (Straferkenntnis) convicting the applicant of speeding and fining her EUR 210 and EUR 21 in procedural costs. 7. On 5 March 2010 the applicant appealed to the Salzburg Independent Administrative Panel (Unabhängiger Verwaltungssenat, hereinafter “the IAP”), submitting that the authority had not been in possession of any evidence indicating that she had been driving her car at the relevant time. Relying on Article 6 of the Convention, the applicant further complained that she had been convicted solely because she had made use of her right to remain silent and the privilege not to incriminate herself in administrative criminal proceedings. She did not dispute the speeding offence itself. Furthermore she did not request a hearing. 8. On 28 April 2010 the IAP asked the applicant, with reference to her general obligation as an accused to cooperate in administrative criminal proceedings, to submit concrete details regarding the driver of the car at the relevant time or to submit any other evidence to prove that she had not been driving the car. On 14 May 2010 the applicant submitted a statement in which, referring to the case Krumpholz v. Austria (no. 13201/05, 18 March 2010), she maintained that she had not been in Austria at the relevant time and that there were several other persons who could have been driving the car. 9. On 24 June 2010 the IAP held an oral hearing of its own motion. Even though the applicant had been summoned properly, she did not attend the hearing. However, she was represented by her lawyer Mr. K. Schelling, who substituted his mandate to F H & Partner, a law firm practising in Salzburg. The lawyer who was appointed to attend the hearing merely pointed to the written submissions of 14 May 2010 (see paragraph 8 above). According to the minutes of the hearing, no apology was made for the applicant’s absence, nor was further evidence presented and, in particular, the applicant’s representative did not request postponement of the hearing. 10. On 20 July 2010 the IAP dismissed the applicant’s appeal, upheld the penal order and imposed a further EUR 42 in procedural costs. In its reasoning, the IAP pinpointed the accused’s general duty to cooperate in administrative criminal proceedings, indicating at the same time that the applicant had not contested the speeding but merely denied that she had been driving the car herself. However, she had not submitted any concrete information with regard to the identity of the real driver. In particular the IAP reasoned as follows: “As the relevant fact, namely that the speed limit had been exceeded, remained undisputed during the proceedings, this can be taken as an established fact. The accused alleges that she was not driving at the time the offence was committed, however she failed to comply with the duty to cooperate in these proceedings. In accordance with Austrian law and the unanimous jurisprudence of the Administrative Court, the accused has the duty to cooperate in the establishment of the facts. In case of traffic-related offences this encompasses the duty of the registered car keeper to be able to provide information on which persons had use of the car at a specific time. As an ultimate consequence of this jurisprudence, the inference may be drawn that the registered car keeper herself was driving the car, as long as she refuses to provide information on the fact of who had been driving the car at a certain time. In the present case the accused did not comply with her duty as she had answered the IAP’s request of 28 April 2010 by merely stating that she had not been in Austria on 20 May 2009. As various family members could have been the driver, she could not define the real driver. Since she had simply denied having been the driver in both instances without submitting any concrete evidence, the authorities were, in the absence of any other evidence, allowed to assume that the accused had committed the offence herself. (...) The European Court of Human Rights found a violation of Article 6 § 1 and § 2 of the Convention in the case of Krumpholz as it was not permissible to draw an inference solely from the applicant’s refusal to disclose the identity of the driver. Where the authority wished to draw such an inference, an oral hearing for the purpose of obtaining a direct impression of his credibility had to be conducted. In the present case, the applicant had not been ordered to disclose the full name and address of the person who had been driving her car. Nevertheless the IAP ordered her on 28 April 2010, indicating her duty to cooperate in the proceedings, to provide the authority with information regarding the driver of the car at the relevant time or to submit any evidence showing that she had not committed the offence. (...) The applicant had solely denied in a very general way that she had been driving the car, without submitting any evidence. As it can be taken as an established fact that the registered keeper of a car has the most intensive relationship to the car and should therefore know who was driving the car at a relevant time, the authorities were allowed to assume – in the absence of any other evidence – that the applicant herself had committed the offence. (...)” 11. On 27 September 2010 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) claiming that the IAP had not been in possession of any evidence indicating that she herself had been driving her car and had thus wrongly established a prima facie case against her. Therefore, the IAP had not only shifted the burden of proof onto her, but had also violated her right to remain silent. Moreover, as the applicant had not been able to attend the hearing due to a sudden illness for which she had been excused by her representative, the IAP should have scheduled another hearing of its own motion in order to obtain a direct impression of her credibility. Thus, not only had the burden of proof been shifted onto her, but her right to remain silent had also been violated. 12. On 22 September 2011 the Constitutional Court dismissed the applicant’s complaint. In its reasoning the Court held that the decision was sufficiently reasoned and clear, especially since the applicant had failed to submit any credible evidence in her defence, even though she had had various opportunities to do so in the course of the proceedings. Moreover, the IAP had – contrary to Krumpholz (cited above) – held an oral hearing and had, according to the minutes of the hearing, not been informed about the applicant’s illness, and the legal representative had not requested postponement of the hearing. Therefore the Constitutional Court found that the IAP could not be blamed for not having postponed the hearing of its own motion and for assuming that the applicant had been driving the car herself. Thus, no violation of Article 6 of the Convention was found. Subsequently the case was transferred to the Administrative Court. 13. On 16 December 2011 the Administrative Court declined to deal with the applicant’s complaint, since the amount of the fine did not exceed the legal value threshold of EUR 750 and no important legal issue was at stake. This decision was served on the applicant’s counsel on 27 December 2011. B. Relevant domestic law and legislation 14. Section 51e of the Administrative Offences Act (Verwaltungsstrafgesetz, hereinafter “the AOA”), which was in force at the relevant time, reads as follows: “(1) The Independent Administrative Panel shall hold hearings in public. ... (3) The Independent Administrative Panel may dispense with an appeal hearing if 1. the appeal is based solely on an incorrect legal assessment, or 2. the appeal is directed solely against the amount of the penalty, or 3. the decision being appealed against imposed a financial penalty not exceeding 500 euros 4. the appeal is directed against a procedural decision and no party has requested that a hearing be held. Any request by the appellant for a hearing to be held must be made in the appeal itself...” 15. Section 37 of the General Administrative Procedural Act (Allgemeines Verwaltungsgesetz, hereinafter “the APA”) reads as follows: “The main purpose of the investigation proceedings is to establish the relevant facts and to provide the parties with the opportunity to exercise their rights and legal interests. (...)”. 16. Section 45 of the APA reads as follows: “„(1) Facts, which are evident or facts for which the law draws a presumption regarding their existence, do not have to be proved. (2) Apart from that, the authority has to assess freely, giving careful consideration to the results of the investigation proceedings, whether or not a given fact is to be accepted as proved. (3) The parties are to be informed regarding the evidence obtained and be provided with the opportunity to submit a statement.” 17. Section 103 (2) of the Motor Vehicles Act as amended in 1986 (Kraftfahrgesetz) provides as follows: “The authority may request information as to who had driven a certain motor vehicle identified by the number plate .... at a certain time or had last parked such a motor vehicle ... at a certain place before a certain date. The registered car keeper (Zulassungsbesitzer’s right to require such information shall take precedence over the right to refuse to give information.” 18. The duty to cooperate with the authorities has been established by the Administrative Court’s jurisprudence, starting with its decision no. 96/17/20320, issued on 20 September 1996, and ever since has been applied constantly in administrative criminal proceedings. Even though it is the authorities’ duty to establish the relevant facts, the parties are not dispensed from their obligation to contribute to the establishment of these facts. That encompasses the duty to submit equally specific statements in reply and adduce the relevant evidence. The Administrative Court also agreed to draw inferences from an accused’s evasive or unspecified answer, namely that it can be assumed that the registered keeper of a car had himself committed the offence charged (Administrative Court, no. 93/03/0162, decision of 11 October 1995 [quoted in the IAP’s decision]; see also Administrative Court, no. 2001/02/0273, decision of 6 November 2002). | 0 |
test | 001-184655 | ENG | MDA;RUS | CHAMBER | 2,018 | CASE OF MANGÎR AND OTHERS v. THE REPUBLIC OF MOLDOVA AND RUSSIA | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (the Republic of Moldova);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (Russia);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) (the Republic of Moldova);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) (Russia);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (the Republic of Moldova);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (Russia);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention;Article 5-4 - Review of lawfulness of detention) (the Republic of Moldova);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) (the Republic of Moldova);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) (Russia) | Dmitry Dedov;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano | 5. The applicants, who are police officers, were born in 1967, 1978, 1976, 1979 and 1964 respectively. The first and second applicants live in Chișinău and Caușeni and the remaining applicants live in Bender. 6. On 14 June 2006 officers Mangîr, Vasiliev and Condrea, who were conducting a criminal investigation in Tiraspol, were arrested by the secret service of the self-proclaimed “Moldovan Republic of Transdniestria” (“MRT”). During their arrest they managed to call the Bender police station. 7. The other two applicants (officers Daţco and Pohila) went to Tiraspol to clarify the reasons for the arrest of their colleagues, but were also arrested upon their arrival. 8. The applicants were placed in the Tiraspol Remand Centre (IVS Tiraspol). 9. On 17 June 2006 officers Pohila, Daţco and Vasiliev were released without charge and without any explanation for their arrest. 10. On 18 June 2006 officer Mangîr was allegedly beaten up and injected with an unknown substance, which rendered him unconscious for four days. After his release he was admitted for in-patient treatment in the hospital of the Ministry of Internal Affairs of the Republic of Moldova, where he was diagnosedwith, inter alia, concussion. 11. On 20 June 2006 the Tiraspol City Court issued a warrant for officer Mangîr to be detained for thirty days. On 23 June 2006 the “MRT” authorities released officers Mangîr and Condrea. The head of the “MRT” secret service declared in an interview that the officers had been released after Russian authorities had “given assurances” that Moldovan authorities would not “kidnap people” in the “MRT”. 12. The applicants were accused in the “MRT” media of being members of “black squadrons” created for the purpose of kidnapping politicians and other persons causing nuisance to the Moldovan authorities. According to the applicants, during their detention they were questioned by the “MRT” secret service and forced to declare that in Tiraspol they had been trying to kidnap “MRT” politicians. Officers Pohila, Daţco and Vasiliev were allegedly beaten on the soles of their feet and threatened with the killing of members of their families, as well as with being transferred to cells occupied by common criminals, where they would be ill-treated or even killed. 13. Officer Condrea was allegedly subjected to so-called “Palestinian hanging” for up to seven hours and was taken to his cell unconscious thereafter. 14. The applicants described as follows their conditions of detention at the Tiraspol Remand Centre. The cells in which they had been held had been in the basement and had not had access to natural light. In the absence of ventilation and because of overcrowding it had been difficult to breathe. Officer Condrea submits that he was detained in the same cell as that in which Mr Ilie Ilaşcu had been detained (for more details see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004VII). 15. During their detention the applicants did not have any daily exercise and were not given access to a shower; they could not receive parcels containing food from their relatives, they did not have bed linen and they were not allowed to be seen by doctors. 16. After the applicants’ release the Moldovan authorities initiated two sets of criminal proceedings concerning their unlawful detention and their alleged ill-treatment while in detention. However, several years later the investigation was discontinued. 17. The applicants were also subjected to medical check-ups, which found no traces of violence on their bodies. Only one applicant, Stefan Mangîr, was found to be suffering from the consequences of concussion. | 1 |
test | 001-177914 | ENG | BGR | COMMITTEE | 2,017 | CASE OF ZHIVKO GOSPODINOV AND OTHERS v. BULGARIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence) | Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 4. The applicants are serving either life sentences or whole-life sentences in different prisons in Bulgaria. 5. The applicant is currently serving a whole-life imprisonment sentence in Belene Prison. The sentence was delivered by the Dobrich Regional Court in 2003. It was confirmed on appeal in February 2004 and, subsequently, by the Supreme Court of Cassation in a final judgment of 19 October 2004. 6. As it is apparent from documents in the file, the applicant had unsuccessfully sought presidential clemency several times since 2007. He was initially placed in the high-security wing of Varna Prison where he started serving his sentence; since 2004 he has been under the “special regime”. 7. He described, and the Government did not comment on, the conditions under which he had been detained there as follows. His cell measured 5.5 by 3 metres and had a small grilled window which did not let much light in during the day. The lighting at night was also insufficient. The cell was humid, badly heated during the winter and deprived of ventilation during the summer. Given that in the cell there was neither running water, nor toilet facilities, the applicant had had to use a bucket to relieve himself. He was allowed to leave his cell three times a day, during meal times, for about forty-five minutes each time, in order to slop out, eat, wash himself and re-fill his water bottle from the tap. The prison was infested with cockroaches and rats, and he was only allowed to shower once a fortnight. The food was insufficient in quantity and of poor quality. During visits, he was separated from his family and lawyers by a grill and the meetings always took place in the presence of prison staff. His correspondence was routinely read by prison staff as he was obliged to transmit his letters to the outside world in open envelopes. The envelopes carrying correspondence with his lawyer bore a stamp showing that they had been checked. 8. Both parties submitted that the applicant had been transferred to Belene Prison on 17 February 2009, where he continued to serve his sentence under the “special regime”. He was detained in the high-security wing of this prison, alone in a cell. 9. According to the Government, since the beginning of his time in that prison, the applicant had gone on several hunger strikes. According to documents in the file, at the beginning of his stay in Belene Prison he demonstrated suicidal intentions and was identified as aggressive and hostile, as well as prone to attempting to escape. On the basis of an order of the prison governor of 19 February 2009, he did not take part in collective activities with other inmates, even those in his own category. In addition, the Government submitted that owing to lack of physical space in the prison, it was impossible to organise collective sport activities, or gather inmates for the purposes of reading, listening to music, playing board games or using the computer. Also, they emphasised that the impossibility was underpinned by the personal characteristics of the inmates which made them incompatible with each other and were an impediment to the authorities’ organising joint activities for them. 10. The parties submitted that the applicant’s cell in Belene Prison was secured by a door and an external grill, both of which were locked. The light bulb remained on throughout the night, for security purposes, which the applicant claimed interfered with his sleep. His daily walks in the open air took place in a grilled space measuring, according to the applicant and not disputed by the Government, about 15 sq. m, where only persons serving life sentences were taken. According to the applicant, its floor was partially made of bare cement and there was no sports equipment there. According to the Government, there was a climbing wall, a bench and a fixed-height bar. Both parties submitted that each time the applicant left the high-security wing of the prison, he was handcuffed and the handcuffs were shackled to a belt. He claimed that his correspondence was routinely checked. According to the Government, prisoners’ correspondence was checked out of security considerations. However, the authorities only checked the contents of the envelopes which the applicant received and not the text of the letters in them. 11. In a final judgment of 15 May 2005 the Supreme Court of Cassation sentenced the applicant to life imprisonment. The documents in the case file indicate that he had been initially imprisoned in Lovech Prison and was transferred to Belene Prison on 6 October 2009 where he was placed in the high-security wing. 12. The Government submitted that he had been serving his sentence under the “special regime” since 5 May 2005. 13. The applicant submitted that he had been kept in isolation in Belene Prison under the “special regime” and that the living conditions in his prison cell were inadequate. In particular he claimed that he spent about twenty-three hours a day locked up in a very small, poorly lit cell with a non-secluded toilet close to his bed. 14. The Government did not dispute his claims. They specified that the size of his cell was 6 sq. m, that it was a “normal” as opposed to a “punishment” cell, that he had a bed, a drawer, a sink and a toilet in his cell, and that there was enough space for him to move about in it. 15. The applicant was sentenced to life imprisonment in a final judgment of 10 December 2001 of the Supreme Court of Cassation. 16. The applicant complained that, in accordance with the “special regime” under which he had been serving his sentence, he had been permanently locked up in a cell which he had only been allowed to leave for no more than one and a half hours a day. He also alleged very poor living conditions, the presence of rats, insufficient lighting, tainted water, limited space and time for outdoor activities, and consistent overuse of handcuffs. 17. The Government submitted that the applicant had been serving his sentence under the “special regime” in Bobov Dol Prison between 5 February 2002 and 19 April 2007 when his regime had been changed to “severe”. He had spent the following two years under the “severe regime” and on 1 June 2009 his regime had been changed to “strict”. During his stay in Bobol Dol Prison between 2002 and 2012 the applicant had been in the high-security wing, alone in a cell measuring just under 13 sq. m. The cell had contained a sink and a toilet separated from the rest of the space. Hygiene in the cell had been satisfactory; the bed sheets had been washed weekly and the prisoners had been provided with sanitary products once a month. The cells had been disinfected and treated against mice with the same frequency. 18. The Government submitted that the applicant had been kept in a permanently locked up cell in Bobov Dol Prison, in strict compliance with the relevant legal provisions and in particular section 71(2) of the Execution of Punishments and Pre-trial Detention Act. As of February 2016, they specified that the applicant had formally satisfied the conditions for being detained together with other prisoners but that the applicant had considered himself not ready for it. 19. On 24 July 2012 the applicant was transferred to Pazardzhik Prison upon his request and was placed in the high-security wing, in a cell measuring 7 sq. m. He expressed an interest in working but the authorities were not in a position to provide him with work. He had not committed disciplinary breaches to the time of application. As to the conditions of detention in Pazardzhik Prison, the Government submitted that he had not raised related grievances with the authorities. 20. The applicant was sentenced for a number of offences and was given a total sentence of whole-life imprisonment in 2000. He complained that his sentence had amounted, from the time of its imposition, to inhuman and degrading punishment, in breach of Article 3 of the Convention and that he did not have an effective remedy in this connection. 21. In a final judgment of 15 March 2010 the applicant was sentenced by an Austrian court to life imprisonment. He was transferred from Austria to Bulgaria on 15 July 2010 in order to serve his sentence. On 8 November 2010 the Vratsa Regional Court confirmed the sentence and accepted it for enforcement. This was upheld on appeal by the Sofia Appellate Court in a final decision of 9 February 2011. The applicant has been serving his sentence under the “special regime” since 18 February 2011. He is kept in a permanently locked cell in Vratsa Prison, in the high-security wing, in accordance with applicable rules for life prisoners under the Execution of Punishments and Pre-trial Detention Act. 22. The applicant was sentenced to whole-life imprisonment on 28 February 2011 in a final judgment of the Supreme Court of Cassation. 23. The applicant complained that his sentence had amounted, from the time of its imposition, to inhuman and degrading punishment, in breach of Article 3 of the Convention and that he did not have an effective remedy in this connection. 24. The applicant was sentenced to life imprisonment in a final judgment of the Supreme Court of Cassation of 13 November 2008. He has been serving his sentence under the “special regime” in Varna Prison. He alleged that he spent his time almost permanently locked up in isolation from the other inmates, while the Government claimed that he was in “almost permanent contact with other inmates” without submitting more details. The applicant submitted that he had had to relieve himself in a bucket in his cell where there had been no running water. The Government clarified that this changed in 2012 when a toilet had been built in his cell. The food, according to the applicant and disputed by the authorities, was insufficient and of poor quality. 25. The applicant was sentenced for different offences and given a total sentence of life imprisonment in a final judgment of 17 November 2011 by the Supreme Court of Cassation. The applicant has been serving his sentence in Stara Zagora Prison under the “special regime” in a permanently locked cell located in the high-security wing of the prison. The Government submitted that he was allowed to leave his cell twice a day for an hour at a time when he could see and communicate with other inmates detained in the same prison wing. He was also allowed to use sanitary facilities outside of his cell five times a day, and to shower twice a week. There was no toilet in the applicant’s cell and no ventilation system had been installed. 26. The applicant had been serving a sentence of whole-life imprisonment in Pleven Prison since 1999 under the “special regime”. In 2003 he was placed under the lighter “severe regime” and a year later under the even lighter “strict regime” when he was also placed in a cell together with other inmates. 27. He complained that his sentence had amounted, from the time of its imposition, to inhuman and degrading punishment, in breach of Article 3 of the Convention and that he did not have an effective remedy in this connection. 28. The applicant was sentenced to life imprisonment and has been serving his sentence under the “special regime” since 2009. Until 2009 he was detained in Varna Prison and since 18 February 2009 he has been detained in Plovdiv Prison. He complained in respect of his detention after February 2009, the conditions of his detention before 18 February 2009 having been examined by the Court in an earlier case with application no. 16391/05, which was decided in a judgment of 10 January 2012. 29. Both the applicant and the Government submitted that he was detained in a permanently locked cell and isolated from the other prisoners. The Government pointed out that the applicant left his cell for an hour in the morning and for an hour in the afternoon every day for exercise and to spend time in the open air. 30. The applicant also claimed that the material conditions in which he had been serving his sentence were inadequate and that he had been offered no collective activities or other forms of occupation. 31. The Government stated that he was enrolled in the following weekly activities: a catechism course lasting an hour-and-a-half per week; and a course in basic computer skills with hour-long sessions; he also had an additional hour in the open air, as well as half an hour to take a bath on Wednesday evenings. Furthermore, when various competitions had taken place in the prison, or there had been concerts or recitals, inmates serving life sentences had been offered a chance to attend them as spectators. The Government further clarified that the applicant’s regime had been changed to “strict” in 2015 but he had continued to be in the high-security wing; according to the Government, he had repeatedly stated that he had not wished to be placed together with other prisoners. | 1 |
test | 001-145313 | ENG | ROU | ADMISSIBILITY | 2,014 | TUDOR v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall | 1. The applicant, Mr Remus Tudor, is a Romanian national who was born in 1966 and lives in Bucharest. He was represented before the Court by Ms I. M. Ciontu, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1990 the applicant was convicted of manslaughter and sentenced to life imprisonment, serving his sentence in various Romanian prisons. He was detained in Rahova Prison for almost ten years, from June 1999 to February 2009. On 1 October 2012 the applicant was released on probation from Giurgiu Prison. 5. On 18 March 2003 an antenna of the type C-GUARD 19 was installed in Rahova Prison for the protection of telephone communications. 6. On 7 September 2008, while the applicant was serving his sentence in Rahova Prison, he lodged a complaint with the judge responsible for the execution of sentences (the “post-sentencing judge”) attached to Rahova Prison alleging that the radio frequency electromagnetic radiation (RFR) emitted from an antenna in the prison had negatively affected his health. In his complaint the applicant stated that since 2003 the entire prison staff had received an extra salary allowance for working in dangerous conditions, namely exposure to electromagnetic fields in their working environment. 7. By a decision of 4 November 2008 the post-sentencing judge dismissed the complaint on all grounds. It was observed that the applicant had never complained of specific effects resulting from electromagnetic radiation, nor had he sought medical treatment. The judge also based his ruling on an expert study commissioned from the National Institute of Forensic Science (INEC) in order to analyse the electromagnetic field allegedly surrounding the prison’s wireless communication base station. The report published on 3 October 2008 revealed that, although the levels of radiation were higher than those prescribed in the relevant safety guidelines in several areas of the prison, exposure was lower in areas to which the prisoners had access. 8. The applicant appealed against that decision. He submitted as evidence a 2007 report by Radiocom which revealed that, while radiation levels from the wireless communication device had varied between prison areas, they were nevertheless higher than the regulatory standards in place at that time. 9. His request to have evidence from the prison’s doctor and a radiologist heard was refused on the ground that there was no link between his diseases (hepatitis, and after-effects of healed tuberculosis) as described in the medical file and the alleged harmful exposure to radiation. On 16 February 2009 the Bucharest District Court dismissed his appeal, upholding the decision of the post-sentencing judge for the same reasons. 10. The applicant also lodged a tort action against Rahova Prison on 12 October 2008. He claimed the sum of 200,000 EUR for the harmful effects allegedly caused by the electromagnetic radiation, arguing that the prison staff had been awarded a special allowance for the health risks associated with exposure to electromagnetic radiation during their working hours. The Bucharest District Court relinquished jurisdiction to the Bucharest County Court, which dismissed the applicant’s claim on 7 January 2012. 11. The applicant appealed and the appeal proceedings are pending before the Bucharest Court of Appeal. 12. Pursuant to two orders issued by the Minister of Justice, no. 945/C of 2 April 2003 and no. 399/C of 6 February 2007, staff in Rahova Prison were awarded a special allowance for health risks associated with exposure to electromagnetic radiation during their working hours. 13. The relevant safety guidelines are laid down in order no. 1193/2006 issued by the Ministry of Public Health on the general norms concerning limits on individuals’ exposure to electromagnetic fields. The reference levels specified in the order range from 0 hertz (Hz) to 300 gigahertz (GHz). The order is based on European Union legislation, namely Council Recommendation no. 1999/519/EC of 12 July 1999 on the limitation of exposure of the general public to electronic fields (0Hz to 300 GHz). | 0 |
test | 001-163317 | ENG | RUS | ADMISSIBILITY | 2,016 | N. AND M. v. RUSSIA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 1. The case originated in two applications (nos. 39496/14 and 39727/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms Ye. V. Gribanova, on 27 May 2014, on behalf of two Uzbek nationals, N. and M. 2. Ms Gribanova did not provide any written authority to act on behalf of N. and M. 3. N. and M. were born in 1972 and 1975 respectively and prior to their alleged disappearance lived in Kaliningrad. 4. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. Prior to 2008 N. lived in Uzbekistan. In December 2008 he left Uzbekistan for Russia, and settled in Kaliningrad. 7. Prior to 2009 M. lived in Uzbekistan. In November 2009 he left Uzbekistan for Russia and settled in Kaliningrad. 8. Both N. and M. are practising Muslims. 9. In 2010 the Uzbek authorities charged N. and M. in absentia with being members of banned religious organisations, issued international warrants for their arrest, and ordered that they be placed in detention once arrested. During those criminal proceedings, on two occasions (in December 2008 and August 2010) the Uzbek authorities questioned N.’s relatives about his whereabouts. 10. In 2011 and 2012 the Russian police arrested N. and M. in Kaliningrad under an international warrant. The Kaliningrad Tsentralnyy District prosecutor’s office ordered their detention pending extradition. This was subsequently extended by the Kaliningrad Tsentralnyy District Court. 11. N. and M. retained Ms Gribanova to represent them in the extradition proceedings. She applied to the Prosecutor General’s Office of Russia (“the GPO”) with a request for their extradition to Uzbekistan to be refused. 12. The GPO refused to extradite N. and M. on the grounds that the acts imputed to them by the Uzbek authorities were not regarded as criminal under Russian law. 13. On 13 March and 12 July 2012 respectively the Kaliningrad regional prosecutor ordered N. and M.’s release. The Government submitted that since their release N. and M. had not informed the relevant authorities of their place of residence on the territory of the Russian Federation. 14. In April 2012 N. and M. addressed the following statements to Ms Gribanova: Statement by N.: “In the event I give any written or oral submissions to the mass media to the effect that I have voluntarily decided to return to Uzbekistan, this should be regarded as a forced return to the Republic of Uzbekistan.” Statement by M.: “In the event I give any written or oral submissions to the mass media to the effect that I have voluntarily decided to return to Uzbekistan, this should be regarded as a statement made under pressure and my return to my country of origin, Uzbekistan, should be regarded as a forced return.” 15. In March 2012 and May 2013 respectively N. and M.’s names were removed from the international wanted list following the prosecutor’s decision not to extradite them to Uzbekistan. 16. N. and M. applied for refugee status and temporary asylum in Russia. They lodged their applications with the Kaliningrad regional branch of the Russian Federal Migration Service (“the FMS”). They submitted that they had been persecuted in Uzbekistan on the basis of their religious beliefs, and would be subjected to ill-treatment if they returned. They indicated that Ms Gribanova was their point of contact. 17. In July 2012 and April 2013 respectively the FMS dismissed their requests for refugee status. In 2013 the Russian courts upheld those decisions. M. was represented in the proceedings by Ms Ye. Ryabinina, a lawyer practising in Moscow. 18. In October 2013 and April 2014 respectively the FMS dismissed their applications for temporary asylum. They lodged appeals against those decisions. The outcome of those proceedings is unknown. 19. On 11 February 2014 N. was arrested for violating residence regulations for foreign nationals. On 13 February 2014 the court refused to expel him and terminated the administrative proceedings for lack of corpus delicti. N. was represented by Ms Gribanova in those proceedings. 20. On 22 May 2014 N. was summoned to the FMS and questioned about his place of residence. After being questioned he telephoned Ms Gribanova. According to her, he seemed very scared. 21. According to Ms Gribanova, on 23 May 2014 N. received a call from the Uzbek security service, which insisted that he return to Uzbekistan. 22. On the morning of 26 May 2014 N. was again summoned to the FMS and was asked to bring copies of all the appeals he had lodged with the FMS and the courts in connection with the asylum proceedings. Ms Gribanova stated that he seemed scared, and asked her to attend in his place. 23. At 8 p.m. on 26 May 2014 N. telephoned Ms Gribanova to ask for help. He said that unknown persons had forced him into a car and taken him to the airport. Immediately after this call his mobile telephone was switched off. 24. That evening Ms Gribanova informed M. that N. had been abducted, and asked him to be extremely careful. 25. Around 3 p.m. on 27 May 2014 Ms Gribanova received a call from a man who introduced himself as one of M.’s friends. According to him, at around 9 a.m. that day three unidentified men had approached M. in the street. Two of them were wearing camouflage uniforms, while one was in civilian clothes. They forced M. into a yellow minibus and drove him away to an unknown destination. 26. Ms Gribanova submitted that prior to their abduction N. and M. had given her their passports, which she still held. 27. On 27 May 2014 Ms Gribanova sought the application of Rule 39 of the Rules of Court. She asked the Court to indicate to the Russian Government that N. and M.’s removal to Uzbekistan should be suspended. 28. On the same date the Court granted that request, indicating to the Russian Government that N. and M. should not be extradited, expelled or otherwise involuntarily removed from Russia to Uzbekistan or any other country for the duration of the proceedings before the Court. It also asked the Government for information as to N. and M.’s whereabouts. 29. On 17 June 2014 the Government informed the Court that N. and M. had not been arrested by the Russian authorities on 26 and 27 May, and that since 25 May 2014 they had not passed through any border crossing points in the Kaliningrad region. Their whereabouts were unknown. 30. On 28 May 2014 Ms Gribanova received a telephone call from N.’s wife, who told her that she and N.’s father had been summoned by the Uzbek security service several times. The Uzbek authorities had insisted that N. return to Uzbekistan voluntarily or else he would be forcibly returned. 31. On 25 July 2014 Ms Gribanova submitted to the Court that there were grounds to believe that N. and M. had been transferred to Uzbekistan on one of the two direct flights from Kaliningrad which had been scheduled after the Court’s indication of interim measures. She also submitted that at the time of their abduction N. and M. had not been in possession of their passports, so they could not have crossed the border without the knowledge and passive or active involvement of the Russian authorities. 32. On an unspecified date Ms Gribanova was visited by a man who introduced himself as N.’s “mate”. He said that N.’s father had informed him that N. was in Uzbekistan. 33. On an unspecified date M.’s relatives informed Ms Gribanova that he had been transported to Uzbekistan on 2 June 2014. 34. In mid-October 2014 Ms Gribanova was contacted by some people who introduced themselves as N. and M.’s relatives. They asked her to return N. and M.’s passports. They explained that N. and M. were standing trial in Uzbekistan and therefore needed them. She refused to hand them over unless they made a written statement confirming that the passports had been taken by them and why. The people disappeared and never contacted her again. 35. At the end of June 2014 the Kaliningrad regional department of the interior informed Ms Gribanova that enquiries had been made after she had reported that N. and M. had been abducted, but that their abduction by unknown persons and transportation to Uzbekistan had not been confirmed. In particular, N.’s relatives in Uzbekistan had submitted that he had been living in Kaliningrad, and there had been no information regarding N. and M.’s possible arrest by Russian law-enforcement bodies or their departure from the Kaliningrad region. Nor were their names on the list of deceased persons. 36. Between July 2014 and January 2015 the investigating authorities on several occasions refused to initiate criminal proceedings into N. and M.’s disappearance, for lack of corpus delicti. However, the decisions were overruled each time by the head of the Investigation Committee, and the matter was sent for additional investigation. 37. In one of the refusals to initiate criminal proceedings, namely a decision taken on 20 November 2014, the investigator referred to information provided by the information centre of the Kaliningrad department of the interior, to the effect that N. had been arrested in Uzbekistan on 11 June 2014. 38. On 31 March 2015 an investigator from the local investigation committee initiated criminal proceedings into N. and M.’s abduction by unknown persons. The Government did not inform the Court of the outcome of those proceedings. 39. Ms Gribanova submitted that on 16 June 2015 she had been summoned by the investigator in charge of the case to give evidence as a witness. 40. On 17 June 2015 she appeared before the Investigation Committee and claimed that she could not be questioned as a witness. She applied to be acknowledged as representing N. and M. She was allegedly told that the investigator possessed information to the effect that M. had been detained by the Uzbek authorities in Tashkent, Uzbekistan, shortly after his disappearance from Kaliningrad. 41. In various proceedings in Russia N. and M. were questioned about their family situation, among other things. 42. N. submitted that all his relatives lived in Uzbekistan. He had been married but was divorced. He had a son from his marriage. He was not in contact with his former wife or their son. Since 2003 he had been living with his female partner B., an Uzbek national, with whom he had two daughters. Between 2011 and 2013 B. and their daughters had lived in Kaliningrad. In August 2013 B. and the children had returned to Uzbekistan, because one of their daughters needed to undergo an operation there. N. was in regular telephone contact with his parents, sisters and brothers. He submitted that he was not aware of any persecution of his family members in Uzbekistan. 43. M. submitted that all his relatives lived in Uzbekistan. He was married to Kh., an Uzbek national, and they had two sons. In 2011 his wife came to Russia to visit him and stayed with him. Their children stayed in Uzbekistan with their grandparents. In March 2013 his wife returned to Uzbekistan. He was in regular telephone contact with his wife and their two young children, as well as his father and brothers and sisters. | 0 |
test | 001-157342 | ENG | ALB | COMMITTEE | 2,015 | CASE OF LULI v. ALBANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney | 4. The applicant was born in 1961 and lives in Tirana. 5. On 31 May 1996 the Tirana Commission recognised the applicant’s and other heirs inherited title to a plot of land measuring 23,500 sq. m, of which 5,000 sq. m were restored (“the first Commission decision”). They would be compensated by way of an equivalent plot of land within their property (i njihet dhe i kthehet ish pronarit pronësia mbi këtë truall duke kompensuar me truall ekuivalent brenda truallit të tij) in respect of a plot of land measuring 966 sq. m (“the first plot of land”), of which 188 sq. m were occupied with illegal constructions. The occupiers were entitled to buy the plot of land measuring 188 sq. m or rent it on the basis of an agreement to be concluded between the parties. It also recognised the right of first refusal of a public building measuring 444 sq. m situated within the plot of land measuring 966 sq. m. It further decided that the applicant and other heirs would be compensated in one of the ways provided for by law in respect of another plot of land measuring 3,961 sq. m (“the second plot of land”). Finally, it decided to examine the applicant’s and other heirs’ inherited property right in respect of the remaining plot of land measuring 13,454 sq. m at a later stage (“the third plot of land”). To date, no Commission decision has been taken in respect of the remaining plot of land measuring 13,454 sq. m. 6. On 30 April 1997 the applicant’s and other heirs’ inherited title over a plot of land measuring 6,154 sq. m, of which the first plot of land was part, was registered into the land register. The relevant data entered in the land register reads as follows: “On 30 April 1997 is registered into the land register an unoccupied plot of land measuring 5,000 sq. m; an unoccupied plot of land measuring 966 sq. m, which was compensated by way of an equivalent plot of land within their property ...” To date, the applicant has not been provided with any compensation concerning the first and second plots of land. 7. On the same day, the Tirana Commission, by virtue of another decision (“the second Commission decision”), recognised the applicant’s and other heirs’ inherited title to another plot of land measuring 2,900 sq. m (“the fourth plot of land”). Since the entire plot of land was occupied, it decided that the applicant and other heirs would be compensated in one of the ways provided for by law. To date, the applicant has not been provided with any compensation. | 1 |
test | 001-144820 | ENG | SVK | ADMISSIBILITY | 2,014 | L.G.R. AND A.P.R. v. SLOVAKIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The first applicant is a British national, who was born in 2006 and is presently residing in Bratislava (Slovakia). The application has been submitted on the first applicant’s behalf by the first applicants’ father, the second applicant, who has parental responsibility for the first applicant as a matter of English law. The second applicant is a British national. He was born in 1965 and lives in Newton St. Cyres (the United Kingdom). 2. The President granted the applicants’ request for their identities not to be disclosed to the public (Rule 47 § 3). 3. The applicants were represented before the Court by the Aire Centre in London. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 4. On 20 April 2012 the Government of the United Kingdom were informed of the case and invited to exercise their right of intervention (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), to which invitation they have not responded. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In 2006, prior to the first applicant’s birth, the second applicant married the first applicant’s mother, a Slovak national. The family lived in England. 7. On 24 July 2007 the mother informed the second applicant that she and the first applicant would not be returning to the United Kingdom from holiday in Croatia and that she intended to take the first applicant to Slovakia and to settle there permanently. 8. On 13 August 2007 the mother and the first applicant, who was then less than a year old, travelled to Slovakia and have not returned to the United Kingdom since. 9. On 10 November 2008 an English court granted the couple a divorce, which was finalised on 6 January 2009. 10. Meanwhile, on 7 November 2007, the second applicant had commenced proceedings in the Slovakian courts for the return of the first applicant to England and Wales under the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). 11. On 14 December 2007 and 31 March 2008, respectively, the Bratislava II District Court (Okresný súd) and, following the mother’s appeal (odvolanie), the Bratislava Regional Court (Krajský súd) ordered the return of the first applicant to England and Wales as the country of the child’s habitual residence. The courts emphasised that the order did not imply that the first applicant should reside with either parent, but merely required that the status quo ante be restored so that questions of residence and contact might be determined by the English courts, which had jurisdiction over them. The return order became enforceable on 9 June 2008. 12. On 22 December 2008 the Prosecutor General acceded to a petition by the mother and exercised his discretionary power to challenge the return order by way of an extraordinary appeal on points of law (mimoriadne dovolanie). It was argued that the courts had failed properly to establish whether the first applicant had been wrongfully removed or retained and whether there were grounds for not ordering the first applicant’s return under Article 13 of the Hague Convention. At the same time, the Prosecutor General suspended the enforceability of the return order. 13. On 4 February 2009, in response to an enquiry made on the second applicant’s behalf, the President of the District Court provided the office of the President of Slovakia with an update on the state of the proceedings. She added the following comment: “It does not behove me to judge the actions of the Office of the Prosecutor General. I am not privy to the reasons why an extraordinary appeal on points of law was lodged. I detect a problem in the system, which allows for such a procedure even in respect of decisions on the return of minor children abroad (‘international child abductions’). Irrespective of the outcome of the specific case, the possibility of lodging an appeal on points of law and an extraordinary appeal on points of law in cases of international child abduction protracts the proceedings and negates the object of the [Hague Convention], which is as expeditious a restoration of the original state [of affairs] as possible, that is to say the return of the child to the country of the child’s habitual residence within the shortest possible time.” 14. On 30 June 2009 the Supreme Court (Najvyšší súd) ruled on the extraordinary appeal by quashing the return order and remitting the matter to the first-instance court for re-examination. 15. On 29 March 2010 the District Court dismissed the second applicant’s application for the return of the first applicant. Relying on Article 13 of the Hague Convention, it observed that the first applicant had been living in Slovakia for two-and-a-half years and had developed a settled home life there. The return of the first applicant was thus “not in the interests of the child and the child’s healthy mental development”. 16. On 25 August 2010 the Regional Court quashed the decision of 29 March 2010 following the second applicant’s appeal and remitted the case to the first-instance court, finding that the latter had failed to provide adequate reasons for its decision. 17. On 8 November 2010 and, respectively, 15 March 2011, the District Court and, following the mother’s appeal, the Regional Court again ordered the return of the first applicant to England and Wales. The courts found that the second applicant had shown that appropriate measures had been taken to secure the first applicant’s rights and interests after his return and that the mother had failed to show that the return of the first applicant was contrary to the Hague Convention. 18. On 11 April 2011 the mother lodged an appeal on points of law (dovolanie) and subsequently sought to have the enforcement of the return order suspended. 19. On 22 June and 4 November 2011, respectively, the District Court summoned the mother and interviewed her and the second applicant with a view to having the return order complied with, to no avail. 20. Following the interview of 4 November 2011, on the same day, the District Court dismissed the mother’s motion for the enforcement proceedings to be suspended. Upon her appeal, that decision was quashed. Subsequently, the enforcement proceedings were terminated in view of the Supreme Court’s decision on the mother’s appeal on points of law (see paragraph 22 below). The second applicant appealed against that decision and the proceedings are still pending. 21. Meanwhile, on 15 November 2011, the Prosecutor General informed the mother, in response to a petition filed by her, that he had no intention of challenging the new return order by an extraordinary appeal on points of law. 22. However, on 12 December 2011, following the mother’s appeal on points of law, the Supreme Court quashed the Regional Court’s decision of 15 March 2011 to dismiss her appeal against the new return order and remitted the appeal to the Regional Court for re-examination. It held that the latter had failed to provide adequate reasons for dismissing the mother’s arguments under Article 13 of the Hague Convention. 23. Following the Supreme Court’s judgment of 12 December 2011, the case was remitted to the first-instance court. The proceedings are still pending. 24. Meanwhile, on 24 July 2008 and 3 February and 1 October 2009, the High Court of Justice of England and Wales issued three orders to the mother to return the first applicant to the jurisdiction of England and Wales. At the same time, it issued certificates pursuant to Article 41 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“Regulation No. 2201/2003”) providing the second applicant with contact rights in respect of the first applicant in Slovakia. 25. Since the first applicant was taken to Slovakia, the applicants have had intermittent contact. 26. On 17 July and 24 August 2009, respectively, the District Court and, following the mother’s appeal, the Regional Court ordered the mother to facilitate contact between the applicants. 27. According to the Government, the mother has not been hindering contact between the applicants. However, in the applicants’ submission, the mother has often obstructed the second applicant’s visits from the first applicant and he continues to experience difficulties seeing the first applicant. 28. In their observations in reply to the present application, the Government submitted a copy of an undated letter from the mother of the first applicant to the Government in which she declared that both she and the second applicant had equal parental rights and responsibilities in respect of the first applicant and that she therefore disagreed with the first applicant’s introducing an application under Article 34 of the Convention. She considered that such a course of action exclusively benefited the interests of the second applicant and was in fact contrary to the interests of the first applicant. 29. The relevant provisions of the Hague Convention, the United Nations Convention on the Rights of the Child, the Charter of Fundamental Rights of the European Union and the Regulation No. 2201/2003 have recently been summarised in the Court’s judgment in the case of X v. Latvia ([GC], no. 27853/09, §§ 34-42, ECHR 2013). 30. Article 127 was re-codified by Constitutional Law no. 90/2001 Coll., with effect from 1 January 2001. It reads as follows: “1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint to be justified, it shall deliver a decision stating that the person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the [person’s] rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the [person’s] fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated. 4. The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court’s decision.” 31. The U.N. Convention on the Rights of the Child entered into force in respect of Slovakia on 6 February 1991 (Notice of the Ministry of Foreign Affairs no. 104/1991 Coll.), while the Hague Convention did so on 1 February 2001 (Notice of the Ministry of Foreign Affairs no. 119/2001 Coll.). 32. The relevant provisions concerning appeals on points of law are summarised, for example, in the Court’s decision in Ringier Axel Springer Slovakia v. Slovakia (no. 35090/07, §§ 65-8, 4 October 2011, with further references). Appeals on points of law have no automatic suspensive effect, the power to suspend the enforceability of the impugned decision being entrusted to the Supreme Court (Article 243). 33. Extraordinary appeals on points of law are regulated by the provisions of Articles 243e et seq. 34. The Prosecutor General has the power to challenge a decision of a court by means of an extraordinary appeal. He or she may do so upon a petition of a party to the proceedings or another person concerned or injured by the decision, provided that the Prosecutor General concludes that: the final and binding decision has violated the law; the protection of the rights and legitimate interests of individuals, legal entities, or the State requires that such an appeal be brought; such protection cannot be achieved by other means; and the matter at hand is not excluded from judicial review (Articles 243e § 1 and 243f § 2). 35. An extraordinary appeal may only be aimed at a ruling in a decision which has been contested by the party to the proceedings or the person concerned or injured by that decision (Article 243e § 2). Unless a statute provides otherwise, the Prosecutor General is bound by the scope of the petition for an extraordinary appeal (Article 243e §§ 3 and 4). 36. Further conditions of admissibility of an extraordinary appeal are listed in Article 243f § 1. They comprise (a) major procedural flaws within the meaning of Article 237 (in that respect see, for example, Ringier Axel Springer Slovakia, v. Slovakia, no. 41262/05, § 62, 26 July 2011), (b) other errors of procedure resulting in an erroneous decision on the merits, and (c) wrongful assessment of points of law. 37. An extraordinary appeal is to be lodged with the Supreme Court within one year of the contested judicial decision’s becoming final and binding (Article 243g). 38. If the Prosecutor General concludes, upon a petition of a party to the proceedings or another person concerned or injured by the impugned decision, that there is the risk of considerable economic loss or other serious irreparable consequences, the extraordinary appeal may be filed without reasons for appeal being stated. The reasons then must be stated within sixty days of the lodging of the extraordinary appeal with the Supreme Court, failing which the proceedings are to be discontinued (Article 243h §§ 3 and 4). 39. If the extraordinary appeal on points of law is accompanied by a request that that the enforceability of the contested decision be suspended, its enforceability is to be suspended upon the extraordinary appeal being lodged with the Supreme Court (Article 243ha § 1). The duration of such a suspension is regulated by Article 243ha § 2, pursuant to which that suspension ceases (a) when the request is dismissed or (b) with the decision on the extraordinary appeal, unless extended by the Supreme Court no later than one year from the lodging of the extraordinary appeal with it. | 0 |
test | 001-159770 | ENG | MKD | CHAMBER | 2,016 | CASE OF JAKŠOVSKI AND TRIFUNOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano;Ksenija Turković | 6. The applicants were born in 1959 and 1946, and live in Ohrid and Tetovo, respectively. 7. Following allegations raised by a lawyer (which were subsequently withdrawn), V.V., a member of the State Judicial Council (“the SJC”), a body vested with jurisdiction to decide, inter alia, on the dismissal of judges (see Amendment XXIX to the Constitution, paragraph 20 below), made enquiries through the President of the court in which the first applicant worked as a judge. A preliminary inquiry was carried out, and on 19 April 2008 V.V. requested, under sections 55 and 58 of the State Judicial Act of 2006 (“the 2006 Act”, see paragraph 21 below) and section 5 of the Rules governing professional misconduct proceedings in respect of a judge (“the Rules”, see paragraph 25 below), that the SJC initiate professional misconduct proceedings in respect of the first applicant. In the request V.V. claimed that the first applicant had not been diligent in conducting proceedings in a civil case. The first applicant responded in writing. 8. On 4 June 2008 the SJC set up, under section 58 of the 2006 Act (see paragraph 21 below), a Commission for determination of professional misconduct by a judge (Комисија за утврдување нестручно и несовесно вршење на судиската функција, hereinafter “the Commission”). 9. On the basis of V.V.’s request and the Commission’s report as to whether the request was justified, on 3 October 2008 the plenary of the SJC initiated proceedings for professional misconduct in respect of the first applicant. 10. On 12 November 2008 the Commission held a hearing at which it heard evidence from V.V. and the first applicant. It also took other evidence into account. On 1 December 2008 the Commission drew up, under section 55(6) of the 2006 Act, a report on the question whether the request for the first applicant’s dismissal had been justified. It submitted the report to the plenary of the SJC for consideration. 11. On 17 December 2008 the plenary of the SJC, the composition of which included V.V., dismissed the first applicant for professional misconduct. 12. The first applicant challenged that decision at second instance, namely before an Appeal Panel formed within the Supreme Court (“the Appeal Panel”). Such panels were set up on an ad hoc basis in each separate case. As specified under section 60 of the 2006 Act, they were composed of nine judges, of whom three were to be Supreme Court judges, four Appeal Court judges and two judges of the court of the applicant. On 24 September 2009 the Appeal Panel dismissed the first applicant’s appeal and upheld the SJC’s decision. 13. On 21 July 2008 R.P., a member of the SJC, applied to the SJC for professional misconduct proceedings to be instituted in respect of the second applicant. It had been alleged that, as an on-duty investigating judge, the second applicant had not been diligent in the investigation of an incident that had occurred in the Tetovo detention centre. Under section 8 of the Rules (see paragraph 25 below), the request was submitted to the second applicant for comments. He responded in writing. 14. On an unspecified date, the SJC set up, under section 58 of the 2006 Act, a five-member Commission in the second applicant’s case. On 12 December 2008 the Commission submitted a report to the SJC in which it sought that it initiate professional misconduct proceedings against the second applicant. 15. With two separate decisions delivered on 29 December 2008, the plenary of the SJC, including R.P., initiated professional misconduct proceedings in respect of the second applicant and ordered his temporary suspension. The decisions were not amenable to appeal. 16. On 20 January 2009 the Commission held a hearing at which R.P. and the second applicant presented their arguments and concluding remarks (завршни зборови). Evidence against the second 17. On 12 February 2009 the plenary of the SJC, the composition of which included R.P., dismissed the second applicant for professional misconduct. The second applicant appealed against his dismissal to the Appeal Panel that had been formed in his case within the Supreme Court, arguing, inter alia, that he had not been given the opportunity to comment on the evidence against him when the request for his dismissal had been served on him. He also asked the Appeal Panel to inform him of the date of its session. At a hearing held in private on 5 May 2009, the Appeal Panel dismissed the second applicant’s appeal. 18. On 25 June 2009 the second applicant challenged his dismissal before the Administrative Court by means of an administrative-dispute action (тужба за управен спор). He complained, inter alia, about the alleged refusal of his request for exclusion of Judges N.I. and J.V. who had been parties to the decision of the Appeal Panel in his case. He had requested their withdrawal because Judge N.I. had applied at the relevant time to the SJC for the post of president of a first-instance court, and Judge J.V. allegedly had a close relationship with the public prosecutor involved in the case in respect of which he had been dismissed. On 6 October 2010 the Administrative Court rejected the second applicant’s action as inadmissible. That decision was upheld by the Higher Administrative Court. 19. The second applicant produced copies of articles published in local newspapers on 26 January and 13 February 2009 reporting on his case. The article published on 26 January 2009 cited the then President of the SJC as saying that the Commission was still dealing with the case and that no report had yet been submitted to the SJC for consideration. On 13 February 2009 the newspaper announced that the second applicant had been removed from office. | 1 |
test | 001-170349 | ENG | GEO | CHAMBER | 2,017 | CASE OF TSARTSIDZE AND OTHERS v. GEORGIA | 4 | Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 14+9-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Freedom of religion) | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 5. The applicants, Mr Ramaz Tsartsidze, Mr Samvel Bozoyani, Mr Mamuka Gelashvili (applicants nos. 1-3, case no. 1); Mr Alexander Mikirtumov, Mr Binali Aliev (applicants nos. 4-5, case no. 2); Mr Gia Dzamukov, Mr Vladimer Gabunia (applicants nos. 6-7, case no. 3); Mr Boris Gogoladze, Ms Anastasia Tvaradze, Ms Madona Kapanadze (applicants nos. 8-10, case no. 4); and Mr Jimsher Gogelashvili, Mr George Kurua and Mr Omar Chubinidze (applicants nos. 11-13, case no. 5) are all Jehovah’s Witnesses. Their application to the Court relates to five cases of religiously motivated aggression to which they were allegedly subjected in Georgia at various times. The events described in cases nos. 1 and 4 were the subject of the Court’s examination in the case of Begheluri and Others v. Georgia (no. 28490/02, 7 October 2014). 6. The following account of the facts is based on the applicants’ submissions. 7. This part of the application concerns the applicants Mr R. Tsartsidze, Mr S. Bozoyani and Mr M. Gelashvili (applicants nos. 1-3). 8. On 16 September 2000 nineteen coaches and several cars with Jehovah’s Witnesses headed to Marneuli to attend the convention at Mr Tsartsidze’s premises. The police set up checkpoints along the route and blocked the roads, preventing the Jehovah’s Witnesses from reaching their destination. At the same time, the police authorised a coach containing extremist members of the Orthodox Church, led by Mr V. Mkalavishvili, also known as Father Basil (see Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 11, 3 May 2007), to continue their journey to Marneuli in order to attack and damage the site within Mr Tsartsidze’s property where the Jehovah’s Witnesses were to gather. The attackers destroyed objects for religious use and seized items belonging to others. The police officers who were in attendance refused to intervene. Property belonging to the Jehovah’s Witnesses, including 1.5 tonnes of religious literature was confiscated. The religious literature was burnt in the street. Other items (tents, 400 benches, and other items) were distributed to local residents by Father Basil’s supporters (see Begheluri and Others, cited above, §§ 16-21). 9. According to estimates made on 25 January 2001 and 28 February 2002, the stolen and destroyed equipment and material was worth about 9,000 euros (EUR) and the 1.5 tonnes of stolen and burnt religious literature was worth about EUR 700. 10. On 16 October 2000 applicants nos. 1-3, other Jehovah’s Witnesses, the representation of the Pennsylvania Watchtower in Georgia and the Union of Jehovah’s Witnesses, lodged an administrative complaint with the Mtatsminda-Krtsanisi District Court in Tbilisi against the Ministry of the Interior, the governor of Marneuli, the Marneuli chief of police and his deputy and twelve other police officers involved in the case. The applicants sought compensation for the pecuniary and non-pecuniary damage caused by the State’s agents. 11. On 8 May 2001 the Mtatsminda-Krtsanisi District Court decided to consider the Ministry of the Interior as a third-party intervener and referred the case to the Marneuli District Court for examination. 12. On 13 May 2002 the Marneuli District Court dismissed the applicants’ complaint as ill-founded. The court considered it to have been shown that individuals acting under the orders of Father Basil had attacked Mr Tsartsidze’s property and the Jehovah’s Witnesses. As to the Marneuli police, the court held that they had not been informed that a convention was due to be held on 16 September 2000 at Mr Tsartsidze’s home and had been taking part on that date in an anti-drugs operation in the area bordering Azerbaijan. The court found that the defendants who were police officers had gone to the scene only after the attack in question and had only been able to observe the damage that had already been done. They could not therefore have contributed by being passive or taking part in the acts of religious aggression against the applicants. 13. On 18 June 2002 the applicants lodged an appeal with the Tbilisi Regional Court complaining that the court of first instance had ignored the fact that the police had turned back the Jehovah’s Witnesses but had allowed Father Basil and his supporters to go through the same checkpoints. The applicants argued that their witness statements had been disregarded by the first-instance court in favour of unsubstantiated statements by the police officers. The applicants also challenged the status of third-party intervener granted to the Ministry of the Interior in spite of the fact that it had been cited as a defendant. 14. On 30 December 2003 the regional court dismissed the applicants’ appeal on the same grounds as the first-instance court. 15. On 29 September 2004 an appeal on points of law by the applicants was dismissed by the Supreme Court, which considered that the applicants had not demonstrated an “intentional” or “negligent” breach of professional obligations by the police officers. 16. This part of the application concerns Mr Alexander Mikirtumov and Mr Binali Aliev, applicants nos. 4 and 5. 17. On 26 October 2000, when about thirty members of the Azerbaijani Congregation of Jehovah’s Witnesses were preparing to hold a meeting in Marneuli at Mr Aliev’s home, five plainclothes police officers entered the property. They included S.Kh. and G.N., who, a few days earlier, had allegedly taken part in the attack on the Jehovah’s Witnesses at Mr Tsartsidze’s property (see case no. 1), and N.N. The police officers stated that the meeting could not go ahead. Using insulting language towards the participants, they ordered them to leave the premises. They confiscated religious books and Bibles belonging to the Jehovah’s Witnesses. 18. Mr Aliev and Mr Mikirtumov, a pastor, were taken to the police station. There, they were insulted by Officer G.N., who ordered Mr Mikirtumov to leave Marneuli and never to return, otherwise he would face serious problems. S.Kh. ordered Mr Aliev not to hold any more religious gatherings at his home if he wished to avoid problems with the police. Mr Mikirtumov was then forced into a car and driven away from Marneuli. 19. On 27 November 2000 the two applicants, together with the representation of the Pennsylvania Watchtower in Georgia and the Union of Jehovah’s Witnesses, lodged an administrative complaint with the Mtatsminda-Krtsanisi District Court against the Ministry of the Interior and the police officers involved. As well as identifying the three police officers, the applicants also gave the number plates of the two vehicles in which the police officers had arrived. They asked that the Ministry of the Interior make a public apology, in accordance with the Police Act, and bring disciplinary proceedings against its staff. The applicants also asked that they be paid compensation in respect of non-pecuniary damage and that a directive be sent to all police stations in the country, saying that the rights of Jehovah’s Witnesses were to be respected. 20. On 6 June 2001 the case was sent to the Marneuli District Court, which sent it in turn to the Bolnisi District Court on 14 May 2002. 21. Questioned by that court, the applicants and other people who had attended the meeting confirmed the above-mentioned facts. Officers S.Kh. and G.N. denied the accusations. While G.N. claimed that he had never entered Mr Aliev’s property on the date in question and was seeing the applicants for the first time, S.Kh. stated that he had that day seen G.N. and other police officers, who were his subordinates, in front of Mr Aliev’s house. He had gone to see what was happening. G.N. had explained that a group of people had informed the police that a meeting of Jehovah’s Witnesses was due to be held and had asked the police to intervene before they did so themselves. The police officers had therefore been obliged to go to the premises. According to S.Kh., G.N. had entered Mr Aliev’s property in order to ask him not to hold the meeting, so as to avoid a clash with the group of individuals in question. S.Kh. stated that he had then continued his journey and denied having taken the two applicants to the police station. He acknowledged, however, that G.N., Mr Aliev and Mr Mikirtumov had been taken together “somewhere”. According to S.Kh., if the applicants had been taken to the police station on the day concerned they would have been questioned, and their visit to the police station duly registered. He criticised the applicants for failing to lodge a complaint with the police chief if they had indeed been taken unlawfully to the police station. 22. The two applicants, on the contrary, submitted that they had been taken to S.Kh.’s office and that he had ordered that they be required to give written undertakings, respectively, to leave Marneuli and for Mr Aliev not to allow religious meetings at his home. S.Kh. denied those allegations also. 23. On 17 June 2003 the proceedings brought by the applicants were dismissed as ill-founded. In the court’s opinion, it had not been established that the police officers in question had prevented the religious meeting from being held at Mr Aliev’s home, confiscated the religious books and taken the two applicants to the police station in order to forbid them from performing religious rites in accordance with their faith. With regard to the statements made by four eyewitnesses, the court held that they were not reliable because they had been made by people taking part in the meeting, who had an interest in supporting the applicants’ complaint. Moreover, the statements made by the complainants had been completely rejected by the police officers. Consequently, the court found that there was nothing to prove that the police officers had failed in their professional obligations, within the meaning of Article 1005 § 1 of the Civil Code. 24. On 21 October 2004 the Tbilisi Regional Court upheld the judgment of 17 June 2003, on the same grounds as those used by the lower court. 25. On 23 February 2005 the Supreme Court, ruling in written proceedings, dismissed an appeal by the applicants on points of law. It concluded that the applicants had failed to prove either an intentional or a negligent breach of duties by the respondent police officers. 26. This part of the application concerns Mr Gia Dzamukov and Vladimer Gabunia (applicants nos. 6 and 7 respectively). 27. On 2 September 2000, while in possession of religious tracts, Mr Dzamukov was stopped in the street in Kutaisi by two uniformed police officers, E.K. and E.Ch. His bag with religious literature was confiscated and he was taken to the police station. The applicant was struck by several police officers, including E.Ch., before being released. Before leaving the police station, the applicant asked that his belongings be returned to him. In reply, E.Ch. came up to him and attempted to strangle him with his tie, ordering the applicant to get out of his sight. Outside the station, police officers blocked his path and threatened to beat him with their truncheons. Seeing that the applicant refused to leave and insisted that the confiscated religious literature be returned, a police officer came up and threw his Bible in his face. 28. On returning home, the applicant and his wife noticed that his chest was red. He also found it painful. His wife immediately went to the police station, protesting about the way her husband had been treated, and asking for the return of the confiscated belongings. She was, in turn, insulted and chased out of the premises. 29. On the following day, Mr Gabunia, applicant no. 7, was walking in the street in Kutaisi with religious tracts. He gave one to E.K., who was accompanied by another police officer. In response, E.K. reprimanded him, stating that his conduct was not worthy of a Christian. B.M., the second police officer, punched him in the stomach and, after he had fallen to the ground, pulled his bag away from him. The police officers emptied the bag and tore up the religious literature inside. They kept two Bibles for themselves. When the applicant insisted that they return his Bible, B.M. threatened to put him in his car and dump him in the Rioni River. 30. On 2 October 2000 the applicants lodged an administrative complaint with the Kutaisi Court against the Ministry of the Interior, the chief and deputy chief of Kutaisi police and police officers B.M. and E.K. Claiming that their rights guaranteed by Article 19 of the Constitution and Articles 9 and 14 of the Convention had been breached, they asked that the Ministry of the Interior issue a public apology and bring disciplinary proceedings against two of its staff who, in their opinion, had failed to comply with their professional duties, as provided for in the Police Act. The applicants also asked to be compensated in respect of pecuniary and nonpecuniary damage, in application of Article 1005 § 1 of the Civil Code. 31. Questioned by the court, the applicants confirmed the abovementioned events. Mr Gabunia described in detail the place where he had met the two police officers, and stated that they had been in uniform and wore badges. He also provided information about the make, colour and registration number of their car. Mr Dzamukov provided the registration number of the car in which he had been taken to the police station. His wife gave the registration number of the vehicle in which E.Ch. had followed her., while Ms L.K., a witness to the incident at the police station, confirmed that she had seen Mr Dzamukov there. E.Ch. denied the allegations, stating that he had been on leave on the day in question and had not been in Kutaisi. B.M. and E.K. also denied the allegations, claiming that they were seeing the applicants for the first time. 32. On 7 June 2002 the applicants’ complaint was dismissed as illfounded. The court pointed to the rights guaranteed by Article 19 of the Constitution and noted that, historically, no religion had ever been persecuted in Georgia. It further noted the following: “It is also well known that many of Jehovah’s Witnesses blatantly violate the requirements of Article 19 § 3 of the Constitution and frequently impose their opinion and belief on others, thus violating their rights.” Then the court set aside the three witness statements in favour of the applicants on the ground that those people had not been eyewitnesses. In addition, it noted the following: “The first two witnesses are Jehovah’s Witnesses and the applicants’ friends, and they have an interest in having the case decided in the applicants’ favour.” As the applicants had not submitted any other valid evidence (medical reports, torn-up religious literature, or other items), their allegations were held to be ill-founded. Lastly, the court noted that Mr Dzamukov had waited one year before adding E.Ch.’s name to his complaint. 33. The applicants lodged an appeal, stating that submitting the destroyed religious literature to the court would have had no valid evidential value, since it would not have sufficed to prove that the police officers concerned had torn up the literature on the date in question. The applicants also explained that it had not been necessary to obtain a medical report, given that they had not received serious wounds or injuries. That did not, however, alter the fact that they had been struck by the police officers. Furthermore, in their opinion, the insults directed against them on account of their faith had been sufficient to establish that the police officers had been negligent in carrying out their professional duties. 34. On 18 December 2002 the Kutaisi District Court dismissed the applicants’ appeal on the same grounds as the first-instance court. In particular, it took account of the fact that the police officers had denied the allegations and that the applicants had suffered no physical injuries. It concluded that, in the absence of sufficient evidence to the contrary, there had been no damage to the applicants’ dignity or any infringement of their right to freedom of religion, which ruled out the application of Article 1005 § 1 of the Civil Code and the granting of compensation. 35. According to the applicants, the appeal court took into consideration an oral statement by E.K., who had claimed that he did not recognise a white car with the registration number DAQ 492, which Mr Dzamukov had nonetheless identified as being that in which the two police officers had been patrolling at the time of the incident in question. After the hearing, however, E.K. had left in that same vehicle, which had been parked in front of the regional court. The applicants took a photograph, and attached it to their appeal on points of law. They complained, in particular, that E.K.’s denial had been accepted by the first-instance court and on appeal without any supporting evidence. 36. After postponing the hearing several times on account of the absence of the defending parties, the Supreme Court examined the applicants’ appeal on points of law in written proceedings, and dismissed it on 17 October 2003. It criticised the applicants for failing to bring criminal proceedings against the police officers. The Supreme Court stated that acknowledging that the police officers had failed in their professional obligations in the impugned manner (attacking and assaulting the applicants) would be equivalent to recognising, in the context of administrative proceedings, their criminal guilt, which would be contrary to the law. At the same time, if the accusation against the police officers had indeed been confirmed in criminal proceedings, the applicants would have been entitled to compensation, and also to a public apology. 37. The Supreme Court’s judgment was served on the applicants on 27 November 2003. 38. This part of the application concerns Mr Boris Gogoladze, Mrs Anastasia Tvaradze and Mrs Madona Kapanadze (applicants nos. 8-10 respectively). 39. On 1 April 2001 a group of Jehovah’s Witnesses was returning from a religious meeting in the village of Dviri, Borjomi region. At a bus stop they met Mr S.Kh., the deputy governor of the town of Borjomi, Mr J.B., the governor of Dviri, and about fifteen local residents. One of the latter, assaulted Mr Gogoladze, wounding him on the cheek, and tore a bag containing religious literature and other personal effects from his hands. Then he struck the two applicants on the head with a shoulder strap ripped from Mr Gogoladze’s bag. The two governors, who watched the attack, directed insults at the victims. In the end they asked the assailant to desist and left with him (see Begheluri and Others, cited above, § 56). 40. On 30 April 2001 the applicants filed an administrative complaint with the Borjomi Court against the Borjomi regional administration, the local police chief and the two governors concerned. The applicants asked that the officials apologise publicly and that the regional administration take disciplinary proceedings against them. They also claimed compensation in respect of non-pecuniary damage (Article 1005 § 1 of the Civil Code). 41. On 17 September 2001 the court dismissed the applicants’ complaint on the grounds that the governors had not been under a legal obligation to ensure the maintenance of public order. It concluded that it had not been shown that they themselves had organised the attack in question or had personally attacked or assaulted the applicants. The decision was upheld on appeal by the Tbilisi Regional Court on 25 July 2003. The regional court held that ensuring the maintenance of public order did not amount to a “pressing obligation” on the governors. 42. On 13 February 2004 the Supreme Court dismissed an appeal on points of law by the applicants, using the same grounds as the regional court. 43. This part of the application concerns Mr Jimcher Gogelashvili, George Kurua and Omar Chubinidze (applicants nos. 11-13). 44. On 27 March 2001 a group of Orthodox religious extremists led by Mr P. Bluashvili, a leader of the Jvari movement, burst into Mr Gogelashvili’s flat, where a congregation of Jehovah’s Witnesses was holding a meeting. The assailants ordered the Jehovah’s Witnesses, whom they described as Christ-insulters and Satanists, to hand over their religious literature and to leave the premises. The Jehovah’s Witnesses protested, referring to provisions of the Constitution, but were nonetheless obliged to comply. Mr Kurua was insulted by Mr Bluashvili, who then pulled on his tie to strangle him. 45. After confiscating religious literature from the people present in the flat, the attackers opened the cupboards and took out similar literature, first throwing it on the floor, and then out of the window. The benches used by the Jehovah’s Witnesses during the meeting were also thrown out of the window. 46. The attack was recorded on video. Moreover, an individual wearing civilian clothes, who, according to the applicants, was a police officer named L. Gogolauri, appears on the screen. He stands in the courtyard, observes the Jehovah’s Witnesses being chased from the flat and allows a child to leave, carrying a bench that has been thrown from a window. 47. The applicants assessed the pecuniary damage caused by the attack in question at about EUR 760 (audio-visual equipment, religious literature, benches, and other items). They submitted an audit report, dated 23 May 2001, in support of their claim. 48. On the day after the above incident the same group of attackers publicly burned the religious literature taken from Mr Gogelashvili’s home at the main market in Rustavi. That scene was also captured in the abovementioned recording. According to the applicants, the police officers patrolling the market did not react. 49. On 30 April 2001 the Jehovah’s Witnesses who had been victims of the attack, including the three applicants named above, as well as the representation of the Pennsylvania Watch Tower in Georgia and the Union of Jehovah’s Witnesses, filed an administrative complaint with the Mtatsminda-Krtsanisi Court against the Ministry of the Interior, Mr Th.A., the chief of Rustavi police, Mr L.G., the head of the police station involved in the case, and Mr K.Z., a police officer. They alleged that the officials had failed in their professional obligations and had breached Articles 8-11, 13 and 14 of the Convention. 50. In particular, the applicants asked that the Ministry of the Interior issue a public apology, in accordance with section 8(37) of the Police Act, and bring disciplinary proceedings against the above-named police officers. The applicants also claimed compensation in respect of pecuniary and non-pecuniary damage, in application of Article 1005 § 1 of the Civil Code, and asked that a directive be sent to all police stations in the country, stating that the rights of Jehovah’s Witnesses were to be respected. Drawing the court’s attention to the spread of violence against Jehovah’s Witnesses throughout the country, they asked that it rule on their case in accordance with the law, as, in their opinion, a proper judicial decision could help to halt such violence. 51. The court heard the three applicants and other Jehovah’s Witnesses who had been victims of the attack. They all complained about the passivity of the police officers present at the scene. Mr Gogelashvili stated that when the attack had begun, he had gone to a police station located about a hundred metres from his building. After some delay, two police officers had accompanied him back to the scene. He had seen that books and furniture were being thrown out of the window. The police officers had taken no action. He had then run up the stairs to his flat to retrieve some money that he kept in a cupboard. He had found that the cupboard door had been broken and that EUR 130 had been stolen. Mr Gogelashvili complained that the police officers had not intervened to prevent the violation of his private property or to protect the victims. 52. Mr Kurua stated that immediately after leaving the flat on the attackers’ orders, he had gone to the police station, where he had learned that the alarm had already been raised. He had asked that police officers return with him, in order to “intimidate” the attackers. The officers had refused to accompany him. 53. Mr Chubinidze stated that during the attack he had telephoned the police from the flat, but that the person on the other end of the telephone had hung up immediately. He had then been obliged to comply with the orders to leave the flat. He had managed to grab his bag back from an attacker who had taken it. 54. On 10 May 2002 the court decided to strike the case out of its list of cases, on the basis of a letter, allegedly signed by the applicants, withdrawing their complaint. On 5 June 2002 they lodged an appeal, stating that the signatures on the letter in question had been forged and that they had never withdrawn their complaint. On 16 December 2002 the appeal court overturned the decision of 10 May 2002 and proceedings resumed. 55. Questioned by the Mtatsminda-Krtsanisi District Court, a representative of the Ministry of the Interior argued that it had not been established that the police had been present at the scene and asked that the applicants’ complaint be dismissed. The police officers themselves did not attend the hearings on two consecutive dates. Obliged to rule in their absence, on 16 July 2003 the court dismissed the complaint as ill-founded. It considered it established that the applicants had been attacked by a group of individuals led by Mr Bluashvili on 27 March 2001. It considered, however, that the applicants had not demonstrated that the police had been present at the scene or that they had watched passively as acts had been committed against property and the applicants’ rights to freedom of religion. Accordingly, it had not been established that the police officers had failed to perform their professional duties within the meaning of Article 1005 § 1 of the Civil Code. Nonetheless, in the same decision, the court acknowledged that, after having been informed of the attack, the police officers had gone to the scene, which had resulted in a decision to place the attackers under investigation. According to the court, in the context of the latter criminal proceedings, it would be lawful for the applicants to submit a claim for compensation against the individuals who had infringed their rights. The decision made no reference to the burning of literature at Rustavi market. 56. On 25 June 2004 the Tbilisi Regional Court upheld the first-instance judgment, repeating the grounds used in it. Neither the representative of the Ministry of the Interior nor the police officers appeared. 57. On 2 March 2005 the Supreme Court dismissed an appeal on points of law lodged by the applicants. The court concluded that the fact of a breach of duty by the police, either intentionally or by negligence, had not been proven. | 1 |
test | 001-139894 | ENG | POL | COMMITTEE | 2,014 | CASE OF KARABIN v. POLAND | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | George Nicolaou;Krzysztof Wojtyczek | 6. The applicant was born in 1978 and lives in Mysłowic 7. From 22 October 2002 to 21 February 2003 the applicant was detained on remand in Mysłowice Remand Centre. Subsequently, from 13 October 2003 to 26 November 2003, from 31 August 2005 to 7 March 2006 and from 21 April 2006 to 30 July 2007 he served his sentence of imprisonment there. 8. On 3 May 2006 the applicant received a disciplinary punishment of 14 days of solitary confinement. He was also subject to certain restrictions concerning accessibility of the prison canteen, religious service, outdoor activities, etc. Furthermore, he was limited in receiving packages until the end of that quarter. 9. The applicant submitted that throughout his detention in Mysłowice Remand Centre he had been held in overcrowded cells which did not meet the basic standards of hygiene. According to the official statistics published by the Prison Service (Służba Więzienna) at the relevant time the overcrowding in the facility ranged from 23 to 67%. 10. The Government did not submit any information as to the number of detainees held in Mysłowice Remand Centre. 11. On 27 February 2006 the applicant brought a civil action in tort against Mysłowice Remand Centre, seeking compensation for the infringement of his personal rights on account of the inadequate conditions of his detention. 12. On 15 May 2006 the Mysłowice District Court (Sąd Rejonowy) acknowledged that, at times, the applicant had indeed been held in overcrowded conditions. It dismissed his claim, finding that this practice had not been unlawful, as the penitentiary judge had been duly informed about the situation. The District Court also held that the applicant had failed to demonstrate that he had suffered any harm as a result of the overcrowding. It further considered that the overall sanitary conditions and the quality of food in the defendant remand centre had been adequate. 13. On 2 June 2006 the applicant appealed against the above first instance judgment. 14. On 8 June 2006 the Mysłowice District Court decided to exempt the applicant from the court fee for appeal. The applicant was called to rectify the appeal by providing the court with a copy of the appeal, by informing the court about the scope of his appeal, by informing the court about the content of his appeal request and by paying the basic fee of 30 Polish zlotys [PLN] (approx. 7 euros [EUR] within 30 days. The court also informed the applicant that lack of rectification would result in rejection of the appeal. 15. On 22 June 2006 the same court rejected the applicant’s appeal for failure to pay the basic court fee. 16. The applicant’s interlocutory appeal against that decision was rejected on 28 July 2006 for failure to pay the applicable court fee. The applicant did not appeal against the latter decision. 17. On 26 March 2007 the applicant filed a complaint about the conditions of his detention to the Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej). 18. On 22 May 2007 the Inspectorate acknowledged that the applicant had been occasionally held in overcrowded cells and it apologised for this situation, but refused to remedy the situation, finding that the problem affected Poland’s entire penitentiary system. 19. On an unspecified date the applicant filed a request for a temporary release from prison (przerwa), arguing that the release was necessary in order to allow him to participate in person in two sets of court proceedings which he had instituted. 20. On 17 July 2006 the Katowice Regional Court (Sąd Okręgowy) refused to grant the release. The court considered that neither the reasons invoked by the applicant nor his family situation nor the state of his health warranted such release. The applicant, who attended the sitting, was also advised that he had a right to lodge, within seven days, an interlocutory appeal against that decision. 21. On 19 July 2006 the applicant requested to be served with a copy of the decision, which was served on him on 1 August 2006. 22. On 11 August 2006 the Katowice Regional Court refused to entertain the applicant’s appeal, filed on 7 August 2006, finding that it had been lodged out of time. 23. On 6 September 2006 the Katowice Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s interlocutory appeal against the Regional Court’s refusal. It held that the time-limit for filing an appeal against the Katowice Regional Court’s decision, delivered on 17 July 2006, had expired seven days after the day of its delivery. 24. On 17 July 2006 the applicant requested the Katowice Regional Court to release him on probation. 25. On 9 January 2007 the court granted the applicant’s request. The court observed that the applicant’s overall behaviour in detention had been correct, that he could be given a relatively positive socio-criminological forecast and that his resocialisation process could be continued at liberty. 26. Following an appeal by the prosecutor, on 7 February 2007 the Katowice Court of Appeal amended the Regional Court’s decision and refused to release the applicant on probation. The Court of Appeal did not share the Regional Court’s findings and considered that the applicant’s sociocriminological forecast was a negative one. It stressed that the applicant had been an unrepentant, habitual offender who had often been subjected to disciplinary penalties while in detention. Lastly, the court observed that the applicant had not shown any interest in following an individualised resocialisation programme and that he had no specified plans for the future. 27. On the applicant’s request, filed on 20 March 2006, on 26 June 2006 the Katowice District Court issued an aggregate sentence composed of the applicant’s previous convictions (wyrok łączny). 28. On 27 October 2006 the Katowice Regional Court upheld the firstinstance court’s judgment. 29. The applicant applied for a legal-aid lawyer for the purposes of a cassation appeal. Simultaneously, he drafted his own cassation appeal and lodged it with the Katowice Regional Court. 30. On 1 December 2006 the Katowice Regional Court appointed a legalaid lawyer for the purposes of the cassation proceedings. By a letter of 5 January 2007 the lawyer informed the Katowice Regional Court that he had not found any grounds to lodge the cassation appeal. By a letter of 9 January 2007 the Katowice Regional Court informed the applicant of the legal-aid lawyer’s refusal. Furthermore, the applicant was instructed that he could appoint a lawyer of his choice and that the time-limit of thirty days for lodging a cassation appeal by that lawyer would start to run on the date of service of that letter. The court’s letter was served on the applicant on 11 January 2007. The applicant did not appoint a lawyer of his choice. 31. On 8 March 2007 the Katowice Regional Court refused to accept the applicant’s cassation appeal as it had not been prepared by a lawyer as required by law. | 1 |
test | 001-178417 | ENG | POL | ADMISSIBILITY | 2,017 | LUBELSKA FABRYKA MASZYN I NARZEDZI ROLNICZYCH 'PLON' AND OTHERS v. POLAND | 4 | Inadmissible | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos | 1. A list of the applicants is set out in the appendix. 2. The facts of the cases, as submitted by the applicants, may be summarised as follows. 3. On 3 January 1946 the State National Council (Krajowa Rada Narodowa) passed the Law on the nationalisation of basic branches of the State economy (Ustawa o przejęciu na własność Państwa podstawowych gałęzi gospodarki narodowej – “the 1946 Act”, see paragraph 46 below). It provided for the nationalisation of enterprises from seventeen branches of industry, regardless of their size. In addition, it concerned all enterprises capable of employing in production more than fifty people on one shift. Owners of the nationalised enterprises were to receive compensation, the amount of which was to be determined by special commissions at a later stage pursuant to a Cabinet ordinance yet to be enacted (see paragraph 47 below). Only enterprises that belonged to German citizens and people who had defected to the enemy were to be taken over by the State without payment of compensation (see paragraph 45 below). 4. The applicants in the first two cases are limited liability companies and the applicants in the third case are heirs of the former owner of a textile mill. All three enterprises were nationalised pursuant to section 3(1) and (5) and section 6(1) of the 1946 Act (see paragraph 46 below). The decisions were given by the Minister for Industry and Trade (Minister Przemysłu i Handlu) on the dates stated below and published in the Official Gazette (Monitor Polski). 5. The applicant company was established in 1937 and registered in the companies register at the Warsaw Regional Court under the name Lubelska Fabryka Maszyn i Narzędzi Rolniczych “Plon”. In 1942 its registered office was transferred to Lublin. In 1945 its assets included a factory building and more than 2.5 hectares of land in Lublin. Until 1947 it manufactured agricultural machinery and farming equipment. 6. On 24 June 1947 the company was nationalised by virtue of a decision of the Minister for Industry and Trade (“the 1947 decision”), which was published in Official Gazette no. 96 of 11 July 1947. 7. On 24 November 2002 K.Z., an heir of J.Z., one of the former shareholders of the nationalised company, applied to the Minister for Economy (Minister Gospodarki) for the 1947 decision to be declared null and void. He was informed that only the company’s governing body could act for the company. Since by that time all members of the managing board had died, a guardian had to be appointed. On 16 April 2004 the courtappointed guardian lodged a new application. 8. On 15 September 2004, at a general meeting of the company’s shareholders, it was decided that a winding-up procedure should be initiated and K.Z. was appointed as a provisional liquidator. 9. On 8 June 2007 the Minister for Economy refused the application of 16 April 2004, noting firstly that the enterprise in question had been nationalised pursuant to section 3(1)B of the 1946 Act, which provided that industrial enterprises capable of employing in production more than fifty people on one shift were to be taken over by the State. Capability of employing was to be understood as meaning “the actual capability of employing” on 5 February 1946, the date of entry into force of the 1946 Act, taking into consideration the manufacturing machinery available. However, on the basis of the existing documents, the Minister was unable to establish whether the factory had been capable of employing more than fifty people on one shift. For that reason, the Minister obtained an expert report determining the enterprise’s potential employment capacity on one shift. It emerged from that report that the enterprise’s actual employment capacity at the material time had been 255 people on one shift. The Minister endorsed those findings and concluded that the nationalisation of the company had been lawful, as under section 3(1) B of the 1946 Act it could be effected in respect of enterprises employing a minimum of fifty people on one shift (see paragraph 46 below). 10. The applicant company applied for the matter to be reconsidered, but on 27 September 2007 the Minister upheld the original refusal, referring to the reasons given previously. It further held that the 1947 decision had not been issued in breach of the law and remained valid. 11. On 31 October 2007 the applicant company challenged the above decision on procedural grounds before the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny). 12. On 29 February 2008 the court dismissed the applicant company’s appeal, holding that the 1947 decision had not been issued in breach of the law. 13. On 18 June 2009 the Supreme Administrative Court (Naczelny Sąd Administracyjny) dismissed a cassation appeal by the applicant company. 14. On 28 April 2004 the applicant company lodged a claim with the Warsaw Regional Court seeking compensation (8,000,000 Polish zlotys) for the State’s failure to issue the relevant ordinance pursuant to section 7(2) and (5) of the 1946 Act. The claim was based on Article 77 of the Constitution and Article 417 of the Civil Code (see paragraphs 49 and 53 below). The applicant company subsequently changed the legal basis for its claim to Article 4171 § 4 of the Civil Code (see paragraph 51 below). It submitted that the State’s tortious liability for legislative omission had arisen before 1 September 2004 and continued after that date. 15. On 30 May 2006 the Warsaw Regional Court dismissed the applicant company’s claim. It noted that pursuant to section 7 of the 1946 Act owners of nationalised enterprises were to receive compensation within one year of the date on which a notice of final determination of compensation was served. The compensation was to be in the form of securities and, in exceptional cases, also in cash or other values. The amount was to be determined by special commissions. Despite the fact that the 1946 Act contained a clear delegation of legislative powers (delegacja ustawowa), a special ordinance had never been enacted. For those reasons, the commissions had never been formed and the compensation could not have been determined. The impugned legislative omission had occurred in 1946 or 1947 at the latest. In support of that approach the court referred to the Supreme Court’s resolution of 24 November 2005 (see paragraph 54 below). It also observed that in 1946 and 1947 the Cabinet had enacted other ordinances to implement different provisions of the 1946 Act. 16. The court further stressed that the law applicable at the time when the legislative omission had occurred had not imposed tortious liability on the State. That situation had not changed when the Civil Code had entered into force in 1965. Consequently, before the date of entry into force of the Constitution the State had not been liable for legislative omission. The situation had not changed after that date since Article 77 of the Constitution could not be considered an independent basis for vindicating that type of claim. The plaintiff’s claim could have been based on Article 4171 of the Civil Code since that provision concerned the State Treasury’s tortious liability for failure to enact legislation. However, section 5 of the 2004 Amendment Act precluded its application in respect of all events and legal situations that had subsisted before 1 September 2004 (see paragraph 52 below). In the present case, the impugned legislative omission had occurred by the end of 1947 at the latest. It was true that it had continued since, however, in deciding which legal provisions were applicable, regard had to be had to the date when the legal situation had begun and not whether it had continued. Consequently, since Article 4171 of the Civil Code had not been introduced until 1 September 2004, it did not apply to events and situations that had subsisted before its entry into force. 17. On 2 February 2007 the Warsaw Court of Appeal dismissed an appeal by the applicant company, referring to the same grounds as the Regional Court. It held that the obligation to enact an ordinance pursuant to section 7 of the 1946 Act had arisen at the time when that Act had entered into force and the legislative omission had occurred by the end of 1947 at the latest, by which time other ordinances had been enacted. However, the legislative omission could not have given rise to the State’s tortious liability since that liability had not been introduced until 1 September 2004. 18. On 5 December 2007 the Supreme Court, sitting as a bench of three judges, dismissed a cassation appeal by the applicant company. It observed at the outset that the main issue in the case was whether the State Treasury was liable pursuant to Article 4171 of the Civil Code for damage caused after 1 September 2004 by failure to enact a legal act, if such an obligation was provided by section 7 of the 1946 Act and the State authority had failed to comply with it even after 1 September 2004. 19. The Supreme Court held that there was no doubt that under section 7 of the 1946 Act the Cabinet had been obliged to enact an ordinance. It was further not contested by the parties’ that that duty had not been complied with. 20. In its reasoning the Supreme Court had regard to the following. Firstly, until 17 October 1997, the date of entry into force of the Polish Constitution, the law had not imposed liability on the State Treasury for damage caused by legislative omission. Secondly, Article 77 § 1 of the Constitution (see paragraph 53 below) should have been interpreted narrowly, so that the State was liable only for “an act” and not “failure to act”. Consequently, there was no constitutional right to compensation for legislative omission. Thirdly, the legislature had introduced Article 4171 § 4 to the Civil Code in order to tighten the rules governing the State’s civil liability. Fourthly, section 5 of the 2004 Amendment Act unequivocally precluded the application of Article 4171 § 4 in respect of events and legal situations that had subsisted before 1 September 2004. Fifthly, the State was liable for legislative omission only if there was a legal duty to enact (under an act or the Constitution). Such an obligation could not be derived from judicial interpretation. Sixthly, there was no legislative omission if the legislature had enacted a law but it was incomplete or flawed. Lastly, the State’s civil liability for damage caused by legislative omission arose only when there was a direct causal link (adekwatny związek przyczynowy) between the legal provision and the (legislative) omission. 21. The court concluded essentially reiterating the grounds stated in the 2005 Resolution (see paragraph 54 below) that the impugned legislative omission had occurred in 1946 or 1947 at the latest and had continued since. However, Article 77 § 1 of the Constitution could not be considered a legal basis for a claim deriving from an “omission” by public authorities since that provision clearly only covered their “acts”. The provisions of Article 4171, enabling a plaintiff to seek compensation for legislative omission, had only been introduced on 1 September 2004, by virtue of the 2004 Amendment Act. The terms of section 5 of that Act were unambiguous: Article 4171 of the Civil Code did not apply to events and situations that had subsisted before its entry into force. Consequently, its operation was precluded in respect of legislative omissions that originated in facts that had occurred earlier, even if that state of affairs continued to exist to the present day. 22. The applicant company was established in 1928 and registered in the companies register at the Sanok Regional Court under the name “Oterna” Przedsiębiorstwo Naftowe Sp. z o. o. Its assets included the “Ryszoldo” crude oil mine in Turzepole and leased petroleum fields. Until 1947 it carried out the activities described in its articles of association, namely searching for potential underground crude oil, natural gas fields and other minerals, drilling exploratory wells, constructing and operating workshops, constructing and operating refining facilities and carrying out all other activities related to the petroleum industry. 23. On 17 June 1947 the company was nationalised by virtue of a decision of the Minister for Industry and Trade (“the 1947 decision”), which was published in Official Gazette no. 90 of 30 June 1947. 24. On 16 September 1999 the Minister for Economy refused an application by the applicant company for the 1947 decision to be declared null and void. The applicant company applied for the matter to be reconsidered, but on 28 October 1999 the Minister upheld the original refusal. The applicant company appealed against that decision. 25. On 1 August 2001 the Supreme Administrative Court quashed the decision of 28 October 1999 on procedural grounds. 26. On 19 February 2002 the Minister for Economy once again refused to declare the 1947 decision null and void. The Minister examined the documents available and concluded that the applicant company had been nationalised in accordance with the applicable legal provisions in force at the material time. In so far as the applicant company alleged that it had not received any compensation, the Minister noted that nationalisation was not conditional upon payment of compensation. Compensation for nationalised property was to be paid later, after expropriation. The procedure for payment and the amount was to be regulated by means of secondary legislation enacted at a later stage. However, to the present day no legal provisions on the matter had been enacted. 27. On an unknown date the applicant company challenged the above decision before the Warsaw Regional Administrative Court. 28. On 21 January 2004 it dismissed the applicant company’s complaint, finding that the 1947 decision remained valid as it had not been issued in breach of the law. It further held that the fact that the applicant company had not received any compensation for the nationalised property did not mean that the 1947 decision had been null and void. 29. The judgment was upheld by the Supreme Administrative Court on 15 July 2004. 30. On 31 August 2007 the applicant company, acting through its guardian, lodged a claim with the Warsaw Regional Court seeking compensation for the State’s failure to issue the relevant ordinance pursuant to section 7(2) and (5) of the 1946 Act. 31. On 11 April 2008 it rejected the claim on procedural grounds on the basis that a guardian could not act in a company’s name if there were shortcomings in the composition of its governing bodies. 32. Following an appeal, the court set several additional time-limits in order to amend the composition of the applicant company’s governing bodies. 33. On 8 July 2010 it discontinued the proceedings on the grounds that the applicant company failed to submit an excerpt from the companies register. 34. On 2 December 2010 the applicant company applied to amend the companies register. The proceedings were terminated by the Rzeszow Court of Appeal on 3 November 2011. 35. The applicant company submitted that in view of the consistent case-law of the Supreme Court and, in particular, the judgment given in the first case (see paragraph 18 above), a civil claim for compensation had lacked any prospects of success. 36. The applicants’ predecessor owned a textile mill in Pabianice. In 1945 the business consisted of a factory building of 8,607.93 sq. m. and weaving machinery, including numerous power looms (between fifty and eighty, according to various documents). Shortly before the Second World War the factory operated under the name Karol Post Mechaniczna Tkalnia Zarobkowa Pabianice. 37. On 13 February 1948 the company was nationalised by virtue of a decision of the Minister for Industry and Trade (“the 1948 decision”). 38. On 16 March 1992 the applicants applied to the Minister for Economy for the 1948 decision to be declared null and void. 39. On 8 September 2010 the Minister for Economy refused the applicants’ application of 16 March 1992. The Minister held that, according to the documents available, in particular an inventory dated 23 September 1950, the textile mill had had eighty power looms. Pursuant to a Cabinet ordinance of 24 October 1946 cotton textile mills which had more than twenty-four power looms were to be considered “large and medium-sized textile industry”. Consequently, the applicants’ property had been taken over in accordance with the law as applicable at the material time and the 1948 decision remained valid. 40. The applicants applied for the matter to be reconsidered. They relied in particular on the provisions of the Constitution and Article 1 of Protocol No. 1 to the Convention, complaining that they had not received any compensation for the nationalised property. 41. On 29 December 2010 the Minister for Economy upheld its previous decision, referring to the grounds already given. The Minister further noted that, under the relevant provisions of the Code of Administrative Procedure, it could only examine the validity of the decision. 42. On 17 May 2011 the Warsaw Regional Administrative Court gave judgment and dismissed an appeal by the applicants. The court held that the 1948 decision had been issued in accordance with the law. In so far as the applicants alleged that they had not received any compensation, the court stressed that under the 1946 Act nationalisation was not conditional upon payment of compensation. Compensation for nationalised property was to be paid later and determined by special compensation commissions. The composition of the commissions, the rules for the appointment of their members and the rules of procedure were to be determined by an ordinance issued by the Cabinet. However, to the present day the Cabinet had not yet issued an ordinance on the organisation of the compensation commissions and the determination of compensation referred to in section 7(4) and (6). 43. On 27 February 2013 the Supreme Administrative Court dismissed a cassation appeal by the applicants. It reiterated the findings made by the Regional Court and confirmed that the 1948 decision had been given in accordance with the law. The judgment was served on the applicants’ lawyer on 20 May 2013. 44. Following the establishment of the communist regime in Poland nearly all branches of industry, as well as banking, insurance, transport and commercial companies were taken over by the State under the 1946 Act. Section 1 stated that the purposes of nationalisation were as follows: “In order to ensure the planned rebuilding of the State economy, the economic sovereignty of the State and to foster general well-being, the State shall take over ownership of enterprises under the conditions laid down in this law.” 45. Pursuant to section 2(1), only those industrial, mining, transport, banking, insurance and commercial enterprises that belonged to the Third Reich and the former Free City of Gdańsk, their citizens (except for those of Polish or other nationalities who had been persecuted by the Germans), German and Gdańsk legal entities (except for those set up under public law), companies controlled by German or Gdańsk citizens or administration or those owned by persons who had defected to the enemy were to be taken over by the State without payment of compensation. 46. Section 3(1) of the 1946 Act (as amended) states that the owners of the remaining enterprises were to be compensated for their nationalised property. The relevant part of the provision reads as follows: “1. The State shall compensate [owners] for taking over ownership of the following: A. Mining and industrial enterprises in the following sectors of the State economy: (1) mines and mining leases subject to mining law; (2) [the] oil and gas industry, including mines, refineries, gasoline production and other processing plants, gas pipes and [the] synthetic fuel industry; (3) companies that generate, process, transmit or distribute electricity ...; (4) companies that generate, process, transmit or distribute gas ...; (5) water supply companies serving more than one municipality ...; (6) steelworks and non-ferrous metals smelting plants; (7) [the] arms, aviation and explosives industry; (8) coking plants; (9) sugar factories and refineries; (10) industrial distilleries, spirit refineries and vodka production plants; (11) breweries with an annual output exceeding 15,000 hectolitres; (12) yeast production plants; (13) grain plants with a daily output exceeding 15 tonnes of grain ...; (14) oil plants with an annual output exceeding 500 tonnes and all refineries of edible fats; (15) cold stores; (16) large and medium-sized textile industry; (17) [the] printing industry and printing houses; ... B. Industrial enterprises not listed in subsection “A” if they are capable of employing in production more than fifty persons on one shift. ... C. (1) Transport enterprises (standard gauge and narrow-gauge railways, electric railways and aviation transport enterprises); (2) Communication enterprises (telephone, telegraph and radio enterprises).” 47. Section 7 lays down the general principles for the payment of compensation for nationalised property. The relevant parts state as follows: “1. The owner of an enterprise whose ownership has been taken over by the State (section 3) shall receive compensation from the State Treasury within one year of the date on which a notice of final determination of the amount of compensation is served on him. 2. Such compensation shall in principle be paid in securities; however, in exceptional and economically justified cases it may also be paid in cash or other values. 3. The amount of compensation due shall be determined by special commissions. The persons concerned shall have the right to participate in proceedings before those commissions. If need be and in any event if requested to do so by the persons concerned, the commission shall appoint appropriate experts. 4. The composition of the commissions, the rules for the appointment of their members, the quorum, the rules of procedure before the commissions and rules for appealing against their decisions shall be determined by an ordinance issued by the Cabinet. 5. The following factors shall be taken into account in determining compensation: (a) general deterioration of the value of the State property; (b) the net value of the commercial property on the date of nationalisation; (c) deterioration of the value of the enterprise caused by war losses or losses incurred by the enterprise in connection with the war and occupation in the period from 1 September 1939 to the date of nationalisation; d) the amount of expenditure after 1 September 1939; e) special circumstances affecting the value of the enterprise (concession terms, licences etc.). 6. A Cabinet ordinance shall determine detailed rules governing the calculation of compensation, assessment of the circumstances listed in subsection 5 and means of payment of compensation (subsection 2) and depreciation of securities.” 48. Pursuant to section 10, the Cabinet and the relevant Ministers are entrusted with the implementation of the 1946 Act. However, from 5 February 1946, the date of entry into force of the 1946 Act, to the present day the Cabinet have not issued an ordinance on the organisation of the compensation commissions and the determination of compensation referred to in section 7(4) and (6). 49. Articles 417 et seq. of the Civil Code provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.” 50. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw − “the 2004 Amendment Act”) entered into force. The relevant amendments were in essence aimed at widening the scope of the State Treasury’s liability in tort under Article 417 of the Civil Code, including the addition of a new Article 4171 and provision being made for the State’s tortious liability for failure to enact legislation, a concept known as “legislative omission” (zaniechanie legislacyjne). 51. Following the 2004 Amendment Act, the relevant part of Article 4171 § 4, reads as follows: “If damage has been caused by failure to enact a law [akt normatywny] where there is a statutory duty to do so, the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for compensation.” 52. However, under the transitional provisions of section 5 of the 2004 Amendment Act, Article 417 as applicable before 1 September 2004 applies to all events and legal situations that subsisted before that date. 53. The concept of the State’s civil liability for a constitutional tort was introduced into the Polish legal order on 17 October 1997, the date of entry into force of the 1997 Polish Constitution. The relevant part of Article 77 § 1 of the Constitution states as follows: “Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law.” 54. In its resolution of 24 November 2005 (“the 2005 Resolution”), the Supreme Court, sitting as a bench of three judges, dealt with the following legal questions submitted to it by the Warsaw Court of Appeal: “Is the State Treasury liable for damage caused by failure to enact a law if the duty to enact that law, laid down in section 7(4) and (6) of [the 1946 Act] was not fulfilled until the date of entry into force of [the 2004 Amendment Act], and, if so, when should this duty have been performed and did compensation for failure to enact the above law correspond to unreceived compensation for the enterprise nationalised by the State, determined in accordance with the principles laid down in section 7(2) and (5) of [the 1946 Act]?” 55. The question arose in the context of a case brought by a certain E.K., who sought compensation for the nationalisation of her family’s printing house and, as a basis for her claim, invoked Article 4171 of the Civil Code, relying on the State’s legislative omission consisting of its failure to issue the relevant ordinance. The Supreme Court’s answer in the operative part of the resolution reads: “Until the date of entry into force of [the 2004 Amendment Act] the Cabinet’s failure to issue an ordinance pursuant to section 7(4) and (6) of [the 1946 Act] did not constitute a basis for a claim by an owner of a nationalised enterprise for compensation for [nationalisation].” 56. The resolution contains extensive reasoning, the main thrust of which reads as follows: “[As regards the timeframe for the issue of the ordinance], the determination of the beginning of that situation carries with it a certain element of arbitrariness since [the 1946 Act] does not lay down any term within which the ordinance referred to in section [7](4) and (6) should be issued. Assuming that in general the absence of a term is tantamount to a duty to enact a law without undue delay, it can be considered that the discharge of the statutory authorisation, assuming the existence of willingness of the authorised body (the Cabinet) should have taken place in 1946 or 1947 at the latest. This is supported by the fact that the Cabinet issued ordinances implementing other provisions (including section 2(7) of the Act, a fundamental provision for the interest of the State). [As regards the State’s civil liability for legislative omission], ... it should be concluded that before the entry into force of the 1997 Constitution the State had not been liable under civil law for the consequences of its legislative inactivity ... 17 October 1997, marking the entry into force of the Constitution, is the relevant date as its constitutes the beginning of the existence in the legal order of, inter alia, Article 77 § 1 of the Constitution, proclaiming the right of “everyone” to compensation for any harm done to him by any act of a public authority in breach of the law ... Assuming that Article 77 § 1 does not contain a provision making it possible to draw from it a direct basis for a claim for compensation for the legislature’s inactivity, it must be said that the rules for the State’s liability in the sphere of law-making should be established by means of an ordinary statute, determining in a more detailed manner than the Article 77 §1 premises for an effective claim ... Article 4171 § 4 of the Civil Code, as introduced by [the 2004 Amendment Act], satisfies the requirement of detailed premises. The relevant temporal consequences are clearly set out in section 5, evidently indicating the prospective operation of Article 4171 § 4 of the Civil Code. A formulation laying down the non-retroactive nature of the provision is telling in that it refers to “events and legal situations that subsisted before its entry into force” ... In consequence, the assessment of the effects of legislative omission subsisting before 1 September 2004 was governed by [earlier provisions]. The relevant Article 417, in the version before the amendment, did not include legislative omission as it was based on a completely different premise, namely, the absence of the State’s civil liability for the legislature’s acts ...” 57. On 6 July 2006 the Supreme Court, sitting as a bench of three judges, adopted a resolution in reply to a legal question submitted by the Warsaw Court of Appeal. It held in particular that legislative omission causing the State’s liability for damage only occurred when a legal act had not been enacted despite an obligation arising from a legal provision (the Constitution or another act). However, that obligation had to be expressed in a clear and unequivocal manner, excluding the possibility of it having to be determined in the process of judicial interpretation; such practice could be considered an interference with the legislature’s competences. 58. In a resolution of 19 May 2009 the Supreme Court, sitting as a bench of seven judges, dealt with the following legal question submitted by the Ombudsman: “Is the State Treasury liable for damage caused by legislative omission, if the legislature’s inactivity subsisted before 1 September 2004?” The Ombudsman argued in his pleadings that judicial practice on the matter was unclear. The Supreme Court’s answer in the operative part of the resolution reads as follows: “The State Treasury is liable for damage caused by failure to enact a legal act, if the obligation to enact that act arose after the date of entry of the Polish Constitution [17 October 1997].” 59. The Supreme Court referred to its 2005 resolution, noting that that approach had been endorsed in its subsequent judgments of 13 April 2007 (no. ICSK 488/06) and 5 December 2007 (no. ICSK 273/07) (see paragraph 18 above). In the latter case the court also held that Article 77 § 1 of the Constitution could not be considered a legal basis for a claim deriving from an “omission” by public authorities. A similar approach was adopted in a judgment of 5 September 2008 (no. I CSK 41/08). The court concluded that it was irrelevant when the damage actually happened or whether it had increased in time, but if the legislative omission occurred before 1 September 2004, Articles 417 and 4171 of the Civil Code could not be relied on. 60. The Constitutional Court (Trybunał Konstytucyjny) on many occasions confirmed that a situation occurring before the entry into force of the Constitution could not be a basis for a claim under Article 77 § 1 for compensation for the unlawful action of a public authority. In particular, the Court gave such a ruling in judgments of 23 September 2003 (K 20/02), 1 September 2006 (SK 14/05) and 8 December 2009 (SK 34/08), as well as in decisions of 9 June 2010 (Ts 308/08) and 16 November 2010 (Ts 308/08). 61. On 13 June 2011 the Constitutional Court heard a constitutional complaint lodged by the company Elektrownia w Kielcach spółka akcyjna, challenging the constitutionality of section 5 of the 2004 Amendment Act in so far as it precluded the application of Article 4171 of the Civil Code in situations that had subsisted before the entry into force of the Amendment Act on 1 September 2004. The claimant invoked, in particular, Article 77 § 1 (right to compensation for the unlawful action of a public authority) read in conjunction with Articles 2 (rule of law), 64 §§ 1 and 2 (right of ownership) read in conjunction with Article 21 §§ 1 and 2 (protection of ownership) and Article 32 § 1 (equality before the law) and Article 45 § 1 (right of fair trial) of the Constitution. 62. The relevant part of the Constitutional Court’s decision (no. SK 26/09) reads as follows: “4.7. ...The Constitutional Court held that the authorisation included in section 7 of the [1946 Act] not only referred to a regulation in a legal act (akt podstawowy) of the fundamental guarantees of property law which – in accordance with current constitutional standards – could not be accepted but also did not include any instructions as to the content of an ordinance which was to be enacted more than 60 years ago. Consequently, in the light of the provisions of the Constitution it is difficult to assume that non-fulfilment of the duty to enact an ordinance on compensation for nationalised property derived from [the 1946 Act] amounted to “[an] unlawful action of a public authority” for which the Constitution imposes liability on the State. Even if the state of legislative omission still persists, it should at the same time be concluded that the duty is non-enforceable. Thus, it is evident that on the basis of the laws applicable only a statute could regulate compensation for the claimant’s nationalised property. Even so, potential validation (konwalidacja) of section 7 of the [1946 Act] authorising the enactment of an ordinance would have required a statute. The Constitutional Court is not competent to authorise this. Accordingly, the Constitutional Court considers that the assumption that an “unlawful” legislative omission still continues is unwarranted, particularly after the entry into force of the Constitution, and in the light of the standards therein. Moreover, in view of the declaratory nature of that authorisation it is not possible to conceive what criteria the [civil] court should use today to determine the amount of compensation due to former owners of property nationalised in 1946. In summarising this part of the analysis, the Constitutional Court considered that declaring section 5 of the Amendment Act unconstitutional in so far as it precluded the application of the amended provisions of the Civil Code in situations which concerned a failure to enact an ordinance and which arose in the pre-constitutional period and which also continued after the Amendment Act entered into force (the direct application of a new statute) would not have changed the legal situation of the applicant in the desired sense. In the light of current constitutional standards, it is difficult to accept that the duty imposed on the Cabinet by section 7 of the 1946 Act has any legal effect. Consequently, it could not be established that there was an “unlawful action of a public authority” within the meaning of Article 77 § 1 of the Constitution. On a passing note, the Court noticed that in reality the only temporal rule which would have satisfied the applicant, that is would have given rise to compensation, would have had to be phrased: anyone who has suffered damage as a result of a failure to enact a legal act, notwithstanding when it has occurred and notwithstanding the existence of a current obligation to enact a legal act, may request [the damage] to be redressed in accordance with the new provisions, namely Article 417 1 § 4 of the Civil Code. A legal rule of this content would not only be contrary to the rule lex retro non agit, but would also appear to be unacceptable to the rational legislator. It is also absolutely clear that such far-reaching State liability could not be derived from Article 77 § 1 of the Constitution, which was also demonstrated above in section 4.2. The Constitutional Court stresses that section 5 of the Amendment Act forms part of the legal system and is meant to introduce new civil law provisions into that system. These provisions, on the other hand, were meant to fulfil the legislator’s wish expressed in Article 77 § 1 of the Constitution. Section 5 of the Amendment Act must respect the rules of constitutional order from which it derives its strength. It cannot therefore be given another meaning which would allow it to achieve objectives not provided for by the Constitution.” 63. Article 156 § 1 of the Code of Administrative Procedure (“the CAP”) (Kodeks postępowania administracyjnego) sets out the grounds on which a final administrative decision may be annulled: “1. A public administration authority shall declare a decision null and void if: (1) it has been issued in breach of the rules governing competence; (2) it has been issued without legal basis or in flagrant breach of the law; (3) concerns a case already decided by means of another final decision; (4) it has been addressed to a person who is not a party to the case; (5) it was unenforceable on the date of its issuance and its unenforceability is of a permanent nature; (6) it would give rise to a punishable offence in the event that it has been enforced; (7) it has a flaw making it null and void by the force of law.” 64. There is no time-limit for a party to lodge a request to have an administrative decision declared null and void under Article 156 § 1. 65. Article 160 sets out the principles for compensation for loss caused by the issuance of an administrative decision subsequently annulled on the grounds listed in Article 156 § 1. 66. It was repealed by the 2004 Amendment Act with effect from 1 September 2004 (see also paragraph 50 above) and replaced by new Article 4171 § 2 of the Civil Code. However, under section 5 of the 2004 Amendment Act, which sets out transitional rules, Article 160, in the version applicable on the repeal date, still applies to “events and legal situations” that subsisted before the entry into force of the 2004 Amendment Act. 67. In September 1999 the Government introduced in Parliament the Bill on the restitution of immovable property and certain kinds of movable property taken from natural persons by the State or by the Warsaw Municipality, and on indemnities (Projekt ustawy o reprywatyzacji nieruchomości i niektórych ruchomości osób fizycznych przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach). 68. It provided for two forms of restitution, namely restitution in natura or indemnity in the form of securities, with regard to property that had been taken over by the State or by the Warsaw Municipality by virtue of certain laws passed under the communist regime, including the Decree on agrarian reform and the Decree on the nationalisation of certain forests. The bill prescribed the eligibility conditions for restitution. It further stipulated that restitution would be equal to 50% of the actual value of the lost property. 69. The bill provoked a heated debate involving all sections of society, the media and all political parties and factions. It was enacted by Parliament on 7 March 2001 and the relevant Bill of Parliament transmitted to the President of the Republic for signature. However, exercising his right of veto, he refused to sign it. 70. Ultimately, the Sejm (lower house of the Polish parliament) failed to gather the three-fifths majority required under Article 122 § 5 of the Constitution to override the President’s veto during a vote on 25 May 2001. As a consequence, the Restitution Bill did not enter into force. 71. Subsequent attempts to enact restitution law were unsuccessful. | 0 |
test | 001-161953 | ENG | AUT | CHAMBER | 2,016 | CASE OF HELMUT BLUM v. AUSTRIA | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Civil rights and obligations;Public hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 6. The applicant was born in 1959 and lives in Linz. He has been a lawyer since 1986 and he practises in Linz. 7. In 2006 criminal investigation proceedings were pending before the Linz Regional Court against O.G., a regional politician from Upper Austria, and a Moldovan citizen, T.S., who was in detention pending trial. Both were suspected of human trafficking. O.G. was also suspected of fraud. During the investigation proceedings, T.S. accused O.G. of having accepted money for facilitating the illegal entry or transit of nineteen nationals from Moldova to Austria or through Austria to Italy. 8. E.W., an association of which O.G. was president, commissioned the applicant to represent T.S. in the criminal proceedings. The applicant’s fees were covered by this association. Having accepted the mandate the applicant remained in close contact with O.G. and transmitted to him information concerning the criminal investigation proceedings against T.S. He did not represent O.G. in the proceedings. 9. On 17 August 2006 the applicant visited T.S. in prison in order to prepare for the trial on that day. During this visit an affidavit (Eidesstättige Erklärung), prepared in advance by the applicant, was signed by T.S. in which she submitted that her former allegations against O.G. had been untrue. 10. On the same day, the Linz Regional Court convicted T.S. of the crimes as charged and sentenced her to fifteen months’ imprisonment. T.S. did not retract the statements she had made to the investigating authorities, nor was the affidavit submitted to the court. Instead, the applicant transferred it to the lawyers of O.G. 11. On 21 August 2006 the lawyers of O.G. transferred T.S.’s affidavit to the public prosecutor to be taken into consideration in the proceedings against O.G. 12. On 31 October 2006 and 4 December 2006, in the course of the criminal proceedings against O.G., the judge of the Linz Regional Court reported to the Upper Austrian Bar Association (Rechtsanwaltskammer, hereinafter “the Bar Association”) that he suspected the applicant of double representation. The judge stated that the applicant had kept close contact with O.G. and had transferred to him information concerning the investigation proceedings regarding T.S. The judge further stated that the applicant had asked T.S. to submit the affidavit, whose contents were untrue but in favour of O.G., to the court. 13. On 11 July 2007, upon a request by the Linz public prosecutor, the Linz Regional Court instituted a preliminary investigation into allegations of attempting to aid the perpetrator (versuchte Begünstigung), false testimony (Falsche Beweisaussage) and falsifying evidence (Fälschung eines Beweismittels) against the applicant, and informed the Bar Association. 14. On 17 July 2007, 17 August 2007 and 6 September 2007 the Linz public prosecutor requested that the court conduct further preliminary investigations in the case, in particular the questioning of several witnesses and to put the applicant on the stand. The Linz Regional Court took the requested evidence and heard evidence from the applicant. 15. On 24 September 2007, the Linz public prosecutor requested the inclusion of a further file regarding the falsification of evidence in a case not related to that of O.G. The file was included in the preliminary investigation against the applicant and the requested evidence was gathered. 16. Because of the reform of the Code of Criminal Procedure, which entered into force on 1 January 2008, the investigating judge transmitted the file to the Linz public prosecutor, who took charge of the case. 17. On an unspecified date the Linz public prosecutor decided not to file a formal indictment (Anklageschrift, Strafantrag) against the applicant until a final court decision in the case against O.G. had been taken. There is no indication that a formal decision on the postponement was taken on this matter or sent to the applicant. 18. On 4 February 2009 the Linz public prosecutor ordered the suspension of the criminal proceedings against the applicant since the criminal proceedings against O.G. were still pending. Again, it appears that no formal decision was sent to the applicant in this regard. 19. On 5 May 2009 the applicant lodged a request with the Linz public prosecutor for the discontinuation of the investigation proceedings. 20. On 6 July 2009 the criminal proceedings against the applicant were resumed and he was charged with the offence of attempted aiding of the perpetrator and falsifying evidence. 21. The Linz Regional Court summoned the applicant on 17 July 2009 for trial on 22 September 2009. The applicant lodged a request to have more witnesses questioned on 10 September 2009 and submitted a statement. 22. On 22 September 2009 the first hearing in the criminal proceedings against the applicant was held before the Linz Regional Court. 23. The next hearing was held on 24 November 2009. The hearing was adjourned until the final decision in the case of O.G. had been taken. 24. As the criminal proceedings against O.G. were still pending, the Linz Regional Court continued criminal proceedings against the applicant and a further hearing was held on 27 April 2011, with a new judge presiding. 25. On 17 June 2011 the Linz Regional Court acquitted the applicant on all counts. 26. On 8 November 2011 the Linz Court of Appeal dismissed an appeal by the public prosecutor. This judgment was served on the applicant on 30 November 2011. 27. Following the notice of the investigating judge of 31 October 2006 the Disciplinary Prosecutor (Disziplinaranwalt) on 13 December 2006 applied to introduce disciplinary proceedings against the applicant on charges of double representation and falsification of evidence. 28. Accordingly, on an unspecified date, the Disciplinary Council of the Bar Association (Disziplinarrat der Oberösterreichischen Rechtsanwaltskammer, hereinafter “the Disciplinary Council”) initiated disciplinary proceedings against the applicant. 29. On 24 September 2007 the Disciplinary Council held an oral hearing and adjourned the disciplinary proceedings until the criminal proceedings at the Linz Regional Court had become final. 30. On 25 September 2007 the Disciplinary Prosecutor applied for the withdrawal of the applicant’s right to represent clients before the Linz courts in criminal cases as an interim measure. 31. The applicant was informed of this application and submitted his written comments on 4 October 2007 and 30 October 2007 in which he opposed the measure. 32. On 17 December 2007 the Disciplinary Council, without holding a hearing, withdrew the applicant’s right to represent before the Linz District Court, the Linz Regional Court and the Linz Court of Appeal in criminal law cases as an interim measure by virtue of section 19 of the Disciplinary Act (Disziplinarstatut für Rechtsanwälte und Rechtsanwaltsanwärter). It held that because of the accusations against the applicant the imposed interim measure was proportionate. 33. The applicant appealed on 5 February 2008 against this interim measure and complained that the preconditions for it had not been met, that the Disciplinary Council had failed to hear evidence and that it had not held an oral hearing. Furthermore the measure had not been proportionate to the accusations. 34. On 28 August 2008 the Appeals Board (Oberste Berufungs- und Disziplinarkommission) dismissed the applicant’s appeal without having held an oral hearing. It found that it was the task of the criminal courts to hear evidence. The applicant had submitted his comments and had therefore been able to sufficiently present his arguments. Moreover, the measure imposed upon the applicant had been proportionate. 35. On 28 October 2008 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) and again complained about the lack of an oral hearing and that the measure was disproportionate. 36. On 25 November 2008 the applicant lodged a request for information (Auskunftsbegehren) with the Disciplinary Board and asked if the interim measure of 17 December 2007 would automatically expire after six months. If not, he asked to have the interim measure withdrawn as the criminal proceedings were still pending. He claimed that it was disproportionate to sustain the interim measure over such a long period of time. 37. On 2 December 2008 the Disciplinary Board replied to the request of 25 November 2008 and informed the applicant, that the interim measure would not expire automatically but would remain in force. 38. On 1 December 2009 the Constitutional Court dismissed the applicant’s complaint and held that the reasoning of the authorities had been sufficient and therefore the imposed measure was not arbitrary. Furthermore it found that the proceedings had overall been fair. As the preliminary measure imposed on the applicant had not been a “criminal charge” in the sense of Article 6 of the Convention, an oral hearing had not been compulsory. 39. On 9 December 2010 the Bar Association asked for information about the state of the criminal proceedings. A written reply was sent on 14 January 2011. 40. On 17 June 2011, after the applicant had been acquitted on all counts by the Linz Regional Court, he lodged another request with the Bar Association to have the interim measure withdrawn referring to the court’s decision. 41. This request was dismissed by the Bar Association as the public prosecutor had appealed against the decision of the Linz Regional Court. 42. The applicant appealed on 18 July 2011 against this decision and complained about the length of time the imposed measure had already been in force. 43. On 14 November 2011 the interim measure imposed on the applicant, prohibiting him from representing clients before the Linz courts in criminal cases was lifted by the Bar Association. 44. On 30 January 2012 he was summoned to a hearing by the Disciplinary Council on 27 February 2012. 45. The applicant filed statements in preparation of the hearing on 8 and 22 February 2012 denying that there was a case of double representation and referring to the decision of the Linz Court of Appeal of 8 November 2011. 46. On 11 March 2013 the Disciplinary Council of the Bar Association found that the applicant had not knowingly organised for T.S. to submit an affidavit that was untrue. However, he had acted in double representation within the meaning of section 10 of the Lawyers Act (Rechtanwaltsordnung) in criminal proceedings, as he had acted in the interests of O.G. and the association E.W. as well as in those of T.S., whom he had represented. The Disciplinary Council stated that the fact that the disciplinary proceedings had lasted almost seven years and the fact that the right of the applicant to represent before certain courts in criminal cases had been withdrawn for about four years had to be taken into account. Therefore it found it reasonable to impose a fine of 1,000 euros (EUR) in addition to another disciplinary fine he already had been ordered to pay for another case of violation of the Lawyers Act. 47. The applicant lodged an appeal on points of law and an appeal against the fine. 48. The Supreme Court, acting as the highest court in disciplinary proceedings against lawyers, held a hearing on 20 May 2014 and dismissed the applicant’s appeal on points of law, but reduced the additional disciplinary fine to EUR 500. It explicitly mentioned the length of disciplinary proceedings as a violation of the applicant’s rights under Article 6 of the Convention and took account of the fact that the applicant’s right to represent before the Linz Courts in criminal cases had been withdrawn for four years. The Supreme Court found that a different set of disciplinary proceedings had been already pending when the present incident occurred. Therefore, the applicant should have acted with special caution. A total waiver of the fine would not be adequate in this situation. 49. The Supreme Court’s judgment was served on 11 August 2014 on the applicant. | 1 |
test | 001-160450 | ENG | GBR | ADMISSIBILITY | 2,016 | BAHMANZADEH v. THE UNITED KINGDOM | 4 | Inadmissible | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano | 1. The applicant, Mr Manochehr Bahmanzadeh, is an Iranian national, who was born in 1956 and lives in London. He was represented before the Court by Ms J. Hickman of Hickman & Rose, a firm of solicitors based in London. The respondent Government were represented by their Agent, Ms A. McLeod, of the Foreign and Commonwealth Office. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant held the lease of premises housing a nightclub called the Dance Academy and was co-manager of the club. In December 2005 he was made aware of police concerns about high levels of drug usage at the club. He met with the licensing officer in December 2005 and in January and February 2006 and offered assurances that he took the problem very seriously and would introduce a “zero tolerance” approach to drugs on the premises. 4. In January 2006 an undercover police operation commenced into drug use at the Dance Academy. Over the course of the operation, twenty-four undercover police officers attended the club and a number of them purchased ecstasy there from several drug dealers. A police raid on the nightclub took place on 7 May 2006. Around 450 ecstasy pills were recovered. 5. On 6 August 2006 the applicant and his co-manager were charged with permitting premises to be used for the supply of ecstasy between 1 December 2005 and 8 May 2006. 6. The applicant’s trial commenced at the Crown Court on 19 May 2008. 7. The prosecution case was that the applicant had failed to take reasonable steps to address the drugs problem in the club. They relied on evidence covering the indictment period, namely: - the detail and nature of the contact with police concerning the drugs problem by way of meetings and letters; - the prevalence of drug dealing witnessed by members of staff and by the undercover officers, who successfully purchased drugs; - the volume of drugs found during the search in May 2006; - oral evidence from former members of staff that in the period following January 2006 the management could have done more to address the drugs problem to which they had been alerted in warning staff as to their responsibilities; - data recording the number of ambulances attending the premises; and - oral evidence to the effect that the management of the club had informed door staff that they should cut back on the number of searches. 8. The oral evidence from the undercover police officers was given anonymously and they were screened from the public, the defendants and defence counsel. 9. The club’s former head of security, G.G., who had worked at the club in 2004, gave evidence of the applicant’s tolerance of drug dealing and his obstructive approach when he, G.G., had tried to eject and report on those caught dealing drugs at the club. He also told the jury that he was a former Royal Marine. G.G. was cross-examined by the applicant’s trial counsel. It was put to him that he had been sacked by the applicant for stealing money and drugs from a drug dealer, rather than arresting him. G.G. denied this. It was further put to him that his dismissal had also been informed by the fact that he had been present at a drugs murder nearby some weeks before. G.G. replied that he had merely been a witness to the murder and was assisting police in that capacity. 10. The applicant gave evidence in his own defence. He said that he was strongly opposed to drug use and supply. He and his staff had sought to enforce a policy of zero tolerance in relation to drug supply. He had responded positively to police warnings from December 2005 by replacing his CCTV system and changing his security company. It was impossible to keep drugs out of the club, but he had taken all reasonable steps to prevent the supply of drugs. 11. In his summing up to the jury, the trial judge reminded the jury that G.G. had worked at the Dance Academy in late 2004 for approximately six months and so was not there during the period covered by the indictment. 12. On 2 July 2008 the applicant was convicted by a jury and on 21 July 2008 he was sentenced to nine years’ imprisonment. In his sentencing remarks, the judge commented that there had been “large-scale, blatant supply of and use of ecstasy” in the club, of which the applicant had been well aware and to which, at the very least, he had turned a blind eye in order to maximise the profits and reputation of the club. He referred, inter alia, to the evidence of the undercover police officers, of G.G., of the club’s head doorman in 2005, of other doormen at the club and of a customer. 13. The applicant appealed against his conviction and sentence, challenging the special measures permitted at trial to screen the undercover police officers when they had given evidence. The appeal was dismissed by the Court of Appeal on 17 December 2008. The court said it had no doubt that there was ample evidence, outside the evidence emanating from the undercover police officers, from which it would have been open to the jury to conclude that there was substantial dealing in drugs at the club and that no adequate steps had been taken by management to prevent or discourage the sale of drugs. 14. On 25 January 2012 the Criminal Cases Review Commission (“CCRC”) referred the applicant’s conviction and sentence to the Court of Appeal. The statement of reasons set out a single reason for the referral, namely information giving rise to the “real possibility” – this being the criterion stated in the relevant legislation (see paragraph 31 below) – that the Court of Appeal would find the trial evidence of “an important prosecution witness”, namely G.G., no longer capable of belief. 15. The report detailed new evidence not disclosed at trial that G.G. had been working as a doorman in another club in February 2004 and had offered to sell drugs to off-duty police officers. He had told the officers that he was earning five thousand pounds a week from selling drugs. The CCRC considered that this would “severely damage” the credibility of the witness. It was also revealed that G.G. had lied on oath by claiming that he was a former Royal Marine. The statement continued: “23. In the course of its enquiries the Commission has located a further record which appears to be of relevance regarding [G.G.]. The record, which is sensitive, is considered further in a Confidential Annex (‘Annex C’) that will be provided to the Court of Appeal and the Crown Prosecution Service. For reasons associated with the principle of Public Interest Immunity, the Confidential Annex will not be provided to Mr Bahmanzadeh or his representatives. Whilst this course of action is contrary to the general practice of providing an applicant with full reasons for any decision made, the Commission considers that it is inappropriate in this case to pre-empt any decisions on disclosure that may be made by the Crown Prosecution Service or the Court of Appeal.” 16. By letter dated 13 March 2012 the CCRC informed the applicant that further sensitive information had been disclosed to the Court of Appeal and to the prosecution. Again, for Public Interest Immunity (“PII”) reasons, a decision had been taken not to disclose the information to the applicant or his representatives. He was invited to make an application to the court or the prosecution for disclosure. 17. On 16 April 2012 the applicant submitted provisional grounds of appeal to the Court of Appeal. His first ground claimed that his conviction was unsafe “by reason of fresh evidence concerning [G.G.]”. The grounds referred to the need for a “detailed disclosure exercise” in the light of the CCRC report including, in particular, disclosure of Annex C to that report. Appended to the grounds was a schedule of disclosure requests. The defence invited the court to conduct a thorough PII exercise and order disclosure of the file and such further material as might be relevant. He also invited the court “to review the PII exercise conducted by the trial judge between 22nd and 29th February 2008”. Finally, the defence asked that the prosecution disclose all material concerning G.G.’s role in the drugs murder in respect of which he had been cross-examined at trial and invited the court to review any relevant PII material. 18. On 10 July, 14 August and 15 August 2012 further disclosure took place. A police statement of July 2012 confirmed that in February 2004 G.G. had claimed to off-duty police officers that he made five thousand pounds a month selling drugs. A letter of July 2012 contained antecedents for G.G. Material related to G.G.’s arrest and questioning in September 2004 about the drugs murder was also disclosed. A witness statement by the police officer who had given evidence at trial confirmed that he had “commissioned a review of all material held by the police” concerning G.G. and it had not uncovered anything which assisted the defence or undermined the prosecution. 19. Meanwhile, on 14 August 2012, the prosecution indicated that it intended to make a PII application and make ex parte submissions. Part of the PII application, it said, would relate to Annex C to the CCRC’s statement of reasons. The prosecution invited the applicant to provide further particulars of the case to inform the court and the prosecution in their assessment of the potential value to the defence case of the retained material. 20. On 29 October 2012, in response to the prosecution invitation, the applicant submitted a note on PII and disclosure for consideration at the PII hearing. He contended that much of the material now disclosed by the prosecution should unquestionably have been disclosed at trial, since it would have undermined the prosecution cases and assisted the defence. He argued in particular that Annex C should plainly be disclosed, since it was prima facie capable of assisting the defence or undermining the prosecution given that it had led the CCRC to refer the case back to the Court of Appeal. He also requested permission to address the court prior to the PII hearing and invited the court to consider whether the interests of justice required the appointment of special counsel to represent the applicant’s interests at the PII hearing. He advanced two principal arguments: first, that G.G. had provided crucial evidence against him and that the fresh evidence – and any material not yet disclosed on account of PII – would have undermined his credibility; and second, that the judge’s directions to the jury had been inadequate. The note explained: “There may be no breach of Article 6(1) in circumstances where material not in the possession of the prosecution at trial was first considered by the Court of Appeal in an ex parte hearing. It is important that the Court be able to consider the impact of the new material of the safety of the Applicant’s conviction with the assistance of detailed argument from the Appellant’s counsel. Article 6 will not be violated if the undisclosed material is found to add nothing of significance to what has been disclosed at trial ...” 21. On 13 November 2012 the ex parte PII hearing took place in the Court of Appeal to consider whether material referred to by the CCRC should be disclosed to the defence. Special counsel was not appointed to represent the applicant’s interests at the hearing. The applicant was subsequently informed that, save for very limited disclosure, no further disclosure had been ordered. The court issued a direction requiring the applicant’s representatives to confirm that “complete and unambiguous disclosure” by the prosecution had taken place or, if it had not, to thus inform the court. 22. On 18 November 2012, in a note on disclosure, the applicant’s representatives informed the court that they were not able to provide the confirmation sought. They expressed concern that a review of material held by the police had been conducted by unknown persons on the instructions of an officer who had given evidence against the applicant at trial. They commented on the prosecution’s failure to supply any schedules of unused material or to provide any clear indication of how the process of disclosure had been conducted, explaining that it left them with “a deep sense of unease as to the adequacy and efficiency of the process ...”. They concluded that it was, in their view, for the prosecution to confirm that their disclosure obligations had been met. 23. In response, on 20 November 2012 the prosecution informed the applicant that the “vast preponderance” of the material in Annex C had been disclosed in the context of the further disclosure which had taken place in July and August 2012. They confirmed that prosecuting counsel had personally reviewed the material placed before the Court of Appeal at the PII hearing. They concluded that they were satisfied that they had complied with their disclosure obligations. 24. Further disclosure took place on 22 November 2012. 25. In his skeleton argument dated 23 November 2012, the applicant set out detailed argument concerning his first ground of appeal. He introduced his submissions as follows: “The issue is whether the fresh evidence, if available at trial, might reasonably have affected the jury’s decision to convict the Appellant ... It plainly would have.” 26. He complained that his inability properly to challenge G.G. and his account at trial because of the lack of disclosure meant that there was a real risk that the applicant’s credibility had been unfairly damaged at trial. Lack of disclosure in relation to G.G. had, he claimed, “potentially devastating consequences”. 27. On 29 November 2012 the appeal against conviction was dismissed. Regarding the PII application, the court noted that it had upheld the prosecution’s PII claim on 13 November 2012, being of the view that the material sought to be withheld would not assist the applicant and that nothing had happened to suggest a different view. It summarised his grounds of appeal as follows: “(i) [G.G.] was an important prosecution witness against the appellant at trial. Had the fresh evidence relating to him been available, it would have undermined his credibility and assisted the defence. (ii) Inadequate directions and insufficient guidance were given to the jury ...” 28. Concerning the impact of the fresh evidence on the evidence given by G.G. at trial, the court noted that the indictment period began in December 2005 and that G.G. had worked as head doorman in 2004. It remarked that the jury had been reminded by the trial judge during his summing-up that G.G. was not at the club during the period covered by the indictment. The Court observed that the critical question for the jury was whether they were sure that from December 2005, the applicant had encouraged, allowed or failed to take reasonable steps to prevent drug use at the premises. On this question, it said, G.G. could give no direct evidence whatever. It referred to the applicant’s argument that with the disclosed material the whole balance of the case changed, since he would have been in a much stronger position to undermine the prosecution case and advance his own. However, it considered that, while the judge had clearly paid attention to what G.G. said, the latter’s evidence was “by no means” at the heart of the case. It underlined again that G.G.’s evidence related to a period fifteen months or more before the indictment period and that no amount of cross-examination of G.G. to expose him as a drug dealer was capable of offering any refutation of the objective evidence of the test purchase officers and other evidence of what was happening in the club at the time. The court concluded: “37. ... The real issue here was what the appellant did or did not do after the warnings given to him at the beginning of the indictment period. As regards that, the evidence of open and blatant supplies of ecstasy at the club, effectively under the noses of the staff, seems to us entirely compelling. We are wholly unpersuaded by the submission urged upon us yesterday that the [undercover officers’] evidence did not plainly implicate the appellant. His absence over periods of time when drugs were being openly and blatantly supplied has to be viewed against what the Crown was required to prove, namely that the appellant failed to take reasonable steps to prevent drug use at the premises. He knew full well that drugs were being frequently supplied on the premises, to put it at its lowest.” 29. The appeal against sentence was successful on the basis that new sentencing guidelines had entered into force since the applicant’s first appeal and ought to be taken into account. The sentence was reduced to seven and a half years. The court explicitly stated that the fresh evidence in respect of G.G. played no part in the reduction of sentence. 30. The applicant was informed by senior counsel that the appeal turned on disclosure and the determination that the conviction was safe was a factual determination. No matter of law of general public importance, amenable to certification for a further appeal to the Supreme Court, arose. Counsel therefore concluded that no further avenue of appeal existed. 31. Where a person has been convicted on indictment, section 9(1) of the Criminal Appeal Act 1995 gives the CCRC the power to refer at any time the conviction to the Court of Appeal. By section 9(2), any such reference is to be treated for all purposes as an appeal by the person concerned against conviction. Section 13 sets the conditions for making references. It provides: “(1) A reference of a conviction ... shall not be made ... unless– (a) the Commission consider that there is a real possibility that the conviction ... would not be upheld were the reference to be made, (b) the Commission so consider– (i) in the case of a conviction ... because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against ..., and (c) an appeal against the conviction ... has been determined or leave to appeal against it has been refused.” 32. Section 17 of the Act allows the CCRC to require a body which has possession or control of material which may assist it in the exercise of it functions to produce the material or allow the CCRC access to it. 33. Under the Criminal Procedure and Investigations Act (“CIPA”) 1996, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor’s view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused’s defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court. 34. Following the judgments of this Court in Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996V, and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 10 July 1998, Reports 1998‑IV, the United Kingdom introduced legislation making provision for the appointment of a special counsel in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his legal representatives, the Attorney‑General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed. The relevant rules giving effect to the 1997 and 1998 Acts are set out in the Court’s judgment in Jasper v. the United Kingdom ([GC], no. 27052/95, § 36, 16 February 2000). 35. In R. v. H.; R. v. C. [2004] UKHL 3, decided on 5 February 2004, the Judicial Committee of the House of Lords held, inter alia: “The years since the ... enactment of the CIPA have witnessed the introduction in some areas of the law of a novel procedure designed to protect the interests of a party against whom an adverse order may be made and who cannot (either personally or through his legal representative), for security reasons, be fully informed of all the material relied on against him. The procedure is to appoint a person, usually called a ‘special advocate’, who may not disclose to the subject of the proceedings the secret material disclosed to him, and is not in the ordinary sense professionally responsible to that party but who, subject to those constraints, is charged to represent that party’s interests ... There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII matters, a defendant in an ordinary criminal trial ... But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant’s right to a fair trial. Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to cooperate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant. ...” 36. Section 2(1) of the Criminal Appeal Act 1968 provides that the Court of Appeal: “(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case.” 37. Pursuant to section 33(1) of the 1968 Act, a defendant has the right to appeal to the Supreme Court against a decision of the Court of Appeal (Criminal Division). Section 33(2) clarifies that the leave of the Court of Appeal or the Supreme Court is required and that leave will not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the Supreme Court (as the case may be) that the point is one which ought to be considered by the latter court. 38. The Human Rights Act 1998 (“the 1998 Act”) incorporates the Convention into United Kingdom law. Under section 7(1) of the Act, a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention right or rights concerned in any legal proceedings. | 0 |
test | 001-181387 | ENG | BGR | CHAMBER | 2,018 | CASE OF DIMITAR MITEV v. BULGARIA | 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) | André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 6. The applicant was born in 1972 and is currently detained at Varna Prison. 7. Before the events at issue, he had several previous convictions for theft. 8. A seventy-five-year-old lady, a neighbour of the applicant’s parents, was murdered in her house in Varna on the morning of 18 June 2006, and a number of her personal possessions were stolen from the house. The applicant was suspected of having committed the offence and a search order was issued in respect of him. 9. On the morning of 21 June 2006 the applicant was arrested. He had been hiding in an abandoned house in a neighbouring village. The police report on his arrest stated that he had “slightly” resisted the arrest, and that force had been used in order to take him out of his hiding place (under a bed) and handcuff him. 10. The applicant was taken to the police station in the nearby town of Valchi Dol, where, at 11.30 a.m., an order for his arrest was issued under section 63(1) of the Ministry of the Interior Act 2006 (see paragraph 26 below). The applicant signed a declaration stating that he wanted to be assisted by a lawyer and that he had liver and stomach pains, due to “past ailments”, and wished to be examined by a doctor. 11. Later in the day, two police officers from Varna, Z.K. and V.V., arrived in Valchi Dol. They had a conversation with the applicant, during which he confessed, according to him under physical duress, to having committed the murder and described his actions in the days preceding his arrest. In addition, he confessed to having stolen a gun and other personal possessions from another house on an earlier occasion. The confession was written down and was signed by the applicant and Officer V.V. 12. Later on that same day the applicant was transferred to the police station in Varna, where he asked to be examined by a doctor. The examination started at about 8 p.m. The doctor identified bruises and haematomas on the applicant’s right elbow, right flank, buttocks and wrists, which had been caused by hard, blunt objects less than twenty-four hours earlier. 13. On 22 June 2006 an investigator brought charges against the applicant in relation to another offence, an unrelated theft, and a prosecutor ordered his detention for up to seventy-two hours. On 23 June 2006 the Varna District Court ordered the applicant’s detention on remand in connection with that charge. The criminal proceedings concerning that charge proceeded alongside the proceedings which are the subject of this application, and were completed in March 2007. 14. The murder investigation, to which the investigation into the alleged theft of a gun and other personal possessions mentioned in the applicant’s confession to Officers Z.K. and V.V. was joined, continued over the months which followed. The police gathered further evidence and witness testimony, some of which was identified on the basis of that confession. They never found the objects stolen from the victim’s house. On 18 December 2006 an investigator brought charges against the applicant in connection with the two offences mentioned above. On that occasion the applicant had a lawyer, retained by him on the same day. The applicant made a brief statement that he was not guilty. 15. On an unspecified date in 2007 the applicant was indicted and taken to court. 16. The Varna Regional Court (hereinafter “the Regional Court”), which examined the case at first instance, held its first hearing on 25 June 2007. It heard the doctor who had examined the applicant on the evening of 21 June 2006 (see paragraph 12 above). She stated that she maintained the opinions expressed in her previous report, and the prosecution and the defence posed no further questions. Officers Z.K. and V.V. were examined as witnesses and recounted their conversation with the applicant on 21 June 2006 and the confession he had made to them. They replied to questions posed by the prosecution and the defence. The applicant’s father was examined as well, and he stated that he had visited his son about ten days after his arrest. The applicant had told him that he had been beaten in order to confess, and some traces of this beating had still been visible on him. The Regional Court heard other experts and witnesses. 17. During the next hearing, held on 3 October 2007, the applicant made a statement on the charges. He said that he had not committed the offences, as at the time of the murder he had been at his grandmother’s house in another village, and that he had confessed to the offences under duress. 18. On 11 February 2008 the Regional Court examined more witnesses and then the parties made oral submissions. Counsel for the applicant contested the testimony of Z.K. and V.V. in particular, arguing that their examination had been contrary to Article 118 of the Code of Criminal Procedure (see paragraph 31 below). He pointed out moreover that, while the applicant had made a confession to those two officers, he had not repeated that confession when taken before an investigator. At the same time, the confession was one of “the pillars” of the indictment, as there was no other evidence showing the course of the events inside the victim’s house. 19. In a judgment given on 11 February 2008 the Regional Court convicted the applicant and sentenced him to life imprisonment. On the basis of the evidence collected, it concluded that the applicant had stolen a gun and other personal possessions several days before the murder, and on the day of the murder had entered the victim’s house in order to steal food. When she had surprised him in the house, he had attacked her, hitting her with the gun stolen earlier – in such a way that a part of the gun’s cock had broken off and fallen to the floor – and with an axe which he had found in the house. After the murder the applicant had run away. A stranger had given him a lift to another village, but the applicant had forgotten a bag containing his clothes and the gun in the stranger’s car. 20. In establishing the facts, the Regional Court relied on the following most important pieces of evidence: a metal fragment which had been found under the victim’s body and which the experts confirmed to be the missing part of the cock of the gun; traces of the victim’s blood found on the handle of the gun found in the applicant’s bag; the testimony of the person who had given the applicant a lift in his car and had found that bag; the fact that that person had also recognised the applicant’s photo when it had been shown to him by the police; and the testimony of Officers Z.K. and V.V., who had recounted what the applicant had confessed to them with regard to the course of the events in the victim’s house. As to the officers’ testimony, the Regional Court pointed out that it considered it credible, since the confession as recounted by them had enabled the police to continue the investigation and identify further evidence. 21. The applicant lodged an appeal. 22. In his written and oral submissions to the Varna Court of Appeal (hereinafter “the Court of Appeal”), counsel for the applicant contested once again the testimony given by Z.K. and V.V. He argued that the Regional Court had not commented on the evidence showing that the applicant had been beaten in order to make the confession the officers had recounted, pointed out that the confession had not been repeated once the applicant had been taken before an investigator, and relied again on Article 118 of the Code of Criminal Procedure. 23. In a judgment of 30 May 2008 the Court of Appeal upheld the applicant’s conviction and sentence, finding that his guilt had been proved beyond reasonable doubt. In addition to the evidence described above, it relied on the testimony of a neighbour of the victim, who had seen a person considered to be the applicant on the roof of the victim’s house shortly before the murder. As to Z.K. and V.V., the Court of Appeal pointed out that they had not been investigating bodies within the meaning of the Code of Criminal Procedure, and that their testimony had been assessed in the light of all other evidence. Furthermore, it commented on the exonerating evidence, in particular expert reports finding no fingerprints of the applicant and no traces of his scent in the victim’s house, saying that this was not sufficient to refute the accusations. 24. The applicant lodged an appeal on points of law. His counsel contested once again the testimony of Officers Z.K. and V.V., pointing out that the lower courts had not commented on the evidence showing that the applicant had been beaten in order to confess. Moreover, the officers’ testimony had been given in breach of Article 118 of the Code of Criminal Procedure. 25. In a final judgment of 13 November 2008 the Supreme Court of Cassation upheld the Court of Appeal’s judgment. As to the arguments of the defence concerning the testimony of Z.K. and V.V., it observed that the confession as recounted by the officers contained details which could only have been known to the perpetrator of the crimes at issue, and thus could not have been “instigated”. Moreover, allowing Z.K. and V.V. to testify had not been in breach of Article 118 of the Code of Criminal Procedure. | 1 |
test | 001-179229 | ENG | LVA | COMMITTEE | 2,017 | CASE OF CUŠKO v. LATVIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | André Potocki;Mārtiņš Mits | 4. The applicant was born in 1970 and lives in Riga. 5. On 23 April 2003 criminal proceedings were instituted. 6. On 29 April 2003 the applicant was arrested on suspicion of attempted bribery. 7. On 2 May 2003 the applicant was detained on remand. On 25 July 2003 he was released and police supervision was imposed instead, under which he was obliged not to leave his home district without the authorisation of the investigation authorities, and to report to the local police department twice a week. 8. On 27 November 2003 a bill of indictment was served on the applicant and his two co-accused (D.E. and V.M.). On 2 December 2003 a judge of the Riga Regional Court (Rīgas apgabaltiesa) accepted the criminal case for trial. The first hearing was scheduled to take place from 1 to 4 August 2005. 9. On 1 August 2005 the hearing was adjourned for an indefinite period owing to D.E.’s poor state of health and the fact that the applicant’s defence lawyer was on vacation. 10. On 1 October 2005 the new Criminal Procedure Law entered into force; it introduced new rules concerning, inter alia, conflicts of interest faced by judges. In the light of the new rules, on 22 February 2006 the hearing was adjourned because one of the judges of the Riga Regional Court had had to recuse herself from the trial. 11. On 31 July 2006 the hearing was adjourned because the prosecutor and the applicant’s defence lawyer were due to go away on holiday. 12. On 13 November 2006 the hearing was adjourned once again owing to D.E.’s poor state of health. On 15 November 2006 a judge from the Riga Regional Court requested the hospital in which D.E. was being treated to provide information about her state of health. On 20 November 2006 the court was informed that D.E. had been discharged from the hospital and placed under the care of her family doctor. 13. On 27 February 2007 the hearing was adjourned for unspecified reasons. 14. On 26 June 2007 the hearing was adjourned again owing to D.E.’s poor state of health. On the same day the Riga Regional Court ordered that D.E. undergo a medical examination in order for her capacity to participate in the proceedings to be determined. The findings of that examination were delivered less than one month later and indicated that D.E. was able to participate in the proceedings. 15. On 27 September 2007 the Riga Regional Court scheduled the next hearing for 27 December 2007. On 18 October 2007 D.E.’s lawyer requested that that hearing be rescheduled in order to accommodate his taking planned holidays. The court dismissed that request, noting that six hearings had already been adjourned and that further delays in the proceedings could not be allowed. 16. On 27 December 2007 the hearing was adjourned, as the prosecution needed to replace the charge against the applicant with a more lenient one. 17. On 11 January 2008 the Riga Regional Court started to hear the parties’ arguments regarding the merits of the case. On 15 January 2008 it convicted the applicant of attempted bribery and sentenced him to three years’ imprisonment. 18. On 4 February 2008 the applicant submitted an appeal. On 1 December 2008 the appellate court upheld the lower court’s judgment. 19. On 30 December 2008 the applicant lodged an appeal on points of law, arguing, inter alia, that his right to a trial within a reasonable time had been breached. In this respect he referred to several provisions of national and international law, including Article 6 § 1 of the Convention. 20. By a final decision of 26 January 2009 the Senate of the Supreme Court (Augstākās tiesas Senāts) refused the applicant leave to appeal on points of law, noting, inter alia, that the applicant’s “reference to violations of certain laws and international legal provisions was formalistic.” | 1 |
test | 001-155091 | ENG | AUT | COMMITTEE | 2,015 | CASE OF WALLNÖFER v. AUSTRIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 4. The applicant was born in 1933 and lives in Innsbruck. 5. The applicant was the manager of Alpenland Holland B.V., a company registered in the Netherlands dealing with artwork. 6. On 11 May 1994 the Innsbruck Tax Authority first informed the Innsbruck Public Prosecutor of the suspicion of tax fraud by the applicant in connection with the sale of several pieces of artwork by Alpenland Holland B.V. 7. On 16 May 1994 the Innsbruck Regional Court issued an order for the applicant’s home to be searched. The search was conducted on 30 May 1994, which is also the date when the applicant was first notified of the investigations against him. 8. On 26 February 1997 the Innsbruck Tax Authority submitted its final report to the Innsbruck Public Prosecutor. 9. On 8 June 1998 the Innsbruck Public Prosecutor issued an indictment against the applicant concerning the suspicion of tax fraud during the years 1989, 1990 and 1992, alleging that the applicant had evaded taxes amounting to 6.87 million. Austrian Schilling (equivalent to approximately 500,000 euros (EUR)). 10. The Innsbruck Regional Court held oral hearings on 19 November 1998, 14 January 1999 and 5 October 2000. On the latter date it acquitted the applicant of the charges. On 22 November 2001 the Supreme Court quashed the judgment upon a plea of nullity by the Innsbruck Tax Authority and referred the case back to the first instance for a re-trial. 11. After having held oral hearings on 5 June 2002, 9 September 2002 and 14 October 2002, the Innsbruck Regional Court convicted the applicant of tax fraud and sentenced him to a fine of EUR 120,000, EUR 40,000 of which was suspended on probation. The judgment was served on 16 November 2002. The applicant lodged a plea of nullity. 12. On 11 September 2003 the Supreme Court again quashed the judgment and referred the case back to the first instance. 13. In March 2003 the Innsbruck Regional Court commissioned an expert to determine the assessment base for the calculation of the taxes. 14. On 18 and 19 November 2004 and on 23 December 2004 further oral hearings were held. The Innsbruck Regional Court remarked in a note to the file dated 14 February 2005, quoting the case Hennig v. Austria (no. 41444/98, 2 October 2003), that the length of the proceedings was already considerable, and admitted that this was attributable to the court system. 15. In March 2004 the expert opinion was delivered. During the oral hearing of 18 May 2006 the Innsbruck Regional Court requested the expert to supplement his report, as it had turned out to be incomplete and did not answer the most relevant questions. A revised expert opinion was received in March 2007. 16. During the oral hearing on 29 May 2009, at which the applicant was heard, the Innsbruck Public Prosecutor withdrew the indictment because the statutory time-limit for the prosecution of the offence had expired. Consequently, the Innsbruck Regional Court acquitted the applicant of the charges (judgment delivered orally on 29 May 2009, served on the applicant’s counsel on 25 February 2010). The written judgment contained, inter alia, the following wording: “The above-mentioned sales transactions solely aimed at the commission of tax fraud in Austria. No levies were paid in the Netherlands in connection with the sale of the paintings. The profits made constitute income deriving from a business according to Section 23 of the Income Tax Act [Einkommenssteuergesetz], which from an economic point of view are attributable to the applicant according to Section 21 of the Federal Tax Rules [Bundesabgabenordnung]. Taking into account the expenses incurred, tax loads and therefore tax evasion amounting to ATS 975,122.09 (EUR 70,864.89) turnover tax, ATS 4,104,950.75 (EUR 298,318.40) income tax and ATS 1,495,319.40 (EUR 108,669.09) business tax arose. The accused was determined to effect these transactions in order to mask his tax liability in Austria and thereby commit tax fraud. ... From a legal point of view, it follows from the facts that the accused was to be acquitted even though the elements of the offence were fulfilled, as the Public Prosecutor withdrew the indictment ...” 17. Following the Court’s notification of the present application to the Government, the latter informed the Court that, on 18 September 2014, the Procurator General’s Office had lodged a plea of nullity for the preservation of the law regarding the judgment of the Innsbruck Regional Court of 29 May 2009. 18. On 6 November 2014 the Supreme Court held that the judgment in question had violated the applicant’s rights under Article 6 § 2 of the Convention, namely the right to be presumed innocent until proved guilty, on the grounds that the Innsbruck Regional Court had stated in its reasoning that it considered the applicant to be guilty, even though it acquitted him. | 1 |
test | 001-172928 | ENG | MLT;NLD | ADMISSIBILITY | 2,017 | MUCALIM v. THE NETHERLANDS AND MALTA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 1. The applicant, Mr Yasir Cabi Qadir Mucalim, is a Somali national, who was born in 1992 and lives in Almelo. He was represented before the Court initially by Mr P. Bouwman and later by Mr M.P. Ufkes, both of them lawyers practising in Helmond at relevant times. 3. On 24 August 2009 the applicant arrived at Schiphol (Amsterdam) Airport where he requested asylum. 4. On 29 August 2009 he was interviewed about his identity, nationality and travel itinerary (eerste gehoor). It emerged that he had lodged a previous asylum request in Malta. 5. A Dublin Claim interview (gehoor Dublinclaim) was held on 31 August 2009 in which the applicant described the conditions in which he had been detained in Malta. Asylum-seekers lived in tents, the camp was overcrowded and sanitary facilities were filthy. He objected to being sent back to Malta as he did not wish to face the same conditions of detention again. 6. On 29 September 2009 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum request on the ground, in so far as relevant to the case before the Court, that under Article 16 of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin Regulation”) the State responsible for examining his application for asylum was Malta and Malta had agreed to take him back. 7. The applicant appealed to the Regional Court (rechtbank) of The Hague on 2 October 2009. As relevant to the case before the Court, he alleged that sending him back to Malta would expose him to conditions of detention violating Article 3 of the Convention. He submitted documents in support of this allegation. At the same time he requested a provisional measure in the form of a stay of deportation. 8. On 15 January 2010 the Regional Court of The Hague (sitting in Zwolle) dismissed both the request for a provisional measure and the appeal, finding that the applicant had failed to make out his case that Malta would fail to meet her Conventional obligations towards him. 9. The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) on 22 January 2010, at the same time requesting the President of the Administrative Jurisdiction Division to order a provisional measure in the form of a stay of deportation. 10. On 27 January 2010 the President of the Administrative Jurisdiction Division dismissed the request for a provisional measure on the ground that the applicant’s deportation did not appear imminent. 11. On 29 January 2010 the applicant lodged a new request for a provisional measure, stating that his deportation to Malta had been scheduled for 1 February 2010. 12. On the same day the President of the Administrative Jurisdiction Division gave a decision dismissing the request on the ground that the applicant’s further appeal was unlikely to succeed. 13. On 18 March 2010 the Administrative Jurisdiction Division dismissed the applicant’s further appeal on summary reasoning. 14. The relevant European, Maltese and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfers of asylum-seekers under the Dublin Regulation are set out in Tarakhel v. Switzerland [GC], no. 29217/12, §§ 28-48, ECHR 2014 (extracts); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 and 51377/10, §§ 98‑117, 10 September 2013); Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013); Suso Musa v. Malta, no. 42337/12, §§ 23-32, 23 July 2013; and Aden Ahmed v. Malta, no. 55352/12, §§ 31-39, 23 July 2013. 15. By letter of 7 March 2012, the Agent of the Maltese Government submitted replies to questions of the Judge Rapporteur (Rule 44 § 3 (a) of the Rules of Court). As relevant to the case now before the Court, these included the following: “Upon return to Malta in terms of the Dublin Regulation if an applicant is still considered to be an asylum seeker, and if he so wishes, the applicant will be housed in an open centre where he will be provided with shelter and medical care pending the determination of his request for protection in Malta.” and “When aliens are returned to Malta, they are not taken into police custody unless it results that an offence (not including their irregular entry into, or exit from, Malta) was committed by them in Malta. Moreover, aliens who are rejected asylum seekers and who are returned to Malta will not be deprived of their liberty but efforts will be made for them to be returned to their country of origin.” 16. By letter of 28 June 2012, the Agent of the Maltese Government supplemented this information. His letter included the following: “The applicant applied for refugee status and a Preliminary Questionnaire was filled [in] by the applicant on the 22nd July 2008 and the interview with the Refugee Commissioner was held on the 5th January 2009; On the 27th January 2009, the applicant was granted Subsidiary Protection and he was released from detention on the 29th January 2009 and was transferred to the open centre. Thus, the applicant was put in detention for six months (from the 12th July 2008 till the 29th January 2009); ...” 17. The applicant did not submit any comments on either letter relevant to the case now before the Court. | 0 |
test | 001-180104 | ENG | TUR | ADMISSIBILITY | 2,017 | BAŞKAYA v. TURKEY | 4 | Inadmissible | Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström | 1. A list of the applicants is set out in the appendix. 2. The Turkish Government (“the Government”) were represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 5 October 2003 the applicants’ son and brother, Celal Başkaya, who was a student at a public university in Konya at the material time (“Selçuk University”), drowned in the university’s Olympic swimming pool. 5. Soon after the incident police officers arrived at the swimming pool and examined the accident site together with the deputy manager of the pool, T.S. According to the information provided by T.S., Celal Başkaya was taken to the Konya Numune Hospital following initial medical assistance administered beside the pool. The police drew up a sketch map of the scene of the incident, showing that the victim had drowned in the middle of the pool, where the water depth was 220 centimetres. Another report prepared by the police on the same day indicated that a diabetic ID card had been found amongst the belongings recovered from victim’s changing room locker. 6. Still on 5 October 2003, the police questioned four suspects in respect of the incident: the lifeguards employed at the pool, B.Y. and C.A., the medical officer at the pool, M.Ö., and the deputy manager of the pool, T.S. 7. B.Y. told the police that when he and his colleague, C.A., who had been positioned on the other side of the pool at the material time, noticed a person drowning in the middle of the pool, they jumped in and rescued him. When they first took him out, the young man was unconscious, but still had a pulse. They immediately performed the relevant first aid procedures with the assistance of the medical officer M.Ö., and ten minutes later an ambulance arrived and took the man to the hospital. B.Y. stated that it was only after the incident that they learned that the victim was diabetic. B.Y. also claimed that before sinking under water, the victim had not called for help in any way, nor had he made any movements suggesting that he was in danger of drowning. 8. The other three suspects, C.A., M.Ö. and T.S., gave similar statements to that of B.Y.’s. 9. On the same day, the police also questioned two eye witnesses, who gave statements along the same lines as the suspects. 10. The autopsy carried out on the same day confirmed the cause of death as drowning. 11. On 8 October 2003 the Konya public prosecutor’s office filed a bill of indictment with the Konya Assize Court against the two lifeguards, B.Y. and C.A., the medical officer at the pool, M.Ö., and the deputy manager, T.S., for causing the death of Celal Başkaya by their failure to take the necessary safety measures at the swimming pool. 12. The applicants joined the proceedings before the Konya Assize Court as civil parties not seeking compensation. In the petition which he submitted to the assize court, the first applicant, Haydar Başkaya (the victim’s brother), claimed that the lifeguards had failed to pay attention to his brother’s initial calls for help and had intervened too late. 13. Before the Konya Assize Court, the defendants repeated their previous police statements. The lifeguard C.A. informed the assize court that there had been approximately seventy-five to eighty people at the swimming pool at the material time. At the start of the proceedings, the defendants’ lawyer challenged the autopsy report as being incomplete, given that it had not been established during the autopsy whether the victim − who had suffered from diabetes mellitus − had died because he had lapsed into a diabetic coma in the swimming pool. The lawyer requested from the court another autopsy to establish whether he had died of diabetesrelated causes. The matter was brought before the Forensic Medicine Institute, which informed the assize court that blood samples taken after death would not be indicative of the glucose levels preceding death. 14. At the subsequent hearings the assize court heard statements from witnesses who confirmed that the victim knew how to swim and had drowned without making any noise or movements. The assize court also conducted an on-site examination of the university swimming pool in the presence of the defendants, the applicants’ lawyer, and two experts (one expert lifeguard and one physician from the Provincial Directorate of Youth and Sports). 15. In his report dated 10 December 2004 the expert lifeguard stated that according to the information in the case file the victim, who apparently knew how to swim, had drowned without any attempts to attract attention. There was, moreover, no evidence to suggest that the lifeguards had neglected their rescue duties in any way. In these circumstances, the expert found that there were no grounds to hold the lifeguards accountable in connection with the death of Celal Başkaya. 16. In his report dated 31 January 2005 the medical expert found that at the time of the incident there were two lifeguards and one medical officer on duty at the swimming pool, which showed that the necessary safety measures had been in place. The evidence in the case file suggested that the victim knew how to swim, that he had drowned without calling for help or showing any other signs of distress, and that the lifeguards had intervened as soon as they noticed the victim at the bottom of the pool. Without expressing any view as to whether the victim’s death had been related to his diabetes, the expert stated that strenuous physical activity could cause glucose levels to drop, which could in turn lead to loss of consciousness. If the victim had experienced such a hypoglycaemic attack while under water and had, as a result, lost consciousness, it was possible that the lifeguards or other people in the pool might not have realised right away that there was a problem. In the light of all this information, the medical expert stated that the defendants had no responsibility in connection with the victim’s death. 17. On 4 May 2005 the Konya Assize Court requested another expert report from the Istanbul Forensic Medicine Institute regarding the liability of the defendants in respect of the death of Celal Başkaya. 18. On 17 May 2005 the Forensic Medicine Institute rejected that request as being outside the scope of its duties. The Konya Assize Court therefore ordered another expert report from three experts on occupational safety. 19. In their report dated 30 September 2005 the experts on occupational safety made the following findings: – Considering that the victim knew how to swim, which was not contested, he must have experienced a health problem that caused him to lose consciousness and sink while halfway across the pool. – Although it was not possible to determine with any certainty what type of health problem had brought about his drowning, the victim was diabetic. The possible outcomes of hypoglycaemia caused by strenuous physical activity had been outlined in the medical expert’s opinion dated 31 January 2005 (see paragraph 16 above). – It therefore appeared that the victim had silently sunk to the bottom of the pool without calling for help or showing other signs of drowning as a result of his underlying medical condition. – Bearing in mind that the victim had been only one of the many swimmers in the pool, it could not be expected for the lifeguards to follow all the movements of all the swimmers at all times and to intervene despite the absence of any signs of distress. – In these circumstances, the lifeguards, who had intervened as soon as they noticed the victim at the bottom of the pool, could not be held accountable for the victim’s death. 20. Relying on all the evidence and the information in the case file, on 28 February 2006 the Konya Assize Court ordered the defendants’ acquittal. 21. The applicants appealed against that judgment. They objected in particular to the findings in the expert report issued by the physician on 31 January 2005. They also argued that the expert report of 30 September 2005 had not been made available to them. 22. On 16 March 2009 the Court of Cassation quashed the judgment of the first instance court and decided to discontinue the proceedings as the prosecution of the offence in question had become time-barred. This decision, which was deposited with the registry of the first-instance court on 28 May 2009, was served on the applicants on 3 June 2010. 23. The applicants alleged, without submitting any supporting documents, that the lifeguards had been discharged from their duties in the aftermath of the incident. This information was neither confirmed nor contested by the Government. | 0 |
test | 001-144662 | ENG | POL | CHAMBER | 2,014 | CASE OF P.K. v. POLAND | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 5. The applicant was born in 1978 and lives in Bychawa. 6. The applicant was married in 1999. In 2001 his wife gave birth to P. 7. In December 2001 the applicant filed for divorce with the Lublin Regional Court. In his petition he requested that the child should reside with his mother and that she should be given custody. He submitted that he was not P.’s biological father. 8. At the same time the applicant instituted a separate set of proceedings challenging his paternity in respect of P. In a subsequent decision his claim was dismissed as it had been established by DNA tests that the applicant was in fact the boy’s father. 9. On 6 May 2002 the applicant requested the court conducting the divorce proceedings to give him custody of the child, to rule that the child’s place of residence should be with him, and that the mother should be divested of her parental rights. The Government submitted that he had further requested that the child be placed in a public care institution. The applicant contested this. He argued that his intentions had been misconstrued. 10. On 28 October 2003 the court dissolved the applicant’s marriage. It found that both parties had been at fault in the breakdown of the marital relationship. It held that parental authority was to be exercised by both parents, and stipulated that the place of residence of P. was to be with the boy’s mother. The applicant was allowed to visit the child at his mother’s address and in her presence on every third Sunday of the month between 10 a.m. and noon. 11. In the written grounds of the judgment the court observed that the applicant’s conduct was open to criticism. It referred to the unsuccessful paternity challenge he had brought before the courts and expressed the view that he was not really interested in maintaining meaningful contact with his son. 12. The applicant appealed. On 18 May 2004 the Lublin Court of Appeal dismissed his appeal. The divorce judgment became final. 13. Subsequently difficulties arose as to compliance with the access order, as the mother persistently refused to respect it. 14. On 25 September 2006 the applicant instituted proceedings seeking to have the access arrangements specified by the divorce judgment enforced. On 29 November 2006 the court questioned him in connection with these proceedings. He did not remember when he had last seen his son. 15. The mother was questioned on 17 January 2007. She told the court that the applicant had come to see his son for the first time in 2006, just after she had requested an increase in the amount of the monthly maintenance payments. She was of the view that the applicant was not interested in the child. 16. By a decision of 28 June 2007 the Lublin District Court fixed a onemonth time-limit for the child’s mother to allow the applicant contact with P. on the terms stipulated by the divorce judgment. It held that she was to pay a fine of 600 Polish zlotys (PLN) in the event of continued failure on her part to comply with the access arrangements. 17. In July 2007 the applicant again requested the court to take measures to oblige the mother to cooperate and allow him contact with his child. On 25 September 2007 the Lublin District Court refused to grant the applicant an exemption from the obligation to pay court fees in respect of this request. 18. In October 2007 the applicant complained to the Lublin District Prosecutor about the mother’s conduct. He was informed in reply that issues of compliance with decisions of civil courts did not fall within the jurisdiction of the prosecuting authorities. 19. On 17 December 2007 the Lublin District Court imposed a fine on the mother in the amount of PLN 600 for her failure to allow the applicant contact with P., and set another one-month time-limit for her to comply with that order on pain of a fine in the amount of PLN 700. 20. On a further complaint by the applicant, by a decision of 9 April 2008 the same court ordered the mother to pay the fine of PLN 700 and set another one-month time-limit for her to comply with the access arrangements on pain of a further fine of PLN 800. 21. On 1 July 2008 the Lublin District Court appointed a court guardian (kurator) to supervise the execution of the access arrangements determined by the divorce judgment. It held that the guardian should accompany the applicant on each and every visit to his child under the schedule determined by that judgment. 22. On 26 August 2008 P.’s mother requested the court to restrict the applicant’s parental authority and to change the access arrangements by banning the applicant from contact with his son. 23. On 17 September 2008 the court ordered the mother to pay a fine of PLN 800 for her continued refusals to allow the child to see his father and set a new one-month time-limit for her on pain of a further fine in the amount of PLN 1,300. 24. On 22 September 2008 the applicant requested the court to rule that the child should move to his home and for the mother to be granted access rights. 25. On 25 September 2008 the court refused to examine the applicant’s new request for a fine to be imposed on the mother, having regard to its decision of 17 September 2008 (see paragraph 23 above). 26. On 21 December 2008 the Lublin District Court dismissed the applicant’s request of 23 September 2008 (see paragraph 25 above), finding that the child had good living conditions at his mother’s home and felt safe with her. The applicant did not appeal against this decision. 27. On 12 February, 5 March, 16 April and 10 December 2008 the applicant requested the Lublin District Court to take more vigorous enforcement measures. He submitted that he could not see his son and that the measures applied so far had failed. 28. On 26 January 2009 P.’s mother requested the Lublin District Court to divest the applicant of parental authority. She submitted that the applicant had for many years not been interested in the child and that the child was afraid of him as he had provoked a brawl at the school. 29. On 1 July 2009 the Lublin District Court authorised the courtappointed guardian to take the child from the mother to ensure compliance with the access arrangements so that his father could see him. 30. On 16 August 2009 the court-appointed guardian went with the applicant to the mother’s apartment to visit the child. No one answered the door. On 18 August 2009 the guardian complained to the prosecuting authorities about her failure to cooperate. 31. In September 2009 the applicant again requested the court to take more vigorous measures to ensure that he had effective enjoyment of his access rights. In reply on 16 September 2009 the Lublin District Court informed the applicant that the enforcement order of 1 July 2009 remained valid and that it was operational in respect of every new attempt he made to see his son. 32. On 20 September and 18 October 2009 the court-appointed guardian attended at the scheduled times to assist the applicant for the purposes of his monthly visits to see his son but the applicant failed to turn up for the visits. 33. On 28 October 2009 the applicant informed the court that on 16 August 2009 the court guardian had gone with him to the mother’s apartment. She had refused to open the door or let him see the child. The applicant submitted that the guardian had remained passive in the face of the mother’s defiance. Afterwards, the head of the court-appointed guardians had informed the applicant that no new attempts to assist him in seeing his son would be made, as the previous attempt had failed. He had also informed the applicant that he regarded his case as closed and that he had forwarded the case file to the court. 34. On 8 October 2009 the same court refused to hear a request by the applicant for enforcement of his access rights, referring to the valid decision given on 1 July 2008 (see paragraph 22 above). An identical decision was given by the same court on 12 January 2010 in respect of a fresh request by the applicant for assistance in the execution of the access arrangements. On 21 December the Lublin District Court refused to amend the access arrangements by deciding that the applicant’s son should live with him. 35. On 17 January 2010 the guardian accompanied the applicant. Again, no one answered the door to the mother’s apartment. The guardian called the police. They attended, but their intervention was to no avail as no one answered the door. The guardian again informed the prosecuting authorities about the mother’s conduct. 36. On 20 January 2010 the applicant made a new request for assistance. 37. On 29 March 2010 the court made a new enforcement order, identical to that of 1 July 2008 (see paragraph 22 above). In the written grounds for this order the court emphasised the mother’s uncooperative behaviour in respect of the access arrangements, and stated that the execution of the access arrangements necessitated close cooperation on the part of both parents, who were obliged to act in the child’s best interest. 38. On 6 April and 21 April 2010 the applicant again requested the court to assist him. On 18 April 2010 he failed to turn up for another visit, scheduled on that date. On 16 May 2010 the mother did not answer the door when the applicant, assisted by the court guardian, came to see the boy. The guardian again informed the prosecution about her obstructive behaviour. 39. On 20 June 2010 the mother again failed to open the door to the applicant, accompanied by the guardian and ultimately by the police. 40. On 29 June 2010 the applicant again requested the court to assist him. In reply, the court asked him whether his request was to be understood as a new request for assistance by court-appointed guardians in the execution of the access arrangements. The applicant replied that he had simply sought the court’s advice as to how he could deal with his situation, which remained unchanged as the mother remained uncooperative. 41. On 29 June 2010 the guardian determined that the enforcement proceedings in respect of the order of 29 March 2010 were to be closed, as the three-month period of validity of that period specified in Article 598.12 (a) of the Code of Civil Procedure had expired. 42. In July 2010 the applicant twice complained to the District Prosecutor about his situation. 43. On 18 July 2010 the applicant again sought unsuccessfully to see his son. The court-appointed guardian was not present, apparently because the applicant had failed to lodge a new request with the court for his assistance and the previous execution order had expired (see paragraph 41 before). The applicant called the police. They attended, but he did not succeed in seeing his son, because the police officers refused to assist him, having regard to the fact that the child was not at home at that time. The applicant requested that criminal proceedings be instituted against them on charges of abuse of official authority. His complaint was subsequently investigated. The internal enquiry was closed on 16 September 2009 as the officers’ conduct had not been aggressive or inappropriate. Subsequently, on 15 November 2010 the Lubartów District Prosecutor discontinued the investigation against the officers, having noted, inter alia, that the applicant’s son had not been at home on the material date. 44. On 19 and 26 July 2010, respectively, the applicant again requested the court and the court guardian to assist him in the enforcement of the access arrangements. He reiterated his request on 25 August 2010. In reply, on 4 October 2010 the court issued another order authorising the guardian to assist the applicant in the execution of the access arrangements with a view to addressing the mother’s defiance. 45. On 15 November 2010 the Lublin District Court dismissed the mother’s application for the applicant to be deprived of parental rights. It further amended the access arrangements specified in the divorce judgment. It limited the mother’s parental authority by assigning a guardian to supervise her in the exercise of her parental rights. The court further ordered the mother to attend family therapy in order to improve her communication with the child’s father. 46. In the written grounds of that decision the court noted that between 2001 and 2006 the applicant had shown no interest in his son and had failed to pay maintenance in the amount of PLN 270 per month. The mother had requested the bailiff to institute enforcement proceedings in respect of the maintenance. This decision became final on 23 December 2010. 47. On 21 November 2010 the guardian failed to attend to assist the applicant, as she was ill. On 19 December 2010 the applicant went to see his son accompanied by the guardian but no one answered the door. The guardian informed the prosecutor about the mother’s behaviour. 48. On 27 December 2010 the applicant again requested the court to ensure the mother’s compliance with the access arrangements, and requested the court to assist him. 49. On 4 January 2011 the guardian discontinued the enforcement proceedings, referring to the provisions of Article 598.12 (a) of the Code of Civil Procedure. 50. On 14 March 2011 the court again ordered a court guardian to take the child from the mother to ensure compliance with access arrangements. 51. On 17 April and 15 May 2011 the guardian accompanied the applicant to the visits planned for these dates. No one answered the door and the guardian informed the prosecutor about the mother’s conduct. 52. On 6 July and 9 November 2011 the Lublin District Court gave new decisions authorising the guardian to take the child from the mother to ensure compliance with the access arrangement on terms specified in those arrangements. On 17 July 2011 the applicant requested the court to divest the mother of her parental rights, referring to her persistent refusal to respect the access arrangements. The Lublin District Court requested an assessment by the RODK (Regional Family Consultation Centre) of the family’s emotional skills and their communication and parenting situation. In August, September and October 2011 the applicant again complained to the court about the mother’s failure to respect the access arrangements. On 21 December 2011 the court refused to impose a fine on her, having regard to the amendments to the Code of Civil Procedure which had entered into force in August 2011. 53. On 11 January 2012 the Lublin District Court imposed on the mother an obligation to pay PLN 1,000 to the applicant in punitive damages for each failure to comply with the access arrangements. 54. On 28 February 2012 the Regional Family Consultation Centre submitted its opinion to the court about the emotional ties between the mother, the father and the child, prepared for the purposes of the proceedings in which the applicant had requested the court to envisage that the mother be divested of her parental rights. The experts were of the view that the child’s father was focused on the enforcement of his rights. He was not taking into account the needs and expectations of his child. The experts pointed out the negative consequences for the child’s development of the father’s actions aiming at depriving the child’s mother of parental authority. They stressed the existence of strong emotional ties between the child and the mother and the lack of such ties between the father and his son. They noted the lack of willingness and readiness of the child to maintain contact with his father. The experts noted that the father had taken various steps to deprive the child’s mother of parental authority without taking the child’s feelings into consideration. On 16 April, 25 May and 9 July 2012 the applicant requested the Lublin Zachód District Court to order the mother to pay damages to him for her failure to respect the access arrangements. He subsequently withdrew the first request. The second was rejected for his failure to comply with the applicable legal requirements. Subsequently, the applicant supplemented his request of 9 July 2012 by referring to the mother’s failure to let him see his son during his monthly attempts to see his son in July, August, September and October 2012. 55. During the applicant’s visit in September 2012, P. asked his father to leave the apartment and told him that he was not wanted and not liked there. 56. The Government submitted that on 8 October 2012, during a hearing before the Lublin District Court, the applicant had stated that he had seen his son at the child’s mother’s residence in June, September and October 2012. The applicant contested this statement, arguing that he had seen his son only for several minutes on each occasion. 57. On 5 December 2012 the Lublin District Court, in reply to the applicant’s request of 9 July 2012, ordered the mother to pay PLN 2,100 to the applicant, consisting of PLN 300 for each previous failure to comply with the contact arrangements. The court pointed out that she had prevented the father from having contact with his son four times (in April, May, July and August 2012) and obstructed contact three times (in June, September and October 2012). The applicant appealed. Following his appeal, on an unspecified later date the court amended its own decision and imposed on the mother an obligation to pay PLN 7,000 to the applicant in damages for her failure to comply with his access rights (PLN 1,000 for each occasion of noncompliance). 58. On numerous occasions the applicant and later also the court-appointed guardian, acting on the basis of Article 598.11 of the Code of Civil Procedure, repeatedly informed the Lublin District Prosecutor about the child’s mother’s obstructive behaviour and about her non-compliance with the access arrangements. 59. On 28 June 2006, 9 November 2009 the Lublin police and on 23 March and 30 September 2010, 3 March 2011 and 13 January 2012 the Lublin District Prosecutor discontinued the investigation, finding that the mother had no case to answer, as her failure to answer the door and allow the applicant to see his son did not amount to a criminal offence of unlawful restriction of liberty of a minor (brak znamion czynu zabronionego). The refusals were upheld by the competent court on, inter alia, 7 December 2010 and 26 January 2012. 60. On 27 May 2011 the Lublin District Prosecutor brought a bill of indictment before the Lublin – Zachód District Court against the mother on charges of unlawful restriction of liberty against a minor. On 23 September 2011 the Lublin District Court discontinued the proceedings, holding that a parent who exercised her or his parental authority could not be regarded as a perpetrator of an offence of unlawful detention of a minor under 15 years of age, even if that parent was acting contrary to the wishes or without the consent of the other parent. | 0 |
test | 001-145266 | ENG | UKR | ADMISSIBILITY | 2,014 | FAKAS v. UKRAINE | 4 | Inadmissible | Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 1. The applicant, Mrs Tetyana Volodymyrivna Fakas, is a Ukrainian national, who was born in 1966 and lives in Ivano-Frankivsk. The applicant, who had been granted legal aid, was represented by Mr R. Karvatskyy and Mr D. Karapish, lawyers. 2. 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. The applicant has been unemployed since 1997. She is married and has three children. On 24 August 2001 the applicant gave birth to her third child. Between November 2001 and July 2004 the applicant received a monthly child allowance of between 35.40 Ukrainian hryvnias (UAH) (November 2001) and UAH 43.14 (July 2004). 5. On 2 July 2006 the applicant instituted proceedings in the Ivano-Frankivsk City Court, claiming unpaid child allowance for the period between September 2001 and July 2004 under the State Assistance (Families with Children) Act (see the “Relevant domestic law” part below). The applicant stated that she was entitled to a monthly child allowance in an amount equal to the monthly “minimum subsistence level” established by law (“прожитковий мінімум”) for a child aged up to six years. She further referred to Article 46 of the Constitution of Ukraine, which provided that pensions and other types of social payment and assistance that were the recipient’s principle sources of subsistence should ensure an income not lower than that level. Between July 2001 and July 2004 she was receiving around UAH 40 (approximately 7 euros (EUR)) a month, whereas the official subsistence level for a child aged up to six years changed from UAH 276.48 (at the material time around EUR 57) in September 2001 to UAH 324.49 (at the material time EUR 50) in August 2004. 6. On 26 February 2007 the court rejected the applicant’s claims as lodged outside the one-year time-limit, which runs from the date when the person concerned has learned or should have learned about a breach of his or her rights. 7. The applicant appealed, stating that she had learned about the alleged breach of her rights only in March 2006 after having consulted a lawyer. 8. On 7 June 2007 the Lviv Administrative Court of Appeal quashed the decision of the first-instance court but rejected the applicant’s claims as unsubstantiated. The court held that although the applicant was entitled to a monthly allowance in accordance with section 15 of the State Assistance (Families with Children) Act, these amounts had been determined by the State Budget Acts of 2002-04. Therefore, the applicant had received the reduced amounts in accordance with the law. 9. On 3 November 2010 the Higher Administrative Court of Ukraine upheld that decision. The court held that the amounts of the allowance in question had been determined by the State Budget Acts of 2001-2004. 10. According to sections 22, 23 and 26 of the State Assistance (Families with Children) Act 1992 (Закон України «Про державну допомогу сім’ям з дітьми»), in force until 1 January 2002, child allowance was paid monthly to a child’s principal carer (e.g. employed women, unemployed women registered as such etc.) until the child reached the age of three in an amount equal to 100% of the minimum wage. 11. Section 29 of the same Act provided that unemployed women were entitled to child allowance in an amount equal to 50% of the minimum wage until a child reached the age of two. 12. By decision no. 14 of the Cabinet of Ministers of Ukraine of 12 January 2001 “On the Amount of State Assistance [payable] to Families with Children in 2001”, the amount of assistance was established as 20% (unemployed women) or 30% (employed women) of UAH 118 (the minimum wage in 2001). 13. According to section 15 of the State Assistance (Families with Children) Act, which was adopted on 22 March 2001 and entered into force on 1 January 2002, until a child reached the age of three child allowance was payable to a non-insured person in an amount equal to the minimum subsistence level for a child aged up to six years. 14. The monthly minimum subsistence level for children aged up to six years was determined yearly by a special law (Закон України “Про затвердження прожиткового мінімуму”). It was gradually increased from UAH 307 (2002) to UAH 324.49 (2004). 15. Part 3 of the Final Provisions of the State Assistance (Families with Children) Act provided that the amount of child allowance under section 15 of the Act was to be determined yearly by the Verkhovna Rada of Ukraine as a percentage of the minimum subsistence level with a view to gradually reaching that level. The amount in question could not be lower than 25% of the official subsistence level. 16. The State Budget Acts of 2002-2004 established that child allowance, which was provided for by the State Assistance (Families with Children) Act, was payable in an amount of 50% of the “guaranteed minimum” of the official subsistence level (“рівень забезпечення прожиткового мінімуму”). This portion was set as UAH 80 (2002-2003) and UAH 85 (2004) (section 42 of the State Budget Act 2002, section 48 of the State Budget Act 2003, and section 66 of the State Budget Act 2004). | 0 |
test | 001-161379 | ENG | RUS | CHAMBER | 2,016 | CASE OF NOVRUK AND OTHERS v. RUSSIA | 2 | Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant, Mr Mikhail Novruk, is a Moldovan national who was born in 1972. He is represented before the Court by Ms I. Khrunova, a lawyer practising in Kazan. 7. In 2000, Mr Novruk and Ms O., a Russian national, started living together as a couple in Moldova. In 2001, a boy was born to their union; he acquired Russian nationality by birth. Two years later O. and their son moved to the Primorskiy region of Russia, where most of her family lived. In 2005 Mr Novruk joined them in Russia, and in the same year they married. They divorced in 2008. 8. In 2009, Mr Novruk met Ms S., a Russian national. In March 2010, he travelled to Moldova to renew his passport, where he discovered that he was HIV-positive. Three weeks later Mr Novruk returned to Vladivostok and on 24 April 2010 he and S. married. S. has a daughter from her previous marriage and she is also a foster parent to nine orphaned children, some of whom are HIV-positive. 9. In June 2010 Mr Novruk applied to the Primorskiy Region Federal Migration Service for a temporary residence permit. By a letter of 8 July 2010 he was informed that his application was refused by reference to section 7 § 1 (13) of the Foreign Nationals Act, which restricted the issue of residence permits to foreign nationals who could show that they were HIVnegative. 10. On 4 October 2010 the Sovetskiy District Court of Vladivostok, dismissed a challenge by the applicant to that decision, finding in particular that the Federal Migration Service had been required by law to reject his application for a residence permit. On 16 November 2010 the Primorskiy Regional Court upheld that judgment on appeal. 11. The applicant Ms Anna Viktorovna Kravchenko is a Ukrainian national who was born in 1982. She is represented before the Court by Ms N. Yermolayeva, a lawyer practising in Moscow. 12. In 2003, Ms Kravchenko married Mr D., a Russian national. They started living in Moscow. During her pregnancy she was diagnosed as HIVpositive. On 4 April 2003 her son F. was born. He acquired Russian nationality by birth. 13. In 2009, Ms Kravchenko applied for a temporary residence permit. By a letter of 25 May 2009 the Federal Migration Service refused her application by reference to section 7 § 1 (13) of the Foreign Nationals Act and ordered her to leave Russia within fifteen days or face deportation. Ms Kravchenko challenged the refusal with the courts. 14. On 23 September 2009 the Zamoskvoretskiy District Court, Moscow, found for Ms Kravchenko, noting in particular that the Migration Service had decided on her application without taking into account that her minor child and husband were both Russian nationals. It directed the Migration Service to reconsider the application. 15. Further to the District Court’s decision, Ms Kravchenko lodged a new application for a residence permit. On 15 January 2010 the Migration Service rejected it, referring to the same provision of the Foreign Nationals Act. 16. Ms Kravchenko applied again for a judicial review. By a judgment of 3 September 2010, the Zamoskvoretskiy District Court of Moscow granted a stay of enforcement of the Migration Service decision and ordered it to reconsider the matter in the light of the Constitutional Court’s decision of 12 May 2006 and the Convention principles. Ms Kravchenko appealed; she submitted that the District Court should have ruled that the Migration Service refusal had been unlawful. 17. On 8 February 2011 the Moscow City Court dismissed Ms Kravchenko’s appeal against the District Court’s judgment, finding that “there were no grounds to vary the judgment, because the Moscow division of the Federal Migration Service had actually complied with it”. 18. The applicant, Mr Roman Khalupa, is a Moldovan national who was born in 1974. He was granted legal aid and is represented before the Court by Mr D. Bartenev, a lawyer practising in St Petersburg. 19. In 2005, Mr Khalupa married Ms E., a Russian national. Their children, a girl A. and a boy B., were born in 2005 and 2008 respectively. The family were living in St Petersburg. 20. In early 2008 Mr Khalupa took a blood test with a view to obtaining a health certificate to support his application for a temporary residence permit. He was found to be HIV-positive. The hospital reported the results of his test to the St Petersburg division of the Federal Migration Service, which issued a decision of 4 June 2008 on the undesirability of Mr Khalupa’s stay in Russia because he would pose a “real threat to public health”. On 17 June 2008 the director of the Federal Migration Service ratified that decision. 21. On 1 August 2008 the decision was notified to Mr Khalupa; he left Russia three days later, in compliance with the law. He took up residence in Dubossary in the “Moldavian Republic of Transdniestria”. 22. On the day following the pronouncement of the Kiyutin v. Russia judgment (no. 2700/10, ECHR 2011), Ms E., acting on Mr Khalupa’s behalf, applied to the St Petersburg division of the Federal Migration Service, asking it to set aside the decision by which his presence in Russia had been pronounced undesirable. She submitted medical documents showing that Mr Khalupa posed no danger to public health because he was receiving appropriate treatment. Her request was forwarded to the legal department of the Federal Migration Service for review. In a letter of 5 May 2011 addressed to the deputy director of the visas and registration department of the Federal Migration Service, the director of the legal department acknowledged that the decision of 4 June 2008 had not taken fully into account Mr Khalupa’s family ties in Russia. Nevertheless, on 12 September 2011 the deputy director of the St Petersburg division of the Federal Migration Service informed Mr Khalupa and Ms E. that their applications for review of the decision of 4 June 2008 had been refused. His letter did not specify the grounds for refusing the request. 23. Mr Khalupa complained to court. On 30 January 2012 the Basmannyy District Court of Moscow dismissed his complaint, finding firstly that his rights and freedoms had not been interfered with, and secondly that the director of the Federal Migration Service was not empowered to review or set aside a decision by which an individual’s presence in Russia had been declared undesirable. That judgment was upheld on appeal on 16 May 2012 by the Moscow City Court. On 12 December 2012 the Presidium of the City Court rejected Mr Khalupa’s cassation appeal. 24. Mr Khalupa also challenged the compatibility of section 25.10 of the Entry and Exit Procedures Act with the Constitution, in that it allowed an executive agency to pronounce his presence undesirable solely because of his HIV-positive status. By decision no. 902-O of 4 June 2013, the Constitutional Court declared his challenge inadmissible, finding that the impugned section was needed for the protection of public health from infectious diseases, including HIV. The Constitutional Court reiterated that its decision of 12 May 2006 (cited in paragraph 60 below) remained valid and applicable, and that the decision pronouncing someone’s presence undesirable must take full account of humanitarian considerations and the factual circumstances of each case, including the family links and state of health of the individual concerned. 25. On 14 January 2014 Mr Khalupa’s representative asked the Consumer Protection Authority to review the undesirability decision and to allow him to visit his children in Russia. By a letter of 13 February 2014 the deputy head of the CPA replied that it did not have the authority to reverse a decision issued by the Federal Migration Service. 26. The applicant, Ms Irina Grigoryevna Ostrovskaya, was born in 1953 in the Kurgan Region of the Russian Soviet Federal Socialist Republic of the USSR. She is represented before the Court by Ms O. Leonova, a lawyer practising in Samara. 27. In 1966 her parents took Ms Ostrovskaya and her sister to live in the Uzbek Soviet Socialist Republic of the USSR. In 1972 Ms Ostrovskaya got married and gave birth to a boy. Two years later her sister also married and moved back to Russia. Following the collapse of the USSR, Ms Ostrovskaya acquired Uzbek nationality. 28. After the death of her parents and husband and her son’s move to Russia in 2006, Ms Ostrovskaya remained in Uzbekistan alone. In September 2011 she decided to move to Russia to share the flat occupied by her son’s and her sister’s families. Ms Ostrovksaya’s sister and her husband are Russian nationals; her son and his family are Uzbek nationals with valid Russian residence permits. 29. In November 2011 Ms Ostrovskaya applied for a temporary residence permit. During a medical examination she tested HIV-positive. 30. By decision of 17 January 2012, the Samara division of the Federal Migration Service refused her application for residence permit by reference to section 7 § 1 (13) of the Foreign Nationals Act, and informed her accordingly. On 27 March 2012 a further notification to the same effect was sent by the Federal Migration Service. 31. By a letter of 9 June 2012 the Samara division of the Consumer Protection Authority notified Ms Ostrovskaya that she should leave Russia by 30 June 2012 or face deportation. The letter indicated that on 30 May 2012 the director of the Federal Consumer Protection Authority determined that her presence on Russian territory was undesirable by virtue of section 25.10 of the Entry and Exit Procedures Act. 32. On 26 June 2012 Ms Ostrovskaya complained to court, relying on humanitarian grounds in her claim that she should be allowed to stay in Russia. By a judgment of 23 July 2012, upheld on appeal on 17 September 2012, the Samara District and Regional Courts held that the decision to refuse her a residence permit had been lawfully given by the Migration Service within its jurisdiction and in compliance with the Foreign Nationals Act and its internal regulations. The District Court declared that it would not take any humanitarian considerations into account because Ms Ostrovskaya had missed the three-month time-limit for submitting her claim, and she had a receipt of notification as early as 16 February 2012. The undesirability decision had been issued by the Federal Consumer Protection Authority rather than by its Samara division; since Ms Ostrovskaya had designated the latter, but not the former, as the defendant in her claim, the courts refused to review what they described as an “actually non-existent decision”. 33. On 6 November 2012 the Regional Court refused her leave to appeal to a cassation instance. 34. The applicant, Mr V.V., is a national of Kazakhstan who was born in 1983 and lives in Yekaterinburg. The Court granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). 35. V.V. came to Russia in 2006 to study at a medical college. Since 23 November 2007 he has been living with his partner Mr X, who also represented him in the present proceedings before the Court. They have maintained a common household, shared expenses and travelled together. They have met each other’s parents. V.V. submitted copies of travel documents and family photographs. 36. On 11 March 2012 V.V. applied to the Sverdlovsk division of the Federal Migration Service for a temporary residence permit. He committed himself to producing an HIV certificate within thirty days. On 16 April 2012 the Sverdlovsk Regional Centre for Aids Prevention and Treatment certified him to be HIV-positive. 37. On 28 April 2012 the Federal Migration Service refused his application for a residence permit by reference to section 7 § 1 (13) of the Foreign Nationals Act. V.V. challenged the refusal before a court. 38. On 26 July 2012 the Verkh-Isetskiy District Court of Yekaterinburg upheld the refusal, finding in particular that V.V.’s HIV status amounted to an “actual threat to the health of the Russian population” and that V.V.’s living with a same-sex partner was not equivalent to having a family. 39. On 21 November 2012 the Sverdlovsk Regional Court heard an appeal by V.V. against the District Court’s decision and, referring in particular to the Kiyutin judgment, held that V.V.’s HIV-positive status could not on its own be a ground for a restriction on his rights. Since the Migration Service did not cite any other grounds in its decision, the Regional Court enjoined it to carry out a new assessment of the application for a residence permit. The judgment became final and enforceable. 40. In the meantime, on 24 April 2012 the Sverdlovsk division of the Consumer Protection Authority forwarded a copy of V.V.’s diagnosis to the Federal Consumer Protection Authority, with a view to pronouncing his presence in Russia undesirable. On 16 November 2012 the federal authority asked the regional division to re-administer the HIV test. On 25 December 2012 V.V. again tested positive for HIV. 41. On 15 March 2013 the Federal Consumer Protection Authority pronounced V.V.’s presence in Russia undesirable in accordance with section 25.10 of the Entry and Exit Procedures Act. The decision stated that V.V. had been infected with HIV and had avoided treatment. It cited in evidence medical certificates dated 16 April and 25 December 2012. V.V.’s representative challenged the decision before a court. 42. On 26 April 2013 V.V. travelled from Russia to Kazakhstan. On his way back two days later, he was refused entry into Russia by reference to that decision. 43. On 30 May 2013 the Verkh-Isetskiy District Court allowed the challenge, finding that the undesirability decision had been unlawful because it did not refer to any grounds other than V.V.’s HIV-positive status. It also granted a stay of enforcement of that decision, enabling V.V. to return to Russia, which he did. 44. However, on 13 August 2013 the Sverdlovsk Regional Court reversed the District Court’s decision and dismissed the claim. It held that the ban against V.V. had been put in place not only because he was infected with HIV but also because he had refused to give contact details of his former partners during an “epidemiological investigation of the HIV infection”, that is when filling out a questionnaire at the hospital. The Regional Court also examined V.V.’s personal circumstances and found that he was single, that his next of kin lived in Kazakhstan, that he did not have a family relationship with any Russian nationals, that he lived in a student hostel rather than in a rented flat, and that he had no resources to pay for HIV treatment. 45. On 19 February 2014 the Sverdlovsk Regional Court refused leave to appeal to the cassation instance. It found in particular: “The facts which, in the claimant’s view, are of legal significance but which the appeal court failed to take into account, including ... his voluntary compliance with the obligation to inform his former partners about a possible HIV infection, his being in a steady sexual relationship ... cannot be established on the basis of the claimant’s and his representative’s statements alone. The court did not see any evidence of any social links the claimant has in the Russian Federation. The claimant and his representative merely confirmed that they have a sexual relationship, which does not equate to social links. A threat to public health ... could result from the fact that the claimant has a registered place of residence and actually lives in a hostel, which is a public place; this fact alone put the health of the other residents of the dormitory at risk because the claimant may use the same public facilities ...” 46. On 1 April 2014 a judge of the Supreme Court refused him leave to appeal to the Supreme Court. 47. After notice of the case had been given to the Government, on 7 July 2014 V.V. informed the Court that the Government Representative’s office had forwarded the case materials to the Prosecutor General’s Office with a request to inquire whether or not V.V. was lawfully present in Russia, whether or not he was continuing his studies, and whether his representative before the Court Mr X could have been his partner. The request contained full personal details of V.V. The Prosecutor General sent the request to the local prosecutor’s office in Yekaterinburg. As it happened, Mr X was a former employee in that prosecutor’s office. A prosecutor summonsed Mr X for an interview and put questions about the nature of his relationship with V.V., whether V.V. was still present in Russia, and where they lived. Law-enforcement officers also visited their neighbours and asked them how long V.V. and Mr X had lived together and whether they had girlfriends. 48. The Government submitted a copy of a statement from a prosecutor in charge of human rights and federal law compliance, dated 6 August 2014, from which it appears that on 1 June 2014 Mr X had been asked to attend the Sverdlovsk regional prosecutor’s office in his capacity as V.V.’s representative. He was interviewed about “the exercise by V.V. of his labour, family and migration rights”. The interview was conducted “tactfully” (в корректной форме), and no pressure was put on him. The police and migration authorities had established that no one lived at the address which V.V. had listed as his registered place of residence. The Government also produced a copy of the statement signed by Mr X on 1 June 2014. Mr X clarified that V. had been living in a stable same-sex relationship since 2007. He refused to name V.’s partner or to say whether he was V.’s partner: in his capacity as V.’s representative he was not required to disclose any information about his own private life. He also briefly described V.’s education, employment and migration status. | 1 |
test | 001-179876 | ENG | RUS | COMMITTEE | 2,018 | CASE OF MAKHLYAGIN AND BELYAYEV v. RUSSIA | 4 | Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application) | Dmitry Dedov;Luis López Guerra | 4. The applicants, Mr Makhlyagin and Mr Belyayev, were born in 1983 and 1979 respectively and were held in different detention facilities. The facilities’ officials opened and/or inspected letters that the applicants exchanged with the Court. 5. From September 2008 until October 2009 the applicant, detained in a correctional colony, lodged several letters with the Court. All of them were accompanied by cover letters from a chief officer of the colony summarising the content of the applicant’s letters. Some letters also bore the colony’s registration stamps. 6. The applicant lodged a claim, alleging that the colony’s staff had impeded his correspondence with the Court. On 22 January 2009 the Tagilstroyevskiy District Court of Nizhniy Tagil dismissed his claim 7. The applicant lodged an appeal with the Sverdlovskiy Regional Court. On 4 March 2009 the Sverdlovskiy Regional Court rejected his appeal, stating that it should be lodged through the first-instance court. The regional court also noted that the applicant could request that the time-limit in respect of the appeal be re-set. 8. On 30 March 2009 the applicant lodged his appeal with the firstinstance court. Instead of requesting that the time-limit in respect of his appeal be re-set the applicant asked the court to restore his case to the list of pending cases. On 9 April 2009 the District Court refused to examine the appeal as belated. 9. The applicant appealed against this decision. However, he once again lodged his appeal with the Regional Court instead of the first-instance court. His appeal statement did not contain a request for the missed timelimit to be re-set. The Sverdlovskiy Regional Court dismissed the applicant’s appeal. 10. On 2 November 2010 the applicant received a letter from the Court; the letter was opened by a member of the remand prison staff. 11. The applicant lodged a claim for compensation. By a final decision of 7 June 2011 the Tver Regional Court dismissed his claim. The court stated that Russian law did not prohibit the opening of incoming correspondence from the Court. | 1 |
test | 001-157368 | ENG | ROU | CHAMBER | 2,015 | CASE OF NIŢULESCU v. ROMANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant was born in 1964 and lives in Moreni. 6. On 17 July 2000, R.C.A. was hired as an inspector by the Moreni City Council on the recommendation of the applicant and another person, G.A. She had a contract for a limited period of time, namely three months, which was extended for another three months. In order to obtain a permanent contract she took part in a competition organised by the City Council in February 2001. She succeeded, being the only candidate. After a few months, the atmosphere at the workplace became tense. R.C.A. was on probation in her new post and was therefore monitored and kept under close scrutiny. 7. According to R.C.A.’s statements, she was persecuted by her superiors and even sexually harassed by the mayor. Therefore, she asked for the protection of the applicant, to whom she allegedly gave 1,000 German marks (DEM). 8. According to the applicant’s statement, the money was given to her as a loan with no prearranged date of reimbursement in the summer of 2001. The applicant also stated that another colleague, C.M., had borrowed money from R.C.A., and that the practice of borrowing money from each other was common in their workplace. The applicant’s statements were confirmed by her colleague, who was heard as a witness before the court. 9. On 24 January 2002 R.C.A. denounced the applicant to the police for influence peddling. She claimed that the applicant had asked her for DEM 1,000 in order to persuade the mayor to give her a permanent position within the City Council. 10. On 29 January 2002 R.C.A. obtained the authorisation of the prosecutor’s office attached to the Ploiești Court of Appeal to record conversations between herself and the applicant. Subsequently, all the conversations that took place between the applicant and herself between 29 January and 2 February 2002 were recorded. The recording was carried out using two recording devices, one belonging to R.C.A. and the other to a police officer. 11. Following a request by R.C.A. for the return of the money, the applicant and R.C.A. met in a cake shop close to the applicant’s home on 2 February 2002. The applicant stated that she was accompanied by a colleague, D.C. According to R.C.A.’s version, the applicant was alone, while she herself was accompanied by her husband and brother, who waited outside the cake shop. The applicant handed over to R.C.A. 400 United States dollars (USD) (the equivalent of DEM 1,000). 12. On 4 April 2002 a criminal investigation was initiated against the applicant on the charge of influence peddling. 13. On 12 June 2002 R.C.A. was invited to the prosecutor’s office attached to the Dâmbovița County Court to give clarification on the recordings. After some discussion of the transcripts of the conversations she said she had a headache and left, promising to come back the same day. However, she never came back to continue the discussion with the prosecutor. This was mentioned in the record of the meeting drafted by the prosecutor. 14. On 24 September 2002 the Ploiești Division of the National AntiCorruption Directorate decided to discontinue the investigation against the applicant on the ground that the actus reus of the offence was missing. 15. On 9 December 2002 the chief prosecutor decided to reopen the criminal investigation against the applicant. He noted that the investigation had been incomplete and that there were several aspects to be clarified in connection with the charges against the applicant. He also ordered a preliminary investigation against the mayor of Moreni. 16. On 27 March 2003 R.C.A. enquired the chief prosecutor about the progress of the investigation. She expressed concern about the integrity of the transcripts of the recordings, as she had noted that the parts of the conversations had been erased. 17. The file was presented to the applicant on 5 June 2003. The minute certifying the taped conversations was drafted afterwards, on 13 June 2003. 18. By a bill of indictment of 20 June 2003, the prosecutor’s office committed the applicant for trial on a charge of influence peddling in violation of Article 257 § 1 of the Romanian Criminal Code and Articles 1 (a) and 6 of Law no. 78/2000. By the same decision the prosecutor decided not to open a criminal investigation against the mayor, without giving any reasons. 19. Several hearings were held before the Dâmbovița County Court. 20. According to a witness statement given by the mayor of Moreni before the county court on 4 November 2003, R.C.A. was well known as a person who recorded her private conversations at work, about which many colleagues had complained. A similar aspect was revealed by another witness, G.A. She stated that R.C.A. had changed her behaviour at work after she had obtained a permanent contract. As G.A. was the person who had recommended R.C.A. for the job, other employees informed her that R.C.A. was leaving her office during working hours. G.A. had tried to advise R.C.A. to change her behaviour; she noted that the latter was recording their conversation. 21. On 16 December 2003 the court granted a request by the applicant for a technical report on the contents of the tape recordings. On 4 January 2004 the applicant’s lawyer asked to see the authorisation for the recording of the conversations and the minute drafted of the occasion when R.C.A. handed over the recordings. She also lodged a written request for an expert assessment of the authenticity and integrity of the recordings. 22. On 4 February 2004 the National Institute for Forensic Expert Opinions, which was in charge of the preparation of the report, asked the court to send it all the technical equipment used for the recording of the audio tapes. 23. On 30 March 2003 R.C.A. submitted written notes by which she informed the court that on 12 June 2002 she had refused to confirm that the transcripts of the recorded conversations presented by the prosecutor corresponded to the recordings performed by her (see paragraph 17 above). 24. On 11 May 2004, the court imposed a fine on R.C.A. as she had refused to provide the court with the original tapes and equipment used for recording the applicant. 25. As R.C.A. refused to attend the court hearings or to submit the original tapes, two orders for her to be brought before the court were issued by the county court. 26. By a judgment rendered on 2 July 2004, the Dâmbovița County Court acquitted the applicant on the ground that the elements required for the offence were not present. 27. The county court held that R.C.A.’s version of events was supported only by the testimony of her husband and brother and by the taped conversations, whose authenticity and integrity could not be established by an expert, mainly because R.C.A. had refused to provide the expert with the technical equipment used for the recording. Moreover, R.C.A.’s statements contained many contradictions. In this respect the county court stated: “... although R.C.A. stated that the money was given to the applicant before the competition which was to take place on 6 February 2001, during the proceedings before the court she stated that it was given later, after the competition, then she changed her previous statement only when she was asked by the prosecutor attending the hearing about the logic of such an action ... In conclusion, the statements mentioned above are not corroborated by the facts or circumstances resulting from all the evidence adduced in the case, and cannot be confirmed by the audio recording of the conversations, since these were not executed in accordance with the provisions of Article 911 or with the Code of Criminal Procedure (in force until 1st January 2004, in accordance with Law 281/2003) ... Contrary to the above-mentioned legal provisions, in the case file there are three minutes, all dated 13 June 2003, which mention only that the conversations between R.C.A. and the defendant were authorised under no.502 on 29 January 2002 (although the transcripts from pages 75-78 of the file indicate a previous date, namely 22 January 2002), and after the tapes had been heard it was confirmed that their contents were mentioned in the transcripts. Moreover, according to the letter of 8 April 2004 from the Dâmbovița Police Department and the statements of R.C.A. and the witness B.M., the recording of the conversations was made by devices belonging to R.C.A., who submitted to the criminal investigation body recordings made before she had made her accusations, and thus before she had obtained authorisation from the prosecutor. Despite the fact that a forensic report intended to establish the contents of the audio tapes was ordered at the request of the defendant ... it could not be adduced before the court in the absence of the technical equipment (microphone and tape recorder) used for the recording of the tapes. The Dâmbovița Police Department stated in the abovementioned letter that the police officer’s recording device had been lost, and the other one was in the possession of R.C.A., who had refused to hand it over.” 28. The prosecutor’s office appealed against the judgment rendered by the Dâmbovița County Court. It argued that the applicant’s guilt was proved by the statements of the accuser, R.C.A., and confirmed by the audio recordings of the conversations between R.C.A. and the applicant. 29. On 14 October 2004 the Ploiești Court of Appeal ordered an expert technical report on the authenticity or otherwise of the tape recordings. At the hearing held on 7 March 2005 the court revoked that order on the ground that “R.C.A. no longer has the originals of the audio tapes”. 30. On 15 March 2005, the Ploiești Court of Appeal dismissed the appeal on the ground that the applicant could not be convicted on the basis of recordings obtained in breach of the applicable legal provisions. It noted that the prosecutor had not observed the legal provisions concerning the attestation of the authenticity of the recordings, and considered that the correct procedures for telephone tapping had not been observed. With respect to R.C.A.’s statements the Court of Appeal arrived at the same conclusion as the first-instance court. It held that most of her statements were contradictory and were corroborated only by her husband and brother. However, the applicant’s statement that she had received the money from R.C.A. as a loan was confirmed by the statements of four other colleagues. Two of them stated that they had heard R.C.A. threatening the applicant that she would claim that the money given as a loan was in fact a bribe. 31. The appeal on points of law submitted by the prosecutor was allowed by the High Court of Cassation and Justice on 14 October 2005. That court quashed the decisions of the first two domestic courts and convicted the applicant of influence peddling, sentencing her to two years’ imprisonment, suspended, with probation. Without hearing evidence directly from the applicant, R.C.A. or any witnesses, the court arrived at the conclusion that R.C.A.’s statements were not contradictory and that in fact the applicant’s statements were corroborated only by the testimony of one witness, C.M., a colleague of the applicant and one of the individuals who had also persecuted R.C.A. 32. It mainly based its decision on the statements of R.C.A., the testimony of R.C.A.’s husband and brother and the audio tapes containing the conversations between R.C.A. and the applicant. | 1 |
test | 001-149204 | ENG | LVA | CHAMBER | 2,015 | CASE OF RUBINS v. LATVIA | 3 | Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione personae);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 5. The applicant was born in 1947 and lives in Riga. 6. The applicant was a professor and the head of the Department of Dermatological and Venereal Diseases of the Faculty of Medicine of Riga Stradiņa University (hereafter “the University”), which is a State university. The applicant had been elected to the position of head of department with effect until 13 April 2013. He was also an elected member of the constituent assembly of the University (Satversmes sapulce). 7. On 22 February 2010 the Council of the Faculty of Medicine decided to merge the Department of Dermatological and Venereal Diseases and the Department of Infectious Diseases. That decision was approved by the Senate of the University (Senāts) on the following day. It appears that as a result of the merger the position of head of department occupied by the applicant was abolished. Accordingly, on 24 February 2010 the applicant received a warning (brīdinājums) to that effect and was given the opportunity to agree to the changes in his contract with the University. He was also informed that if he refused, his employment relationship with the University would be terminated. 8. On 28 February 2010 the applicant sent various emails to the Rector of the University concerning the circumstances of the reorganisation and the abolition of his department. He criticised the decisions taken by the deputy dean, G.B. 9. On 3 March 2010 the applicant sent another email to the Rector of the University and to several other recipients, including the members of the Senate. The email criticised the lack of democracy and accountability in the leadership of the organisation, which, according to the applicant, stemmed from the fact that all the members of the Senate were also a part of the executive authority of the University and there was thus an inadequate system of checks and balances. He also drew the recipients’ attention to the alleged mismanagement of the University’s finances. In support of this allegation the applicant relied on the conclusions adopted by the State Audit Office (Valsts Kontrole) in December 2009. 10. The applicant further spoke in unfavourable terms about several representatives of the management of the University, stating, for example, that [Mr ...]. “pretends to be a God-fearing Catholic ... yet, as far as is known, has several children born out of wedlock”, that [Mr ...] “cannot decide a single question by himself, does not keep his word, is lying” and that [Mrs ...] “has called me and asked me to break the law in the interests of her protégés”. 11. Finally, the applicant came up with a proposal involving several amendments to the constitution of the University, such as changes in the election of the members of the Senate (an obligation to inform the constituent assembly of the candidate’s CV at least one week before the elections, the setting-up of an independent electoral commission); separation of powers between the University’s governing bodies (Senate members should not be part of the executive body of the University); and the granting of independence to the Senate (changing the remuneration system so that the Rector did not unilaterally fix the remuneration of members of the Senate). He asked the Rector to forward his proposals to the members of the constituent assembly and to send him the email addresses of those members or inform him where to find those contacts. 12. It appears that on 16 March 2010 the applicant expressed his disagreement with the reorganisation at the meeting of the Senate of the university which upheld the decision. 13. On 20 March 2010 the applicant sent an email to the Rector of the University. The subject-line of the email read “Settlement agreement”. The text of the email read as follows: “To the Rector of the University .... Confidential [1] Dear Rector, [2] In view of the situation which has evolved and the advice of my lawyers and supporters, I hereby propose the following settlement agreement. [3] It would entail: [4] Version 1 [5] You (the University) revoke all the orders and decisions of the Senate concerning the abolition/merger of the Department of Dermatological and Venereal Diseases. I for my part withdraw all my appeals, thereby restoring the situation as it was before the decision of the Senate of 23 February 2010. Meanwhile the three lecturers ... (all of them were recognised as plagiarists by a decision of the [Latvian association of doctors]) who expressed their intention to move to the Department of Infectious Diseases, are transferred to that Department. I have no objections if the specialist ... who, it is common knowledge, is the mother of ...’s daughter, is transferred to another post or fired. This month she did not spend a single day at work in the Department of Dermatological and Venereal Diseases (presumably she reports to ... or has been transferred to ... or another department, or maybe [she has] submitted her resignation, I don’t know). [6] Version 2. I, as a head of department elected until 2013, and after having received a certain amount of compensation on which we would agree (for example, LVL 100,000), as provided for by my agreement with the University, agree terms with you, the dispute is terminated and I leave the post. [7] Of course I understand that at the constituent assembly of the University you, as Rector, can secure a decision that is favourable to you. However by this means nothing would come to an end but would only start, as I reserve the right to appeal against all the decision [adopted by] the University in the administrative, district and regional courts, while of course making everything public beforehand and attracting the attention of society. [8] I do not believe that in an election year, taking into consideration the latest news (the conclusion adopted by the State Audit Office on the illegalities at the University, plagiarism on the part of lecturers and professors of the University etc.), you would want to have additional tasks and trouble (nodarbošanos un nepatikšanas). [9] I am sure that I don’t want this and I wish to be allowed to work in a creative manner with students in my field as before. In addition, I have much work to do organising two large European congresses in 2011 and 2012 in Riga, in both of which my participation as president has been confirmed. [10] Since I have also not received the list of members of the constituent assembly of the University (which was requested from you and the Senate in my letter of 3 March 2010!?, a fact which demonstrates the lack of democracy [at] the University), I will await a reply from you by Monday, 22 March 2010 at 11 a.m. If we are unable to reach agreement by signing a settlement agreement I will make all my current information public in the form of an open letter so that the members of the constituent assembly of the University also have at least one day before the meeting to think about their vote. Professor A. Rubins P.S. [contains a request concerning one of the applicant’s staff members who was on sick leave but at the same time attended meetings of the Senate]. 14. On 22 March 2010 the Rector replied to the applicant that he could not agree to any of the proposals. 15. The following day, 23 March 2010, at the meeting of the constituent assembly of the University, the applicant expressed his disagreement with the reorganisation and asked that the decision concerning the merger of faculties be annulled. His request was not upheld. On the same day the national news agency LETA published the applicant’s views about the alleged shortcomings in the management of the University. The criticisms referred to the conclusions of the State Audit Office. 16. On 25 and 31 March 2010 the Rector asked an ad hoc investigative committee and the ethics committee to review the applicant’s conduct. 17. On 6 May 2010 the applicant received a notice of termination of employment (uzteikums) from the University, in which he was informed that his employment contract with the University would be terminated ten days after receipt of the notice. The legal basis for the applicant’s dismissal was section 101(1)(1) and (3) of the Labour Law, and the applicant was deemed to have acted in contravention of several provisions of the University’s staff regulations (see Relevant domestic law part, paragraphs 30 and 34 below). The notice stated, inter alia, as follows: “The ground for dismissal is the email you sent to the Rector of [the University] on 20 [March] 2010, in which, while addressing the Rector concerning issues of interest to you, you included inappropriate demands, including elements of blackmail and undisguised threats. As a consequence your actions are considered as very grave infringements of basic ethical principles and standards of behaviour, and as absolutely contrary to good morals. The fact of sending such a letter, and its contents, are clearly contrary to good morals, all the more so taking into account the circumstances in which the letter was sent and your attitude.” 18. On 17 May 2010 the University dismissed the applicant from his post. Soon afterwards he took up a post in another university in Latvia. 19. The applicant submitted a claim to the Riga City Kurzeme District Court, asking the court to invalidate the notice of termination and to order his reinstatement and payment of the unpaid salary and benefits together with compensation for non-pecuniary damage. 20. In a judgment of 11 March 2011 the Kurzeme District Court allowed the applicant’s claim in part. It held that the fact that the applicant’s employer had been offended by his email was not a legitimate reason for his dismissal, since section 101 of the Labour Law did not include such a ground. The court considered that the allegation that the applicant’s email had contained elements of blackmail and threats was merely speculation on his employer’s behalf. It was additionally found that the applicant had not been given an adequate opportunity to respond to the allegations contained in the termination notice before that notice was sent to him. Accordingly the court annulled the termination notice and ordered the applicant’s reinstatement with back-payment of his salary. The applicant’s claim for compensation in respect of non-pecuniary damage was rejected as unsubstantiated. 21. Both the applicant and the University appealed. During the court hearing the applicant mentioned that he had requested that several illegalities be examined at the meeting of the constituent assembly of 23 March 2010. Counsel for the defendant stated that both the ad hoc investigative committees set up by the Rector had found that the content of the letter was to be perceived as blackmail and threats. He contended that the request to receive a certain amount in compensation and the deadline by which the reply had to be received all proved the breach of ethical norms. The defendant further alleged that several “defamatory facts about the University” had been published on 23 March by LETA, and considered that the above activities therefore confirmed the threats made in the applicant’s email. 22. On 18 January 2012 the Riga Regional Court quashed the first-instance court’s judgment and dismissed the applicant’s claim in full. The appeal court considered that in his email of 20 March 2010 the applicant had invited the Rector to carry out “unlawful actions”, namely to annul a decision of the Senate of the University (concerning the merger of two departments within the Faculty of Medicine). Such action was deemed to be “unlawful” because annulling decisions of the Senate of the University exceeded the Rector’s authority. The court also considered that the applicant had requested “unreasonably high compensation” for the termination of his employment. These two considerations led the appeal court to conclude that the applicant had failed to observe basic ethical principles such as honesty, collegiality and responsibility. 23. The conclusions of the appeal court echoed those reached by the University’s ethics committee and by two ad hoc investigative committees set up on 25 March and 6 April 2010. In particular, the court observed in point 10.1 that the committee had concluded that the infringements committed by the applicant were demonstrated by the fact that he had sent the email and had carried out “other activities after the Senate’s decision of 23 February 2010 ... including making unfounded statements, for example, about the abolition of the department, the circumstances of the reorganisation that had been directed against the applicant, and threats made by G.B. against the applicant. The email of 28 February 2010 ... comprises statements, for example, about ... private life and religious convictions”. 24. The court further noted that it was apparent from the materials in the case file that on 23 March 2010 the national news agency LETA had published the applicant’s views about events in the University, in which he had criticised the leadership of the University, stating that a group of twelve to fifteen persons had usurped all power and set up an authoritarian or even dictatorial regime. The court also referred to the content of the email the applicant had sent on 3 March 2010 (see paragraph 9 above) and came to the conclusion that he had contravened the obligation to treat the staff of the University with respect. 25. The court turned next to the question of “good morals” and, after finding that this term had no precise legal definition, proceeded to conclude that it consisted of three “basic ethical principles”: “the principle of integrity and righteousness”, “the principle of responsibility” and “the principle of loyalty”. It found that the applicant had acted in breach of these principles and that there was: “[11.2] ...no reason to conclude that the applicant had only intended to inform [the Rector] about [his plan] to exercise his democratic rights, [that is], to submit complaints to the courts and to publish information in the media, while respecting the interests of society. The content of the letter [of 20 March 2010] attests to [the applicant’s] wish to act for a selfish cause, namely to retain his position as a head of department, contrary to the Senate’s decision on reorganisation, or to receive substantial financial compensation, regardless of [the need to use] the budget of [the University] in an economical and reasonable way in compliance with the goals of the [University]. [The appeal court] finds that there is no evidence that prior to the letter of 20 March 2010 [the University] had obstructed the applicant’s democratic rights to inform society and the competent institutions about the alleged violations in the [University]. Taking into account the aforementioned finding, [that is], that the [applicant’s] aim in writing the letter of 20 March 2010 was selfish, the [appeal court] finds that the [applicant] sought to achieve a result beneficial to himself by trying to persuade [the Rector] to take unlawful steps. In view of the aforementioned considerations, this should be considered a threat.” 26. Turning to the applicant’s claim for compensation in respect of non-pecuniary damage, the appeal court cited section 9(1) of the Labour Law (see the Relevant domestic law part, paragraph 29 below) and disagreed that the applicant’s dismissal had created “unjustified consequences” (nepamatotas sekas) or caused non-pecuniary damage simply because the applicant had expressed legitimate concerns about the reorganisation of the University and about the way its financial resources were used. The court’s reasoning in that regard read as follows: “[The appeal court], on the basis of experience and logic, finds that a calm and positive atmosphere and a respectful attitude among colleagues best contribute to achieving constructive dialogue. Having analysed the above-mentioned evidence, the [appeal court] considers that nothing prevented the applicant from expressing his opinion in a manner compatible with ethics and the staff regulations”. 27. The applicant submitted an appeal on points of law, disputing, inter alia, the appeal court’s findings to the effect that, by sending one confidential letter to one recipient (namely the Rector of the University), in which he had raised points concerning the unjustified use of funds from the State budget, he had committed an infringement of work-related rules and ethics of such gravity as to justify his dismissal. The applicant also invoked in this connection that he had an obligation to inform the society about the unjustified use of funds, therefore the appellate court had erred in finding that the impugned email was unethical. The applicant’s appeal on points of law was rejected by the Senate of the Supreme Court in a preparatory meeting on 26 September 2012. 28. On 27 September 2010 the Rector of the University sought to institute criminal proceedings against the applicant for extortion. The criminal proceedings were instituted on 30 January 2012 on the basis of section 183 of the Criminal Law (extortion) and the applicant was ordered not to leave his permanent residence for more than twenty-four hours without the permission of the competent investigative authority. The criminal proceedings were discontinued on 9 February 2012 for lack of corpus delicti. The decision to discontinue the criminal proceedings stated, inter alia, that according to the linguistic expert’s conclusions the impugned email contained clearly expressed demands to pay a certain amount of money as well as undisguised threats to disclose disreputable information about [the Rector] prior to the meeting of the Senate. It also noted that the email demonstrated the applicant’s wish to act selfishly, either in order to maintain his post or to receive a significant amount in compensation for the termination of his employment contract. However, as the Rector’s attitude demonstrated that the threats were not perceived as real, the court ruled that the criminal proceedings should be terminated and that the Rector had the right to institute defamation proceedings. | 1 |
test | 001-173771 | ENG | BGR | COMMITTEE | 2,017 | CASE OF KURILOVICH AND OTHERS v. BULGARIA | 4 | Violation of Article 8 - Right to respect for private and family life (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;Article 8-1 - Respect for family life) | Nona Tsotsoria;Síofra O’Leary | 4. The applicants were born in 1978, 1980 and 2007 respectively. 5. The first applicant came to Bulgaria in 1997. In 2001 he was granted long-term resident status, and in 2003 – permanent resident status. In 2005 he married the second applicant, and in 2007 the third applicant, their son, was born. 6. On 29 May 2008 the head of the National Security Service issued an order withdrawing the first applicant’s residence permit, ordering his expulsion and imposing a ten-year ban on his reentering Bulgaria on the ground that his presence in the country represented a “serious threat to national security”. Factual grounds justifying the order were not indicated; it was merely noted that it was based on “proposal no. B848”. 7. That proposal, drawn up by the National Security Service on 27 May 2008 and initially classified, was declassified in 2016 and has been submitted by the Government. It stated that the first applicant was a member of a “Russian criminal group” implicated in money laundering, extortion, smuggling, illegal arms deals and the financing of “terrorist groups” on the territory of the Russian Federation. It said further that the first applicant had lowered Bulgaria’s international reputation, by “implicating the country in the financing of terrorist organisations, transnational criminality, corruption and drug trafficking”. No evidence was provided to substantiate those claims. 8. On 12 June 2008 the first applicant applied for judicial review of the order of 29 May 2008. He denied the allegations against him and stated that his family resided in Bulgaria and that the measures against him breached his Convention rights. In addition, he presented a certificate that he had no criminal convictions in Bulgaria. 9. In a final judgment of 8 January 2009 the Supreme Administrative Court dismissed the application for judicial review and held that the 29 May 2008 order was lawful. After summarising the allegations made in proposal no. B848, it held merely that they were sufficient to justify a conclusion that the first applicant represented a threat to national security. Furthermore, it dismissed his arguments relating to his family life, considering that “any restriction of the rights under the Convention is justified [when based] on national security considerations, in cases where foreign citizens’ behaviour threatens the national security and the public order of the State where they reside.” 10. The first applicant was expelled on 24 April 2009. It is unclear whether the second and third applicants remained in Bulgaria after that. In 2012 the first and second applicants had another child. | 1 |
test | 001-142005 | ENG | SVK | ADMISSIBILITY | 2,014 | BARILIK v. SLOVAKIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Štefan Barilik, is a Slovak national, who was born in 1955 and lives in Košice. He was represented before the Court by Mr A. Fuchs, a lawyer practising in Košice. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is a judicial enforcement officer (“JEO”). In this capacity, he acted on behalf of a creditor with a view to enforcing an order for payment against a private commercial company (“the debtor”). In the furtherance of those proceedings, following the creditor lodging an enforcement petition, the applicant applied for a court order authorising the enforcement of a sum consisting of the principal judgment debt and his costs. 5. The costs were calculated on the basis of a formula applicable in instances when enforcement is actually carried out by the JEO, which is to say as a percentage of the principal amount to be enforced. It would later become the object of a dispute whether, in the event of voluntary payment by the debtor in the course of the enforcement proceedings, the costs were to be calculated differently, in particular on the basis of an hourly fee for the time actually spent by the JEO on the given file. 6. In the present case, prior to the issuance of the authorisation, the debtor had of its own motion paid the principal judgment debt and the applicant had been informed of that payment. 7. Nevertheless, after the authorisation had been granted, the applicant proceeded with the enforcement of the amount of his fees in full, in other words the sum that he would have been awarded as a JEO if he had actually carried out the enforcement of the order for payment. 8. Upon successful enforcement of the applicant’s fees, the proceedings were terminated. 9. On 12 August 2003 the debtor filed an action against the applicant seeking an order for payment of the equivalent of some 3,400 euros (EUR) by way of unjustified enrichment. It was argued that it had been absurd for the applicant to carry on with the enforcement knowing that the debtor had paid its debt before the enforcement had even been authorised. 10. The applicant defended the action and was represented by a lawyer. The action was heard by the Košice I District Court (Okresný súd) on 6 December 2005, 27 March, 13 June and 16 June 2006. 11. At the conclusion of the hearing of 16 June 2006, the District Court dismissed the claim. It held that the course of action taken by the applicant had been lawful in view of the fact that, at the time of the introduction of the petition for enforcement, the principal judgment debt had been payable and still outstanding. The requisite elements of a claim for compensation in respect of unjustified enrichment had therefore not been met. 12. The debtor filed an appeal (odvolanie) to the Košice Regional Court (Krajský súd), which heard the appeal on 19 April and 14 June 2007. 13. On 14 June 2007, following the hearing held that day, the Regional Court allowed the appeal and overturned the first-instance judgment. It held that in instances of voluntary payment the JEO’s costs were to be calculated on an hourly-fee basis (see paragraph 5). Calculating the applicant’s costs as a percentage of the original award was disproportionate to the work carried out by him to complete the enforcement. The enforcement of his costs thus calculated had therefore been unlawful and unjustified, which constituted unjustified enrichment on his part to be repaid to the debtor. As for the applicant’s recoverable costs, he should have pursued them by way of a separate costs order. 14. On 31 March 2009 the Supreme Court (Najvyšší súd) dismissed the applicant’s appeal on points of law (dovolanie). It concurred with the Regional Court’s conclusion, albeit on different legal grounds. In particular, it held that the case at hand was not one of unjustified enrichment, but rather one of damages. No hearing was held and the parties were not allowed to comment on this new legal qualification of the case. 15. On 14 August 2008 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd). He relied on Article 6 § 1 of the Convention and argued (a) the proceedings had been unfair in that the Supreme Court’s judgment had been arbitrary and (b) his right of access to court had been violated in that the Supreme Court had substantially changed the legal qualification of the case without allowing him an opportunity to comment. The proceedings had thus not been adversarial. 16. On 1 October 2009 the Constitutional Court declared the complaint inadmissible as being manifestly illfounded. It observed that it was not a court of final appeal against decisions of the ordinary courts and found no constitutionally relevant unfairness, arbitrariness or irregularity in the impugned judgment. In particular, it found no merit in the applicant’s arguments, observing that proceedings on appeals on points of law were of a specific and extraordinary type which, as a general rule, called for no hearing and for the taking of no further evidence. The decision was served on the applicant on 27 October 2009. 17. The relevant provisions concerning appeals on points of law are laid down in Articles 236 et seq. They are summarised in the Court’s judgment in the case of Ringier Axel Springer Slovakia v. Slovakia (no. 41262/05, §§ 61-68, 26 July 2011). 18. In addition, Article 243a provides that, as a general rule, appeals on points of law are to be determined without a hearing; that a hearing may nevertheless be held as an exception if it is deemed necessary; and that if a hearing is held, no evidence is to be taken. 19. In a judgment on an appeal in an unrelated case (no. 15Co 165/2008), the Bratislava Regional Court held that a reduction of the costs of enforcement to be paid by an enforcement debtor was only applicable if the enforcement debtor had voluntarily paid both the principal judgment debt and the costs of the enforcement. 20. In a judgment on an appeal on points of law in an unrelated case (no. 3Cdo 58/09), the Supreme Court observed that, when exercising their office, JEOs exercise functions of a State organ. Their relationship with the parties to the enforcement proceedings is not, therefore, one of private law. There is therefore no scope for a claim for compensation in respect of unjustified enrichment. The JEOs are rather liable for damages under special provisions of the Judicial Enforcement Code (Law no. 233/1995 Coll., as amended). | 0 |
test | 001-172327 | ENG | HRV | CHAMBER | 2,017 | CASE OF ŠKORJANEC v. CROATIA | 1 | Remainder inadmissible;Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation;Positive obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković | 5. The applicant was born in 1988 and lives in Zagreb. 6. On 9 June 2013 Zagreb police (Policijska uprava Zagrebačka, hereinafter “the police”) received an emergency call informing them that two men were attacking a man and a woman of Roma origin. 7. The police immediately went to the scene, where they found the applicant and her partner Š.Š., and another individual, I.M., with whom the applicant and her partner had had a verbal and physical conflict. They all had visible injuries. Soon afterwards, nearby, the police found and arrested another man, S.K., who had also been involved in the conflict. 8. A preliminary report prepared by the police stated that the applicant and her partner had first had an argument with I.M. and S.K., during which S.K. had said “all Gypsies should be killed, we will exterminate you”. S.K. and I.M. had then attacked the applicant’s partner. The applicant and her partner had tried to escape but I.M. and S.K. had managed to catch them. S.K. had grabbed the applicant’s T-shirt and thrown her to the ground and then kicked her in the head. I.M. and S.K. had then continued beating the applicant’s partner, whose hands had been slashed with a knife by S.K.. 9. The police report stated that the applicant had a contusion that was visible below her left eye. The emergency medical services also attended the scene. A doctor recorded the applicant’s injuries as minor bodily injuries. On the same day the applicant was examined at a hospital, where her injuries were confirmed. She was told to rest and take painkillers. 10. In connection with the incident, the police carried out an on-site inspection and a further assessment of the available material. The police also interviewed the applicant and her partner as well as the two assailants. 11. In his police interview of 9 June 2013 the applicant’s partner Š.Š. stated that he was of Roma origin. On the day of the incident he had been at a flea market with the applicant when some passers-by had pushed her. He had realised that it had been two young men and he had told the applicant to ignore them because they were drunk (“wasted”). One of them had heard him and had turned to Š.Š., saying “Fuck your Gypsy mother, who is wasted? Who are you to tell me that? You should all be exterminated, I fuck your Gypsy mother” (Jebem ti mater cigansku, tko je urokan, šta ti meni imaš govoriti, sve vas treba istrijebiti mamu vam cigansku jebem). The other man had also turned towards Š.Š., saying “Fuck your mother, you should all be exterminated, I will kill you” (Jebem vam majku, treba vas istrijebiti, ubit ću te). Š.Š. stated that he had then panicked and had drawn a knife in order to scare them. However, that had created a further outburst of anger from the two men; one of them had taken out a knife and they had started chasing Š.Š. As Š.Š. was running away, the applicant had joined him and they had started running away together, looking for help. However, the attackers had managed to get hold of Š.Š. and had started beating him. At that point the applicant had tried to help and had also been hit. The two men had then continued beating Š.Š., saying that he was a Rom and should be killed. 12. In her police interview of 9 June 2013 the applicant stated that she lived with Š.Š., with whom she had had two children. She confirmed Š.Š.’s version of events, saying that she had been pushed by the two men. After Š.Š. had reacted by saying that the men should be left alone because they were drunk, one of the two men had said, “Who is drunk? Fuck your Gypsy mother, you should all be exterminated, this will be a white Croatia again, you are garbage” (Tko je pijan, jebem ti mater cigansku, vas treba istrijebiti, ovo će ponovno biti bijela Hrvatska, smeće jedno). The applicant stated that after this the two men had started attacking Š.Š. She had tried to approach them to help Š.Š. but another woman had prevented her from doing so. However, at one point she had joined Š.Š. and they had started running away. The two men had then caught them and one of them had grabbed her by the T-shirt and said, “What are you going to do now you bitch? I will beat you now” (Što ćeš sad kujo jedna, sad ću te prebiti). He had then kicked her in the head. The two men had continued beating Š.Š., while she had run away and looked for help. 13. In their interviews of 9 June 2013 the two assailants explained that the conflict had broken out because Š.Š. had offended them by saying that they were drunk. They denied the conflict had had any racial overtones. 14. On 10 June 2013 the police lodged a criminal complaint against S.K. and I.M. with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) for suspected commission of a hate crime, perpetrated by attempting to inflict grievous bodily harm on Š.Š., and motivated by the latter’s Roma origin. The applicant was mentioned in the criminal complaint as a witness. 15. In the course of the investigation the Zagreb Municipal State Attorney’s Office questioned the two suspects and on 17 June and 31 July 2013 it instructed the police to conduct an identification procedure and formal questioning of the applicant and Š.Š. as witnesses. 16. When questioned as a witness, Š.Š. repeated the statement he had given during the first police interview. He explained how, after the two men had pushed the applicant, one of them had turned towards him and uttered the insults related to his Roma origin (see paragraph 11 above). Š.Š. also stated that the applicant had been attacked after she had tried to help him when the two men were beating him up. 17. During her questioning as a witness, the applicant repeated the statement she had given during the first police interview (see paragraph 12 above). 18. Upon completion of the investigation, on 30 October 2013 the Zagreb Municipal State Attorney’s Office indicted S.K. and I.M. in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of making serious threats against Š.Š. and inflicting bodily injury on him, associated with a hate-crime element. The indictment also made reference to the attack on the applicant, suggesting that she had been kicked in the head while trying to save Š.Š. from the beating. 19. The indictment was confirmed and the case was sent for trial on 21 March 2014. 20. Meanwhile, on 31 October 2013 the Zagreb Municipal State Attorney’s Office informed Š.Š., as a victim in the proceedings, that an indictment had been lodged against S.K. and I.M. in connection with the attack on him. On 23 January 2014 the Zagreb Municipal State Attorney’s Office informed Š.Š.’s lawyer, L.K., of the institution of the proceedings in the Zagreb Municipal Criminal Court. 21. At a hearing on 9 October 2014 the Zagreb Municipal Criminal Court questioned Š.Š. He repeated the statements given to the police. When asked whether the two assailants had said anything to the applicant related to Š.Š.’s racial origin, Š.Š. stated that she had told him something but he could no longer remember the details. He thought that she had said that the two assailants had told her that she was also Roma if she was with a Roma man. On the basis of an agreement between the parties, including Š.Š.’s representative, the applicant’s statement to the police was admitted in evidence and she was not questioned further at the trial. 22. By a judgment of 13 October 2014 the Zagreb Municipal Criminal Court found S.K. and I.M. guilty as charged and sentenced them to one year and six months’ imprisonment. 23. In the meantime, on 29 July 2013 the applicant and her partner, represented by the lawyer L.K., had lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office against two unidentified suspects in connection with the incident of 9 June 2013 (see paragraphs 6-13 above). It was alleged in the criminal complaint that one of the suspects had first pushed the applicant and had then told her that she was a “bitch” (kuja) who had a relationship with a Roma man and that she would be beaten. She had been grabbed by the T-shirt and thrown to the ground, banging her head. The assailants had then continued beating Š.Š., threatening to kill him and the applicant. The criminal complaint also alleged that the assailants had stolen two mobile telephones from Š.Š. at the same time. 24. The applicant’s representative tried to obtain the relevant information about the attackers from the police on the grounds that she needed the information in order to institute court proceedings. On 12 November 2013 the police informed the applicant’s representative that they had lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office against two individuals in connection with a suspicion that they had committed the offence of attempted grievous had been classified as a hate crime. The applicant’s representative was also informed that she should contact the Zagreb Municipal State Attorney’s Office for all further information. 25. The applicant’s representative then informed the Zagreb Municipal State Attorney’s Office that the applicant and her partner would participate in the proceedings as victims and requested to be informed of all relevant procedural steps. On 17 February 2014 the applicant’s representative, invoking the domestic authorities’ obligations under the Convention, requested information from the police and the Zagreb Municipal State Attorney’s Office about the criminal complaint lodged on behalf of the applicant. 26. On 31 October 2014 the Zagreb Municipal State Attorney’s Office rejected the applicant’s criminal complaint. It examined the materials related to the investigation into the incident of 9 June 2013 and the criminal proceedings against S.K. and I.M. (see paragraphs 10-22 above). The relevant part of the decision reads: “In view of the above, it is established without any doubt that on the day in issue there was a physical conflict between S.K. and I.M. and Š.Š. whereby [S.K. and I.M.] caused bodily injury to and threatened Š.Š., and those offences were committed primarily because of hatred towards Roma. However, the statements of the witnesses Š.Š. and Maja Škorjanec show that [S.K. and I.M.] pushed her in the back, causing her to fall onto a [flea market] stall, not because she was the partner of Š.Š., who is of Roma origin, but because they were drunk and they accidentally pushed her towards the stalls. Furthermore, the medical documentation regarding Maja Škorjanec, as well as the records of the questioning of the witnesses Š.Š. and Maja Škorjanec and the statements of S.K. and I.M. given in their defence in the proceedings before the Zagreb Municipal Criminal Court, show that there is no doubt that S.K. kicked Maja Škorjanec in the left side of the face with the result that she sustained a minor bodily injury. Given that there is no indication that S.K. and I.M. inflicted injuries on Maja Škorjanec because of hatred towards Roma, as she is not of Roma origin, the criminal offence under Article 117 § 2 in conjunction with Article 87(21) of the Criminal Code has not been established. In particular, the injury which Maja Škorjanec sustained would, by its nature, suggest an injury within the meaning of Article 177 § 1 of the Criminal Code. ... As criminal proceedings for the offence under Article 177 § 1 of the Criminal Code are instituted on the basis of a private prosecution, the criminal complaint ... must be rejected ... on the grounds that the impugned criminal offence is not an offence that is prosecuted of the prosecutor’s own motion. With regard to the criminal offence under Article 139 § 2 in conjunction with Article 87(21) of the Criminal Code, it should be pointed out that it is obvious that S.K. and I.M. threatened Š.Š. and not Maja Škorjanec ... Moreover, ... it does not follow from the record of Maja Škorjanec’s witness statement, which has been examined, that S.K. and I.M. threatened her, but rather Š.Š., and thus the criminal complaint ... should be rejected on the grounds that the impugned criminal offence is not an offence that is prosecuted of the prosecutor’s own motion.” 27. The applicant was informed that she could take over the prosecution of S.K. and I.M. as a subsidiary prosecutor, as provided for under the relevant domestic law (see paragraph 30 below). | 1 |
test | 001-145347 | ENG | HUN | CHAMBER | 2,014 | CASE OF BENKŐ AND SOÓSNÉ BENKŐ v. HUNGARY | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award | András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens | 5. The applicant was born in 1937 and lived in Budapest. 6. On 23 April 2002 she brought an action before the Budapest XX/XXI/XXIII District Court, seeking the dissolution of common ownership. 7. On 22 November 2007 the Budapest Regional Court, acting as a second instance court, adopted a partial judgment in the case. 8. Pursuant to the applicant’s petition for review, the Supreme Court quashed the partial judgment on 25 June 2008 and remitted the case to the first instance court. 9. The case was terminated by the Budapest Regional Court on 1 December 2011 (service: 6 January 2012). 10. On 6 March 2012 the applicant’s lawyer posted a first communication to the Court, indicating an intention to lodge an application and giving some indication of the nature of the application. The communication was dated 5 March 2012. | 1 |
test | 001-147011 | ENG | MDA | COMMITTEE | 2,014 | CASE OF BONDARENCO v. THE REPUBLIC OF MOLDOVA | 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) | Luis López Guerra | 6. The applicant was born in 1958 and lives in Chișinău. 7. In 1989 the Chişinău Local Council let an apartment to the applicant. In 2000 the Local Council declared the building in which the applicant had been renting the apartment to be under threat of collapse and on an unspecified date it was demolished. The applicant brought an action against the Chişinău Local Council seeking the allocation of an apartment in lieu of the old one. 8. By a final judgment of 18 March 2003 the Rîşcani District Court ruled in favour of the applicant and ordered the Chişinău Local Council to provide her with an apartment. 9. Between 2003 and 2004 she lodged numerous complaints about the failure to enforce the judgment in her favour to no avail. The judgment of 18 March 2003 of the Rîşcani District Court has not been enforced to date. | 1 |
test | 001-142842 | ENG | AUT | CHAMBER | 2,014 | CASE OF SAFAII v. AUSTRIA | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Greece) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1983. His address is unknown. 6. The applicant and his wife came to Austria in August 2008 and applied for asylum on 19 August 2008. They had travelled from Afghanistan via Iran to Greece. When the applicant and his wife first arrived in Greece they lived in a camp. They subsequently lived with people traffickers for approximately three months, and then in public parks. The applicant claimed that he had queued to apply for asylum in Greece, but had been beaten by the police and driven away. He and his wife had no access to financial support and had had to live in the parks after their money had run out. After four failed attempts, the traffickers managed to take the applicant and his wife to Austria. 7. In his request for asylum in Austria the applicant claimed in substance to have had problems with the Taliban in Afghanistan. He submitted inter alia that eight years earlier the Taliban had kidnapped two of his brothers. 8. On 14 October 2008, the Federal Asylum Office East (Bundesasylamt Erstaufnahmestelle Ost) rejected the applicant’s asylum application on the grounds that Greece was responsible for examining it, pursuant to section 5 of the 2005 Asylum Act (Asylgesetz 2005) in connection with Article 10 § 1 of Council Regulation (EC) No. 343/2003 (“Dublin II Regulation”, hereinafter “the Dublin Regulation”), and ordered his expulsion to Greece. It found that the applicant was not facing any real risk of illtreatment within the meaning of Article 3 of the Convention upon his return to Greece. The authority referred to a number of country reports, in particular those of the UNHCR of April 2008 and of the Swedish Migration Board. It acknowledged the ongoing criticism with regard to proceedings and treatment of asylum-seekers in Greece, but did not consider the applicant’s story of his experiences in Greece credible. The Asylum Office noted the UNHCR’s concern about the difficulties with which many asylum-seekers in Greece were confronted. This applied particularly to the facilities for asylum-seekers, access to asylum proceedings and the quality of the proceedings. On the other hand, the Asylum Office noted that Norway was the only country to have declared that it would no longer transfer asylum-seekers to Greece under the Dublin Regulation. The Asylum Office also mentioned a recent decision by the Aliens Litigation Council, according to which there was no reason to suspend further transfers to Greece. The Asylum Office quoted the UNHCR position paper, which welcomed Greece’s reform attempts aimed at strengthening its asylum system. It further noted that a working group had been established, including members of the Greek authorities and the UNHCR, to tackle the “most burning” problems with the asylum system. Furthermore, the Asylum Office held that the relevant European directives were binding for Greece. Lastly, the Asylum Office referred to a fact-finding mission conducted by the Swedish Migration Board in April 2008 reacting to the harsh criticism voiced by various NGOs. The final report of that mission had concluded that there were no humanitarian or other reasons to refrain from returning asylum-seekers to Greece under the Dublin Regulation. In view of the fact that the asylum authorities of the other EU countries had not stopped transferring asylum-seekers back to Greece, the Asylum Office concluded that it was not necessary to make use of the sovereignty clause in the present case. It further noted that people who had never before lodged an asylum application in Greece and had been transferred to Greece under the Dublin Regulation had full access to asylum proceedings. 9. The applicant lodged a complaint against that decision, referring again to the deficiencies of the Greek asylum system, the danger of refoulement to Afghanistan and the lack of subsistence for asylum-seekers. 10. On 11 November 2008, the Asylum Court (Asylgerichtshof) dismissed the applicant’s complaint as unfounded. It found that an accumulation of proceedings under the sovereignty clause would endanger the “effet utile” principle of Community law. Furthermore, the Dublin Regulation was based on the assumption that all member States were safe countries and that a deportation to one of them could not constitute a human-rights violation. Therefore, arguments against such a deportation would need to be especially substantiated. Referring to the report of a mission of the Swedish Migration Board to Greece in April 2008 that showed that all twenty-six monitored cases had had access to Greek asylum proceedings, it found that there were no deficiencies in the conditions of access to asylum proceedings in Greece. With regard to the present case, the Greek authorities had already stated that the applicant would have access to asylum proceedings once he returned to Greece. Again referring to the mission report of the Swedish Migration Board, it found that the support of asylum-seekers in Greece was acceptable. Asylum-seekers were allowed to work in Greece. Lastly, there would be no risk of refoulement. In conclusion, the applicant would not be at real risk of treatment contrary to Article 3 on being returned to Greece. 11. On 30 January 2009, the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. 12. That decision was served on the applicant’s counsel on 11 February 2009. 13. The applicant’s wife was expelled to Greece on 25 November 2008. 14. The applicant was expelled to Greece on 8 April 2009. 15. At the Court’s request, on 4 August 2011 the applicant’s representative informed the Court of the exact date of the applicant’s transfer to Greece, namely 8 April 2009. He stated that despite being his counsel, he had not received any further information about his client since then. In later submissions he stated that he could establish contact with the applicant, if necessary, via trustworthy persons the applicant still knew in Vienna. He did not, however, provide the applicant’s current address to the Court. | 0 |
test | 001-178902 | ENG | SVN | CHAMBER | 2,017 | CASE OF RASTODER v. SLOVENIA | 4 | No 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;Obtain attendance of witnesses) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano | 6. The applicant was born in 1950 and is detained in Dob pri Mirni. 7. On 18 March 2006 a person called A.Č. called the police and informed them that three people had been stabbed in the town of Izola. Only the injured people, namely Š.A., S.M, and F.M, were found at the place of the incident. A few hours later the applicant and his two sons, A.R. and E.R., were arrested on suspicion of attempted murder. 8. On 20 March 2006 the applicant, A.R. and E.R. were brought before the investigating judge. The applicant, who was assisted by counsel, gave the following statement in his defence. He alleged that he had intended to meet Š.A. in order to demand that he pay rent for workers who had previously been accommodated in his flat and to cancel their residence registration at that address. Before he set off to a bar where Š.A.’s workers met after work (hereinafter “the bar”), he telephoned his sons and asked them to come and assist him in case he met any trouble from Š.A. After Š.A. refused to resolve the matter, the applicant left the bar and was followed by between ten and twelve of Š.A.’s workers. Š.A. and F.M., one of the workers, started hitting the applicant all over his body. His sons, standing nearby, came to his aid. After Š.A. hit A.R., the applicant, an electrical fitter by profession, took out the knife he used for work, which had a seven- to eight-centimetre blade, and began brandishing it. Among others, he stabbed Š.A. several times in the back. Š.A. then backed off and the applicant and his sons fled the scene. Once at home the applicant gave the knife to his wife, who disposed of it. The applicant also stated that the only injuries he had sustained had been some bruises on his head. 9. The applicant’s sons stated that their father had met with Š.A. and another person and that a fight had started. When they had gone to help him, a number of other men had approached and had started beating them. The applicant’s sons also stated that they had not been carrying any knives themselves. According to them, E.R. had defended himself with a wooden clothes hanger. 10. The injured parties, S.M., F.M., and Š.A., were also questioned in the investigation and they stated, inter alia, as follows. 11. F.M. stated that after leaving the bar he had been attacked by the applicant, who had hit him on the nose with the handle of the knife. S.M. and Š.A. had arrived after that and the applicant had again attacked F.M. E.R. had attacked S.M. while A.R. had attacked Š.A. In the course of the fight the applicant had stabbed F.M. and had also attacked S.M. and Š.A., before fleeing the scene. The applicant and his sons had had knives. The applicant’s knife had had a ten-centimetre blade. 12. S.M. stated that he had heard people saying there was a crowd outside the bar, he had gone out and found F.M. being hit in the face and running. He had then seen the applicant attacking F.M. He had attempted to separate them, but E.R. had stabbed him. E.R. had then fled and the applicant had stabbed him several times, which had caused him to faint. 13. Š.A. testified that after being told that something was going on outside the bar he had gone out and found S.M. and F.M. being attacked. He had attempted to help S.M., who had been stabbed in the neck by the applicant, and F.M. He had been stabbed in the back several times by the applicant. 14. In addition to the accused and the injured parties the investigating judge questioned five witnesses – A.Č., M.H., Đ.Š., Še.A. and I.B. 15. A.Č. testified that he had noticed the applicant and his sons, together with F.M. and another person, standing a few metres from the bar. Š.A. had approached them and a few seconds later they had started to fight. According to A.Č., only those six people had been involved in the fight. He had not seen any weapons, but had seen blood on Š.A.’s shirt. In addition, the third victim (S.M.) had been holding his neck. A.Č. also stated that he had called to his acquaintance M.H. to telephone the police. 16. M.H. gave a fairly detailed account. He explained that he had seen the applicant in the bar arguing with Š.A. and then leaving around thirty minutes before the fight. Twenty minutes later F.M. and S.M. had left the bar as well. Š.A. had received a call and had gone out. After being alerted by A.Č. and seeing the fight through the window, he had gone out of the bar and had seen the applicant and his sons, as well as S.M., F.M., and Š.A., fighting. He testified that the applicant and his sons had been the weaker parties in the fight until the applicant had pulled out a knife, saying, “Now let us see”, and using it to attack Š.A., F.M. and S.M. He added that he had not seen the applicant’s sons handling any knives and also described the applicant’s knife as having a blade of about eight to ten centimetres. 17. Đ.Š., the third witness, stated that between 6 p.m. and 7 p.m. on the day in question he had first seen the applicant and later his sons park their cars in front of the bar where the events at issue took place. Đ.Š. and his friend had then approached the bar and had seen S.M. lying unconscious on the ground. 18. On 10 April 2006 the investigating judge questioned I.B. and Še.A. in the presence of the district public prosecutor and counsel for A.R., who were also allowed to put questions. I.B. told the investigating judge that he had been walking home with Še.A. when he had seen the applicant, his sons, and F.M. coming out of the bar. The applicant had had his hand in his pocket and appeared to be holding something. He had seen him pointing at F.M. and heard him telling his sons, “This is [F.M.]”. He had later seen his brother-in-law (S.M.) lying on the ground with blood on his head. The police and an ambulance had arrived. 19. Še.A. stated that he and I.B. had been on their way home when F.M. had come out of the bar and told them to wait. Še.A. had then noticed the applicant and his sons. He had seen the applicant pointing at F.M. and saying something, whereupon the applicant had gone towards F.M. and hit him in the face with the handle of his knife. As F.M. had moved away, towards the bar, one of the applicant’s sons had approached. Both S.M. and Š.A. had come out of the bar at that moment and a fight had broken out between E.R., S.M., and the applicant and F.M., A.R. and Š.A. Še.A. had approached the fighting men and tried to separate E.R. and S.M. E.R. had then struck S.M. with a knife, but when Še.A. had approached, he had turned to him. Še.A. had got scared and had run away. Še.A. described the knife as being old, with a blade of between ten to fifteen centimetres, but could not remember further details. Še.A. stated during the questioning that his work visa was valid until January 2007. 20. In May 2008 the court summoned the witnesses, including I.B. and Še.A., to a hearing that had been scheduled for 11 September 2008. The summons for I.B. was served on his neighbour while Še.A.’s was served on his wife. The court subsequently cancelled the hearing and ordered that the witnesses, including I.B. and Še.A., be summoned to a hearing on 25 September 2008. However, since I.B. and Še.A. no longer had a place of residence that was registered in Slovenia, the court on 21 November 2008 asked the Police Department for International Cooperation to investigate where the two witnesses were living. Further to another request from the court, the Izola Administrative Unit informed it that Še.A. had cancelled his residence status in Izola on 17 January 2008 and that I.B. had cancelled his on 20 December 2006. It appears that the police registered their enquiries about the whereabouts of I.B. and Še.A. in the Schengen system. 21. After receiving information from the authorities of the former Yugoslav Republic of Macedonia, the Slovenian police informed the court on 23 January 2009 of I.B.’s address, whence the court subsequently sent the summons. On 20 March 2009 the Court received a statement from I.B., given to a notary, in which he excused himself from attending the hearing, saying that he needed a visa to enter Slovenia. However, in order to comply with the summons, he included his testimony, which he had given to the notary. He stated that he did not remember exactly when the incident in question had happened but thought it was around two years earlier, when he had had a temporary job as a construction worker in Slovenia. He had at that time been in the process of moving from the applicant’s apartment to Š.A.’s apartment. As to the incident, he said that he remembered seeing S.M. lying on the ground and the police and ambulance arriving at the scene. 22. In April 2009, further to indications from the authorities of the former Yugoslav Republic of Macedonia and the injured parties’ counsel that Še.A. was in Italy, the Italian authorities checked their data, but stated that Še.A. had never had any registered address in that country. On 18 May 2009 the Office of the General Police Administration informed the court that the border police had talked to Še.A. when he had crossed the Slovenian border. He had given an address in the former Yugoslav Republic of Macedonia and Italy and his mobile telephone number. 23. After his wife received the summons at his address in the former Yugoslav Republic of Macedonia, Še.A. wrote to the court to say that his father was very ill and that therefore he could not travel for the following two to three weeks. In addition, he said that he had been working in Italy since September 2008 and could not travel to Slovenia as he would risk losing his job. He added that he had already given a statement regarding the charges against the applicant and the other defendants and had nothing to add. The court received the letter on 25 May 2009. 24. On 16 May 2006 the district state prosecutor lodged an indictment against the applicant, E.R. and A.R. for the attempted murder of Š.A., S.M. and F.M. 25. Seven hearings were held, taking place on 25 September 2008, 27 November 2008, 29 January 2009, 19 February 2009, 10 April 2009, 29 May 2009 and 17 June 2009. 26. At the hearing of 29 May 2009, at which the applicant and his counsel were present, the court noted that Še.A. had sent a letter in reply to the summons (see paragraph 23 above). After the letter had been read out, the panel of judges took a decision that his and I.B.’s statements to the investigating judge should be read out at the hearing, finding that the conditions set out in point 1 of the first paragraph of section 340 of the Criminal Procedure Act had been met (see paragraph 39 below). The record of the hearing shows that no comments on the reading out of the statements were made by those present. 27. The accused, the injured parties and the witnesses A.Č., M.H. and Đ.Š. were examined at the hearings. - The applicant kept to the statement he had given to the investigating judge and repeated that he had acted in self-defence. He now alleged that the blade of the knife had been only three centimetres long. - A.R. maintained that he had gone to help his father but the workers had started to beat him as well. Š.A. had been on top of him, hitting him until he had managed to escape. A.R. also stated that he had had no plans to meet his brother in Izola that day. - E.R. stated that he had only wanted to have a coffee with a friend but had ended up in a fight, and having to defend himself until he had passed out. He denied that he had had a knife that day and said that he had not seen his brother or father carrying one either. - S.M. repeated what he had said during the investigation (see paragraph 12 above), adding some details about which of the three accused had stabbed him and where, attributing most of the injuries to the applicant. He explained that he had assumed that F.M. had been hit in the face as he had seen him holding his hand there and added that the applicant’s knife blade had been ten to fifteen centimetres long. - F.M. added further details to his statement from the investigation (see paragraph 11 above), testifying how he had been stabbed by the applicant and that he had seen the applicant stabbing S.M. and Š.A. before fleeing the scene. - Š.A. described how he had been stabbed by the applicant and his sons. He also testified that before arriving on the scene he had received a brief telephone call from Še.A., who had told him that the men had been attacked outside. When he had gone outside he had seen S.M. on his knees and the applicant stabbing him. Š.A. denied that the applicant or his sons had called him that day. He was asked to explain the difference between his testimony during the investigation, when he said he had fought with one of the applicant’s sons, and at the hearing, when he had said that he had not fought back. He stated that he had remembered the events better during the investigation. - A.Č. repeated what he had said during the investigation (see paragraph 15 above). - At his first examination M.H. repeated what he had said during the investigation (see paragraph 16 above). Six months later, he changed his statement and alleged, among other things, that the fight had started after Š.A. had first hit A.R. - Đ.Š. stated that he had seen E.R. parking his car and going directly into the bar. He had arrived at the scene with his friends and had found S.M. lying unconscious on the floor. 28. The panel also questioned Dr G.R., the surgeon who had treated all three victims at the local hospital and who explained the severity of the individual wounds sustained by the victims. The court also obtained the testimony of two medical experts. Dr A.Š. made an assessment of the victims’ individual injuries, the most likely manner in which they had been sustained, the angles of the stab wounds, and so forth. The doctor stated that Š.A. had sustained four wounds to his back and a number of wounds to his chest. S.M. had been stabbed seven times from behind, five times in the neck and on the back of the head, once to the left shoulder and once in the left side of his chest. F.M. had been stabbed in the stomach. Dr D.M.S. performed a clinical examination of Š.A. in order to assess his wounds in more detail. 29. The panel also examined several documents that had been called in evidence. Medical reports relating to the applicant and his sons showed that they had sustained minor injuries, the applicant notably sustaining only a few contusions (on the right forearm, above the left scapula and on his left eye, which remained undamaged). Other evidence showed that the applicant had been in a dispute over workers hired by Š.A. who had vacated the applicant’s flat. Š.A. had not made a declaration of a change of residence to the competent administrative authority, although as an employer and new landlord he should have done so. Furthermore, telephone records showed that the applicant and Š.A. had had three conversations on the day of the incident. Moreover, A.R., the applicant’s son, had called his father a number of times that day just before the fight broke out. 30. On 19 June 2009 the Koper District Court panel found the applicant guilty of attempting to murder S.M., F.M. and Š.A. by stabbing the first in the neck, on the back of the head and the left side of his chest, the second in the left side of the stomach and the third in the back. Two of the offences had been aided and abetted by the applicant’s sons, who were each convicted of one count of attempted murder. The court sentenced the applicant to five years and ten months in prison, while his sons were both sentenced to one year and two months in prison. 31. In a judgment of fifty-four pages, the court established on the basis of the testimony, telephone and GPS data that the applicant had called Š.A. on the day of the attack in order to discuss the workers’ change of residence, but they had been unable to resolve the matter. Consequently, the applicant had gone to the bar with a view to get the workers to sign written statements concerning their change of residence. He had asked F.M., who had been in the bar with S.M., to sign the statement, but he had refused. After that the applicant had again called Š.A., but to no avail. Being informed of the situation by the applicant, A.R. and E.R. had joined him and they had together gone in search of F.M. and Š.A. They had stopped F.M. near the bar and the applicant had hit him in the face with the handle of the knife. F.M. had withdrawn in the direction of the bar, and had been joined by S.M. and Š.A., who had been informed about the attack by the telephone call from Še.A. A fight involving the six men had then started, with the accused being prepared for it as they had been equipped with knives. It had finished when the applicant and his sons had left the scene and Š.A. had called the police. 32. The court found that only five minutes had passed between F.M. being stopped by the applicant and his sons and the call to the police, while the fight and stabbing could not have lasted more than two minutes. In particular, the court established that Š.A. had received the call from Še.A. at two minutes and forty eight second past eight in the evening and that less than three minutes later Š.A. had called 113. In the meantime, he had been stabbed several times. As regards the other circumstances of the fight, such as who had hit whom, the court relied on the testimony of S.M., F.M., and the witnesses A.Č. and M.H. The court, taking into account the fact that the injured parties could not have been expected to pay particular attention to what was happening to others while they themselves were engaged in the fight, found their testimony mostly consistent, except for the question of when Š.A. had joined the fight. The court took the view on that point that the fight had only broken out after Š.A.’s arrival, contrary to what he himself had alleged. The court further found M.H.’s initial testimony (see paragraph 16 above) to be the more persuasive of the two, and that it was in line with the findings of the medical experts. It found that E.R. had initially fought with S.M., the applicant with F.M., and A.R. with Š.A. – a fact which the court found confirmed by the testimony of “S.M., F.M., and also the witnesses A.Č. and M.H., and Še.A.” Referring to M.H.’s initial testimony and the applicant’s statement during the investigation, which it found was also supported by Še.A.’s testimony, the court rejected the applicant’s statement at the hearing that his knife had only had a three-centimetre blade. 33. Regarding the applicant’s argument that he had acted in self-defence, the court found that “the statements given by the accused were contradictory and refuted self-defence ... [and] the evidence produced at the hearing completely excluded that possibility [of self-defence]”. The Court found that only the defendants and the three injured parties had engaged in the fight and that if Š.A. had wanted to attack the applicant he could easily have outnumbered the defendants. The applicant and his sons had been motivated by anger towards Š.A. and F.M., while S.M. had become involved because he had tried to protect F.M. As the applicant had failed to convince F.M. to cancel his residence status, he had resorted to violence. If the applicant had felt that he was in danger, he could simply have walked away. Instead, he had provoked a fight, together with his sons. The court also found that while the applicant had admitted to stabbing Š.A. several times in the back, he and the other two defendants had not addressed the fact that the injured parties had sustained other stab wounds too. Moreover, the court noted that none of the witnesses had testified that the applicant had lain on the floor and been kicked by the other men. The court found that since the defendants had been prepared for a fight in advance the injured parties should be believed when they stated that they had in fact been attacked and that they had responded by fighting back. It considered the injured parties’ description of how they had obtained the wounds to be persuasive. Having regard to the fact that the fight was of short duration, the court found that the defendants had pulled their knives out quickly and had quickly “finished with” the injured parties. The court further found that as the victims had sustained fourteen stab wounds altogether, it was plausible that the applicant had not been the only assailant, but that all three defendants had inflicted them. Finally, the court dismissed the applicant’s argument that he had pulled the knife out after being attacked by ten people as “unrealistic”. 34. In the judgment the court also explained the reasons for reading out I.B. and Še.A.’s statements. It noted that the two witnesses had not attended the hearing, despite being properly summoned, and that counsel for the defendants had been offered the possibility to attend their questioning during the investigation. 35. The applicant appealed to the Koper Higher Court, complaining, inter alia, that the first-instance court had violated his defence rights by relying on the record of the testimony that I.B. and Še.A. had given during the investigation. 36. On 7 July 2011 the higher court dismissed the applicant’s appeal. As regards the applicant’s alleged inability to cross-examine I.B. and Še.A. at the trial, the higher court considered that the applicant had had an opportunity to question the witnesses during the investigation. It noted that counsel for the applicant had been informed about the hearing with the investigating judge, as confirmed by an acknowledgment of receipt, but had failed to attend it. According to the higher court, the defence had been aware of the notice of the possibility to participate in the questioning of witnesses during the investigation but had consciously disregarded it. Hence, it had accepted the risk that the witnesses would not be available for questioning at the trial. Moreover, the higher court considered that the applicant had failed to comply with paragraph 2 of section 371 of the Criminal Procedure Act (see paragraph 39 below) as he had not substantiated in what way his inability to question the two witnesses at the trial had undermined the legality of the judgment. 37. The applicant lodged an appeal on points of law, which was dismissed by the Supreme Court on 24 August 2012. The court confirmed that the first-instance court had correctly applied section 340 of the Criminal Procedure Act by reading out the testimony given by I.B. and Še.A. during the investigation as the witnesses, who were foreigners, had been duly summoned to appear before the court but had refused to attend. The Supreme Court further found that section 178(4) of the Criminal Procedure Act provided that the investigating judge should have sent the request to attend the questioning directly to the defendants as well as to counsel. However, according to the Supreme Court, the applicant had failed to explain how that error on the part of the investigating judge had affected the legality of the impugned judgment. In the Supreme Court’s opinion, the error could only have affected the legality of the judgment if the first-instance court had relied on the testimony of I.B. and Še.A. to a decisive extent, which, however, had not been alleged in the case. 38. The applicant lodged a constitutional complaint. The Constitutional Court dismissed the complaint on 24 December 2012, pursuant to section 55b of the Constitutional Court Act (see paragraph 40 below). | 0 |
test | 001-145723 | ENG | AUT | ADMISSIBILITY | 2,014 | E.B. v. AUSTRIA | 4 | Inadmissible | Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 1. The applicant, Mr E.B., was an Austrian national, born in 1947. The President granted the applicants’ requests for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr H. Graupner, a lawyer practising in Vienna. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 1 December 2004 the Vienna Regional Court convicted the applicant of sexual acts with persons under the age of 14 (Article 207 of the Criminal Code) and with persons under the age of 16 not mature enough to understand the act, taking advantage of this immaturity (Article 207b of the Criminal Code), and sentenced him to three years’ imprisonment. His criminal record, which at the time consisted of twelve convictions, of which nine concerned sexual offences involving adolescents, was treated as an aggravating circumstance. These previous convictions were as follows: - In 1978 the applicant was convicted in a Dutch court of indecent acts with adolescents (unzüchtige Handlungen mit Jugendlichen), for which he was sentenced to two weeks’ imprisonment and fined. - On 23 September 1982 the Innsbruck Regional Court convicted him of homosexual acts with consenting male persons between 14 and 18 years of age (Article 209 of the Criminal Code, as in force at the time) and sentenced him to ten months’ imprisonment. On 10 August 1983 the Innsbruck Court of Appeal reduced the sentence to seven months’ imprisonment. - In 1989 the applicant was convicted in the Feldkirch Regional Court of attempted fornication with persons under the age of 14 (Article 207 of the Criminal Code) and fined. - In 1990 the applicant was convicted in the same court of an offence under the same provision, namely fornication with persons under the age of 14. He was sentenced to nine months’ imprisonment. - In 1992 the applicant was convicted in a German Court of sexual abuse of persons under the age of 14 and sentenced to six months’ imprisonment. - In 1995 the applicant was convicted in a German Court of the same offence and sentenced to one year and ten months’ imprisonment. - In 1997 the applicant was convicted in a Hungarian court of sexual abuse involving minors (sexueller Missbrauch von Minderjährigen) and sentenced to three years’ imprisonment. - On 18 November 1999 the Vienna Regional Court convicted him of an offence under Article 209 of the Criminal Code, as in force at the time and sentenced him to two years and six months’ imprisonment. On 30 March 2000 the Supreme Court partly acquitted him and reduced the sentence to one year’s imprisonment. - On 6 April 2001 the Vienna Regional Court convicted him of an offence under the same provision and sentenced him to one year’s imprisonment. The applicant did not appeal. 5. On 22 March 2005 the Supreme Court rejected a plea of nullity lodged by the applicant and on 3 May 2005 the Vienna Court of Appeal dismissed an appeal lodged by him against the judgment of 1 December 2004 (see paragraph 4 above). 6. On an unspecified date the applicant asked for early release from prison. 7. On 27 April 2006 the Korneuburg Regional Court dismissed the applicant’s request. It noted that under Article 46 of the Criminal Code a court may grant early release if a prisoner has served two thirds of his sentence, unless there were specific reasons to expect that this person would commit criminal offences while at liberty. The Regional Court considered that the applicant had not shown that he had seen sense and was still playing down the offences committed by him. Moreover, his numerous previous convictions for sexual offences involving minors (Minderjährige) had not succeeded in getting him to conform to standards of law-abiding behaviour (normangepasstes Verhalten). For that reason he had to serve his entire prison sentence. 8. On 16 May 2006 the applicant lodged an appeal against the decision refusing his early release. He submitted that the Regional Court’s reliance on his previous convictions under Article 209 of the Criminal Code constituted a breach of Article 14 read in conjunction with Article 8 of the Convention, because Article 209 had been quashed by the Constitutional Court on 21 June 2002 as being unconstitutional. 9. On 13 June 2006 the Vienna Court of Appeal dismissed the applicant’s appeal, holding that the Regional Court had acted correctly in taking also the applicant’s Article 209 convictions into account, even though the provision was constitutionally problematic. Having examined the files concerning the criminal proceedings against the applicant under that provision, it was apparent from the circumstances of the criminal acts, as well as the age and personality of the victims, that a conviction of the applicant would have also been justified under the legal provisions brought in to replace Article 209, which were constitutionally compliant. In view of these considerations, and also taking into account the applicant’s other convictions, the Regional Court had been correct in concluding that the conditions for the applicant’s release under Article 46 § 2 of the Criminal Code were not fulfilled because of the applicant’s incorrigible personality, as he resisted all measures of social reintegration, played down his acts and showed no remorse. 10. Accordingly, the applicant served the full sentence. He died on 14 September 2008. | 0 |
test | 001-172559 | ENG | AZE | COMMITTEE | 2,017 | CASE OF MEHTIYEV AND OTHERS v. AZERBAIJAN | 4 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence) | Carlo Ranzoni | 5. The applicants’ dates of birth and places of residence are given in the Appendix. 6. On 12 January, 26 January, 10 March and 29 December 2013 demonstrations were planned to be held in Baku. It appears that the organisers of the demonstrations gave no proper prior notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). Information about the demonstrations was disseminated through Facebook or the press. 7. According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The demonstrations of 12 January and 10 March 2013 were aimed at protesting about the deaths of soldiers in the army. The demonstration of 26 January 2013 condemned the use of force by the police against the participants of previous demonstrations, while those taking part in the demonstration of 29 December 2013 were protesting against bureaucratic injustices which had allegedly caused a disabled war veteran to set himself on fire on 25 December 2013. 8. Each applicant attended one of the demonstrations (see Appendix), but shortly after they had begun the police started to disperse those who had gathered. All the applicants were arrested during the dispersal operations and were taken to various police stations. 9. The applicants were questioned at the police stations they were taken to. 10. On the day of each applicant’s arrest administrative offence reports (inzibati xəta haqqında protokol) were issued, which stated that the applicants had committed an administrative offence under Article 298.2 of the Code of Administrative Offences (“the CAO”) (participation in a public assembly that had not been organised in accordance with the law). 11. Some of the applicants refused to sign the administrative offence reports (applications nos. 52270/13, 26424/14 and 26994/14). 12. According to most of the applicants, they were never served with copies of the administrative offence reports or with other documents from their case files. They were not given access to a lawyer after their arrest or while they were in police custody. 13. According to statements (ərizə) written by the applicants in applications nos. 20589/13 and 33164/13 at the police stations on the day of their arrest (12 January and 10 March 2013 respectively), they refused the services of a lawyer. 14. The applicants in applications nos. 20589/13 and 26424/14 were released after being kept in police custody for a few hours, subject to an undertaking to reappear at the police station on various dates. 15. Most of the applicants were taken to trial courts directly from the police stations, either on the day of their arrest or the following day. The applicants in applications nos. 20589/13 and 26424/14 were brought before first-instance courts on the day they returned to the police station. 16. According to most of the applicants, the court hearing in each case was very brief. Members of the public were not allowed in the courtroom, even though the court had not taken a formal decision to close the hearing to the public. 17. According to most of the applicants, they were not given an opportunity to appoint lawyers of their own choosing. State-funded lawyers were asked to assist some of them. The applicants in applications nos. 21219/13, 33164/13, 33593/13 and 26994/14 were not represented by a lawyer. According to documents from the case files, the applicants in applications nos. 21219/13, 33164/13 and 26994/14 refused the assistance of a State-funded lawyer and decided to defend themselves in person. 18. According to the transcript of the hearing concerning the applicant in application no. 20589/13, the State-funded lawyer stated briefly in his oral submissions that the applicant was guilty and asked the court for lenience. Similarly, the State-funded lawyer for the applicant in application no. 26424/14 stated in general terms that the applicant was not guilty and asked the court to discontinue the case. In addition, none of the material submitted to the Court contains any record of showing that the State-funded lawyer, Mr V.M., made any oral or written submissions on behalf of the applicant in application no. 52270/13. 19. The only witnesses questioned during the court hearings with respect to the applicants in applications nos. 20589/13 and 26424/14 were the police officers who, according to the official records, had arrested them. The police officers testified that the applicants had staged unauthorised demonstrations. No witnesses were questioned by the courts in the other applicants’ cases. 20. The first-instance courts found that the applicants had participated in unauthorised demonstrations. The applicants were convicted under Article 298.2 of the CAO and sentenced to a period of administrative detention, varying from thirteen to seventeen days, or to a fine of 400 or 500 Azerbaijani manats (AZN) (see Appendix). 21. On various dates the applicants lodged appeals with the Baku Court of Appeal, arguing that their convictions had been in violation of their rights because the demonstrations in which they had participated or attempted to participate had been peaceful. The applicants also complained that their arrests had been unlawful and that the hearings before the first-instance courts had not been fair. They asked the Baku Court of Appeal to quash the first-instance courts’ decisions in their cases. 22. The applicants in applications nos. 21219/13, 52270/13 and 26424/14 were assisted before the Baku Court of Appeal by lawyers of their own choosing. The other applicants were not represented by a lawyer. 23. On various dates the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the first-instance courts (see Appendix). 24. In its decision with regard to the applicant in application no. 33593/13 the Court of Appeal noted, inter alia, that he had voluntarily refused legal assistance at the pre-trial stage. | 1 |
test | 001-170286 | ENG | BGR | CHAMBER | 2,017 | CASE OF SARBYANOVA-PASHALIYSKA AND PASHALIYSKA V. BULGARIA | 4 | No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev | 5. The applicants are the wife and daughter of Mr Ivan Mirchev Pashaliysky, who was killed on 2 June 2000 in an office situated in a hotel in Sofia. He died as a result of suffering severe trauma to his brain, chest, torso and limbs, which led to irreversible damage to several of his vital organs. The trauma was caused by a number of kicks and punches and blows inflicted with different objects. 6. On the day of the incident a private security guard was called to the office premises where Mr Pashaliysky was later found dead in order to investigate a brawl reportedly happening there. The security guard knocked on the office entrance door and an individual, S.V., opened it. The security guard caught a brief glimpse of Mr Pashaliysky lying helpless on the floor with blood on his face. S.V. was holding a long oval-shaped object. Having been told by S.V. that there was no problem, the security guard left. 7. It would appear that earlier that day, using the telephone of the office in question, S.V. had called Ch.M., a friend and business partner of Mr Pashaliysky, threatening to kill them both if Ch.M. failed to deliver an undisclosed sum of money to S.V. without delay. 8. The incident was reported to the police by an investigator, who had been tipped off earlier the same day. The police arrested S.V. that night. Traces of the crime having been discovered on S.V.’s hands and clothes, an investigator charged him on 3 June 2000 with murder. On 5 June 2000 a prosecutor indicted S.V. for the murder of Ivan Mirchev Pashaliysky, which had been committed three days earlier. 9. A prosecutor from the Sofia city public prosecutor’s office found on 20 April 2001 that there were reasons for amending the indictment by applying a law providing for a heavier penalty. She also found that not all available evidence had been collected. In particular, no expert DNA analysis had been carried out on the material found under the victim’s nails; several key witnesses had not been questioned about the reasons for their presence in the office in which the victim had been killed on the day in question and about the reason for the return to the office of one of them during the evening of the same day; no confrontation had been held between two of those witnesses, despite several discrepancies between their respective statements; and no information had been collected about the state in which the police officers had found the accused at the time of his arrest. On 20 April 2001 the prosecutor returned the case to the investigating authorities for further investigative measures, giving specific instructions aimed at the remedying of the deficiencies in the investigation. 10. The case was returned on three other occasions (on 17 July 2001, 18 July 2003 and on 2 October 2003) for further investigative steps, which the prosecutor listed specifically. 11. The case file was sent to the Sofia City Court on an unspecified date in November 2003. Both applicants were named as private prosecutors and the second applicant, at her request, also as a civil party seeking nonpecuniary damages. 12. At the start of the trial the defendant’s lawyer claimed that the indictment was defective because it did not contain a clear description of the offence with which the defendant had been charged; the lawyer sought, without success, the return of the case for further investigation. A number of hearings took place during the trial. The proceedings before the Sofia City Court ended on 11 June 2007, when the court sentenced S.V. to fifteen years’ imprisonment and ordered him to pay damages to the second applicant. 13. Both S.V. and the applicants lodged appeals with the Sofia Court of Appeal. S.V. submitted in particular that the sentence had been based entirely on guesswork as to who the perpetrator had been. Most importantly, S.V. claimed that the indictment had been entirely silent about the manner in which he was considered to have killed the victim, there being no description of the circumstances in which the victim was killed. Referring to interpretative decision no. 2 of 2002 of the Supreme Court of Cassation (see paragraph 21 below), he claimed that these procedural flaws were fundamental and that the court should have returned the case to the investigation stage. 14. On 18 July 2008 the Sofia Court of Appeal accepted that the indictment had not contained a description of how the accused had killed the victim and that this had been a fundamental procedural defect which had prevented the defendant from effectively exercising his rights. The court then quashed the first-instance court sentence and returned the case to the pre-trial stage so that the procedural flaw in question could be redressed. 15. On 16 August 2008 the prosecution indicted S.V. anew for the murder of Mr. Pashaliysky and the first-instance court, the Sofia City Court, opened fresh proceedings against him. The first two scheduled hearings were postponed because the defendant’s lawyer failed to appear. On 11 February 2009 the court recognised the second applicant as a civil party seeking non-pecuniary damages but refused to name both applicants as private prosecutors. After an appeal by the applicants that refusal was quashed on 13 March 2009 by the Sofia Court of Appeal. The witnesses were then heard again in the course of the trial so that the applicants could exercise their rights as private prosecutors. 16. Sixteen hearings took place thereafter, at which the applicants made numerous requests for evidence to be gathered and witnesses to be heard. Subsequently, the presiding judge was elected President of the Supreme Administrative Court as a result of which the trial stage was started anew. A new presiding judge was appointed, yet no further hearing was scheduled for about a year. The applicants complained about the delay to the Inspectorate of the Supreme Judicial Council, asking that disciplinary sanctions be imposed on the new presiding judge. The Inspectorate replied on 21 February 2012. It acknowledged that the criminal proceedings in the case had lasted eleven years and recognised that this was incompatible with the requirement of a reasonable length of proceedings. It nonetheless held that the judge in question could not be sanctioned, given that the duration of the other cases that she had heard had not exceeded an acceptable length. 17. On an unspecified later date the new presiding judge was sent back to the court from which she had been transferred and the case had to begin anew once again. 18. On 9 December 2013 the proceedings before the first-instance court ended. The Sofia City Court found S.V. guilty of murder and sentenced him to twelve years’ imprisonment. The first-instance court also ruled that S.V. had to pay some 50,000 euros (EUR) in damages to the second applicant as a civil party. After an appeal by S.V. the Sofia Court of Appeal carried out a thorough analysis of the witness statements given at first instance, of the record of the examination of the murder scene conducted on the day after the killing, of the search and seizure measures, and of the conclusions of the numerous expert reports, the autopsy, etc. Following this, on 22 December 2014 the appellate court upheld the guilty verdict and sentence, but lowered the amount in damages to be paid to the second applicant to around EUR 8,000. Following a cassation appeal by S.V. the Supreme Court of Cassation upheld the appellate court’s judgment in its entirety in a final judgment of 2 November 2015. | 0 |
test | 001-142632 | ENG | AUT | ADMISSIBILITY | 2,014 | F. J. AND E.B. v. AUSTRIA | 4 | Inadmissible | Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 1. The applicant in the first case, Mr F.J., is an Austrian national, born in 1955. The applicant in the second case, Mr E.B., is an Austrian national, born in 1947. The President granted the applicants’ requests for their identity not to be disclosed to the public (Rule 47 § 3). They are represented before the Court by Mr H. Graupner, a lawyer practising in Vienna. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In February 2001 the Vienna Federal Police Department conducted police investigations in respect of the first applicant on suspicion of his having committed homosexual acts with consenting male persons within the age bracket of fourteen to eighteen, an offence under the former Article 209 (Gleichgeschlechtliche Unzucht mit Personen unter 18 Jahren) of the Criminal Code. 5. On an unspecified date the Vienna Public Prosecutor’s Office charged the first applicant with these offences. 6. On 2 April 2001 the Vienna Regional Court acquitted him of the charge. 7. On 14 December 2001 the first applicant lodged a request with the Vienna Federal Police Department for the deletion of both the electronically processed data and of the data manually processed in paper files concerning the proceedings in his case. 8. On 1 August 2002 the Federal Police Department informed the first applicant that it had deleted the electronically processed data but rejected the request concerning the data processed in paper files. Thereupon the first applicant filed a complaint concerning this decision with the Data Protection Commission. 9. On 2 September 2003 the Data Protection Commission partly allowed the first applicant’s complaint, ordering the Federal Police Department to modify the filing cards (Steckzettelindices) and filing registers (Protokollbücher) by noting the acquittal while maintaining the reference to Article 209 of the Criminal Code. It dismissed the first applicant’s complaint as regards the data processed in ordinary paper files – known as “copy files” (Kopieakte) – which contained copies of all the reports and communications generated by the authority and sent to other authorities, such as the public prosecutor, because data processed in paper files did not fall under the definition of filing systems (Dateien) within the meaning of the Data Protection Act. The right of deletion set forth in that Act was therefore not applicable. 10. In the Data Protection Commission’s view, information held in such information research tools could not be completely deleted or scrambled. In accordance with the relevant provisions of the Security Police Act, all administrative actions by administrative authorities – including police authorities – had to be documented and archived. Only by doing so was it possible to review the lawfulness of the actions of the authorities, which was necessary in a State governed by the rule of law. This was required by the rules regulating the authority’s internal mode of operation (Kanzleiordnung). However, such data had to be complete and correct, which meant that subsequent developments – in particular if the person concerned by the investigations had been acquitted – also had to be recorded. The question of whether or not the authority could use such data in its work was distinct from the issue of the archiving and recording of data and required that separate rules on the use of such data be applied. 11. On 21 November 2003 the first applicant lodged a complaint with the Constitutional Court and with the Administrative Court. 12. On 26 January 2006 the Constitutional Court quashed the Data Protection Commission’s decision. In the Constitutional Court’s view the Data Protection Commission had misinterpreted the applicable law when it had held that only the provisions on the archiving and storage of data for the authority’s internal use were applicable because the filing cards at issue did not only contain information of a general character but details about an individual person, such as that person’s name and address. Therefore, they recorded not only internal matters of the authority but also sensitive personal data. The authority should therefore have applied the rules for the use and processing of individual data under the Security Police Act (Sicherheitspolizeigesetz) and should have weighed up the private and public interests accordingly. Since the Data Protection Commission had failed to do so, the Constitutional Court quashed its decision. 13. On 28 February 2006 the Administrative Court discontinued the proceedings because the Constitutional Court had already quashed the decision. 14. Meanwhile, the police authorities, taking into account the legal opinion in the Constitutional Court’s decision, blanked out entries in the filing register by superimposing black bars over the first applicant’s name, date of birth, address and the respective file number and reference to Article 209 of the Criminal Code on the filing cards. This having been done, the applicant maintained his complaint of 10 August 2002 in respect of the data processed in the copy files only. 15. On 9 August 2006 the Data Protection Commission again decided on the first applicant’s appeal and rejected his request to delete the data concerning him that had been manually processed in ordinary paper files, the “copy files”. Referring to the Constitutional Court’s case-law, it found that the right to deletion of data under the Data Protection Act and the Security Police Act was not applicable to data manually processed in paper files because such files were unstructured compilations of information and did not qualify as filing systems (Dateien) under the Data Protection Act. 16. On 26 September 2006 the first applicant again lodged complaints with the Administrative Court and the Constitutional Court. 17. The Constitutional Court dismissed the complaint on 7 March 2007. It rejected the first applicant’s argument that Article 8 of the Convention and the case-law of the European Court of Human Rights established a right to deletion of personal data in an ordinary paper file. The cases relied on by the first applicant, namely Amann v. Switzerland (no. 27798/95, ECHR 2000II) and Rotaru v. Romania (no. 28341/95, ECHR 2000V), had to be distinguished from the present case as they concerned completely different sets of facts. In the Constitutional Court’s view, Article 8 of the Convention did not impose a wider right to deletion of data than already contained in section 1 of the Data Protection Act which transformed into domestic law EU Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Official Journal L 281, 23/11/1995). Also the Council of Europe Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data of 28 January 1981 only concerned automatically processed data and did not extend to personal data in a conventional copy file or paper file. 18. Moreover, it was apparent and not disputed by the first applicant that, following the blackening out of his name, date of birth and address in the file register and of the reference to the paper files in the index card, the paper files at issue were no longer traceable via these information tools. This reduced the accessibility of his personal data to such an extent that there was no longer any interference with his rights under Article 8 of the Convention. That being so, the Constitutional Court concluded that there had been no breach of the first applicant’s rights under Article 13 of the Convention either. 19. On 5 July 2007 the Administrative Court dismissed the first applicant’s complaint for the same reasons as those relied on by the Constitutional Court. 20. In March 1999 the Vienna Federal Police Department conducted investigations in respect of the second applicant on suspicion of his having committed homosexual acts with consenting male persons within the age bracket of fourteen to eighteen, an offence under former Article 209 of the Criminal Code, and on suspicion of having committed sexual acts with persons under the age of fourteen years, an offence under Article 207 (Sexueller Missbrauch von Unmündigen) of the Criminal Code. 21. On an unspecified date the Vienna Public Prosecutor’s Office charged the applicant with those offences. 22. On 1 June 1999 the Vienna Regional Court acquitted him of these charges. 23. In July 1999 the Vienna Federal Police Department conducted investigations in respect of the second applicant on suspicion of his having committed offences under Article 207 and 209 of the Criminal Code. 24. On an unspecified date the Vienna Public Prosecutor’s Office charged the second applicant with those offences. 25. On 18 November 1999 the Vienna Regional Court convicted him of having committed homosexual acts with consenting male persons within the age bracket of fourteen to eighteen under former Article 209 of the Criminal Code and sentenced him to one year’s imprisonment. He was acquitted of the other charges. 26. In January 2001 the Vienna Federal Police Department conducted investigations in respect of the second applicant on suspicion of his having produced pornographic pictures of persons under the age of fourteen, an offence under Article 207a of the Criminal Code (Pornographische Darstellungen Minderjähriger), and of having committed an offence under Article 209 of the Criminal Code. 27. On an unspecified date the Vienna Public Prosecutor’s Office charged the second applicant with an offence under Article 209 of the Criminal Code. 28. On 6 April 2001 the Vienna Regional Court convicted him as charged and sentenced him to one year’s imprisonment. 29. On 8 May 2006 the second applicant lodged a request with the Vienna Federal Police Department for the deletion of the electronically processed data and the data manually processed in files, and held by the police authorities, concerning these three sets of proceedings. 30. In a decision of 31 May 2006 the Vienna Federal Police Department informed him that no electronically processed data relating to the above proceedings existed any longer and rejected the request concerning the data processed in paper files. 31. On an unspecified date the second applicant lodged a complaint against that decision with the Data Protection Commission. 32. On 29 November 2006 the Data Protection Commission dismissed the complaint. It found that, as regards the non-electronically processed data stored in ordinary paper files, the Data Protection Act and the right to request a deletion was not applicable as such paper files constituted an unstructured compilation of information but not a filing system (Datei) within the meaning of the Data Protection Act. As regards the filing cards and filing registers the Commission noted that on 12 July 2006 the police authorities, after having been invited to comment on the applicant’s complaint, had informed the Commission that all references in these research tools to the issues under Article 209 of the Criminal Code had been rendered illegible (unkenntlich gemacht). In the filing registers, the name and address of the applicant had also been deleted. Under the storage and deletion rules for the Vienna Federal Police Department (Skartierungsvorschrift) copy files were deleted five years following the end of the year of recording, while index cards and filing registers were destroyed after twenty years. In such circumstances the ordinary paper files (“copy files”) relating to investigations in respect of the applicant essentially served the purpose of documenting the activities of the authority and no longer allowed the tracking of sensitive information on the applicant in relation to Article 209 of the Criminal Code. The applicant’s complaint was therefore ill-founded. 33. On 2 January 2007 the applicant applied for legal aid in order to lodge a complaint with the Administrative Court. In addition, he proposed that the case be referred to the Court of Justice of the European Communities for a preliminary ruling. 34. On 8 January 2007 the Administrative Court, referring to its case-law in similar cases, dismissed the request for legal aid for lack of prospects of success. 35. On 13 March 2007 the applicant lodged a complaint with the Constitutional Court. 36. On 24 September 2007 the Constitutional Court, referring to its previous case-law (in particular its decision of 7 March 2007 in the first applicant’s case – see paragraphs 21-22 above), declined to deal with the case because it lacked any prospect of success. 37. Article 209 of the Criminal Code, in force until 14 August 2002, concerned consensual homosexual acts and read: “A male person who after attaining the age of nineteen fornicates with a person of the same sex who has attained the age of fourteen years but not the age of eighteen years shall be sentenced to a period of imprisonment of between six months and five years.” 38. On 21 June 2002, responding to a request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional. 39. On 10 July 2002, following the Constitutional Court’s judgment, Parliament repealed Article 209. It also introduced Article 207b, which penalises sexual relations with persons under sixteen years of age under specific conditions and which is formulated in a gender-neutral way. That amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, came into force on 14 August 2002. 40. A more detailed description of the law, the Constitutional Court’s judgments concerning Article 209 of the Criminal Code and its replacement by Article 207b of the Criminal Code can be found in E.B. and Others v. Austria, (nos. 31913/07, 38357/07/ 48098/07, 48777/07 and 48779/07, §§ 48-52, 7 November 2013). 41. Article 207, paragraph 1 of the Criminal Code reads; “Anyone who performs a sexual act on a person under the age of fourteen or has a sexual act performed on himself or herself by such a person, with the exception of the offence under Article 206, shall be sentenced to a period of imprisonment of between six months and five years.” 42. Article 207a, paragraph 1 of the Criminal Code reads: “Whoever 1. produces or 2. offers to someone else, procures, leaves to someone else, shows or makes otherwise accessible a pornographic image of a person under the age of eighteen shall be sentenced to imprisonment for up to three years.” 43. The Data Protection Act of 2000 contains the basic provisions governing the protection of personal data including a right of information and a duty to delete (section 27). The Data Protection Act distinguishes between manually recorded data and electronically processed data. Manually recorded data are subject to deletion in so far as they constitute a “filing system”. A “filing system” (Datei) is defined as a structured collection of data (section 4, point 6). A certain degree of organisation is necessary for an amount of manually processed data to qualify as a “filing system”. According to the case-law of the Supreme Court (judgment of 28 June 2000, 6 Ob 148) and the Administrative Court (decision of 21 October 2004, 2004/06/0086), card indexes and lists constitute filing systems, but mere files (Akten) do not. A “paper file” or “copy file” is therefore not deemed to be a filing system within the meaning of the Data Protection Act and is not subject to the right of deletion under this act (decision of the Administrative Court of 21 October 2004 Collection of Decisions A no. 16477/2004). 44. Section 1 of the Data Protection Act reads: “(1) Everybody shall have the right to secrecy regarding the personal data concerning him, especially concerning his private and family life, in so far as he has an interest deserving such protection. Such an interest is precluded when data cannot be covered by the right to secrecy because of their general availability or because they cannot be traced back to the data subject (Betroffener). (2) In so far as personal data are not used in the vital interests of the data subject or with his consent, restrictions of the right to secrecy are permitted only to safeguard the overriding legitimate interests of another; specifically, in the event of an intervention by a public authority, the restriction shall only be permitted on the basis of laws necessary for the reasons stated in Article 8 § 2 of the Convention. Such laws may provide for the use of data (Verwendung von Daten) deserving special protection only in order to safeguard substantial public interests and shall provide suitable safeguards for the protection of the data subjects’ interest in secrecy. Even in the case of permitted restrictions, the intervention with the fundamental right shall be carried out using only the least intrusive of all effective methods. (3) In so far as personal data concerning an individual are destined for automated processing or for manual processing (that is, in filing systems with no automated processing), everybody shall have, as provided for by law: 1. the right to obtain information revealing who processes what data concerning him, where the data originated, the purpose for which they are used, and to whom the data are transmitted; 2. the right to rectification of incorrect data and the right to deletion of illegally processed data. (4) Restrictions of the rights set out in subsection (3) shall be permitted only under the conditions laid out in subsection (2).” 45. Section 4 of the Data Protection Act, – which contains a number of definitions, reads, in so far as relevant: “For the subsequent provisions of this Federal Act the terms listed below shall mean: 1. ’data’ (‘personal data’): information relating to data subjects ... who are identified or identifiable; data are ‘only indirectly personal’ for a controller (Auftraggeber) ..., a processor (Dienstleister) ..., or a recipient of a transmission (Empfänger einer Übermittlung) ... if the data relate to them in such a manner that the controller, processor or recipient of a transmission cannot establish the identity of the data subject by legal means; 2. ’sensitive data’ (‘data deserving special protection’): data relating to natural persons concerning their racial or ethnic origin, political opinion, trade union membership, religious or philosophical beliefs, and data concerning health or sex life; ... 6. ’filing system” (Datei): structured collection of data accessible via at least one search criterion;” 46. Section 27 of the Data Protection Act, which concerns the deletion of data, reads, in so far as relevant: “(1) Every controller shall rectify or delete data that are incorrect or have been processed contrary to the provisions of this Federal Act 1. on his own initiative, as soon as the incorrectness of the data or the inadmissibility of the processing becomes known to him, or 2. on a well-founded application by the data subject (Betroffener) The obligation to rectify data under subsection 1 shall apply only to those data of which the correctness is significant for the purpose of the data application (Datenanwendung). The incompleteness of data shall justify a claim to rectification only if such incorrectness, with regard to the purpose of the data application, results in the information being incorrect in its entirety. As soon as data cease to be needed for the purpose of the data application, they shall be regarded as illegally processed data and shall be erased unless their archiving is legally permitted and the access to these data is specially secured. Any further use for another purpose shall be legitimate only if transmission (Übermittlung) of the data for this purpose is legitimate; the legitimacy of further uses for scientific or statistical purposes is laid down in sections 46 and 47. (4) The application for rectification or erasure shall be complied with within eight weeks of receipt and the applicant shall be informed thereof, or a reason in writing shall be given as to why the requested erasure or rectification was not carried out. (5) Within the sphere of the executive agencies responsible for the fields described in section 26 ..., the following procedure shall apply as regards applications for rectification or erasure, in so far as this is required to safeguard those public interests that require secrecy: the rectification or erasure shall be carried out if, in the opinion of the controller, the demands of the data subject are justified. The requisite information for the purposes of subsection 4 shall in all cases be that a check of the controller’s data files (Datenbestand) with regard to the application for rectification or erasure has been performed. The legality of this course of action is subject to review by the Data Protection Commission (Datenschutzkommission) ... and the special complaint procedure before the Data Protection Commission pursuant to section 31 (4).” 47. The Security Police Act regulates the powers and duties of the authorities dealing with matters of public security and their officers in exercising their functions. 48. Section 53 of the Security Police Act reads: “Admissibility of processing data (1) The police authorities may investigate and further process personal data 1. for the purpose of fulfilling the duty to provide initial general assistance (section 19); 2. for the purpose of averting criminal connections (section 16, subsection 1 (2), and section 21); 2a. for extended threat investigation (section 21, subsection 3) under the prerequisites of section 91c subsection 3; 3. for the purpose of averting dangerous assaults (section 16, subsections 2 and 3, and section 21, subsection 2), including the investigation necessary for averting a threat (section 16, subsection 4, and section 28a); 4. for preventing potential dangerous assaults endangering life, health, morals, freedom, property or the environment (section 22, subsections 2 and 3) or for preventing dangerous assaults by means of a crime analysis if – because of the type of the assault – repeated commission is likely; 5. for the purpose of a search (section 24); 6. in order to be able to maintain public order during a specific event. (2) The police authorities may investigate and further process data already processed by them in the implementation of federal or regional laws for the purpose of and subject to the prerequisites of subsection 1; they must not, however, compare electronic data within the meaning of Article 141 of the Code of Criminal Procedure. Existing transmission prohibitions remain unaffected.” 49. Section 57(1) of the Security Police Act reads: “The security police authorities may establish as data a person’s name, sex, former name, nationality, date of birth, place of birth, address, name of parents and other names and data used by that person and further process these data in a centralized information data base as well as the reason for gathering these data and, if necessary, the reason why the authority has intervened and inform other authorities thereof, if 6. criminal justice investigations have been instituted against the person concerned.” 50. Section 58 (1) of the Security Police Act reads: “Access by the security police authorities as controller to personal data which are stored and kept accessible in accordance with Section 57 (1) must be blocked 6. as regards no. 6 if there is no longer a suspicion of having committed an offence against the person concerned, at latest five years after entering of the data into the centralized information data base, in case of more than one entry pursuant to no. 6 five years after the latest;” 51. Section 61 of the Security Police Act reads: “Admissibility of updating data The police authorities are entitled to update the personal data used by them if they have lawfully verified more recent data.” 52. Section 63 of the Security Police Act reads: “Duty of correction or deletion (1) If it is found that data which are incorrect or have been investigated contrary to the provisions of this federal Act are being stored, these data shall be corrected or deleted immediately. In the same way, personal data shall be deleted if they are no longer needed for the fulfilment of the task for which they have been used, unless there is a special regulation concerning their deletion. (2) The police authorities shall examine electronically processed personal data which have remained unchanged for six years to find out whether they need to be corrected or deleted pursuant to subsection 1. For data processed in the Central Information Register, sections 58 and 59 shall apply.” 53. In a judgment of 16 March 2001 the Constitutional Court found that under Section 63 of the Security Police Act the police authorities had the obligation to supplement and correct data they had collected pursuant to Section 57 (1) 6. of that act and in particular to add the information whether the public prosecutor had discontinued the criminal investigations or the person concerned had been acquitted of the charges as otherwise the data stored must be considered incorrect. In addition, Section 63 and Section 57 (1) 6. of the Security Police Act must be interpreted in conformity with the Federal Constitution, in particular the right to data protection under Section 1 of the Data Protection Act, which means that there exists also the obligation to delete such data once they are no longer necessary for the purpose of criminal justice even before the time-limit set un section 58 (1) 6. of the Security Police Act has expired. 54. The Storage and Deletion Rules for the Vienna Federal Police Department (Skartierungsvorschrift), an instruction (Erlass) by the Federal Minister for the Interior of 18 September 1992, regulate the elimination and destruction of all documents which were no longer of any use for operational purposes of the Vienna Federal Police Authority. This is done by fixing time limits for storing different categories of documents and the modalities for disposing of these documents after expiry of the time limit. According to Section 5 of the Rules copy files were deleted five years following the end of the year of recording, while index cards and filing registers were destroyed after twenty years. 55. At the supranational level there are two basic instruments which regulate the protection of personal data in Europe. The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981 (European Treaty Series no. 108) and the European Union Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Official Journal L 281, 23/11/1995). 56. The Council of Europe Convention of 28 January 1981 secures in Article 1 “for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him ("data protection")”. Under Article 3 the scope of this Convention is restricted to “automated personal data files and automatic processing of personal data in the public and private sectors”. However according to Article 3 (2) of the Convention “any State may ... give notice by a declaration addressed to the Secretary General of the Council of Europe: (c) that it will also apply this convention to personal data files which are not processed automatically”. Article 6 of the Convention provides that “personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards.” Article 6 also provides that “the same shall apply to personal data relating to criminal convictions”. 57. Following the Council of Europe Convention of 28 January 1981 there has also been adopted Recommendation No. R(87)15 of the Committee of Ministers to Member States Regulating the Use of Personal Data in the Police Sector (17 September 1987), which deals with the collection and processing of particular sensitive personal data including necessary safeguard measures. As the Convention the Regulation only applies to “the collection, storage, use and communication of personal data for police purposes which are the subject of automatic processing”, but it also provides that “manual processing of data should not take place if the aim is to avoid the provisions of this recommendation”. 58. Within the European Union Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, as in force at the relevant time, regulates the protection of personal data. According to Article 1 “Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy, with respect to the processing of personal data”. Personal data within the meaning of the directive are any information relating to an identified or identifiable natural person (Article 2 (a)) and "processing of personal data" is “any operation or set of operations which is performed upon personal data, whether or not by automatic means” (Article 2 (b)). Article 3 delimits the scope of the Directive, this provision reads as follows: “1. This Directive shall apply to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system. 2. This Directive shall not apply to the processing of personal data: in the course of an activity which falls outside the scope of Community law, such as those provided for by Titles V and VI of the Treaty on European Union and in any case to processing operations concerning public security, defence, State security (including the economic well-being of the State when the processing operation relates to State security matters) and the activities of the State in areas of criminal law; by a natural person in the course of a purely personal or household activity.” | 0 |
test | 001-165750 | ENG | UKR | CHAMBER | 2,016 | CASE OF SVITLANA ATAMANYUK AND OTHERS v. UKRAINE | 3 | Remainder inadmissible;No violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev | 5. The first applicant, born in 1953, is the sister of the second applicant, born in 1946, the aunt of the third applicant, born in 1984, and the daughter of the fourth applicant, born in 1920. The first, second and third applicants live in Lviv. The fourth applicant having died in January 2013, the first applicant expressed the wish to pursue the proceedings in her stead. 6. On 27 July 2002 the Air Force of Ukraine organised a military aviation show in the “Sknyliv” airdrome in Lviv (“the Sknyliv air show”) to commemorate the sixtieth anniversary of the 14th Air Force Corps. The agenda for the event included a static display of military aircraft and other equipment and a live aerobatics show by military pilots. 7. The event was attended by several thousand individuals, including the third applicant; Mrs Natalya Mykhayliv, the first applicant’s daughter; her spouse Mr Andriy Mykhayliv and their two daughters Natalya and Andriana, born in 1994 and 1998 respectively. 8. During the aerobatics performance, an SU-27 military aircraft piloted by Colonels V.T. and Y.Y. crashed into the static aircraft display site where there were numerous spectators, where it exploded. Both pilots had successfully ejected before the explosion. As a result of the crash, seventy-seven people died and nearly three hundred sustained injuries. 9. Four members of the Mykhayliv family died on the spot. The third applicant suffered a post-traumatic stress reaction. 10. According to the applicants, following the accident, the military authorities immediately started cleaning up the site, shovelling the bodies into a pile, washing off the blood and small organic remains, and burying body fragments under the sand to conceal the evidence of the disaster. They also attempted to prevent people from photographing and filming. Senior Air Force staff and civilian authorities occupying the VIP lounge fled in panic, causing a traffic jam and obstructing access to the site for police and medical professionals. 11. The Government contested this account. They noted, in particular, that the law-enforcement authorities had arrived promptly at the scene and had not recorded any instances of inappropriate conduct by the military personnel present there. According to them, the bodies of the victims were inspected by the police at the scene and then carefully transported to mortuaries for forensic examination and identification. 12. Following the accident, the first and third applicants went to the mortuary in search of their relatives’ remains. According to them, they were obliged to wait long hours in the heat before being allowed to enter the premises. Once inside, they had to search through numerous bodies and body fragments piled up on the floor to identify those of their relatives. Unrefrigerated remains, which were decomposing in the heat, emitted a terrible odour. 13. On 5 August 2002 a panel of forensic experts examined the bodies of Mr and Mrs Mykhayliv and their daughters, and concluded that they had sustained fatal cerebral trauma and numerous other injuries. In particular, Mr Mykhayliv had sustained a severe concussion; the head of Mrs Mykhayliv had been completely destroyed; the heads of the children had been partly destroyed, with fragments missing. The documents on file indicate that the experts’ conclusions were based on external examination of the bodies. 14. The applicants submitted that the bodies had been autopsied in spite of the first applicant’s objections. 15. On an unspecified date the applicants collected the bodies of Mr and Mrs Mykhayliv and their daughters and buried them in the Yanivske cemetery in Lviv. According to the applicants, one of the girls had a gold earring missing. They further submitted that the head of Mrs Mykhayliv had been extracted from the crashed aircraft engine and, in spite of their pleas, had not been returned to them along with some other unspecified body fragments. 16. The Government submitted that unidentified body fragments of the Sknyliv accident victims had been buried in a common grave in the Goloskivske cemetery in Lviv after all reasonably available possibilities of identifying them had been exhausted. They also provided several documents produced by the General Prosecutor’s Office in August and September 2002, apparently in response to the first applicant’s requests for further measures to be taken with a view to identifying body fragments, including a distorted female head, as possibly belonging to her deceased relatives. It appears from these documents that the chief investigator ordered some of the measures requested by the first applicant but rejected other requests as unfounded. It was also noted in the documents that, while the authorities had had a distorted female head in their possession, it could not have belonged to Mrs Mykhayliv, because, according to the expert findings, her head had been completely destroyed. 17. On various dates several concurrent investigations were opened to establish the circumstances of the accident, including investigation by a special Government Commission set up for this purpose, the Ministry of Defence, the Lviv City Council, the Prosecutor’s Office, and Sknyliv Tragedy, a non-governmental organisation founded by survivors of the accident and those who had lost relatives at the air show. 18. On 27 July 2002 the President of Ukraine set up a special Commission (the Government Commission for the investigation of the causes of the catastrophe of the military aircraft of the Air Force of Ukraine; “the Special Commission”) with a specific mandate to investigate the circumstances of the accident and coordinate assistance to its victims. The Commission was chaired by the President of the National Security and Defence Council. Other members of the Commission included senior officials from the Ministries of Emergencies, Transport, Finances, Health, Interior and Social Protection, officers of the Security Service of Ukraine, the General Headquarters of the Armed Forces, the State Aviation Transport Department, and the Lviv Regional State Administration. The Commission also engaged several experts from the “Sukhoy” construction bureau (the SU-27 aircraft manufacturer, Russia) and two test pilots from the Russian Federation as aviation experts. 19. Following the investigation, which included inspecting the accident site, interviewing individuals involved in the organisation of the air show and examining the relevant documents, as well as deciphering data from the flight data recorders, on an unspecified date in 2002 the Special Commission reported on the facts as follows. 20. In June 2002 Colonel-General V.S. (the Air Force Commander-in-Chief) authorised the aerobatics show at the request of Lieutenant-General S.O. (the 14th Corps Commander). The Air Force Headquarters appointed a mixed team of officers from different units, including Colonel V.T., from Kirovske, Crimea as the first pilot; Colonel Y.Y., of the Air Force Headquarters, stationed in Vinnytsia, as the second pilot; and Lieutenant-Colonel Y.Ya., stationed in Mirgorod, as the aerobatic performance director. Lieutenant-General A.T. and Major-General A.L., both stationed locally in Lviv with the 14th Corps Command, were also designated to join the mission, one as “air show flights director” and the other as “chief safety officer”. 21. On 24 July 2002 V.T., Y.Y. and Y.Ya. carried out their only training flight as a team. On the orders of the Air Force Headquarters, the flight took place at a military aerodrome in Ozerne, near Zhitomir. According to the Special Commission, that flight could not qualify as a rehearsal for the performance at the air show, as it included a different sequence of manoeuvres; its purpose was rather to improve and practise piloting techniques. The Commission also established that V.T. had requested an additional training flight in Ozerne and that his request had been turned down by the command, citing a shortage of fuel. Although the air show preparation programme included an on-site rehearsal flight on 26 July 2002, the 14th Corps Commander decided to cancel it for the same reason. The pilots were not formally apprised of the boundaries of the aerobatics zone or the placement of spectators. 22. Before the show, the pilots were provided with a different aircraft from the one in which they had carried out their training flight. There was a certain asynchronism in the performance of the right and left engines of this aircraft. Overall, however, it was in an acceptable technical condition and remained fully operational until it crashed. The aircraft had been supplied with extra fuel in order to enable the pilots to return to Ozerne without landing at the site of the air show. The fact that the pilots had trained in a different aircraft and with less fuel had a negative impact on their readiness for performing aerobatic displays. For unspecified reasons, the pilots decided to take off without the mandatory anti-gravitation suits (“g-suits”). On arrival at the Sknyliv aerodrome, the pilots immediately started the performance, without taking any time to familiarise themselves with the site, which was new to them. During the performance, the aircraft exited the designated aerobatics zone, the boundary of which was some 150 metres from the spectators’ area. Neither A.T. nor Y.Ya., directing the flight from the ground, warned them of that fact or directed them to return to the designated zone. Still outside of the zone, V.T. decided to perform a certain aerobatic display (called “the trunk”), which he had never practised before and which was not included in his mission order. He made a technical mistake in its performance and, as the second pilot did not intervene when appropriate, the pilots lost control of the aircraft and it started falling. Subsequent efforts by the crew to regain altitude were futile. Accordingly, the Special Commission concluded that the principal cause of the accident was a technical mistake on the part of the first pilot in performing a manoeuvre which he had not been commissioned to perform. It also noted that the prompt and appropriate intervention of the second pilot could have saved the situation and that loss of life and damage to health could have been avoided had the ground crew properly guided the pilots to stay within the aerobatics zone. 23. The Special Commission also noted serious shortcomings in the organisation of the air show, including poor coordination between various officers and authorities involved in its preparation; unsatisfactory crew training, and lack of appropriate emergency and spectator-safety planning, which contributed to the disaster. The Commission noted, in particular, as follows: “The serious consequences of the aviation catastrophe ... were the result of irresponsibility, negligence, lack of discipline, official neglect and breach of applicable regulations ... on the part of many leading officers of the Armed Forces, in particular, the generals and officers of the Air Force Headquarters. The tragedy was also the result of the absence of a system of effective supervision of the execution of orders ... by the respective air force officials – from its Commander-in-Chief to the members of the crew of the SU-27. As a result, the generals and officers involved in the preparation and staging of [the air show] were not apprised of the real state of affairs concerning the necessary measures to be carried out, while the immediate participants in the aerobatic performance proved to be ill-prepared for it.” 24. The Special Commission criticised, in particular, V.S. (the Air Force Commander-in-Chief) and his colleagues from the Air Force Headquarters responsible for the military training – Lieutenant-General O.V. and Major-General V.A. – for not having developed appropriate specific normative guidelines for the aerobatic performances. In the Commission’s view, these were much needed given the lack of general regulations on the relevant matters. The Special Commission also criticised V.S. and his colleagues for not having ensured a proper distribution of tasks between their subordinates engaged in the show and their direct supervision on behalf of the Air Force Headquarters. In the Special Commission’s opinion, such supervision was particularly important in view of the involvement in the show of officers from different military units that were not subordinate to each other and not accustomed to performing any tasks together. It also noted that Lieutenant-General S.O. (the 14th Corps Commander) and his subordinates, in particular Major-General A.T. and Colonel A.L. (the 14th Corps chief flight safety officer), had failed to put in place any meaningful land-and-air safety precautions plan. In addition, the Special Commission regretted S.O.’s decision to cancel the on-site rehearsal flight and concluded that the officers designated to direct the flight as ground crew (A.T. and Y.Ya.) had had no relevant experience or clearance for such a mission. 25. The Special Commission also reported on numerous procedural breaches on the part of the local administration and municipal authorities in authorising the air show. In particular, K., deputy mayor of Lviv with responsibility for humanitarian issues, had exceeded his authority in authorising it instead of the mayor himself. The mayor, having learned of the military authorities’ initiative to organise the air show, took little action to coordinate the relevant preparatory activities. The show was authorised without the involvement of the competent officers and services legally responsible for carrying out assessments of the relevant safety risks and for taking the necessary prevention and response measures. The local authorities also failed to set up a necessary air show coordination committee and to organise a safety inspection of the aerodrome site before the show. 26. In September 2002 the Ministry of Defence produced a Report on the internal investigation, largely reiterating the findings of the Special Commission. In particular, it concurred that the immediate cause of the accident was the first pilot’s unforeseen misconduct, whose grave consequences could have been avoided or mitigated, were it not for the second pilot’s and the ground crew’s failure to intervene in good time. It also recognised that the organisation of the air show had been marked by significant shortcomings, including an unsatisfactory land and air safety precautions plan; refusal to arrange at least one training flight for the crew over the Sknyliv aerodrome; and poor supervision by the Air Force Headquarters and the 14th Corps Command of the preparatory activities. In addition, it was noted that the necessary regulatory framework was missing, and the organisers had drawn guidelines from the regulations on ordinary military training, which were not adapted for staging air shows for civilian spectators. 27. Referring to the conclusions of the investigation, on 6 September 2002 the Minister of Defence issued order no. 305 (On the unsatisfactory organisation of the demonstration flight and the SU-27 aircraft disaster at the Sknyliv aerodrome), whereby a number of officers engaged in the organisation of the show were subjected to disciplinary sanctions. In particular, Lieutenant-General S.O. (the 14th Corps Commander) was demoted; Lieutenant-General O.V., (Deputy Air Force Commander-in-Chief on military training) was dismissed from the military “for unsatisfactory performance of service duties in respect of the preparation for and supervision of the air show at the Sknyliv aerodrome, and for personal irresponsibility”; Major-General V.A. was dismissed from the military “for a negligent attitude to the performance of service duties and low personal executive discipline”; and four other high-ranking Air Force officers received warnings and were subjected to other sanctions. In addition, ColonelGeneral V.S., the Air Force Commander-in-Chief, was also dismissed from the military service on disciplinary grounds, and the new Air Force Commander-in-Chief was instructed to impose disciplinary sanctions on “other officers guilty of breaches of duty during the preparation and staging of the air show”. The issue of disciplinary responsibility for the pilots of the crashed aircraft and the ground crew which had operated their flight, was reserved pending a criminal investigation of the accident. 28. On 22 October 2002 the Lviv City Council Special Temporary Investigation Commission delivered its report. It stated that numerous authorities shared, to various extents, common responsibility for the poor organisation of the show. It noted, in particular, that: “2.2. ... in the course of the preparation and staging of the demonstration flights ... the military establishments, the specialised central State aviation facilities and departments, the municipal authorities and their particular officers failed to comply with a number of provisions of the current law, governing the procedure of preparation and staging the events of such a scale, which failures, to various extents, resulted in the catastrophe and such a major loss of human life ...” 29. The Commission concluded that the local authorities had played an ancillary role in the organisation of the air show. However, they had acted negligently in authorising it in breach of formal procedures and without soliciting all relevant information from the military authorities. They had also failed to develop an appropriate emergency prevention and response plan for the air show. According to the Commission, the municipal authority had been completely disengaged from any safety-related decision-making and its overall performance had been marked by “...a certain confusion and lack of clear understanding by the higher officers of the scope of their responsibilities.” In view of this, the Commission recommended that the City Council evaluate the performance of the Mayor and other municipal officers and clarify its policy concerning the distribution of functions between them. It also invited the Mayor to impose disciplinary sanctions on his staff members who were at fault for breach of duty. 30. The Commission next concluded that the negligence of the city authority had not been a direct cause of the accident, and attributed the primary responsibility for it to the military authorities, having provided the following overall political assessment of the accident: “[the accident is] ... a consequence of the generally irresponsible policy of the National Government, which has neglected reformation of the Army and the Navy, leading to a loss unprecedented for a civilised country... of military efficiency and patriotic spirit, criminally negligent performance of their official duties by the military command at all levels, loss of pride in the military service and marginalisation of the material and technical procurement of the armed forces and military servicemen ... “... [the accident] ... demonstrated the inadequacy of the current legal framework, the inadequacy of the State control system in respect of flight safety; irresponsible and negligent performance by officers at all levels of their duties under the law in force; the need to establish civilian control over the activities of the army; and the need to modernise and effectively reform the armed forces of Ukraine ...” 31. On 1 October 2003 the Sknyliv Tragedy Lviv-based NGO founded by the relatives of the accident victims and its survivors published its own investigation report based on interviews and other information collected from public and private sources. In addition, the report featured an assessment of V.T.’s piloting techniques by S., a civil aviation pilot, who had lost family members at the Sknyliv air show. 32. Similarly to the reports produced by the governmental authorities, the authors of this report concluded that the immediate cause of the crash was error by the first pilot in performing a manoeuvre, which had been neither envisaged by his mission order nor practised by him before the show, while the second pilot and ground crew did not take the opportunity to intervene in respect of the first pilot’s conduct. In addition to that, in the opinion of the authors of the report, the Air Force Commander-in-Chief and the 14th Corps Commander, who had been watching the performance from the VIP lounge, had also failed to act to prevent the accident, as they had had direct radio connection with the ground crew and could have intervened at any moment. 33. Notwithstanding the aforementioned findings, in the opinion of the authours of the report, the accident had largely resulted from a structural problem. The responsibility for it had to be borne by numerous entities, including the Ministry of Defence, the Air Force Headquarters, the authorities of the 14th Air Force Corps, the Lviv city and regional authorities, and the civil aviation authorities (the Ukraviatrans State Aviation Transport Department and the Ukraerorukh State Company), which had given permission for the aerobatic performance without checking its terms of reference. 34. In particular, the authors of the report considered that the pilots’ mission had been poorly developed and had not been properly communicated to all parties involved. The mission order approved on 12 July 2002 by Lieutenant-General O.V. of the Air Force Headquarters was at variance with the aircraft specifications. A subsequent explanatory document to the mission order approved by Colonel O.K., the first pilot’s direct supervisor, was inconsistent with these specifications and with the aforementioned mission order. None of these documents specified such important parameters of the mission as engine performance mode, attack angles and acceleration coefficient to be observed during particular manoeuvres. Marginal flight parameters, such as minimum speed and height and maximal attack angle, which had been developed by the 14th Air Force Corps officers, were unsuitable for the performance of most of the manoeuvres which formed part of the event programme. 35. The authors of the report also criticised the 14th Corps Command for designating too small an aerobatics zone, (2,500x1,600 metres, when 3,514 x2,000 metres would have been required). They noted that it was technically impossible for the pilots to perform their programme within the boundaries of this zone and not to find themselves above the spectators’ heads. 36. Finally, the report also attributed part of the responsibility for the accident to the local municipal and regional authorities, which had disengaged themselves from any safety-related and emergency-prevention planning as well as to the civil aviation authorities (the Ukraviatrans and Ukraviarukh State agencies) for giving authorisations for the air space to be used in breach of the relevant procedural rules. 37. On 27 July 2002 the Western Region Military Prosecutor’s Office instituted criminal proceedings to investigate the circumstances of the accident. 38. On 28 July 2002 the case was transferred for investigation to the General Prosecutor’s Office and assigned to the Deputy Chairman of the Investigation Division of the Chief Department for Military Prosecutors’ Offices. The team of some twenty investigators and other officers from the military prosecutor’s office dedicated to the case was supplemented by nineteen civilian investigative officers from the Lviv Regional Prosecutor’s Office, department of the interior and the State Security Service. The composition of the team was modified on several occasions, each time consisting of both military and civilian officers. 39. On 4 February 2003 the prosecution commissioned an aviation expert assessment, which was carried out by a group of four Air Force officers in active service, a retired Air Force flight safety specialist and a civilian aviation expert. 40. On 15 April 2003 the group produced its report, in which it concurred with the earlier findings made by the Special Commission and other entities concerning the principal causes of the accident. As regards the quality of the organisation of the show, the experts found that the pilots’ mission as such had not been incompatible with the SU-27 specifications, and that the size and location of the aerobatics zone had been acceptable. At the same time, in the experts’ view, the organisational flaws had included, among others, a failure on the part of the superior officers to draw up comprehensive documents and guidelines in order for the crew to understand the scope of their mission, and to supervise more closely the execution of orders. 41. On 30 May 2003 the civilian expert engaged in the above assessment issued a separate opinion in which he stated, inter alia, that in his view the aerobatics zone had been too small; its location had been inherently dangerous and the pilots’ mission order had been incompatible with the SU27 specifications. 42. On 2 June 2003 the prosecutor’s office solicited an opinion from two other experts, both retired USSR Air Force officers, who at the material time had been on the staff of the Air Force scientific centre for combat application, to clarify the matters in dispute and other questions. 43. On 11 June 2003 the investigation obtained a conclusion by these two experts, in which they reported of numerous shortcomings in the air show organisation. In addition to the shortcomings pointed in the earlier Special Commission’s report, they concluded that the aerobatics zone was too small; the boundaries of the zone were not clearly marked on site so as to be visible from the aircraft, which factor impaired the pilots’ ability to orient themselves; the location of the aerobatics zone was potentially dangerous in case of any unforeseen situation; the airfield’s preparation for the show was carried out without any account being taken of the possibility of pilot error or any other emergency; the crew did not receive a single mission order defining its mission according to all applicable standards; various documents defining its flight parameters were not comprehensive and not fully consistent with each other; the officers of the flight safety service failed to reveal the above shortcomings; the pilots were allowed to take off without g-suits and their preparedness being checked by any competent authority; the position of “air show flights director” assigned to Major-General A.T., which did not feature in any military training documents, appeared to be redundant; it paralleled that of the ordinary aerodrome flights director, with a lack of clarity as to the distribution of authority between the two officers; neither Major-General A.T. nor Colonel Y.Ya., who directed the flight, had the proper clearance, experience, and qualifications; and there was no assessment of the quality of the first pilot’s piloting technique during the training flight in Ozerne on 24 July 2002. In practice, the pilots’ training was coordinated and supervised only by Colonel O.D., stationed at the Ozerne aerodrome, who had neither the authority nor the qualifications to assess their preparedness. The experts also noted that, regard being had to the army hierarchy, it was for the Air Force Commander-in-Chief to issue an appropriate formal order clearly designating the officers responsible for the mission and determining their personal responsibilities, as well as to bear responsibility for their proper training, since the programme envisaged the involvement of crew members and the use of equipment from various military units. 44. According to the experts, these and other shortcomings constituted breaches of numerous provisions contained in the relevant regulatory framework, including special military aviation guidelines, in particular: Guidelines for execution of flights for the Ukrainian Air Force, enacted by order no. 249 of the Deputy Minister of Defence on 25 December 1998 (Настанова по виконанню польотів в авіації Збройних Сил України, НВП-99); Air Force Navigation Service Guidelines of the Armed Forces of Ukraine, enacted by order no. 54 of the Air Force Commander of Ukraine on 9 November 1992 (Настанова по штурманській службі авіації Збройних Сил України, НШС-93); General Rules on Flights in Ukrainian Air Space, enacted by order no. 62 of the Air Force Commander of Ukraine on 10 December 1992 (Основні правила польотів у повітряному просторі України, ОПП-93); Regulation on Prevention of Aviation Incidents in the Ukrainian Air Force, enacted by order no. 210 of the Air Force Commander on 29 October 1999 (Положення про запобігання авіаційних подій у Військово-Повітряних Силах України, ПЗАП-2000), and several others. Similarly to the findings contained in other reports, the experts concluded, in particular, as follows: “... One of the reasons for the emergence of the ... incident ... was the existence of significant shortcomings in the ... preparation and staging of the ... air show and lack of clear distribution of duties between the officers ... which, in turn, led to lack of coordination between ... the persons engaged in the preparation, as well as to the absence of effective control over their activity.” If the foregoing normative acts had been unconditionally complied with, the breaches in the organisation of the demonstration flight could have been detected and remedied, and the grave consequences avoided ...” 45. The investigation ended on 10 August 2004. Ten officers, including both pilots and their ground support crew; the Air Force Commander-in-Chief (O.S.); O.V. and V.A. of the Air Force Headquarters; the Commander of the 14th Corps (S.O.); the 14th corps chief safety officer (A.L.) and the commander of the Air Force unit based in Ozerne (O.D.) were committed for trial. 46. On an unspecified date in 2004 S.O., previously demoted from his post as 14th Corps Commander, was appointed first deputy Air Force Commander-in-Chief. 47. On 27 August 2004 the Deputy Prosecutor General disjoined the criminal proceedings against V.S., O.V., V.A. and S.O. and referred their case (hereafter referred to as “the organisers’ case”) for additional investigation. He found, in particular, that it was necessary to clarify whether there was a causal link between the omissions imputed to those officers and the aircraft crash. 48. For that purpose, on 24 September 2004 two civilian experts were commissioned to carry out an additional assessment. The four defendants challenged that appointment, alleging that the experts concerned were not competent to evaluate their performance. S.O. proposed six other candidates in their stead. The prosecutor’s office dismissed the challenge to the civilian experts, but agreed to include three of the candidates proposed by S.O. in the group, having found that they were sufficiently independent. It rejected the other three candidates, citing possible conflict of interest in view of their current or former employment with the Air Force Headquarters. Subsequently, two more retired military officers were included in the group, which finally consisted of two civilian experts and five retired military officers. Four of the military officers (including the three candidates proposed by S.O.) were serving at the material time in the faculty of the National Military Academy and the fifth expert was deputy director for flight safety at a military aircraft repair company belonging to the Ministry of Defence. 49. On 8 February 2005 the five military experts produced a report in which they concluded that all four defendants had duly fulfilled their responsibilities in respect of the organisation of the air show and that none of them had breached any service duty or other applicable provisions. The group also concluded that the applicable legal framework governing the staging of military air shows and the organisation of aerobatic performances had been adequate and sufficient and that there had been no need for the defendants to develop any additional rules or guidelines before the air show. In the group’s view, the misconduct by the first pilot was the sole cause of the accident. Their conclusion, insofar as relevant, read as follows: “The only reason for the crash of the SU-27 aircraft was the execution by the pilot of an unplanned piloting manoeuvre, in the course of which he committed grave errors in piloting technique, which caused the falling of the aircraft and the catastrophic consequences.” 50. On 11 May 2005 the two civilian experts also produced a report, which largely replicated the findings and the language of the report issued by their military counterparts. 51. In the meantime, on an unspecified date, the case in respect of the pilots, the ground crew and two other officers of the lower rank (hereafter the “performers’ case”) was transferred to the court for trial. 52. During the trial, the defendants pleaded innocent of any wrongdoing. In particular, Major-General A.T. noted that there had been no normative document defining the responsibilities of an “air show flights director”. Having been appointed to this position created by order of the 14th Corps Commander, he had developed his own reference document listing his duties for the Commander’s approval and had done his best in performing them. In his opinion, the appointment could not have made him responsible for direct supervision of the pilots’ training at a different airfield and ensuring their readiness, as neither of them had belonged to the 14th Corps or been placed under his command. He considered that regard being had to their position in the military hierarchy, the pilots had to report directly to the Air Force Commander-in-Chief. 53. Colonel A.L. of the 14th Corps flight safety service likewise asserted that he had properly performed his service duties and had prepared sufficient documentation concerning flight safety during the air show. He had submitted the relevant documents for review by 14th Corps Command as well as by the relevant sectors in the Air Force Headquarters, and had not received any negative feedback. Colonel A.L. further admitted that he had never personally instructed the pilots on the safety measures and had never checked on their readiness for the flight. In his view, such responsibilities fell outside his authority and had to be carried out by the pilots’ direct superiors, who did not belong to the 14th Corps. 54. Lieutenant-Colonel Y.Ya., the aerobatic performance director, asserted that, having been informed of the size and boundaries of the aerobatics zone on 24 July 2002, he had warned Major-General A.T. and the pilots of his doubts concerning its safety. However, having been told that the relevant parameters had been approved by the higher command and it was too late to change anything, he had executed the orders of his superiors and directed the flight as best he could. 55. Colonel V.T. (the first pilot) alleged, in particular, that during the flight the aircraft had become uncontrollable due to forces beyond his control. He denied an accusation that he had deviated from his mission order, and submitted that in his view the way to perform the disputed manoeuvre was a matter for the pilot’s discretion, particularly as his mission order had no specific instructions to this end. Moreover, prior to the flight, he had discussed the disputed manoeuvre with Colonel Y.Y. (the second pilot), who he had considered to be the crew captain, as he was higher in the military hierarchy, and the latter had no objections to his choice. Colonel V.T. also noted that the documents defining his mission had not defined the boundaries of the aerobatics zone. He had been taken by surprise when he saw on arrival on site that the spectators were to the left of the runway, as according to his orders, his manoeuvres were also to be carried out to the left. In any event, he considered himself obliged to carry out his orders without arguing. 56. Colonel Y.Y. (the second pilot) submitted that he had considered the first pilot to be the crew captain and that he himself was obliged to refrain from interfering with his actions. He concurred with the first pilot that the way to execute the disputed manoeuvre, which was not specified in the mission order, was a matter for the pilot’s discretion. 57. On 23 June 2005 the Central Region Military Court of Appeal, sitting in a panel consisting of three military judges and acting as a first-instance court, found both pilots, the air show flights director and the aerobatic performance director guilty of breaches of flight regulations within the meaning of Article 416 of the Criminal Code of Ukraine (“the CCU”) and sentenced them to fourteen, eight, six and five years’ imprisonment respectively. It further found the chief of the 14th Corps flight safety service guilty of having a negligent attitude towards military service within the meaning of Article 425 paragraph 2 of the CCU, and sentenced him to four years’ imprisonment, suspended, with probation. By way of reasoning, the court referred extensively to the relevant findings of the Special Commission and the aviation experts’ assessment of 11 June 2003 (see paragraphs 20-22 and 43-44 above) in so far as they related to the actions of the above officers, as well as described the overall shortcomings in organising the show. 58. The sixth defendant, Colonel O.D., who had coordinated V.T.’s and Y.Y.’s training programme in Ozerne and supplied the aircraft for the show, was found to have performed his duties in good faith and acquitted. 59. On 2 March 2006 the Military Panel of the Supreme Court of Ukraine upheld this judgment on appeal and it became final. 60. In the meantime, on an unspecified date the General Prosecutor’s Office decided to continue with the “organisers’ case”, having disagreed with the expert conclusions of 8 February and 11 May 2005, and on 25 January 2006 suspended S.O.’s authority as the Deputy Air Force Commander. 61. On 11 January 2008 the defendants in this case were committed for trial on charges of having a negligent attitude towards military service within the meaning of Article 425 paragraph 2 of the CCU. O.V. and V.A. were additionally charged with breaches of flight regulations within the meaning of Article 416 of the CCU. Finally, V.S. and S.O. were additionally charged with exceeding their authority within the meaning of Article 424 paragraph 3 of the CCU by inappropriately using State funds for a celebration of a bogus memorial date and staging aerobatic performances in the absence of an appropriate regulatory framework. 62. On 11 June 2008 the Central Region Military Court of Appeal, sitting in a panel of three military judges and acting as a first-instance court, acquitted all four defendants of the above charges, largely relying on the expert conclusions of 8 February and 11 May 2005. It found that the provisions of Article 416 of the CCU did not apply to O.V. and V.A., as they had not operated the flight and had not been directly involved in its preparation. Other charges were dismissed as unsubstantiated. In particular, all the defendants were found to have carried out their service duties properly. The court noted that they had taken numerous measures to ensure proper organisation of the show and had produced a large volume of documents correctly delegating tasks to different officers. They had also reasonably trusted the pilots, the supporting crew and other officers to carry out the tasks assigned to them. No legal act could be interpreted as conferring on the defendants a different range of duties or imposing an obligation to act in a different manner. The relevant allegations of the prosecution, as well as the conclusions of the Special Commission and the expert findings dated 11 June 2003 in respect of the defendants were incorrect, being based partly on an overly broad interpretation of the applicable legal provisions and partly on references to provisions that were wrongly applied in the context. The court did not refer to the internal investigation of the Ministry of Defence in its judgment. The relevant excerpts of the court judgment read as follows: “... the members of the [Special Commission] concluded that the immediate cause of the catastrophe ... derived from mistakes in the piloting technique ... outside the designated aerobatics zone ... The same conclusion was adopted by the court, which examined the criminal case concerning [V.T.] and others. All other circumstances connected to the organisation of the show in the court’s view did not in any way affect the wrongdoings by [the first pilot] and, moreover, they could not have been foreseen or taken into account by the organisers of the show ... ... As far as the size of the aerobatics zone was concerned, which, according to the experts, was insufficient for the performance of the mission ... this breach was not the cause of the catastrophic situation, since the SU-27 aircraft was practically never within its boundaries ... Reports on the crew’s readiness for the flight were produced properly, and it was following their receipt that [V.S.] as well as [S.O.] gave permission for the flight to go ahead; The decision to hold the show was taken by the 14th Air Force Corps Commander [S.O.]: this decision was coordinated by him with the Air Force Commander-in-Chief [V.S.], and they acted within the scope of their authority. With a view to preparation of the festivities and organisation of the flight by SU-27, the 14th Corps Command jointly with the Air Force Headquarters took a number of relevant measures: orders were issued; show plans were drafted; agendas were put in place; and air and static display schemes were developed ... The 14th Corps Commander performed his duties with respect to the preparation of the show in accordance with the applicable law, having properly distributed duties among his subordinates ... Issues concerning preparation of the show and supervision over the performance of the delegated tasks were discussed at meetings organised by [S.O.] ... The court’s conclusions ... are also not affected by the cancellation of the [on-site] ... rehearsal flight ... In the court’s view, this fact did not affect the cause of the disaster, which was deviation by [V.T.] from his mission ...” 63. The Prosecutor’s Office and numerous injured parties appealed against this verdict before the Military Panel of the Supreme Court. In its appeal, the prosecution asserted, in particular, that the preparation for the show was based exclusively on the military training documents, which took no account of the specifics of an aerobatic performance involving civilian spectators. Lacking a body of relevant legislation and regulations, the Air Force Command had been obliged to develop specific documents adapting the military training rules for this purpose before planning the show. As an aerobatics performance could not be equated to an ordinary military training flight, a special training programme had to be set up, and the crew had to have special clearance. However, the reports by the Special Commission, the Ministry of Defence and the aviation experts indicated that not only did the defendants fail to act in developing relevant rules and regulations, but they also failed to supervise compliance with the existing general rules. The court’s findings were at odds with the findings by these authorities, and no justification was provided for them. Moreover, they were inconsistent with the court’s own position adopted in the judgment of 23 June 2005, where it heavily relied on the conclusions of the Special Commission and the aviation expert assessment in examining various aspects of the case and had referred to the relevant findings concerning poor organisation of the show in its reasoning. 64. On 22 October 2008 the Military Panel of the Supreme Court of Ukraine rejected the appeals and upheld the acquittals. 65. On 25 April 2003 the applicants lodged civil actions within the aforementioned criminal proceedings against the military officers, claiming damages for the deaths of the Mykhayliv family from the Ministry of Defence. The first applicant claimed 36,000,000 Ukrainian hryvnias (UAH) in compensation for non-pecuniary damage for the deaths of her daughter, granddaughters and son-in-law; the second applicant claimed UAH 2,000 in compensation for pecuniary damage and UAH 6,000,000 for non-pecuniary damage for the deaths of her niece and her family; the third applicant claimed UAH 1,000 for pecuniary damage and UAH 3,000,000 for nonpecuniary damage for the deaths of her cousin and her family; and the fourth applicant claimed UAH 6,000,000 in compensation for nonpecuniary damage for the deaths of her granddaughter and her family. 66. On 23 June 2005, when pronouncing the verdict in the “performers’ case”, the court ruled on the applicants’ civil claims and awarded the pecuniary damages claimed by the second and third applicants in full. It further awarded UAH 220,000 in non-pecuniary damages to the first applicant and UAH 60,000 under this head to each of the other applicants. 67. On 2 March 2006 the Military Panel of the Supreme Court rejected the applicants’ appeals, in which they claimed higher compensation. 68. On 21 and 31 August, 18 October and 29 November 2006 the first, fourth, third and second applicants, respectively, obtained the judgment awards due to them. 69. On various dates the applicants also brought further civil actions against the Ministry of Defence in the “organisers’ case”. 70. On 22 October 2008 the Supreme Court left these claims unexamined, regard being had to the acquittals of the defendants. 71. On 27 July 2002 the Cabinet of Ministers of Ukraine allocated 10,000,000 Ukrainian hryvnias from the State reserve fund to the Lviv Regional State Administration towards liquidating the consequences of the accident (Decree no. 1085). 72. On 29 July 2002 the Regional Administration created a commission to deal with distribution of the above funds, and determined the categories of expenses to be covered (Decree no. 718). According to the Administration’s decision, UAH 5,485,000 was to be distributed to the families of the deceased. The sums were to be disbursed to spouses, children, parents and dependents of the deceased victims, in amounts ranging from UAH 20,000 to UAH 40,000 depending on the family circumstances. The decree further allocated a total of UAH 2,075,000 to the surviving victims; UAH 500,000 to help the families with arranging funerals and providing gravestones; UAH 180,000 towards medical and rehabilitation costs; UAH 553,000 towards prosthetic care and relevant rehabilitation expenses, and the remaining funds to other categories of expenses. According to the Government, the relevant funds were disbursed to the addressees before the end of 2002. 73. On 3 September 2002 the Parliament of Ukraine decided to transfer one day’s salary of each Member of Parliament, with their consent, to the benefit of the Sknyliv accident victims. 74. On 27 November 2002 the Lviv City Council’s Executive Committee decided how to distribute the UAH 849,475 received by the municipality in charitable donations (Decree no. 522). According to this decision, UAH 202,475 of these funds were to be distributed to the families of the deceased; UAH 405,000 to those with serious irreversible health damage; UAH 121,492 to those with serious injuries and who were receiving in-patient treatment; UAH 80,520 to those with injuries of medium seriousness and who were receiving in-patient treatment, and UAH 39,970 to those receiving outpatient treatment. 75. On various other occasions the authorities took additional decisions allocating financial and other assistance to various categories of the victims (such as decrees no. 730 of 15 August 2003, no. 1078 of 5 December 2003, and no. 221 of 5 March 2004 by Lviv City Council, Decree no. 328 of 19 July 2012 by the Lviv Mayor, and others). Pursuant to these decisions, further funds were allocated for medical check-ups and rehabilitation procedures, to cover the costs of holidays in recreational facilities for children, and for lump-sum payments to victims of the accident. 76. The first applicant received UAH 47,690 in various payments from the State under the above programmes. The first, second and fourth applicants also received UAH 40,270, UAH 6,000 and UAH 4,000 respectively from State-managed private charitable donations raised in aid to the victims. 77. The parents of Mr Mykhayliv were paid UAH 68,000 in State aid in connection with the deaths of their son and granddaughters. They received a further amount of UAH 60,000 from State-managed charitable donations. It appears from the evidence available that Mrs Mykhayliv’s in-laws did not lodge any civil claims within the criminal proceedings. | 0 |
test | 001-160209 | ENG | MDA | CHAMBER | 2,016 | CASE OF BALAKIN v. THE REPUBLIC OF MOLDOVA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1962 and lives in Chişinău. 6. On 21 August 2009 the applicant was arrested and charged with the offence of producing and putting into circulation counterfeit money. Since then he has remained remanded in custody pending criminal investigation and trial. The detention warrants were prolonged every month initially and every three months once the case had reached the Ialoveni District Court. Each time the reasons given for the detention were that the applicant had been accused of a serious offence punishable with imprisonment of up to fifteen years, that the criminal case was complex and that, if released, he might interfere with the investigation or collude with other co-accused, or abscond or re-offend. 7. The last two extensions of the applicant’s detention before the lodging of the present application took place on unspecified dates in May and August 2011. The applicant argued that there was no risk of his interfering with the investigation since all the witnesses and the parties to the proceedings had already been heard and all the evidence had been examined by the court. He also submitted that there were no reasons to believe that he would abscond or re-offend and he agreed to be placed under house arrest if he could not be released. The applicant also argued that according to Article 186 § 8 of the Code of Criminal Procedure, once the case had been referred to a court, the detention could not last longer than six months, other than in exceptional cases. 8. The Ialoveni District Court dismissed the applicant’s arguments and, relying on the same grounds as before, extended his detention for a further three months. The court stated that the case was exceptional within the meaning of Article 186 § 9 of the Code of Criminal Procedure. The decisions of May and August 2011 contain similar wording. The applicant’s appeals against them were rejected by the Court of Appeal. 9. On 30 January 2012 the applicant was convicted and sentenced to seven years’ imprisonment. The Court has not been informed about the final outcome of the criminal proceedings. | 1 |
test | 001-145018 | ENG | SWE | CHAMBER | 2,014 | CASE OF M.E. v. SWEDEN | 3 | Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Libya) | Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Johan Hirschfeldt;Mark Villiger;Vincent A. De Gaetano | 8. The applicant was born in 1982 and is currently in Sweden. 9. On 29 July 2010 he applied for asylum in Sweden, stating that he had entered the country three days earlier. He stated that the smuggler who had organised his journey had taken his passport and he provided a mobile telephone number for a contact person, N. 10. On 6 August 2010, the Migration Board (Migrationsverket) held a first interview with the applicant during which he stated that he was from Libya. His mother and siblings remained there and he was in contact with them and would ask them to send him his passport and other identification documents. He further claimed that he had no relatives in Sweden but he provided the mobile telephone numbers of two contact persons in Sweden, N. and H. 11. An in-depth interview was held with the applicant on 20 August 2010, where his public counsel and an interpreter were present. The Migration Board’s official informed the applicant of the importance of giving all his reasons for asylum as this might be his only chance to present them. She further assured him that all information provided was treated confidentially. The applicant handed in his identity card and claimed that the authorities had confiscated his passport and other identity documents. He then stated essentially the following. 12. He had left Libya in April 2010 and had travelled to Tunisia, where he had remained until his uncle had helped him to reach Sweden in July 2010, with the assistance of smugglers and a fake French passport. In Libya he had been a soldier, working as a guard at a military base in Tripoli where he had met some persons who had paid him to transport illegal weapons for powerful clans from southern Libya, with connections to the authorities. He had been working for them for more than a year when, in November 2009, he had been stopped at a road check and interrogated. He had then been taken to an unknown location where he had been kept for about three weeks and subjected to interrogation and torture. He had been charged with possession of illegal weapons and car theft and had then been moved to a military prison where his uncle had visited him and arranged for a lawyer for him. During the torture, his arm had been seriously injured and become infected and, about two months after his transfer to the military prison, he had been taken to a civil hospital by two guards for treatment. After the doctor had treated him, one of his guards had gone to fetch coffee for him and the other had taken him outside for a cigarette. He had then managed to escape. If he were returned to Libya, he would risk at least ten years’ imprisonment for the criminal offences. He would further risk being killed by the clans since he had revealed their names under torture. He showed some scars on his arm, back and head. 13. The Migration Board’s officer asked whether the applicant had other grounds for requesting asylum, to which the applicant replied no. He had lived well in Libya until he was arrested and had even planned to marry a woman in May 2010. 14. In September 2010, the applicant’s public counsel submitted certain clarifications to the Migration Board but essentially maintained what had been stated during the interview. 15. On 21 February 2011 the applicant visited the Migration Board together with N. He stated that he wished to add to his grounds for asylum that he was homosexual and had a relationship with N., whom he had known since his first week in Sweden. Their relationship had developed over time and he had moved in with N. in December 2010. N. was transsexual and had a permanent residence permit in Sweden. 16. In view of this new information, the Migration Board held a supplementary interview with the applicant on 1 November 2011. During this interview, the applicant stated that he had been “normal” before and that it was N. he had become interested in. Their relationship had developed from friendship but it had been difficult because of the very negative attitudes from other Arabs in the city where they lived in Sweden. No one in Libya knew about his sexual orientation and he had never had a homosexual relationship in Libya. N. was in the process of changing gender from man to woman. They had spoken with his mother and sister over internet with a camera but N. had presented himself as a woman. They had married in September 2011. If he had to return to Libya to apply for family reunion from there, it would become known that he was married to a man and he would risk persecution and ill-treatment. 17. As concerned his original grounds for asylum, and in view of the changes in Libya during 2011, the applicant noted that the situation in Libya was very insecure. He thought that the clans would no longer be particularly interested in him since they had other interests now and were less powerful than before. If he was careful, there would no longer be much of a threat against him in Libya. 18. On 16 December 2011 the Migration Board rejected the application. It first noted that the applicant had failed to submit his passport despite having claimed on several occasions that he had a passport and would submit it. However, although he had not proved his identity, the Board accepted that he was probably from Libya. As concerned the situation in Libya following the overthrow of Gadhafi, the Board noted that it was serious but did not reach the level of internal armed conflict. Thus, an individual assessment had to be made in the applicant’s case. In this respect, the Board found that the applicant had given contradictory statements and that his story lacked credibility. To begin with, he had given diverging information about his passport at the interviews, first claiming that the smuggler had taken it, then that he could obtain it from his family, later that the Libyan authorities had confiscated it and, most recently, that he would submit the passport. It further observed that the name on the certificate relating to impediments to marriage, which the applicant had submitted in support of his marriage, was different from the name that he had given to the Migration Board. Since no passport had been submitted, it was not clear that the certificate concerned the applicant. In the same connection, the Board noted that the applicant had given contradictory statements about when he had met N. and their relationship. At the first interview, on 29 July 2010, he had given N.’s telephone number as a contact number, while in February 2011, he had stated that he had become acquainted with N. during his first week in Sweden and, at the interview in November 2011, he had claimed that he had met N. about three to four months after his arrival in Sweden. Moreover, at the in-depth interview, he had stated that he had no other grounds for his asylum application than those related to the weapon transport and that he had planned to marry in Libya. Against this background, the Board also questioned the nature of the applicant’s and N.’s relationship, as relied on before the Board only on 21 February 2011. Thus, the Board concluded that the applicant’s story, both in relation to events in Libya and his relationship with N., lacked credibility and was not sufficient to justify granting him a residence permit in Sweden. 19. Furthermore, the Board noted that substantive changes had occurred in Libya after the applicant had left the country and considered that he had failed to substantiate that, on the basis of the criminal accusations against him, he would risk persecution by the authorities upon return or that the authorities would not be able to protect him against harassment by the clans. As concerned the applicant’s relationship to N., the Board referred to the main rule in the Aliens Act that an alien, who seeks a residence permit in Sweden on account of family ties or a serious relationship, must have applied for and been granted such a permit before entering the country. Whilst noting that an exemption from this rule can be made if the alien has strong ties to a person who is resident in Sweden and it cannot reasonably be required that he or she travel to another country to submit an application there, the Board considered that it would not be unreasonable to require the applicant to file such an application from Libya in accordance with the main rule. As there were no other grounds on which to grant the applicant leave to remain in Sweden, his application was rejected. 20. The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and adding that the spelling of his name differed in the various documents because the transcriptions from Arabic had been made by different persons. He had his passport but had been afraid to hand it over to the Migration Board for fear of being returned to Libya. His relationship with N. was serious; they were married and lived together. It would also become known in Libya that he was homosexual if he were to apply for a residence permit from there, which would expose him to a real risk of persecution and ill-treatment. Moreover, he would not be able to apply for a residence permit from Libya since Sweden had a consulate only in Benghazi. He submitted a copy of his passport, from which it appeared that he had been granted a Schengen visa by the Maltese Embassy in Tripoli in May 2010 and that he had entered Sweden on 15 June 2010. He also submitted a copy of a military card, copies of photographs of scars and two warrants for his arrest. 21. During the oral hearing before the Migration Court, the applicant claimed that there was a threat against him from the Libyan authorities since he had worked for the military during the Gadhafi regime. Moreover, he added that it was not known in Libya that he was married to a man but he was certain that other Libyans in Sweden would spread that information to Libya, if he were to be sent there. In his view, it would also become known that he was homosexual if he had to apply for family reunion and be interviewed at the Swedish Consulate in Libya. He also presented his passport in original. 22. On 13 September 2012 the Migration Court rejected the appeal. It first found that the general situation in Libya was not severe enough to grant the applicant asylum without there being individual reasons for asylum. Turning to the applicant’s individual reasons, the court noted that, since he had now submitted his passport, certain other documents provided could be linked to him. However, on examining these documents, the court found that the military card was for training and did not show that the applicant had later been employed by the military. The two warrants for arrest were of a simple character and easy to fabricate. Moreover, one of them did not contain any date and the applicant had not given any acceptable explanation of how he had obtained them. Turning to the photographs of the scars, the court considered that the fact that the applicant had had wounds which had left scars did not make probable that he would be ill-treated in the future. Thus, the court concluded that the documents did not show that the applicant was in need of international protection. Furthermore, the court found that the applicant was not credible, stressing that he had submitted his passport only at the oral hearing before the court and that he had deliberately given false statements before the Migration Board concerning his passport, how he had travelled to Sweden and the date of his arrival. He had also given contradictory statements concerning his knowledge of the possibilities of applying for asylum in Sweden and the alleged threats against him in Libya. Thus, the court did not believe the applicant’s asylum story. 23. However, the court did not question that the applicant was homosexual but considered that he had failed to substantiate that there was a threat against him in Libya on account of this. In this connection, the court noted that, according to the applicant’s own statements, it was not known in Libya that he was homosexual. Moreover, it took the view that it was unlikely that Libyans in Sweden who knew about the applicant’s sexual orientation would be more willing to spread this information simply because the applicant was to return to Libya. The court also noted that the applicant had kept his passport in order to be able to return to Libya. In sum, it concluded that the applicant had failed to show that he would risk persecution or ill-treatment upon return to Libya. In so far as concerned his relationship with N., the court observed that all embassy personnel had an obligation to respect confidentiality and that there were no impediments for the applicant to apply for a residence permit from abroad. The fact that the Swedish Consulate was located in Benghazi did not alter this conclusion. 24. One lay judge gave a dissenting opinion and considered that it could not be ruled out that information about the applicant’s sexual orientation might leak from an embassy. 25. The applicant made a further appeal to the Migration Court of Appeal (Migrationsöverdomstolen) which, on 10 October 2012, refused leave to appeal. 26. The applicant then requested the Migration Board to reconsider his case, submitting that a Libyan in Sweden, who knew about his marriage, had travelled to Libya and, by chance, had met his brother and told him that he was married to another man. His uncle had later called him and threatened to kill him if he returned to Libya since he had shamed the family. He further claimed that friends of his in Libya had told him that 12 homosexuals had been killed in Libya recently and that others had fled the country since they were being persecuted by unknown groups in Libya. He was convinced that he would face a real risk of being ill-treated or killed if returned and that it would not be possible for him to apply for family reunion from there without his sexual orientation becoming known. 27. On 10 December 2012 the Migration Board rejected the request for reconsideration. It found that there was no reason to depart from the main rule that an application for family reunion had to be lodged from abroad. The applicant’s claim that his relatives had threatened him was not considered sufficient to constitute a permanent impediment to the enforcement of the expulsion order and thus there was no ground to reconsider the applicant’s case. | 0 |
test | 001-150524 | ENG | LVA | ADMISSIBILITY | 2,014 | ĀBOLIŅŠ v. LATVIA | 4 | Inadmissible | Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva | 1. The applicant, Mr Raitis Āboliņš, is a Latvian national, who was born in 1977 and lives in Jēkabpils. 2. 3. On 1 February 2006 the applicant was arrested in connection with criminal proceedings against him. On 16 May 2006 the applicant’s criminal case was transferred to the Vidzeme Regional Court (Vidzemes apgabaltiesa) for adjudication. On 3 May 2007 the Vidzeme Regional Court convicted the applicant of aggravated murder and sentenced him to fifteen years’ imprisonment, with subsequent two-year period of police supervision. On 22 February 2008 the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) rejected the applicant’s appellate complaint. The Court has no information on whether an appeal on points of law was lodged against the decision of 22 February 2008. 4. The applicant submitted that following his detention he was placed in a short-term detention facility located within the police station in Madona. The applicant had spent most of the pre-trial detention in Valmiera Prison, but whenever he had had to be questioned he had been brought to the short-term detention facility in Madona for between ten and twenty days. Altogether he had spent approximately 100 days in that facility. 5. The applicant made the following submissions on the conditions in the short-term detention facility in Madona. The applicant had not been provided with a mattress, pillow, blanket or bed linen, and had had to sleep on wooden planks. The artificial light had been too weak to permit reading or writing, and in fact had only lit one third of the cell’s total area. The noise from the ventilation machinery had been so loud as to prevent him from sleeping. The toilet had been merely a hole in a platform. Furthermore, the said platform had been fifty centimetres high, which had caused the applicant particular difficulty because he had had a category 3 disability (the least severe disability level) on account of his ankle injury. Furthermore, the applicant had been given food only once a day and had not been allowed outdoor exercise. 6. Following his conviction, the applicant was placed in Daugavpils Prison. The applicant submitted that he had been placed in a cell hosting ten inmates and that he had had to sleep on the top bunk of a bunk bed, despite his disability. Moreover, there had been too little space between the top bunk and the ceiling. Furthermore, the applicant had had no access to radio or television. Finally, half of his cell mates had smoked and there had been no ventilation. 7. On 30 July 2008, on the basis of the applicant’s inquiries, the Ministry of Health informed the applicant that in prisons it was only permitted to smoke in premises specifically set aside for that purpose. 8. Section 7 of the Law on Holding Procedures for Arrested Persons (Aizturēto personu turēšanas kārtības likums), which came into force on 21 October 2005, provides, inter alia, that an arrested person must be provided with food three times a day and drinking water at any time. It lays down the requisite areas of holding cells. It also requires every arrested person to be provided with a separate sleeping place, a mattress and a blanket. It further states that holding cells must be equipped with a toilet that is partitioned off from the cell. Holding cells must also have access to natural light and, during the night-time and dusk, must have artificial lighting. They also must be ventilated. Furthermore, if the detained person is placed in the short-term detention facility for more than 24 hours, she or he is entitled to at least 30 minutes’ outdoor exercise. Section 1 of the same Law states that these provisions are also applicable to detainees and prisoners who have been taken to a short-term detention facility for reasons of procedural acts falling under criminal proceedings. 9. The requisite conditions of detention for detainees are primarily laid down in the Law on Detention Procedure (Apcietinājumā turēšanas kārtības likums), which came into force on 18 July 2006. Section 19 of this Law sets out the minimum areas of cells, which must be ventilated, and requires detainees to be provided with an individual sleeping place. Section 13(1)(10) allows detainees to use a radio and a small television. With regard to convicted persons, similar conditions are provided for in section 471 and section 77 of the Sentence Enforcement Code (Latvijas Sodu izpildes kodekss). 10. Section 11 of the Law on Restrictions regarding the Sale, Advertising and Use of Tobacco Products (Likums “Par tabakas izstrādājumu realizācijas, reklāmas un lietošanas ierobežošanu”), effective since 21 January 1997, sets out the restrictions on smoking. In particular, section 11(1)(2) prohibits smoking in detention facilities, apart from in premises specially set aside for that purpose. Section 11(1)(2) adds that the internal rules of the relevant establishment may provide for the possibility of smoking outside such premises, having due regard to the physical and mental health of the inmates. 11. Regulation no. 827 (2005) of the Cabinet of Ministers, effective since 5 November 2005, provides that the Head of the Prisons Administration decides on legal challenges brought by private individuals against “administrative acts” issued by or “actions of a public authority” taken by its subordinate officers, unless otherwise prescribed by law (paragraph 6 and 13). The decision of the Head of the Prisons Administration can be brought to court (para 13). 12. The Administrative Procedure Law (Administratīvā procesa likums), which came into force on 1 February 2004, provides for the right to challenge administrative acts and actions of public authorities before the administrative courts. The relevant provisions of the Law were summarised in the case of Melnītis v. Latvia (no. 30779/05, §§ 24-26, 28 February 2012). 13. Section 195 of the Administrative Procedure Law, at the time of the latter’s enactment, provided that the court could order an interim measure (pagaidu noregulējums) where there was reason to believe that the execution of the court’s judgment might become difficult or impossible. With the amendments to the Administrative Procedure Law which took effect on 1 December 2006, section 195 was modified, and currently states that the court may order an interim measure where there is reason to believe that if the impugned administrative act remained in force, it could cause significant harm or damage, the prevention or restitution of which could be made very difficult or would require disproportionate resources, and where, upon examination of the information available to the court, the impugned administrative act appears prima facie unlawful. Since the enactment of the Administrative Procedure Law, the available relevant interim measures have been either a court’s ruling that would replace the requested administrative act or action by a public authority, or a court decision ordering the relevant institution to perform or refrain from a certain action, within a set time limit (section 196). | 0 |
test | 001-164713 | ENG | TUR | ADMISSIBILITY | 2,016 | SAKKAL AND FARES v. TURKEY | 4 | Inadmissible | Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 1. The first applicant, Mr Abdalsalam Sakkal, is a Syrian national who was born in 1992 and lives in Germany. The second and third applicants, Mr Ali Fares and Mr Mohammed Fares, are stateless Palestinians who were born in 1985 and 1988 and live in France. All three applicants are represented by Ms S. Uludağ Gök, a lawyer attached to Refugee Rights Turkey, a non-governmental organisation based in Istanbul. 3. In September 2015 several hundred Syrian refugees gathered in Esenler bus terminal in Istanbul with a view to taking buses to Edirne. Their aim was to protest about migrant deaths in the Aegean Sea and reach Europe by land. As they were refused permission to board buses, they started marching down the motorway between Istanbul and Edirne. On 21 September 2015 the applicants, who were among them, were arrested along with two other individuals by four police officers on suspicion of breaching the Meetings and Demonstration Marches Act (Law no. 2911). They were taken to the Esenyurt district police headquarters where, on the same day, they were questioned by the police in the presence of a lawyer with regard to the offence attributable to them. 4. On 22 September 2015 the applicants were transferred to the Kumkapı Foreigners’ Removal Centre. On the same day their representative, Ms Uludağ Gök, visited them and attempted to obtain information about the reasons for their detention. She was told that they would be transferred to one of the refugee camps set up for Syrian refugees in southern Turkey. 5. On 23 September 2015 two other lawyers working for Refugee Rights Turkey visited the centre and were told by the officials that no decision had been taken in respect of the applicants. 6. On 24 September 2015 a fourth lawyer attempted to meet with the applicants but was denied access to them. 7. On 2 October 2015 Ms Uludağ Gök was informed by an official at the centre that on the strict verbal instructions of the Istanbul governor’s office, the applicants were not allowed to meet with a lawyer. During her visit she saw that deportation and detention orders had been issued in respect of the applicants on 22 September 2015. Neither they nor she were served with the orders. However, she took a photograph of the deportation and detention order issued in respect of the first applicant, which was later submitted to the Court. 8. On 3 October 2015 the applicants were sent to the Erzurum Foreigners’ Removal Centre. On 16 October 2015 a lawyer practising in Erzurum and the head of the Erzurum branch of the Human Rights Association, a non-governmental organisation, attempted to meet with the applicants. They were also denied access to them. 9. On 21 October 2015 the applicants telephoned Ms Uludağ Gök and informed her that they had been transferred to the Ankara Foreigners’ Removal Centre. They said that they feared being deported to Syria. 10. On 22 October 2015 the applicants telephoned their representative again and informed her that the deportation and detention orders dated 22 September 2015 had been renewed. 11. Between 24 September 2015 and 23 October 2015 the applicants were detained incommunicado without access to legal assistance. 12. On 23 October 2015 another lawyer attached to Refugee Rights Turkey, Ms D. Berberoğlu, went to Ankara to meet the applicants and to obtain notarised powers of attorney to take legal steps at the domestic level and authority forms to apply to the Court. She was told by staff of the centre that the applicants were being detained pending their removal to Syria. The applicants signed the authority forms provided by the lawyer. However, an official who had monitored their meeting tore them up, stating that the lawyer did not have the right to make the applicants sign any documents since she did not have a notarised power of attorney. The officials also refused to give her the applicants’ identity documents for the purposes of obtaining notarised powers of attorney. Ms Berberoğlu then left the centre, but returned later the same day with a notary and an Arabic translator associated with a notary’s office to have certified translations of the applicants’ identity documents and obtain notarised powers of attorney. She was once again told by the staff of the centre that she would not be given the applicants’ identity documents. She had to leave the centre at the end of the working day. The applicant submitted a document to the Court drafted at 5.10 p.m. on that day and signed by Ms Berberoğlu and the translator. According to this document, Ms Berberoğlu and the translator could not meet the applicants and obtain their identity documents from the authorities for the purposes of obtaining notarised powers of attorney. 13. On 26 October 2015, the date the application was lodged, the applicants’ representative requested that the Court adopt an interim measure, under Rule 39 of the Rules of Court, to stay the applicants’ deportation to Syria. 14. On 26 October 2015 the Acting President of the Section to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government, under Rule 39 of the Rules of Court, that the applicants should not be deported before 17 November 2015. The Government were further requested to inform the Court as to whether the applicants were being detained pending their expulsion to Syria, whether there were deportation orders issued in respect of each of them and whether they were prevented from having access to legal assistance and appointing a legal representative as alleged. 15. On 10 November 2015 the Government made submissions to the Court and sent a number of documents related to the application. They stated that the applicants had been arrested on 21 September 2015 on suspicion of breaching the Meetings and Demonstration Marches Act (Law no. 2911) during a march from Istanbul to Edirne by Syrian refugees. They submitted that the applicants had directed the refugees and encouraged them to topple the police barricades set up by the riot police. The first applicant had also attacked police officers while chanting slogans. After the applicants had been arrested, the police could communicate with the refugees, who had cooperated with the security forces. The Government noted that the applicants were questioned at the Esenyurt district police headquarters in the presence of a lawyer. The applicants had then been placed in administrative detention pending their deportation since the administrative authorities had considered that they posed a threat to public order and safety and would abscond or disappear if released. The Government submitted copies of the orders for the applicants’ deportation and detention dated 22 September 2015 issued pursuant to sections 64 (1)(d) [sic] and 57(2) of the Foreigners and International Protection Act (Law no. 6458). The Government noted in this connection that the detention orders had been renewed every month pursuant to section 57(4) of the same Act. 16. The Government contended that Abdalsalam Sakkal and Muhammed Fares were staying in Turkey under “temporary protection”, the protection granted to Syrian nationals and those arriving from Syria. Ali Fares was in an irregular situation since he had not applied to the national authorities when he had arrived in Turkey. The Government also submitted that the procedure for their deportation had been initiated given that section 91 of Law no. 6458, sections 8(1)(e) and 12(2) of the Regulation on Temporary Protection (Council of Ministers Decision No. 2014/6883) and Article 2 of the 1951 Geneva Convention Relating to the Status of Refugees allowed the State authorities to deport persons who were under “temporary protection” and who posed a threat to national security, public order or public safety. 17. The Government further submitted that the applicants had been allowed to meet a lawyer on 23 October 2015. They submitted a document according to which the applicants and Ms D. Berberoğlu declared that they had met between 11 a.m. and 12 noon on that date. The document was signed by the applicants, Ms D. Berberoğlu and two police officers. The Government further contended that the administrative authorities had attempted to notify the applicants of the detention orders. In this connection, they submitted a document, issued at 2.45 p.m. on 26 October 2015, according to which the applicants had been informed that the deportation orders issued in their respect had been suspended until 17 November 2015 on account of the Court’s decision to stay their deportation to Syria but they would continue to be detained. The applicants had refused to sign that document. The Government also submitted three other documents, issued at 4 p.m. on 26 October 2015, according to which the applicants had been notified that they were being detained on the basis of a decision by the governor’s office to renew the detention order issued on 22 October 2015. The applicants had refused to sign them. 18. The Government further claimed that before applying to the Court the applicants should have applied to the administrative courts with a view to challenging the deportation orders issued in their respect. They further submitted that the applicants should have brought their Convention grievances before the Constitutional Court. Lastly, they noted that on 6 November 2015 the Ministry of the Interior had ordered that the applicants be released from detention and be notified that they were requested to leave Turkish territory. 19. On 16 November 2015 the duty Judge decided to prolong the interim measure indicated under Rule 39 of the Rules of Court until further notice. 20. On the same day the applicants’ representative informed the Court that the applicants had been released on 9 November 2015 and instructed to leave Turkey as soon as possible. The applicants were also warned that they would risk being subject to administrative detention if they did not leave Turkey or breached domestic law. The applicants’ representative lastly noted that she could obtain powers of attorney from the applicants only after their release from detention. 21. According to submissions made by the applicants’ representative on 15 and 25 January 2016, on 8 December 2015 the second and third applicants lodged cases with the Ankara Administrative Court challenging the order to leave Turkish territory served on them on 9 November 2015. The first applicant left Turkey on 1 December 2015 and currently resides in Germany, where he applied for asylum, on the basis of a temporary residence permit. As a result, the applicants’ lawyer did not lodge a case with the administrative court on his behalf. At the time, the second and third applicants were still in Turkey, despite the fact that they obtained visas from the Consulate General of France on humanitarian grounds. The applicants’ lawyer submitted that they were waiting for the Turkish authorities to issue the documents required for their departure from Turkey and that the proceedings before the Ankara Administrative Court were pending. 22. On 22 March 2016 the applicants’ representative informed the Court that on 27 January 2016 the second and the third applicants had left Turkey and applied for asylum in France, where they currently live. 23. The relevant domestic law regarding the individual application to the Constitutional Court can be found in Hasan Uzun v. Turkey ((dec.), no. 10755/13, §§ 7-27, 30 April 2013). 24. On 11 April 2014 the Foreigners and International Protection Act (Law no. 6458) entered into force. Sections 52-60 of the Act concern the procedure for the removal of foreign nationals from Turkey, the judicial review of removal orders and detention pending removal. The provisions relevant to the present case are as follows: “(1) Foreigners may be deported to their country of origin or a transit country or a third country by a deportation decision. “(1) A deportation decision shall be issued on the instructions of the Directorate General or ex officio by governors’ offices. (2) The decision and the reasons for it shall be notified to the foreigner or his or her legal representative or lawyer. If the person in respect of whom a deportation order has been issued is not represented by a lawyer, he or she or his or her legal representative shall be notified of the consequences of the decision as well as the procedures and time limits for appeal. (3) A foreigner or his or her legal representative or lawyer may appeal to the administrative court against the deportation decision within fifteen days of the date of notification. The person appealing against the decision shall also inform the authority that has issued [it] about the appeal lodged with the court. Applications to court shall be decided within fifteen days. The court’s decision on the issue shall be final. Without prejudice to his or her consent, the foreigner shall not be deported within the time-limit for bringing a case against the deportation decision or in case of an appeal, until finalisation of the judgment. (1) A deportation decision may be issued in respect of foreigners: ... (d) who constitute a threat to public order and security or public health, ... (1) Where foreigners who fall into one of the categories listed in section 54 of the present Act are apprehended by law-enforcement units, the governors’ offices shall be notified immediately for a decision to be taken in their respect. Deportation decisions shall be issued by the governors’ offices in respect of foreigners for whom such a decision is deemed necessary. The assessment and decision-making period shall not exceed forty-eight hours. (2) A foreigner in respect of whom a deportation decision has been issued shall be placed in administrative detention by a decision of the governor’s office if [he or she] poses a risk of absconding or disappearing, has violated the rules for entry into and exit from Turkey, has used false or fabricated documents, has not left Turkey within the period granted without an acceptable excuse, or constitutes a threat to public order and security or public health. Those in respect of whom an administrative detention order has been issued shall be transferred to a removal centre within forty-eight hours by the same law-enforcement unit that apprehended them. (3) The period of administrative detention in removal centres shall not exceed six months. However, if the deportation process cannot be completed owing to the failure of the foreigner to co-operate or provide correct information or documents regarding his or her country [of origin], this period may be extended for a maximum of six months. (4) The need to continue administrative detention shall be reviewed monthly by the governor’s office. Where necessary, reviews may be conducted earlier. If a foreigner’s administrative detention is no longer deemed necessary, it shall be terminated immediately. Foreigners who have been released may be required to comply with such obligations as residing at a designated address and reporting to authorities in the manner and period requested. (5) The administrative detention decision, the extension of the period of administrative detention and the results of the monthly reviews with the reasons on which they are based shall be notified to the foreigner or his or her legal representative or lawyer. If the person in respect of whom a deportation order has been issued is not represented by a lawyer, he or she or his or her legal representative shall be notified of the consequences of the decision as well as the procedures and time limits for appeal. (6) A person who has been placed in administrative detention or his or her legal representative or lawyer may appeal against the administrative detention decision to the Magistrates’ Courts. The appeal shall not stay the execution of the administrative detention. In the event that the [appeal] is submitted to the administration, it shall be sent to the competent Magistrates’ Court without delay. The Magistrates’ Court shall conclude the review within five days. [Its] decision shall be final. A person who has been placed in administrative detention or his or her legal representative or lawyer may lodge a further appeal with the Magistrates’ Courts should the conditions for administrative detention have ceased to exist or changed. (7) A foreigner who appeals against a detention order and does not have the means to pay for a lawyer shall be provided with legal aid on request, in accordance with the relevant provisions of the Attorneys Act (Law no. 1136) of 19 March 1969. (1) In removal centres: ... (b) foreigners shall be allowed access to and given the opportunity to meet with their relatives, notary public, legal representative and lawyer, as well as access to telephone services; ...” 25. On 11 November 2015 the Constitutional Court rendered a decision on an individual application brought before it by a Syrian national who complained of his threatened deportation to Syria, the poor conditions of his detention at the Kumkapı Foreigners’ Removal Centre, the absence of an effective remedy whereby he could raise his allegations concerning the conditions of his detention, the unlawfulness of his detention, the failure to provide him with information on the reasons for his detention, and the absence of an effective remedy to challenge the lawfulness of his detention (application by Mr K.A., no. 2014/13044). 26. Mr K.A. had been placed in administrative detention at the Kumkapı Foreigners’ Removal Centre on 25 April 2014. A detention order was issued on 28 April 2014 for a period of six months pending his deportation. The cases that he brought before the Istanbul Magistrate’s Court and the Istanbul Administrative Court with a view to challenging the detention and deportation orders and to complaining about the conditions of his detention were dismissed by those courts. On 5 December 2014, when he applied to the Constitutional Court, he requested that the implementation of the deportation order be suspended. On 10 December 2014 the Constitutional Court allowed Mr K.A.’s request and suspended the implementation of the deportation order. Subsequent to the Constitutional Court’s decision, the Istanbul Magistrate’s Court ordered the applicant’s release, noting that he could not be deported in the light of the interim measure issued by the Constitutional Court. Mr K.A. was released on 6 January 2015. 27. In its decision, the Constitutional Court first declared the applicant’s complaint that he was at risk of death or ill-treatment in the event of his removal to Syria inadmissible. It held that as a Syrian national, the applicant did not face a risk of expulsion since he was under “temporary protection” pursuant to the Regulation of 22 October 2014 and, as a result, could not be deported. 28. The Constitutional Court further examined the applicant’s complaint regarding the conditions of his detention and the alleged absence of an effective remedy whereby he could raise his allegations concerning the conditions of detention. Referring to the Court’s case-law, in particular, the judgment in the case of Yarashonen v. Turkey (no. 72710/11, 24 June 2014), it held that the conditions at the Kumkapı centre had constituted treatment incompatible with human dignity and that the applicant had not had an effective remedy at his disposal to raise his grievance concerning those conditions. 29. The court further found that Article 19 §§ 2, 4 and 8 of the Constitution had been breached. It held that the applicant’s detention had been unlawful, that he had not been informed of the reasons for his detention and that he had not had an effective remedy whereby he could challenge the unlawfulness of his detention. 30. As regards the complaint concerning the unlawfulness of Mr K.A.’s detention, the Constitutional Court first noted that he had been placed in administrative detention on 25 April 2014, whereas the detention order had not been issued until 28 April 2014. The court therefore found that his detention between 25 and 28 April 2014 had lacked a legal basis. The court further noted that by not reviewing the detention order on a monthly basis, the governor’s office had failed to comply with section 57 of Law no. 6458. It lastly observed that Mr K.A. had been detained for eight months and ten days, despite the fact that the detention order had been valid for only six months. The court thus concluded that the authorities had failed to act with diligence and that the applicant’s detention had not been lawful. 31. As to Mr K.A.’s complaint that he had not been informed of the reasons for his detention, the Constitutional Court observed that he had not been served with a deportation order at the beginning of his administrative detention. Nor had he been informed of the reasons for his continued detention. The court therefore found that the administrative authorities had failed to comply with section 57 of Law no. 6458. 32. As to Mr K.A.’s allegation that he had not had access to an effective remedy to challenge his detention, the Constitutional Court held that the magistrate’s court had failed to carry out an adequate examination of his application, even though Law no. 6458 provided for the protection of detainees against arbitrariness. Referring to this Court’s judgment in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, 22 September 2009), the court also held that in the absence of information on the reasons for his detention, Mr K.A.’s right to appeal against his detention had in any case been deprived of all effective substance. As a result, the court found that Mr K.A. had not had an effective remedy whereby he could obtain judicial review of the lawfulness of his detention. 33. Lastly, the Constitutional Court awarded Mr K.A. 10,000 Turkish liras (TRY) (approximately 3,200 euros (EUR)) for the non-pecuniary damage he had suffered as a result of the violations of his aforementioned rights. 34. On 9 October 2015 Amnesty International released a call for urgent action against the applicants’ possible deportation from Turkey to Syria: “Two Palestinian refugees coming from Syria, Ali Fares and Mohammed Fares, and Syrian refugee Abdalsalam Sakal, have been detained in Turkey since 22 September and are facing deportation. If deported they are at risk of serious human rights violations. Palestinian refugees coming from Syria Ali Fares and Mohammed Fares and Syrian refugee Abdalsalam Sakal were detained during a demonstration by Syrian refugees at the main bus station in Istanbul. The demonstrators were demanding to be allowed to go to the Turkish border city of Edirne, in order to attempt to cross to Greece. Ali Fares and Mohammed Fares (who are not related) are Palestinian refugees formerly resident in Iraq but who fled to Syria 10 years ago following the 2003 war in Iraq. They are both registered with the United Nations Relief and Works Agency for Palestine Refugees. The three refugees were detained on 22 September together with two activists from France and Germany, who have since been deported back to their countries for violating the Law on Meetings and Demonstration Marches. The deportation and administrative detention order of the three refugees was issued on 22 September citing Art. 54 of the Law on Foreigners and International Protection. The order does not state which country they would be deported to, but does authorize for them to be held in administrative detention for one month. Ali Fares and Mohammed Fares and Abdalsalam Sakal were taken to Kumkapı Deportation Centre, in Istanbul. Ali Fares and Mohammed Fares only had access to a lawyer on the first day of their detention. On 2 October a lawyer from the NGO Refugee Rights Centre visited the Deportation Centre but was refused access to the three refugees. On 3 October the lawyer received a phone call from the three refugees informing her that they were being flown to Erzurum province in eastern Turkey. They are currently detained in the Aşkale Deportation Centre in Erzurum and since their arrival they have not been able to exercise their right to legal representation. Due to the ongoing conflicts in both Syria and Iraq, and in line with the principle of non-refoulement (a principle of the international refugee protection system which prohibits the transfer of anyone to a place where they would be at real risk of serious human rights violations), no one should be forcibly returned to either country, since they would be at real risk of serious human rights violations or abuses.” 35. On 21 October 2015 Amnesty International issued a second urgent action regarding the applicants’ alleged inability to have access to the outside world: “Palestinian refugees Ali Fares and Mohammed Fares and Syrian refugee Abdulsalam Sakal have been detained since 22 September and were again prevented from seeing a lawyer on 16 October. On 20 October, the authorities prevented Mohammed Fares’ mother from seeing him and denied that he was even being held in the deportation centre in Erzurum. On 16 October the Head of the Erzurum branch of the NGO Human Rights Association (İHD) and a lawyer went to the Erzurum Deportation Centre in Aşkale, eastern Turkey, to see Ali Fares, Mohammed Fares and Abdulsalam Sakal who are facing deportation. Officials at the centre acknowledged that the men were there, but did not allow the lawyer to meet them on grounds that such a meeting required the permission of the General Directorate for Migration Management. On 20 October officials at the centre denied Mohammed Fares’ mother access to her son and would not acknowledge that he was being held there. The conditions the men are being held in amount to incommunicado detention, in violation of Turkish law and international human rights law. This is the second time the three refugees’ rights to consult a lawyer have been denied since their detention on 22 September. On 2 October a lawyer from the NGO Refugee Rights Centre attempted to visit them while they were being held at the Kumkapı Deportation Centre in Istanbul, but she was denied access to them. The next morning the lawyer received a call from the three refugees, informing her that they were being taken to Erzurum Deportation Centre. Refugees’ and asylum-seekers’ right to consult a lawyer and meet their relatives is enshrined in the Law on Foreigners and International Protection. Article 59/1-b states that: ‘the foreigner shall be allowed access to and given the opportunity to meet with their relatives, notary public, his/her legal representative and the lawyer, as well as access to telephone services’. Furthermore, Article 68/8 states: ‘The person subject to administrative detention shall be granted access to legal representative, lawyer, notary public and United Nations High Commissioner for Refugees officials.’” | 0 |
test | 001-165218 | ENG | GBR | ADMISSIBILITY | 2,016 | BHOJWANI v. THE UNITED KINGDOM | 4 | Inadmissible | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo | 1. The applicant, Mr Raj Arjandas Bhojwani, is an Indian national, who was born in 1957 and according to the most recent information available to the Court is currently detained at HM Prison La Moye in Jersey. He is represented before the Court by Carey Olsen, a law firm based in Jersey. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. Between 1996 and 1997 the applicant secured two contracts to supply vehicles to the Nigerian Government, then under the rule of General Abacha. He was paid almost 149 million United States dollars (“USD”) for the first contract and almost USD 29 million for the second. He paid all sums into two accounts in the Bank of India in Jersey (“BOIJ”). He subsequently paid approximately USD 100 million to accounts in Switzerland and elsewhere connected with General Abacha and Colonel Marwa, a close collaborator of General Abacha. 4. Following General Abacha’s death in 1998, a Special Investigation Panel was set up in Nigeria to investigate the use of Government monies during General Abacha’s regime. The Panel was chaired by the Deputy Commissioner of the Nigerian Police Force, Mr G. 5. On 23 October 2000 the applicant converted the balance of the two BOIJ accounts into six bankers’ drafts totalling almost USD 44 million. On 25 October 2000 he couriered the bankers’ drafts to London. The bankers’ drafts were subsequently returned to Jersey and, on 2 November 2000, the applicant deposited them into three accounts at the BOIJ. 6. On an unknown date the Jersey police commenced a criminal investigation into money laundering in respect of the applicant. On 17 June 2002 the Attorney General of Jersey sent a letter of request to the Nigerian Government asking for assistance with the money laundering investigation. The Nigerian authorities instructed Mr G. to gather relevant evidence. Mr G. and Colonel B., a retired army officer who had worked closely with General Abacha, made witness statements to a Jersey police officer in Jersey and Nigeria. Mr G. also gathered various business documents which he provided to the Jersey authorities. The Attorney General of Nigeria provided an undertaking that the Government of Nigeria would use its best endeavours to ensure that the necessary witnesses travelled to Jersey to give evidence at any future criminal trial against the applicant. 7. On 15 October 2009 the applicant obtained declarations from the Federal High Court of Nigeria (“the Nigerian judgment”) that the Special Investigation Panel was unconstitutional and that all investigatory actions undertaken by it in respect of the applicant were “null and void, and lacking any valid or legal effect whatsoever”. 8. Meanwhile, the applicant was charged with two counts of converting the proceeds of criminal conduct and one count of removing the proceeds of criminal conduct from the jurisdiction. 9. Following delivery of the Nigerian judgment, the applicant made two applications to the court. 10. In the first, he sought a stay on proceedings on grounds of abuse of process. He contended that the use of the business documents by the Attorney General of Jersey was an abuse of power because the Nigerian court had ruled that they had been unlawfully obtained and because they had been obtained for an “investigation” only, so that there had been no consent to their use at trial. On 9 November 2009 the Royal Court delivered its ruling on this application, declining to stay proceedings. It held that there was no evidence of an abuse of power and that since the purpose of an investigation into a criminal offence was to prosecute that offence, there would be little point in providing the information for the former but not the latter. The court noted that the defence conceded that the admission of the relevant Nigerian evidence did not prejudice the fairness of the applicant’s trial. The judge said: “70 ... [I]t follows that I would not exercise my discretion under Article 76 of [the 2003 Law] to exclude it on the grounds set out in this application.” 11. In his second application, the applicant relied on Article 66 of Police Procedures and Criminal Evidence (Jersey) Law 2003 (“the 2003 Law” – see paragraph 28 below), which allowed the court to exclude admissible evidence “in the interests of justice”. He argued that since the case was focused on alleged corruption at the highest level of government in Nigeria at the relevant time, it should not be assumed that the business documents were reliable. On 23 November 2009 the Royal Court allowed the admission of the business documents. It noted that there was nothing on the face of the documents to indicate that they were not authentic. While it was true that the applicant could not controvert the documents, it was necessary to balance the competing interests. There were a substantial number of documents that the applicant was in a position to controvert and he was also able to give evidence as to the nature of his involvement with General Abacha and Colonel Marwa. It was in the interests of justice that the business documents be admitted. 12. The prosecution subsequently applied under Article 64 of the 2003 Law (see paragraph 27 below) to read the witness statements by Mr G. and Colonel B. The defence argued that further steps should be taken by the prosecution before the judge could conclude that it was “not reasonably practicable”, in terms of Article 64, to secure the attendance of the witnesses. 13. On 6 January 2010 the court held that the witness statements were admissible. It was satisfied “to the criminal standard” that it was not practicable to secure the attendance of the witnesses. It further rejected the applicant’s argument that the admission of the statements would breach his rights under Article 6 §§ 1 and 3 (d) of the Convention. The court recognised the conflict between the approach of the English courts, as outlined in R v. Horncastle and Others [2009] UKSC 14, with the approach of a Chamber of this Court in Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, 20 January 2009. It concluded that the “sole and decisive” test had no application in Jersey. There was nothing inherently unreliable on the face of the statements and it would be in the interests of justice to admit them. 14. Meanwhile the Attorney General of Jersey wrote to the Attorney General of Nigeria requesting that Nigerian witnesses attend in Jersey to give their evidence. The Attorney General of Nigeria replied that, following the Nigerian judgment, he was unable to accede to the request for Nigerian witnesses to testify at the trial in Jersey “as the crux of the matter is centred on the national interest and I have a constitutional duty to protect the judicial integrity of the Federal Republic of Nigeria”. He asked for the business documents to be returned to Nigeria. 15. On 21 January 2010 the applicant applied to have the Nigerian evidence excluded and his prosecution stayed on grounds of breach of international law and comity, based on developments since the 9 November 2009 ruling of the Royal Court (see paragraph 10 above). On 26 January 2010, with reasons delivered on 11 February 2010, the Royal Court refused the applications. It noted that the defence did not contend that the admission of the Nigerian evidence would adversely affect the fairness of the proceedings and that the application to exclude was not therefore brought under Article 76 of the 2003 Law (see paragraph 29 below) but was brought instead under the court’s inherent jurisdiction to exclude evidence as a matter of comity. The court considered that the only conduct being impugned by the defence was the decision of the Attorney General to lead admissible evidence at trial. The only remedy available to a defendant whose complaint was based solely on the merits of the decision to lead admissible evidence was the exclusion of the evidence under Article 76 of the 2003 Law. 16. The trial subsequently commenced in the Royal Court before the Commissioner and two jurats (professional judges of fact). On 5 March 2010, the applicant was convicted of money laundering. On 25 June 2010 he was sentenced to six years’ imprisonment. 17. The applicant sought permission to appeal against his conviction and sentence. He raised twelve grounds of appeal, dated 24 May 2010. Ground 8, which it was stated was intended to be taken together and supplemented by matters addressed in grounds 9 to 12, related to the admission into evidence of “the whole of part of the Nigerian evidence”, namely, the business documents and the witness statements. The grounds explained that the applicant’s grounds of appeal in relation to the Nigerian evidence under grounds 8 to 12 proceeded on the premise that it was open to him to challenge the admissibility of evidence either by an application for a stay on the basis of abuse or an application for the court to exercise its statutory discretion under Article 76 of the 2003 Law to exclude the evidence. 18. The applicant’s challenge in ground 8 was to the decision of the trial judge of 9 November 2009 not to stay proceedings as an abuse of process (see paragraph 10 above). Ground 9 was also a challenge to the decision of 9 November 2009, this time on the basis that the use of the business documents at trial breached the applicable law on mutual legal assistance because they had been used for a purpose other than that for which they had been provided. Ground 10 was a challenge to the decision of 6 January 2010 to admit the witness statements (see paragraph 13 above). It explained that their admission had resulted in unfairness in that the applicant had been denied the opportunity to test and controvert that evidence in circumstances where it was the sole and decisive evidence relied on by the prosecution to prove a part of its case. The ground referred to the trial judge’s finding that the “sole or decisive” test had no application in Jersey’s law and that the admission of the statements would not breach Articles 6 §§ 1 and 3 (d). Ground 11 concerned the judgment of 11 February 2010 to refuse to exclude the Nigerian evidence on grounds of breach of international law and comity and the refusal to stay proceedings on that basis (see paragraph 15 above). Ground 12 concerned the admission of a statement made by the applicant which he does not challenge in the present application. 19. The applicant subsequently prepared a written skeleton argument dated 2 August 2010, which ran to around 1,025 paragraphs, and a bundle of authorities placing before the court some 178 case-law authorities. In his skeleton argument, he explained that in grounds 8, 9 and 11, he contended that the exercise by the trial judge of his discretion to stay the proceedings as an abuse of process was flawed; that the judge had erred in the exercise of his discretion to exclude evidence under his inherent jurisdiction to uphold comity and international law; that the judge had erred in not excluding the evidence under the “overlapping jurisdiction between stay for abuse of process and Article 76” of the 2003 Law; and that the judge had erred in admitting the Nigerian evidence when it had been obtained for a different purpose. He contended that his challenge to the prosecution application in January 2010 (see paragraph 12 above) had included an argument that, if it failed to grant a stay, the court should exclude the evidence under Article 76 of the 2003 Law, but that this argument had not been addressed by the trial judge. He further elaborated on his Article 76 submission, referring to authority on the exclusion of unlawfully-obtained evidence. 20. In further developing ground 10 in his skeleton argument, the applicant challenged the trial judge’s decision that the admission of the witness statements was not unfair. He relied on Article 66 of the 2003 Law (see paragraph 28 below). He criticised a number of determinations by the trial judge, including that the prosecution had done all that it practically could to ensure the attendance of the witnesses, that the inability to controvert the evidence of Mr G. gave rise to only a minimal risk of unfairness, that there was no unfairness in admitting Colonel B.’s statement and that the applicant’s actions in seeking the Nigerian judgment were the direct cause of the non-attendance of the witnesses and should be taken into account. He referred to the English law equivalent of Article 66 as well as relevant English authorities as to the interpretation of the provision. He made no reference in his skeleton argument to Article 6 of the Convention or to relevant case-law. 21. In its skeleton argument in response, the prosecution said: “The Crown assumes that the Appellant has abandoned its challenge to the learned [trial judge’s] conclusion that the ‘sole or decisive’ test has no application in Jersey ... This challenge is not mentioned in the Appellant’s skeleton argument. It would also require the court to come to a different conclusion to the United Kingdom Supreme Court in R v. Horncastle [2010] 2 WLR 47.” 22. At the subsequent hearing, the applicant’s counsel argued, in respect of grounds 8 to 12 of the grounds of appeal, that the use of the evidence was an abuse of executive power because the Attorney General knew that it had been obtained unlawfully, the Nigerian authorities did not consent to its use and the Nigerian authorities had asked for the return of the evidence. There had also been a breach of Nigerian sovereignty, international law and comity for these reasons. 23. On 10 February 2011 the appeal was refused by the Court of Appeal. The court considered whether unlawfully obtained evidence could be fairly admitted and concluded that it could. It noted that “additional grounds relied on in the skeleton argument were not developed in oral argument ... We list them only for completeness and deal with them briefly”. It then addressed the witness statement argument in Ground 10 as follows: “104. It was contended that the evidence of Commissioner [G.] and Colonel [B.] should have been excluded as hearsay when it was reasonably practicable to have secured their attendance, and its admission was unfair to Mr Bhojwani who, accordingly, could not cross-examine them. We note that Mr Bhojwani objected to the Commissioner’s decision that he had been responsible for the absence of the two witnesses in Jersey by instructing the claim for declarations before the Nigerian Court: and Advocate Kelleher sought to explain the dilemma in which his client was placed by the possibility of prosecutions in two jurisdictions. In our view the attribution of responsibility was a finding of fact open to the Commissioner, and the admission of hearsay evidence was a matter for his discretion which there is no basis to impugn.” 24. Leading English counsel provided advice on appeal in writing on 18 March 2011. While the advice referred to the invitation to counsel to consider whether there were arguable grounds for leave to appeal sentence, the advice also appeared to address grounds for appeal against conviction. Counsel referred to various “significant and unusual” features of the case, but noted that these did “not necessarily found compelling matters of law of general public importance”, which, counsel said, was the test applied by the Privy Council for granting leave. 25. As regards grounds of appeal 8 to 12, counsel referred to the submission to the Court of Appeal that use of the unlawfully-obtained evidence without the consent of the Nigerian Government was an abuse of executive power and a breach of Nigerian sovereignty, international law and comity. He discussed at some length the position as regards use of unlawfully-obtained evidence. As to the specific comments on Ground 10, counsel said: “I am unimpressed by the observations at paragraph 104 of the judgment that the failure of witnesses to attend was the ‘responsibility’ of Mr Bhojwani. This implies that he was at fault in circumstances where he merely sought a declaration from the Federal Court of Nigeria upon the lawfulness of what had occurred. There was a basis for impugning the exercise of the Commissioner’s discretion but I do not consider that the Appellate Committee [of the Privy Council] will find this an argument involving matters of law of general public importance. In any event, the evidence given by Commission [G.] and others which was read was not determinative of guilt.” 26. Counsel concluded his advice by emphasising the difference between advising on the merits of an appeal to the Court of Appeal and seeking the special leave of the judicial committee of the Privy Council. He explained: “In the latter case it is necessary to identify a point or points of law of general public importance, in the former there is I understand an appeal as of right on matters of law. I would be failing in my responsibility if I encouraged hopes of success when my view was that no such hopes exist. Considering the case objectively as an outsider who was not involved in the trial or first-tier appeal process I am able to stand back and consider the grounds of appeal dispassionately and I have no hesitation in concluding that there is no prospect of leave being granted in this case.” 27. The 2003 Law deals with the admissibility of evidence in criminal proceedings. Article 64 provides, inter alia, that a statement made by a person in a document shall be admissible in criminal proceedings if the person who made the statement is outside of Jersey and it is not “reasonably practicable” to secure his attendance. Article 65 allows documents to be admitted provided that certain conditions are satisfied. 28. Article 66(1) provides that if a court is of the opinion that in the interests of justice a statement which is admissible by virtue of Article 64 or Article 65 ought not to be admitted, it may direct that the statement should not be admitted. Article 66(2) provides that the court must have regard: “(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic; (b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available; (c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and (d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused.” 29. Article 76 allows the court to exclude evidence if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would so adversely affect the fairness of the proceedings that the court ought not to admit it. 30. The Human Rights (Jersey) Law 2000 (“the Human Rights Law”) incorporates the Convention into Jersey law. Article 3 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account relevant case-law from this Court. Article 7 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Under article 8, a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention right or rights concerned in any legal proceedings. 31. In Hamilton and Anor v. Attorney General 2010 JLR 313, the Jersey Court of Appeal was asked to consider whether hearsay evidence at a criminal trial had been “sole and decisive” evidence against the appellant and had thus breached his right to a fair trial under Article 6 of the Convention. On 21 July 2010 it dismissed the appeal. It considered the Chamber’s judgment in Al-Khawaja and Tahery and the subsequent judgment of Horncastle in which the Supreme Court had declined to apply it (both judgments cited above). The Court of Appeal concluded that it was not necessary for it to decide, for the purposes of the case before it, whether Horncastle should be followed. It therefore proceeded on the basis that the Chamber judgment in Al-Khawaja and Tahery represented “the law of this Island”. 32. The Judicial Committee of the Privy Council is composed of Justices of the Supreme Court of the United Kingdom and other senior United Kingdom and Commonwealth judges. It is the court of final appeal for Jersey. In criminal cases from Jersey there is no appeal as of right and special leave from the Judicial Committee of the Privy Council is required. Privy Council Practice Direction 3 on “Application for Permission to Appeal” provides that, for criminal appeals against conviction and sentence, permission will be granted only in respect of “applications where, in the opinion of the Appeal Panel, there is a risk that a serious miscarriage of justice may have occurred”. Further information concerning appeals to the Privy Council is set out in L.L. v. United Kingdom (dec.), no. 39678/08, §§ 11-12, 15 January 2013. | 0 |
test | 001-183369 | ENG | MDA | COMMITTEE | 2,018 | CASE OF GOREMÎCHIN v. THE REPUBLIC OF MOLDOVA | 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);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) | Paul Lemmens;Stéphanie Mourou-Vikström | 5. The applicant was born in 1967 and lives in Chişinău. 6. On 23 July 2007 the Râșcani District Court ordered the applicant’s detention pending trial for thirty days. He was charged with the offence of robbery, taking of hostages and blackmail while in Ukraine, in 1997 and 1998. The applicant was residing at the material time in Brussels, Belgium. 7. On 18 November 2008, the applicant was arrested in Brussels at the Moldovan authorities’ request and placed in a Belgian prison pending extradition to Moldova. 8. On 5 October 2009 the applicant was extradited to the Moldovan authorities. On the same day he was brought before a judge (Centru District Court), who ordered his detention on remand. 9. On 25 December 2009 the Chişinău Court of Appeal prolonged the applicant’s detention on remand for ninety days. 10. From then on, the applicant’s detention was prolonged every three months. Each time, the reasons for his detention were that it was an exceptional case, that there was a reasonable suspicion that he had committed serious offences punishable by imprisonment, that the criminal case was complex and that if released the applicant could interfere with the investigation, influence the witnesses and victims, re-offend or abscond (as he had earlier been declared a wanted person). 11. On 20 May 2010 the applicant made a habeas corpus request, asking for his detention to be replaced with a preventive measure other than deprivation of liberty. The applicant’s lawyer also raised a complaint about the impossibility to consult the applicant during the court hearings while not seated at the same desk next to him. He also complained about the denial by the court’s registry of the applicant’s request to receive copies of his case file. On 17 June 2010 the Court of Appeal dismissed the applicant’s lawyer’s claims and on 21 June 2010 it prolonged the applicant’s detention warrant for another ninety days, relying on exactly the same reasons as before. 12. On 22 February 2012 the Bălți Court of Appeal, acting as a court of first instance, acquitted the applicant and ordered his release from detention. The court noted that its judgment could be challenged by an appeal on points of law within fifteen days. 13. On 6 April 2012 the Prosecutor’s Office lodged an appeal on points of law against the judgment of 22 February 2012. In the appeal the Prosecutor’s Office made reference to Article 439 of the Code of Criminal Procedure. The applicant objected that the appeal had been lodged out of time. Nevertheless, on 21 December 2012 the Supreme Court of Justice upheld it and reopened the proceedings. The Supreme Court did not refer to the applicant’s objection that the appeal had been lodged out of time. 14. The proceedings ended on 30 December 2015, when the Buiucani District Court found the applicant guilty, but discontinued them on the ground of statutory time-limit. 15. The applicant was detained from 5 October 2009 to 23 October 2009 in the Department for Combating Organised Crimes. He was placed in a remand facility situated in a basement. The total surface was of 3 square metres, with no bed, chair, toilet facilities or washstand. He slept for four days on a concrete floor, using a bucket for his needs. In addition, the applicant had no daily walks outside his cell. 16. Four days later, the applicant was moved to cell no. 6 of the same detention facility. He was detained with two other inmates in a cell measuring 9 square metres for fifteen days. The applicant was held in similar conditions of detention as described above. He also claims that he was fed only once per day with soup and a slice of bread. During twenty days of detention he had access to the showers only once. 17. On 23 October 2009 the applicant was transferred from that remand facility to prison no. 13 (Chișinău). He was placed for three days in cell no. 38 with a total surface of 12 square metres. The applicant was detained with seven to twelve other inmates. In particular, the applicant describes his conditions of detention as follows: the cell was equipped with twelve wooden beds, it was not heated, the quality of food was very poor, there was a lack of ventilation, worsened by the inmates’ smoking directly in the cell, and poor lighting. 18. On 27 October 2009 the applicant was transferred to cell no. 78 measuring 30 square metres. He was detained there with twelve other detainees. The cell was equipped with twelve wooden beds. 19. On 5 December 2010 the applicant was transferred from prison no. 13 (Chișinău) to prison no. 11 (Bălți), where he was detained until the date of his acquittal by the Bălți Court of Appeal on 22 February 2012. On the date of his arrival he was not fed. He was placed in cell no. 6 with a total surface of 21 square metres. The applicant was detained with fourteen to nineteen other inmates. The cell was equipped with only fourteen beds and the detainees had to sleep in turns. The applicant described his conditions of detention as follows: toilet insufficiently separated from the cell, lack of a washstand, lack of water and ventilation, lack of adequate lighting, damp and cold cell. 20. On 30 December 2010 the applicant lodged a complaint with the Prosecutor’s Office complaining about the poor conditions of detention. In a reply dated 10 January 2011, the Prosecutor’s Office informed the applicant that his complaint about the poor conditions of detention was well founded and that following a control carried out in Prison No. 11 multiple breaches of the law had been discovered. The prison administration was asked to remove the shortcomings found. It does not appear that any change in the applicant’s conditions of detention occurred after the Prosecutor Office’s involvement. 21. On 15 January 2011 the applicant was transferred to cell no. 21 with a total surface of 16 square metres. The applicant was detained along with fifteen to seventeen other inmates and they had to sleep in turns as the cell was equipped with only twelve beds. The conditions of detention as described by the applicant were as follows: lack of bed linen, clothing and hygiene products, inadequate quality of food, lack of medical assistance. The applicant also contends that he was bitten by parasitic insects present in the cell. 22. The applicant complained to the domestic courts and the investigating authority about the inhuman and degrading conditions of detention. On 20 January 2011 the Bălți Prosecutor’s Office acknowledged the existence of the inhuman conditions of detention in prison no. 11 (Bălți). | 1 |
test | 001-163113 | ENG | HUN | GRANDCHAMBER | 2,016 | CASE OF BAKA v. HUNGARY | 1 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations;Determination (civil));Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Aleš Pejchal;András Baka;Angelika Nußberger;Dmitry Dedov;Egidijus Kūris;Erik Møse;Ganna Yudkivska;Guido Raimondi;Helen Keller;Helena Jäderblom;Jon Fridrik Kjølbro;Julia Laffranque;Krzysztof Wojtyczek;Ledi Bianku;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paul Lemmens;Paul Mahoney;Paulo Pinto De Albuquerque;Robert Spano;Vincent A. De Gaetano | 11. The applicant was born in 1952 and lives in Budapest. 12. On 22 June 2009, after seventeen years of service (1991-2008) as a judge at the European Court of Human Rights and, subsequently, more than one year’s service as a member of the Budapest Court of Appeal, the applicant was elected by the Parliament of Hungary, by decision no. 55/2009 (VI.24) OGY, as President of the Supreme Court for a six-year term, until 22 June 2015. 13. In that capacity, the applicant carried out managerial tasks and also had a judicial role, presiding over deliberations which resulted in uniformity resolutions (on case-law consistency) and in guiding resolutions. He was also President of the National Council of Justice. This second function had been added to the tasks of the President of the Supreme Court in 1997 by the Organisation and Administration of the Courts Act (Act LXVI of 1997). As the head of the National Council of Justice, the applicant was under an explicit statutory obligation to express an opinion on parliamentary bills that affected the judiciary, after having gathered and summarised the opinions of different courts via the Office of the National Council of Justice (see paragraph 44 below). 14. On 13 October 2011 the General Assembly of the Network of the Presidents of the Supreme Judicial Courts of the European Union elected the applicant President of the Network for a two-year term (2011 to 2013). 15. In April 2010 the alliance of Fidesz–Magyar Polgári Szövetség (Fidesz–Hungarian Civic Union, hereinafter “Fidesz”) and the Christian Democratic People’s Party (“the KDNP”) obtained a two-thirds parliamentary majority and undertook a programme of comprehensive constitutional and legislative reforms. In his professional capacity as President of the Supreme Court and the National Council of Justice, the applicant expressed his views on different aspects of the legislative reforms affecting the judiciary, notably the Nullification Bill, the retirement age of judges, the amendments to the Code of Criminal Procedure, and the new Organisation and Administration of the Courts Bill. 16. On 12 February 2011, in relation to the Nullification Bill (subsequently Act XVI of 2011, ordering the annulment of final convictions relating to the dispersal of crowds in the autumn of 2006), the applicant’s spokesman explained to the Népszabadság newspaper that, in the applicant’s view, “the Bill ordering the annulment of certain judicial decisions delivered in relation to the 2006 riots gives cause for concern, because it violates the right of judges to assess evidence freely. This is a serious constitutional problem. ... the judiciary is examining the Bill only from a professional point of view and distances itself from any kind of political debate. András Baka [the applicant], President of the National Council of Justice, hopes that Parliament will choose a legal technique that eliminates the problem of unconstitutionality”. 17. On 8 March 2011, the day after the Bill’s enactment, István Balsai (Fidesz MP, Chairman of the Constitutional, Judicial and Standing Orders Committee of Parliament at the relevant time), responded at a press conference to the criticisms made by the judiciary, and declared: “The adopted legal solution was said to be unfortunate. Now, I myself find it unfortunate if a member of the judiciary, in any position whatsoever, tries to exert influence over the legislative process in such a way”. 18. On 24 March 2011, in a speech delivered to Parliament in the course of the debate on the Bill on the Fundamental Law of Hungary (the new Constitution), the applicant expressed his opinion on certain aspects of the proposed constitutional reform which concerned the judiciary, notably the new name given to the Supreme Court – Kúria –, the new powers attributed to the Kúria in the field of ensuring consistency in the case-law, the management of the judiciary and the functioning of the National Council of Justice, as well as the introduction of a constitutional appeal against judicial decisions. 19. On 7 April 2011, in relation to the proposal to reduce the mandatory retirement age of judges (from seventy years to the general retirement age of sixty-two) in Article 26 (2) of the Fundamental Law of Hungary, the applicant, together with other court presidents, addressed a letter to various actors in the constitutional process (the President of the Republic, the Prime Minister, the Speaker of Parliament) in which they pointed out the possible risks to the judiciary posed by the given proposal. Their concern was that, by abolishing the possibility for judges to remain in office until the age of seventy, the proposed rule would force one-tenth of Hungarian judges (274 persons) to end their careers in 2012, earlier than planned, with all the attendant consequences for the functioning of the judiciary and the length of pending proceedings. 20. On the morning of 11 April 2011 (the day of the vote on the proposals to amend the retirement age of judges), the applicant addressed a letter to the Prime Minister, in which he stressed that the proposal was humiliating and professionally unjustifiable; it infringed the fundamental principles of the independence, status and irremovability of judges; and it was also discriminatory, since only the judiciary was concerned. He refuted accusations of bias in favour of any political ideology within the judiciary, and continued: “It is, however, unacceptable if a political party or the majority of Parliament makes political demands on the judiciary and evaluates judges by political standards.” In his letter the applicant asked the Prime Minister to use his influence to prevent Parliament from adopting the proposal. On the same day, however, Parliament adopted the proposal (see Relevant Domestic Law below). 21. On 14 April 2011, a joint communiqué was addressed to the Hungarian and European-Union public by the plenary session of the Supreme Court, by the applicant in his capacity as President of the National Council of Justice, and by the presidents of regional and county courts. It argued for the autonomy and independence of the judiciary and criticised the new mandatory retirement age for judges and the proposal to modify the model of judicial self-governance embodied in the National Council of Justice. The relevant extracts from the communiqué read as follows: “According to the proposal, the mandatory retirement age of judges will be reduced by eight years as of 1 January 2012. As a result, the tenure of 228 judges (among them 121 judges responsible for court administration and professional supervision) will be terminated on that same date, without any transition period, since they will have turned 62. By 31 December 2012 a further 46 judges will have to terminate their careers. As a consequence of this decision, the rapidity of judicial proceedings will significantly deteriorate (nearly 40,000 cases will have to be reassigned, which may even result in several years’ delay in judicial proceedings, concerning tens of thousands of persons). The administration of the courts will be seriously hindered, since it is extremely difficult to replace dozens of retiring judges. The multiple effect of the forced pensioning-off, with no real justification, of highly qualified judges who have several years of experience and practice, most of whom are at the apex of the hierarchy, will fundamentally shatter the functioning of the court system – leaving aside other unforeseeable consequences. Moreover, the proposal is unfair and humiliating with respect to the persons concerned, who took an oath to serve the Republic of Hungary and to administer justice, and who have devoted their lives to the judicial vocation. It is incomprehensible why the issue of the retirement age of judges is worth regulation in the Fundamental Law. There is only one answer: by including it in the Fundamental Law, there will be no possibility of contesting this legal rule, which violates the fundamental principles of a democratic state governed by the rule of law, before the Constitutional Court. Such an unjustified step implies political motivation.” 22. On 14 June 2011 Bill no. T/3522 on the amendment of certain legislative acts concerning judicial procedure and the judicial system (including the Code of Criminal Procedure) was submitted to Parliament. At the applicant’s request, the Criminal Law Division of the Supreme Court prepared an analysis of the Bill, which was communicated to Members of Parliament. On 4 August 2011, as no substantive changes had been made to the Bill prior to its enactment on 4 July 2011 as Act LXXXIX of 2011, the applicant challenged the Act before the Constitutional Court, on the grounds of unconstitutionality and violation of the obligations enshrined in international treaties, making use of that power for the first time in Hungarian history. The Constitutional Court, in its judgment no. 166/2011. (XII. 20.) AB of 19 December 2011, established the unconstitutionality of the impugned provisions and quashed them (notably, the provision concerning the Attorney General’s right to establish court competence by derogation from the default statutory rules). 23. Lastly, on 26 October 2011 the applicant addressed to Parliament a detailed analysis of two new Cardinal Bills: the Organisation and Administration of the Courts Bill (no. T/4743) and the Legal Status and Remuneration of Judges Bill (no. T/4744). According to the explanatory memorandum to the Bills, it was proposed that the National Council of Justice be abolished and replaced by a National Judicial Office and a National Judicial Council. The purpose of those proposals was to separate judicial and managerial functions, which had been “unified” in the person of the President of the Supreme Court, who was at the same time president of the National Council of Justice. The proposed reform sought to concentrate the tasks of judicial management in the hands of the president of the new National Judicial Office, while leaving the responsibility for overseeing the uniform administration of justice with the president of the Supreme Court (renamed with the historical appellation “Kúria”). The applicant also decided to express his opinion directly before Parliament, as permitted by Article 45 § 1 of Parliamentary Decision 46/1994 (IX.30) OGY on the Rules of Parliament. In his speech, delivered on 3 November 2011, the applicant raised his concerns about the draft legislation. He said that it did not address the structural problems of the judiciary, but left them to “the discretion of the executive of an external administration (the President of the proposed National Judicial Office, which would replace the National Council of Justice in managing the courts), who [would be] assigned excessive and, in Europe, unprecedented powers, with no adequate accountability”. The applicant referred to those new powers (to appoint judges and court executives, to issue normative orders and to designate the court in a given case) as “unconstitutional”. In this regard, he stated: “This unrestricted, non-transparent and uncontrollable power is unparalleled in contemporary Europe ... The extent and uncontrollability of such centralised authority is without precedent, even in countries where the administration of the judiciary lies with the ministry of justice and even if we think of the socialist dictatorship, in the last years of which Kálmán Kulcsár, member of the Hungarian Academy of Sciences and Minister of Justice responsible for the administration of the judiciary, declared that he would appoint only persons recommended by the professional organs of the judiciary.” Finally, the applicant again raised in his speech the issue of the new retirement age for judges, saying that it would have a severe effect on the Supreme Court and that the need to have enough judges at the Kúria had not yet been addressed. In this connection, he maintained that the Kúria’s main responsibility, that of ensuring consistency in the judicial application of laws, could be met only if that court were able to deliver judgments in an appropriate number and type of cases. 24. The Fundamental Law of 25 April 2011 established that the highest judicial body would be the Kúria (the historical Hungarian name for the Supreme Court). The date of entry into force of the Fundamental Law was scheduled for 1 January 2012. 25. On 14 April 2011, during a debate on the Fundamental Law, a Fidesz politician, Gergely Gulyás, MP, declared on the Inforádió radio station that the President of the Supreme Court would remain the same and that only the name of the institution would change. On 19 October 2011, in an interview on the ATV channel, the State Secretary of Justice, Róbert Répássy, MP, declared that under the Organisation and Administration of the Courts Bill (no. T/4743), the new Kúria would have the same function as the current Supreme Court and that only the Supreme Court’s name would change. He said that the legislation “will certainly not provide any legal ground for a change in the person of the Chief Justice”. 26. On 6 July 2011, in the “Position of the Government of Hungary on the Opinion on the Fundamental Law of Hungary adopted by the Venice Commission at its 87th Plenary Session (Venice, 17-18 June 2011, CDLAD(2011)016)”, transmitted by the Minister for Foreign Affairs of Hungary, the Government assured the Venice Commission that the drafting of the transitional provisions of the Fundamental Law would not be used to unduly put an end to the terms of office of persons elected under the previous legal regime. 27. In the period between 19 and 23 November 2011, members of Parliament submitted several amendments proposing that the applicant’s mandate as President of the Supreme Court be terminated. 28. On 19 November 2011 Gergely Gulyás submitted a Bill (no. T/4996) to Parliament, proposing an amendment to the 1949 Constitution (then in force). The amendment provided that Parliament would elect the President of the Kúria by 31 December 2011 at the latest. The reasoning of the Bill reads as follows: “In view of the Fundamental Law of Hungary and of the modifications to the court system resulting from that Law, in compliance with the Bill on the Transitional Provisions of the Fundamental Law of Hungary, and with a view to ensuring a smooth transition and continuity in the fulfilment of the tasks of the Kúria as from 1 January 2012, this Bill provides that Parliament must elect, by 31 December 2011 and according to the rules laid down in the Fundamental Law, the President of the Kúria who is to take office on 1 January 2012.” 29. On 20 November 2011 two members of the parliamentary majority submitted a Bill (no. T/5005) to Parliament on the Transitional Provisions of the Fundamental Law. Under section 11 of the Transitional Provisions of the Fundamental Law of Hungary Bill, the legal successors of the Supreme Court and the National Council of Justice would be the Kúria, for the administration of justice, and the President of the National Judicial Office, for the administration of the courts. Pursuant to section 11(2), the mandates of the President of the Supreme Court and of the President and members of the National Council of Justice would be terminated upon the entry into force of the Fundamental Law. The reasoning of the Bill stated as follows: “The Bill regulates in a comprehensive manner the succession of the Supreme Court and the National Council of Justice and its president, in that the successor body or person shall be different for the respective duties. Having regard to the modifications to the court system, the Bill provides that the term of office of the President of the Supreme Court currently in office, and that of the President and the members of the National Council of Justice, shall be terminated upon the entry into force of the Fundamental Law.” 30. On 23 November 2011 another Member of Parliament submitted a proposal for an amendment to sections 185 and 187 of the Organisation and Administration of the Courts Bill. While the previous versions of the Bill submitted by the Government (on 21 October and 17 November 2011) provided that the term of office of the court executives appointed before 1 January 2012 would last until the date fixed at the time of their appointment, this last mentioned amendment provided for an exception. It sought to terminate ex lege the mandate of the President and Vice-President of the Supreme Court. The reasoning of the proposal read as follows: “The aim of this proposal for an amendment, submitted before the final vote, is to ensure the compliance of consolidated Bill no. T/4743/116, by amending its transitional provisions, with the Fundamental Law, having regard to Bill no. T/4996 on the Amendment of the Act XX of 1949 on the Constitution of the Republic of Hungary and also to Bill no. T/5005 on the Transitional Provisions of the Fundamental Law of Hungary, both submitted to Parliament.” 31. On 28 November 2011 Parliament adopted both the Organisation and Administration of the Courts Bill (as Act CLXI) and the Constitution of the Republic of Hungary (Amendment) Bill (as Act CLIX), with the content described above. 32. On 30 December 2011 the Transitional Provisions of the Fundamental Law Bill was adopted without amendment. The Transitional Provisions were published in the Official Gazette on 31 December 2011. 33. As a consequence of the entry into force of all these constitutional and legislative amendments, the applicant’s mandate as President of the Supreme Court terminated on 1 January 2012, three and a half years before its expected date of expiry. 34. The applicant remained in office as president of a civil-law division of the Kúria. 35. In order for a new president to be elected to the Kúria in due time, the Constitution of the Republic of Hungary (Amendment) Act (Act CLIX of 2011, adopted on 28 November 2011, see paragraph 31 above) entered into force on 2 December 2011. On 9 November 2011 the Organisation and Administration of the Courts Bill was amended, and an additional criterion for the election of the new president of the Kúria was introduced. This provided that he or she would be elected by Parliament from among the judges appointed for an indeterminate term and having served at least five years as a judge (section 114(1) of Act CLXI of 2011 – see Relevant Domestic Law below). On 9 December 2011 the President of the Republic proposed that Parliament elect Péter Darák as President of the Kúria and Tünde Handó as President of the National Judicial Office. On 13 December 2011 Parliament elected those candidates, in line with the proposal by the President of the Republic. 36. Firstly, the applicant lost the remuneration and other benefits (social security, presidential residence, personal protection) to which a president of the Supreme Court was entitled throughout the period of the fixed presidential term. 37. Secondly, the legislation dealing with certain post-term benefits for outgoing presidents of the Supreme Court (Remuneration and Allowances Act 2000) was repealed as from 1 January 2012. Section 227(1) of the Legal Status and Remuneration of Judges Act 2011 (as amended on 28 November 2011, in force from 1 January 2012) supplemented this abrogation, and stipulated that the repealed legislation would be applied to any former president of the Supreme Court only to the extent that he or she was entitled to the allowance specified in sections 26(1) and 22(1) (pension supplement for life), had reached retirement age at the time of the entry of force of the Act and had requested the allowance. Since the applicant had not attained retirement age by 1 January 2012, he could not claim payment of that post-function benefit. | 1 |
test | 001-166775 | ENG | SRB | COMMITTEE | 2,016 | CASE OF VUKOSAVLJEVIĆ 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) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 5. The applicant was born in 1962 and lives in Velika Reka. 6. He was employed by Holding Kompanija “Komgrap” – DD “Komgrap gradnja”, a socially-owned company based in Belgrade (hereinafter “the debtor”). 7. On 3 February 2006, the First Belgrade Municipal Court ordered the debtor to pay the applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final on 31 July 2006. 8. On 23 October 2006, upon the applicant’s request to that effect, the Fourth Belgrade Municipal Court accepted the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs. 9. On 24 December 2010 the Belgrade Commercial Court opened insolvency proceedings in respect of the debtor (St. 4372/2010). 10. On 22 June 2011 the applicant submitted his respective claims. 11. On 31 October 2010 the Belgrade Commercial Court dismissed these claims as out of time. The Commercial Appeals Court upheld that decision on 26 June 2012. 12. The insolvency proceedings against the debtor are still ongoing. 13. On 23 April 2010 the applicant lodged a constitutional appeal. 14. The Constitutional Court dismissed his appeal on 14 July 2011. 15. On 13 March 2012 the applicant lodged a new constitutional appeal. 16. On 26 January 2012 the Constitutional Court dismissed again his appeal. On 28 December 2012 that decision was delivered to the applicant. | 1 |
test | 001-155689 | ENG | HRV | ADMISSIBILITY | 2,015 | KUKAVICA v. CROATIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 1. The applicant, Ms Radojka Kukavica, is a Croatian national who was born in 1956 and lives in Crkveni Bok. She was represented before the Court by Mr L. Šušak, 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. During 1991 and 1992 Serbian para-military forces gained control of about one third of the territory of Croatia and proclaimed the so-called “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter the “Krajina”). The applicant continued to live in the Krajina. At the beginning of August 1995 the Croatian authorities announced a campaign of military action with the aim of regaining control over Krajina. The action was codenamed “Storm” and lasted from 4 to 7 August 1995. Before that action, the vast majority of the population of the Krajina fled Croatia, initially for Bosnia and Herzegovina, but later many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000. 5. According to the applicant, on 4 August 1995 she and her nephew Z.D. – in a vehicle of the “Lada” make – and her other nephew A.V. – in a vehicle of the “Zastava” make – were driving along the road between the villages of Strmen and Slovenci, trying to flee Croatia and reach Bosnia and Herzegovina. After overtaking a convoy of tractors and while passing through a forest called Zelenik, Croatian soldiers started to fire at them. The applicant and both her nephews were wounded. The applicant and Z.D. got out of the vehicle and ran into the woods. Later on, they both managed to flee into Bosnia and Herzegovina. A.V. surrendered to the Croatian soldiers and was provided with first aid. 6. The Croatian authorities learned about the applicant’s wounding in 2005 when she submitted a request for damages to the State Attorney’s Office in that connection. 7. On 27 January 2005 the police interviewed A.V. and Z.D., who both gave an account of the events of 4 August 1995 like that described in paragraph 5 above. 8. On 31 January 2005 the police interviewed the applicant, P.T. and I.Š. The applicant confirmed the accounts of A.V. and Z.D. P.T. said that he had been checking on his cattle in the same area on 4 August 1995 and had hidden in the woods during the shooting. After that he had been captured by the Croatian soldiers. He had seen A.V., who had a head wound that had already been tended to, being held by Croatian soldiers. 9. I.Š., the commander of a unit comprising 178 soldiers of the XVII Home Guard Regiment of the Croatian Army, said that their task on 4 August 1995 had been “to cut communication on the road between Strmen and Slovinci”. They had completed that task in the morning and in the afternoon had stationed themselves in the forest known as Zelenik, near that road. Tractors and people had occasionally passed along the road. In the afternoon he had received the order to “destroy a foresters’ lodge” in the Zelenik forest and had sent ten soldiers to carry out that task. A battle between these soldiers and Serbian para-military forces issued. At that moment two vehicles, a Zastava and a Lada, and a tractor appeared on the road. I.Š. was not sure who had fired at the vehicles, since they had found themselves in crossfire from both sides. The crossfire lasted for about twenty minutes. He had no knowledge about the wounding of the applicant. 10. On 12 May 2006 the police interviewed M.D., who said that on 4 August 1995 she had been in a convoy of tractors and that while they had been passing through the forest of Zelenik, Croatian soldiers had started to fire at them and several people had been killed or wounded. 11. On 23 October 2012 the Ministry of Defence sent the daily log of I.Š.’s unit for 4 August 1995 to the Sisak Police. This log confirmed the events described by I.Š. in his statement of 31 January 2005. 12. On 27 November 2012 the applicant lodged a criminal complaint with the State Attorney’s Office against I.Š. on charges of war crimes against the civilian population. On 30 November 2012 she extended her complaint to M.L. 13. Between 8 and 19 February 2013 the police interviewed A.V., Z.D., the applicant and P.T. They all repeated their prior statements. | 0 |
test | 001-154151 | ENG | SVK | CHAMBER | 2,015 | CASE OF ŠABLIJ v. SLOVAKIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant’s identity has been the subject of controversy at the national level. In his submission to the Court he referred to himself as mentioned above (see paragraph 1), and indicated his year of birth as 1977. 6. During the proceedings in Slovakia described below, the applicant also was or has been referred to as Jurij Rybakovas, with the surname at birth of Vilcinskas, alias Kolja, born in 1976, and as Valerij Juriovi Grinevsky, a Lithuanian national. 7. On 31 December 2007 the applicant was arrested; on 4 January 2008 he was remanded in custody pending trial on charges of conspiracy and murder. 8. On 18 June 2009 the Bratislava I District Court (Okresný súd) authorised extension of his pre-trial detention until 28 August 2009. Following an appeal by the applicant the Bratislava Regional Court (Krajský súd) on 25 June 2009 upheld that decision. 9. On 11 August 2009 the applicant was indicted to stand trial; on 22 August 2009 the District Court dismissed his request for release. 10. The District Court heard the case on 27-29 October 2010 and a further hearing was scheduled for 12 to 14 January 2011. 11. On 27 July 2011 the applicant was acquitted; his acquittal was upheld on appeal on 18 April 2013. 12. On 16 September 2010, while he was still in detention, and acting through the intermediary of his lawyer, the applicant requested release. In support of the request, he argued that he was innocent and that his detention in the present trial was no more than an arbitrary means of retaining him in detention in the interest of another trial. The request was submitted by mail and was received at the District Court on 20 September 2010. 13. On 12 January 2011 the District Court heard the applicant in private, when he confirmed that he was seeking a response to the request for release he had made in September 2010. On the same day the District Court dismissed the request and the applicant stated on the record that he wished to appeal. 14. Through his lawyer, the applicant submitted his reasons for appealing in writing on 17 January 2011. At the same time, he offered a pledge that, if released, he would live in accordance with the law. 15. On 25 January 2011, at a private session, the Regional Court dismissed the applicant’s appeal and rejected his offer. It observed, inter alia, that there had been unjustified delay in dealing with the applicant’s request at the first level of jurisdiction, which could potentially serve as a ground for calling the President of its Chamber to account, but which in itself did not constitute a reason for releasing the applicant. 16. The written version of the decision of 25 January 2011 was served on the applicant via the District Court on 23 February 2011. It was not amenable to appeal. 17. In March 2011 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd). He directed the complaint against the District Court and alleged that, in determining his request for release of September 2010, there had been a violation of his right under Article 5 § 4 of the Convention to a “speedy” review of the lawfulness of his detention. In terms of redress, he claimed reimbursement of his legal costs and 6,000 euros (EUR) by way of compensation. 18. On 5 April the Constitutional Court declared the complaint admissible; on 21 June 2011 it found a violation of the applicant’s right as claimed. Referring to its previous judgments in cases nos. III. ÚS 7/00, I. ÚS 18/03, III. ÚS 126/05 and III. ÚS 216/07, the Constitutional Court observed that the “speediness” requirement would usually not be deemed to have been respected if the length of the proceedings in question amounted to months, as opposed to weeks; if the proceedings lasted more than one month at a single level of jurisdiction; or if there had been a period of judicial inactivity amounting to weeks. As regards the merits, the Constitutional Court found the District Court’s handling of the applicant’s request “particularly lengthy” and “extraordinarily and unacceptably long”. It could neither be justified nor explained by the fact that, at the hearing held on 27-29 October 2010 (see paragraph 10 above), the applicant had taken no action and had not demanded a decision on his request for release. 19. As regards just satisfaction, it awarded the applicant reimbursement of his legal costs but rejected the remainder of his claim. In that regard, the Constitutional Court referred ’s fundamental rights and freedoms. It concluded that the finding of a violation of the applicant’s rights was sufficient just satisfaction for him. 20. The Constitutional Court’s decision was served on the applicant on 23 September 2011. | 1 |
test | 001-147117 | ENG | NLD | GRANDCHAMBER | 2,014 | CASE OF JEUNESSE v. THE NETHERLANDS | 2 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Alvina Gyulumyan;Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Johannes Silvis;Josep Casadevall;Krzysztof Wojtyczek;Luis López Guerra;Mark Villiger;Nona Tsotsoria;Paul Mahoney;Vincent A. De Gaetano | 8. The applicant was born in 1967 and is living in The Hague. 9. In March 1987 the applicant met and started a relationship with Mr W., who – like the applicant – was born and had always lived in Suriname. Both of them had acquired Surinamese nationality in 1975 when Suriname gained its independence (Article 3 of the Agreement between the Kingdom of the Netherlands and the Republic of Suriname concerning the assignment of nationality (Toescheidingsovereenkomst inzake nationaliteiten tussen het Koninkrijk der Nederlanden en de Republiek Suriname), see paragraph 62 below). In September 1989, the applicant and Mr W. started to cohabit in the house of the latter’s paternal grandfather in Suriname. 10. On 19 October 1991, Mr W. travelled from Suriname to the Netherlands, holding a Netherlands visa for the purpose of stay with his father in the Netherlands. In 1993, Mr W. was granted Netherlands nationality which entailed the renunciation of his Surinamese nationality. 11. Mr W. has one sister, two brothers and one half-brother who are living in the Netherlands. Two other half-brothers and one half-sister are living in Suriname. The applicant has one brother, G., who was expelled from the Netherlands to Suriname in 2009. The applicant has also one half-brother and one half-sister who are living in the Netherlands. She has another half-sister who is living in Suriname. 12. Between 1991 and 1995, the applicant filed five unsuccessful requests for a Netherlands visa for the purpose of visiting a relative. These requests were rejected because her sponsor (referent) was insufficiently solvent, had failed to sign the required affidavit of support (garantverklaring) or had failed to supply sufficient information required for the assessment of the visa request. The applicant did not challenge any of these rejections in administrative appeal proceedings. 13. On 19 November 1996 the applicant filed a sixth visa request for the purpose of visiting a relative. After this request had been granted on 4 March 1997, the applicant entered the Netherlands on 12 March 1997 and did not return to Suriname when her visa expired 45 days later. To date, she has been staying in the Netherlands. She lived in Rotterdam until 20 July 1998, when she moved to The Hague. Since 17 December 1998 she has been living at the same address in The Hague. 14. On 20 October 1997, the applicant applied for a residence permit. According to the applicant, she had done so for the purpose of taking up residence with her Netherlands-national partner Mr W. According to the Government, the applicant’s stated aim had been to take up “paid employment”. On 16 February 1998, the Deputy Minister of Justice (Staatssecretaris van Justitie) decided not to process the application (buiten behandeling stellen) as the applicant had on two occasions failed to appear in person before the immigration authorities for the purpose of giving further information about her application. When, on 13 February 1998, the applicant’s lawyer had requested a new appointment on the ground that she would be unable to attend the interview scheduled for 16 February 1998, she was informed by the immigration authorities that – despite her lawyer’s absence – the applicant should appear in person. The applicant did not appear on 16 February 1998. The Deputy Minister’s decision of 16 February 1998 was notified to the applicant on 23 February 1998 and she was ordered to leave the Netherlands within seven days. 15. The applicant filed an objection (bezwaar) against the decision of 16 February 1998. As this objection was denied suspensive effect, she applied for a provisional measure (voorlopige voorziening) in the form of a court injunction preventing her expulsion pending the determination of her objection. This application was rejected on 23 December 1999 by the Acting President of the Regional Court (rechtbank) of The Hague sitting in Haarlem. The applicant’s objection against the decision of 16 February 1998 was rejected by the Deputy Minister on 17 January 2000. The applicant’s appeal against this decision to the Regional Court of The Hague and her accompanying application for a provisional measure were rejected on 12 July 2001 by the Regional Court of The Hague sitting in Utrecht. No further appeal lay against this ruling. 16. In the meantime, the applicant had married Mr W. on 25 June 1999 and, in September 2000, a son was born of this marriage. Under the Netherlands nationality rules, the applicant’s child is a Netherlands national. Since the child was unwell, he required lengthy treatment in hospital. He is currently attending secondary school and has no health problems. 17. On 20 April 2001, the applicant applied unsuccessfully for a residence permit on the basis of the so-called three-year policy (driejarenbeleid) or for compelling reasons of a humanitarian nature. Under this three-year policy a residence permit could be granted if a request for such a permit had not been determined within a period of three years for reasons not imputable to the petitioner and provided that there were no contra-indications such as, for instance, a criminal record. In the course of the proceedings on this request, the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Amsterdam granted the applicant’s request for a provisional measure (injunction on removal) on 23 February 2004. The final decision was given on 17 May 2004 by the Regional Court of The Hague sitting in Amsterdam. 18. On 10 December 2005, a second child was born of the applicant’s marriage. This child also holds Netherlands nationality. 19. On 23 January 2007, the applicant filed a request for a residence permit for the purpose of stay with her children in the Netherlands. This request was rejected because the applicant did not hold the required provisional residence visa (machtiging tot voorlopig verblijf). Such a visa has to be applied for at a Netherlands mission in the petitioner’s country of origin and it is a prerequisite for the grant of a residence permit (verblijfsvergunning) which confers more permanent residence rights. The applicant was not exempted from the obligation to hold a provisional residence visa. She challenged this decision unsuccessfully in administrative appeal proceedings in which the final decision was taken by the Regional Court of The Hague sitting in Haarlem on 19 April 2007. 20. On 7 May 2007, the applicant requested the Deputy Minister of Justice to reconsider (heroverwegen) the negative decision on her last request. On 28 September 2007, the applicant filed a complaint with the Deputy Minister on account of the latter’s failure to reply to her request for reconsideration. By letter of 12 November 2007, the Deputy Minister informed the applicant that although her complaint concerning delay was well-founded there was no reason for a reconsideration of the decision. 21. On 28 September 2007, the applicant applied for a grant of a residence permit at the discretion of the Deputy Minister (conform beschikking staatssecretaris) based on grounds of special and individual circumstances (vanwege bijzondere en individuele omstandigheden). 22. On 7 July 2008, the Deputy Minister of Justice rejected this application. The applicant filed an objection with the Deputy Minister against this decision as well as an application to the Regional Court of The Hague for a provisional measure (injunction on removal pending the objection proceedings). On 17 November 2008, having noted that this request was not opposed by the Deputy Minister, the Regional Court of The Hague granted the provisional measure. On 11 March 2009, after a hearing on the applicant’s objection held on 15 January 2009, the Deputy Minister rejected the applicant’s objection. 23. The applicant’s appeal against the decision of 11 March 2009 to the Regional Court of The Hague and her accompanying application for a provisional measure in the form of an injunction on her removal pending the determination of her appeal were rejected on 8 December 2009 by the provisional-measures judge of the Regional Court of The Hague sitting in Haarlem. In its relevant part, this ruling reads as follows: “2.11 It is not in dispute that the appellant does not hold a valid provisional residence visa and that she is not eligible for an exemption from the requirement to hold such a visa under section 17 § 1 of the Aliens Act 2000 (Vreemdelingenwet 2000) or section 3.71 § 2 of the Aliens Decree 2000 (Vreemdelingenbesluit 2000). It is only in dispute whether reason dictates that the defendant should exempt the appellant from the obligation to hold a provisional residence visa on the basis of section 3.71 § 4 of the Aliens Decree [for reasons of exceptional hardship (onbillijkheid van overwegende aard)]. 2.12 The Regional Court finds that the defendant could reasonably conclude that in the present case there are no special and individual circumstances on the basis of which insistence on compliance with the visa requirement would entail exceptional hardship. ... 2.18 The appellant’s reliance on Article 8 of the Convention fails. There is family life between the appellant and her husband and her minor children, but the defendant’s refusal to exempt her from the obligation to hold a provisional residence visa does not constitute an interference with the right to respect for family life as the defendant’s decision did not deprive her of a residence permit enabling her to enjoy her family life in the Netherlands. 2.19 It does not appear that there is a positive obligation for the Netherlands State under Article 8 of the Convention to exempt the applicant, contrary to the policy pursued in this area, from the obligation to hold a provisional residence visa. It is of importance at the outset that there has been no appearance of any objective obstacle to the enjoyment of family life outside the Netherlands. Taking into account the young age of the appellant’s children, it can also reasonably be expected that they would follow the appellant to Suriname for the duration of the proceedings relating to the provisional residence visa. This is not altered by the fact that both children are Netherlands nationals. The fact that the appellant’s husband is currently being detained gives no cause for finding that ... there is an objective obstacle. 2.20 The appellant has cited the judgments of the European Court of Human Rights in the cases of Rodrigues da Silva [and Hoogkamer v. the Netherlands, no. 50435/99, ECHR 2006I], Said Botan [v. the Netherlands (striking out), no. 1869/04, 10 March 2009] and Ibrahim Mohamed [v. the Netherlands (striking out), no. 1872/04, 10 March 2009]. This cannot succeed, for the following reasons. The case of Rodrigues da Silva did not concern a temporary separation in connection with maintaining the requirement to hold a provisional residence visa, so the case cannot be said to be comparable. In the cases of Said Botan and Ibrahim Mohamed the European Court found that the reasons for lodging the complaints had been removed, because a residence permit had been granted to the complainants in those cases. For that reason, their complaints were not considered further. The Regional Court fails to see in what manner the European Court’s findings in those two cases could be of relevance to the appellant’s case. 2.21 The appellant has further invoked Article 2 of the International Convention on the Rights of the Child. In so far as the provisions invoked entail a directly applicable norm, they have no further implications beyond the fact that in proceedings such as those at hand, the interests of the children concerned must be taken into account. In the decision of 11 March 2009, the situation of the appellant’s two minor children was explicitly taken into account in the assessment. As the provisions invoked do not contain a norm as regards the weight that must be given in a concrete case to the interests of a child, there is no ground for finding that those provisions have been violated. 2.22 The Regional Court will declare the appeal unfounded.” 24. On 2 August 2009, upon his return to the Netherlands from a trip to Suriname for the funeral of his foster mother, the applicant’s husband had been found to have swallowed cocaine pellets. He was placed in pre-trial detention. On 8 October 2009, a single-judge chamber (politierechter) of the Haarlem Regional Court convicted him of offences under the Opium Act (Opiumwet) and sentenced him to seven months’ imprisonment. On the basis of this conviction, the Netherlands Royal Constabulary (Koninklijke Marechaussee) included his name on a blacklist provided to airline companies operating direct flights between the Netherlands and Aruba, the former Netherlands Antilles, Suriname and Venezuela. His name was to remain on the list for a period of three years, the aim being to prevent him from reoffending. On 31 December 2009, after having served his sentence, the applicant’s husband was released from prison. His name was removed from the airline blacklist on 2 August 2012. 25. The applicant’s appeal of 7 January 2010 to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) against the judgment of 8 December 2009 of the provisional-measures judge of the Regional Court of The Hague was dismissed on 6 July 2010. The Administrative Jurisdiction Division found that the appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000, no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision. 26. In the meantime, the applicant filed a fifth request on 16 April 2010 for a residence permit with the Minister of Justice (Minister van Justitie) for the purpose of stay with a child, arguing that she should be exempted from the obligation to hold a provisional residence visa on grounds of special and individual circumstances. 27. This request was rejected on 11 May 2010 by the Minister, who held that there was no reason to exempt the applicant from the obligation to hold a provisional residence visa and that the refusal of a residence permit was not contrary to Article 8 of the Convention. While accepting that there was family life within the meaning of Article 8 between the applicant, her husband and their children, the Minister found that there was no interference with the right to respect for family life as the refusal to grant the applicant’s request for exemption did not deprive her of a residence permit which enabled her to exercise her family life in the Netherlands. 28. As to the question whether the applicant’s rights under Article 8 entailed a positive obligation for the Netherlands to grant her a residence permit, the Minister found that the interests of the Netherlands State in pursuing a restrictive immigration policy outweighed the applicant’s personal interest in exercising her right to family life in the Netherlands. In balancing these competing interests, the Minister took into account the following: already in Suriname and before her arrival in the Netherlands the applicant had been in a relationship with her current spouse; she had entered the Netherlands without having been granted entry clearance for joining her partner as required under the relevant immigration rules; and she had created her family in the Netherlands without holding a residence permit. When it transpired in the course of the proceedings that the applicant was pregnant, the Minister further held that it had not been established, nor did it appear that the applicant would be unable – should hospitalisation be necessary – to give birth in a hospital in Suriname or that there would be any insurmountable objective obstacles to the exercise of family life in Suriname. On this point, the Minister noted that Dutch was spoken in Suriname and that the transition would not therefore be particularly difficult for the applicant’s children, who could continue their education in Suriname in a normal manner. 29. The Minister added that the mere fact that the applicant’s spouse and children were Netherlands nationals did not entail an automatic obligation for the Netherlands authorities to grant the applicant a residence permit, or lead to the conclusion that the exercise of family life would only be possible in the Netherlands. The Netherlands authorities could not be held responsible for the consequences of the applicant’s personal choice to come to, settle and create a family in the Netherlands without any certainty as to her entitlement to permanent residence. In the balancing exercise, the Minister attributed decisive weight to the fact that the applicant had never resided lawfully in the Netherlands and that there was no indication whatsoever that it would be impossible to exercise family life in Suriname. 30. The Minister further rejected the applicant’s argument that she ought to be exempted from the visa requirement, on the basis that inter alia the length of the applicant’s stay in the Netherlands was a consequence of her personal choice to continue to remain there. She had met with several refusals of her applications for a Netherlands residence permit but had nevertheless opted each time to file a fresh request, thus accepting the risk that, at some point in time, she would have to leave the Netherlands, at least, temporarily. The Minister further considered that the applicant had been born and raised in Suriname where she had resided most of her life and, given her age, she should be regarded as capable of returning to and fending for herself in Suriname, if need be with financial and/or material support from the Netherlands, pending the determination of an application for a provisional residence visa to be filed by her in Suriname. The Minister concluded on this point that the case disclosed no circumstances warranting a finding that the decision not to exempt the applicant from the visa requirement constituted exceptional hardship within the meaning of section 3.71 § 4 of the Aliens Decree 2000. 31. On 17 May 2010, the applicant filed an objection against this decision with the Minister. She filed additional grounds for her objection and furnished further information by letters of 20 and 25 May and 8 June 2010. 32. On 2 July 2010, the applicant requested the Regional Court of The Hague to issue a provisional measure (injunction on expulsion pending the outcome of the objection proceedings). 33. On 3 August 2010, following a court hearing held on 28 July 2010 and having regard to pending proceedings taken by the applicant seeking deferral of her removal under section 64 of the Aliens Act 2000 (see paragraph 53 below), the provisional-measures judge of the Regional Court of The Hague sitting in Amsterdam rejected the request for a provisional measure on the basis that it was moot. 34. On 19 December 2011 the Minister rejected the applicant’s objection of 17 May 2010. An appeal by the applicant against that decision was rejected on 17 July 2012 by the Regional Court of The Hague sitting in Dordrecht. In so far as relevant, its judgment reads: “2.4.1. It must be examined whether the defendant could have refused to exempt the appellant from the obligation to hold a provisional residence visa, as required under section 3.71 § 1 of the Aliens Decree 2000, on the ground that removal is not contrary to Article 8 of the Convention. 2.4.2. It is not in dispute between the parties that there is family life between the appellant and her husband and their three minor children. Refusing the application [for a residence permit] does not constitute interference within the meaning of Article 8 § 2 of the Convention. No residence permit which actually enabled the appellant to enjoy family life in the Netherlands has been taken away from her. The subsequent question arises whether there exist such facts and circumstances that the right to respect for family life may be said to entail a positive obligation for the defendant to allow the applicant to reside [in the Netherlands]. In making this assessment, a ‘fair balance’ must be found between, on the one hand, the interests of the alien concerned in enjoying family life in the Netherlands and, on the other, the general interest of the Netherlands State in pursuing a restrictive immigration policy. In this balancing exercise, the defendant has a certain margin of appreciation. 2.4.3. It was reasonable for the defendant to attach more weight to the general interest of the Netherlands State than to the personal interests of the appellant and her family members. The defendant did not have to accept an obligation to grant the appellant residence in the Netherlands on the basis of Article 8 of the Convention. In this balancing exercise, the defendant was entitled to weigh heavily to the appellant’s disadvantage the fact that she had started family life in the Netherlands when she had not been granted a residence permit for this purpose, and that she had further intensified her family life despite the refusal of her requests for residence. This is not altered by the fact that for a certain period the appellant was lawfully resident while awaiting the outcome of proceedings concerning a request for a residence permit. 2.4.4. The defendant was entitled to take the position that the consequences of the appellant’s choices were at her own risk. According to the case-law of the European Court of Human Rights (Rodrigues da Silva and Hoogkamer v. the Netherlands [no. 50435/99, ECHR 2006I]), where family life has started while no residence permit for that purpose has been granted, removal will lead to a violation of Article 8 only in the most exceptional circumstances. The appellant has not established that, as regards her and her family, there are such exceptional circumstances. Her reliance on the judgments in Rodrigues da Silva and Hoogkamer and Nunez v. Norway (no. 55597/09, 28 June 2011) fails, as her situation is not comparable to the one in the cases of Rodrigues da Silva and Nunez. In those cases it was established that the children could not follow their mother to the country of origin. With the removal of the mother, contact with the children would become impossible. However, in the appellant’s case, it has not become sufficiently apparent that her husband and children could not follow her to her country of origin to continue family life there. The appellant has insufficiently demonstrated that her family members will encounter difficulties in entering Suriname. The consequence of her husband’s inclusion on a blacklist is that airlines can refuse to allow him on direct flights from the Netherlands to the Netherlands Antilles, Aruba, Suriname and Venezuela during the period between 2 August 2009 and 2 August 2012. This does not mean that it is self-evident that the husband will not be admitted to Suriname. The appellant has not established that it would be impossible for her husband to travel to Suriname in another manner. In addition, it is important to note that registration on the blacklist is only of a temporary nature. 2.4.5. No other circumstances have appeared on the basis of which the existence of an objective obstacle to continued family life in Suriname must be accepted. There is also no question of excessive formalism. The appellant’s situation is not comparable to the one in the case of Rodrigues da Silva. The defendant has taken the interests of the minor children sufficiently into account in the balancing exercise. The children were all born in the Netherlands and hold Netherlands nationality. At the time the impugned decision was taken, they were respectively eleven, six and one year old. The children have always lived in the Netherlands. Although the oldest child has built up bonds with the Netherlands, the defendant did not have to accept this as a basis for holding that the children could not take root in Suriname. In this connection it is also relevant that Dutch is spoken in Suriname and that both parents hail from Suriname. 2.4.6. This is not altered by the fact that the appellant’s husband and children hold Netherlands nationality and, on the basis of Article 20 of the Treaty on the Functioning of the European Union (hereinafter ‘TFEU’), can derive rights from their EU citizenship. It can be deduced from the considerations of the Court of Justice of the European Union (hereinafter ‘ECJ’) in the Dereci et al. judgment of 15 November 2011 (C-256/11), in which a further explanation is given of the Ruiz Zambrano judgment of 8 March 2011 (C-34/09), that in answering the question whether a citizen of the EU who enjoys family life with a third-country national will be denied the right to reside in EU territory flowing directly from Article 20 of the TFEU, only a limited importance is given to the right to respect for family life. As follows from paragraphs 68 and 69 of the Dereci judgment, this right is not, as such, protected by Article 20 of the TFEU but by other international, EU and domestic rules and regulations, such as Article 8 of the Convention, Article 7 of the Charter of Fundamental Rights of the European Union, EU Directives and section 15 of the Aliens Act 2000. In answering this question the desire of family members to reside as a nuclear family unit in the Netherlands or the European Union is, inter alia, also of limited importance. 2.4.7. The situation of an EU citizen being denied the right to reside in EU territory arises only when the EU citizen is so dependent on the third-country national that, as a consequence of the decision by the defendant, he has no other choice than to stay with that national outside EU territory. In the appellant’s case, that has not occurred. The appellant’s children can be cared for by their father. The father also has Netherlands nationality. The appellant’s husband and children are not obliged or actually compelled to go with her to Suriname in connection with the application for a provisional residence visa. Their rights as EU citizens are thus not breached. 2.4.8. It was reasonable for the defendant to take the view that there was no appearance of very special individual circumstances leading to undue hardship. The proceedings concerning the appellant’s previous requests for a residence permit and the course of events during her placement in aliens’ detention for removal purposes cannot be regarded as such. The lawfulness of the decisions taken in those proceedings cannot be examined in the present appeal proceedings. The appellant has further not substantiated her claim that, when she submitted her first request for a residence permit, she complied with all the requirements and that she should then have been granted a residence permit. ...” The Regional Court went on to find that the applicant had not substantiated her alleged medical problems or why these problems should lead to exempting her from the obligation to hold a provisional residence visa. The court further found that the applicant had not demonstrated her claim that, apart from the requirement to hold a provisional residence visa, she met all requirements for the issuance of a residence permit. 35. On 14 August 2012, the applicant filed a further appeal with the Administrative Jurisdiction Division. No further information about the proceedings on this latest request for a residence permit has been submitted by the parties. 36. On 5 January 2007, the aliens’ police ordered the applicant to report to them on 10 January 2007 so that she could be served with notice to leave the country within two weeks. This order was withdrawn owing to the applicant’s third request for a residence permit filed on 23 January 2007 (see paragraph 19 above). 37. On 26 February 2010, the applicant’s lawyer was informed by the aliens’ police that – as the applicant’s appeal against the judgment of 8 December 2009 (see paragraphs 23 and 25 above) did not have suspensive effect – they would proceed with the applicant’s removal. 38. On 10 April 2010, having failed to respond to a summons of 4 March 2010 to report to the aliens’ police, the applicant was placed in aliens’ detention (vreemdelingenbewaring) for removal purposes in accordance with section 59 § 1 (a) of the Aliens Act 2000. She was taken to the Zeist detention centre where she was found to be pregnant, her due date being 14 December 2010. 39. The applicant’s three successive release requests were rejected by the Regional Court of The Hague sitting in Rotterdam on 27 April, 1 June and 8 July 2010, respectively. In each decision, the Regional Court found that there were sufficient prospects of expulsion within a reasonable time frame and that the Netherlands authorities were pursuing the applicant’s removal with sufficient diligence. In its rulings, the Regional Court also rejected the applicant’s arguments that her pregnancy rendered her detention contrary to Article 3 and that, against that background, her conditions of detention were incompatible with that provision. In this context, in a letter of 29 June 2010 and addressed to the applicant’s lawyer who submitted it in the proceedings to the Regional Court, the Netherlands section of Amnesty International expressed its concern about the applicant’s placement in aliens’ detention. Although aware that the applicant had failed to respect the duty to report imposed on her, Amnesty International considered that a less severe measure than deprivation of liberty would be appropriate in the particular circumstances of the applicant’s case. 40. In the course of her placement in aliens’ detention, the applicant, on 28 June, 15 July and 3 August 2010, also filed complaints about her conditions of detention with the competent Supervisory Board (Commissie van Toezicht) of the two detention centres where she was held. These complaints were decided in two decisions given on 12 and 29 November 2010, respectively. Apart from the applicant’s complaint of 28 June 2010 that she had been required to wear restraints during transports to hospital, which was accepted as well-founded in the decision of 29 November 2010, the applicant’s complaints were dismissed. On 6 June 2011 the Appeals Board (beroepscommissie) of the Council for the Administration of Criminal Justice and Juvenile Protection (Raad voor Strafrechtstoepassing en Jeugdbescherming) gave final decisions on the applicant’s appeals against the decisions of 12 and 29 November 2010. It held that the use of restraints for pregnant women was impermissible. It also held that the applicant had received too little supplementary nutrition upon arrival at the Rotterdam detention centre. These complaints were considered by the Court in its decision on admissibility of 4 December 2012 (see paragraph 4 above) and were declared inadmissible for the reasons set out therein. 41. The applicant was released from aliens’ detention on 5 August 2010 and her third child was born on 28 November 2010. 42. On 25 September 2012, the Consulate General of Suriname in Amsterdam issued a Surinamese passport to the applicant, which is valid until 25 September 2017. | 1 |
test | 001-177219 | ENG | RUS | COMMITTEE | 2,017 | CASE OF EILDERS AND OTHERS v. RUSSIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 5. The first applicant was born in 1971 and lives in Leverkusen, Germany. She is the daughter of the second and third applicants who were born in 1943 and 1942 respectively and lived in Tambov, Russia. The second applicant Ms Galina Zabelina died in 2013. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 25 April 2007 Mr P.Z., the brother of the first applicant and the son of the second and third applicants, was charged with large-scale fraud; his name was placed on the list of fugitives from justice. He was accused of embezzling the assets of the companies under his management. The wronged companies filed a claim for compensation in respect of pecuniary damage. 8. On 12 May 2007 a senior operational officer from the Federal Security Service sent a letter to the investigator in charge of P.Z.’s case to inform him that “according to the available information, the real estate property owned by [the first applicant] (four flats) and by [the second applicant] (one flat) had been purchased at the expense of their close relative P.Z.” 9. On 22 May 2007 the investigator asked the Basmannyy District Court in Moscow to authorise attachment of the applicants’ property, including three flats owned by the first applicant, a flat owned by the second applicant, and a car owned by the third applicant. He referred to undisclosed sources allegedly confirming that all that property had been purchased by P.Z. 10. On 24 May 2007 the District Court issued the requested writs of attachment. It observed that, “according to the information from the investigation”, P.Z. had used the stolen money to purchase the property which he had registered in the name of his family members. It considered therefore necessary to attach the property which the District Court described as being owned by P.Z. The District Court explained that the application for writs was to be granted because “it [had been] lodged in the framework of a criminal case by the competent official and with the prosecutor’s approval, it [was] well-reasoned and [complied] with the requirements of the Code of Criminal Procedure”. 11. The applicants filed an appeal. They produced evidence showing that they had paid for the impugned property out of their pocket and that the link to P.Z. was the investigator’s conjecture without basis in fact. They were not defendants in any criminal proceedings or respondents in any civil claim and there were no legal grounds for attaching their property. 12. On 13 August 2007 the Moscow City Court rejected their appeals, stating that the District Court had “carefully reviewed the materials enclosed with the investigator’s request and reached the justified conclusion that there were sufficient grounds for seizing” the listed property. 13. The attachment of the applicants’ property has remained in place to date. | 1 |
test | 001-144361 | ENG | DEU | CHAMBER | 2,014 | CASE OF I.S. v. GERMANY | 3 | Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life) | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 5. The applicant, Ms I. S., was born in 1962 and lives in Bielefeld. 6. The applicant married in 1986 and had two children. In 1991 and 1992 she suffered miscarriages and a stillbirth, which caused her a long lasting psychological trauma. 7. In summer 1999 she became pregnant with twins after an extramarital affair. The natural father insisted on an abortion, as did the husband of the applicant. Both men threatened to leave her. 8. In November 1999 the husband of the applicant moved out and threatened to stop paying maintenance for his two sons and to the applicant. He put further pressure on her by threatening to break off all contact with his sons if she sued for maintenance. Instead, he offered to move back in with the applicant if she gave away the “illegitimate” children. The applicant’s sister and her mother refused to support her. The applicant felt extremely guilty for having destroyed the family situation for her two sons, yet she was determined not to have an abortion. 9. On 19 April 2000 the twin sisters, S. and M., were born prematurely. The applicant and the newborn children had to remain in hospital, where until 7 May 2000 the applicant cared for the children. The applicant did not specify the identity of the natural father of the twins. 10. The applicant made initial contact with the Bielefeld Youth Office during her pregnancy. She allegedly initially thought about having the twins placed in foster care, due to her difficult family and financial situation. The Bielefeld Youth Office – according to the applicant – instead suggested adoption as the applicant herself or her husband would have to pay for the foster care. 11. From January until October 2000 the applicant received psychological treatment on the advice of her gynaecologist. According to her psychoanalyst the applicant was depressed, had suicidal tendencies, and suffered from anxiety, panic attacks and extreme feelings of guilt as well as a sleeping disorder. The applicant felt overwhelmed by the situation and the decisions to be taken. The potential adoption was a topic of discussion during the treatment. 12. As the applicant could not take the newborn children home she consented to having them placed in provisional care with a view to later adoption. In this way she hoped to avoid too many changes of the children’s primary carers. She was allegedly told that if placed in foster care the newborns would first be given to an emergency foster family for six months before being handed over to a long-term foster family. 13. From 8 May 2000 onwards a staff member from the Bielefeld Youth Office advised the applicant to stop visiting the children if she really intended to give them up for adoption. 14. On 19 May 2000 the children were handed over to the couple who later became their adoptive parents. 15. In summer 2000 the applicant personally met the future adoptive parents of the twin sisters. The applicant was allegedly so upset that she burst into tears and had to cut the visit short. 16. On 1 September 2000 it was legally acknowledged that the husband of the applicant was not the father of the twin sisters by judgment of the Bielefeld District Court (no. 34 F 1306/00). The applicant began to work full time in order to support herself and her two sons. 17. On 9 November 2000 the applicant formally consented to the adoption of the children in a deed before the civil law notary, D.R., in Bielefeld. The declaration reads as follows: “I hereby give consent for my children, S. and M., born 19.04.2000 in Bielefeld, to be adopted by the married couple identified under no. [...] on the list of the Bielefeld City Youth Office. I declare this for the use of the competent family court. I am aware that this declaration cannot be revoked. I have been instructed by the civil law notary as to the legal consequences of the adoption, in particular the fact that all kinship of the children and their children to me and my relatives will cease as will all duties and rights that follow from kinship. Although I do not know the names of the future parents of my children I trust that the Bielefeld City Youth Office has made a proper choice regarding the parents and respected the interests of the children. In case the family court wishes to inform me about the beginning or the end of care, the beginning or the end of guardianship regarding my children or about the granting of adoption, I hereby empower the Bielefeld City Youth Office to receive that information for me.” 18. As the identity of the natural father of the children remained unknown, he could not consent to or object to the adoption. 19. After the declaration of consent had been made, the applicant, the prospective adoptive parents and the twin infants met again in person. On 25 November 2000 an oral agreement was reached between the prospective adoptive parents and the applicant at a meeting at Stormarn District Social Services in the presence of a staff member. It was considered that the adoptive parents would send a short report together with photographs of the children to the applicant once a year through the Bielefeld Youth Office. Whether this agreement laid down any rules regarding regular meetings between the children and the applicant is disputed. A personal meeting in summer 2001 was considered, but did not take place. 20. On 1 February 2001 the future adoptive parents declared in a deed before a civil law notary that they wished to adopt the twin sisters S. and M. 21. In March 2001 the District Administrator (Landrat) of Stormarn District, Department of Social Services and Adoption gave an expert opinion on the development of the children in the care of the prospective adoptive parents. 22. On 21 June 2001 the guardianship division of the Reinbek District Court (proceedings no. 2 XVI 1/01) held a hearing with the prospective adoptive parents in the presence of the twins. The record of the hearing reads: “It was debated how the children have been getting on in the family. Particular attention was paid to addressing anxieties resulting from the fact that the natural mother is obviously having enormous difficulties coping on a psychological level with the fact that she has given away her children. There are signs, given that a half-open adoption was agreed on, which lead to the conclusion that the mother seeks contact with the twins. However, the arrangement involving the staff of the Youth Office and the natural mother remains valid, namely, that photographs of the children are to be sent annually to the natural mother. The children will also be told early on that they were adopted.” 23. On the same day the Reinbek District Court concluded the adoption of S. and M. and declared them the legitimate children of the adoptive parents. The family and the given names of the children were changed accordingly. 24. On 11 April 2002 the applicant commenced proceedings before the Bielefeld District Court in order to declare her consent to the adoption void. The court transferred the case to the competent Reinbek District Court (no. 2 XVI 6/02). The applicant argued that the adoption was void because the father of the child had not consented to the adoption. She further argued that at the time of giving her consent she had been either in a temporary or in a pathological state of mental disturbance, which had prevented the free exercise of her will. She had not been aware of what she had been doing. She argued – referring to medical evidence – that she had been suffering from an “aggravated reactive form of depression with acute risk of suicide” since 1992, when she had been traumatised by the stillbirth. 25. The guardian ad litem of the children argued that a revocation of the adoption would be against the best interests of the children, as since their birth they had been almost continuously in the care of the adoptive parents who had established a very good parental relationship with them. 26. In reaction to the arguments of the guardian ad litem the applicant partly withdrew her application with regard to custody rights and made clear that her aim was no longer to integrate the children into her own family. She acknowledged that the children were well cared for and fully settled in the adoptive family. She underlined that her aim was to regain kinship in order to have a right to contact with the children. In her view her vulnerable situation at the time of the birth had been exploited by the Bielefeld Youth Office; she now felt that she had been unduly influenced to put the children up for adoption. 27. The Reinbek District Court procured a psychiatric opinion on whether the applicant had been temporarily legally incapable of acting at the time of consenting to the adoption. The expert contacted the applicant, her psychoanalyst at the time and her long-term gynaecologist. According to the psychiatric expert the applicant had been in a situation of extreme conflict from the time she had become aware of her pregnancy. This had aggravated the depression she was already suffering from due to the accidental stillbirth in 1992. He put the applicant’s decision to put the twin sisters up for adoption down to her desire to “get her husband back”. He diagnosed a certain weakness in the applicant’s personality and a dependency on male authority. However, he could not diagnose any past or present psychotic illnesses and therefore concluded that although she had been suffering from a deep inner conflict at the time of consenting to the adoption, the applicant had been legally capable of making a decision on her own. 28. On 4 June 2003 the court heard the applicant, who explained how, in her view, the Bielefeld Youth Office had unduly used her wish to see her children in the summer of 2000 in order to pressurise her into signing the adoption declaration. 29. In a decision of 10 June 2003 the Reinbek District Court dismissed the applicant’s claim. It acknowledged the situation of extreme conflict the applicant had been in at the time of consenting to the adoption and the psychological implications of that. It stated that solutions other than putting the children up for adoption might have been available to resolve the applicant’s personal crisis. In line with the expert opinion, however, the court held that the applicant had still been capable of making decisions. Furthermore, the court stated that the applicant had no legal standing to rely on the lack of consent of the children’s father to the adoption. 30. Since the applicant did not appeal against the decision, it became final. 31. On 14 November 2002 the applicant filed proceedings (no. 1 F 32/02) for contact with the children and the right to receive information about them at the Reinbek District Court. She argued that she had been promised meetings with the children every six months and letters and photos of them. A meeting with the children in June 2001 had been scheduled according to the agreement, but did not take place because the responsible member of Bielefeld Youth Office was on extended leave. No other member of the Youth Office had replaced the absent staff member. In September 2001 the applicant received photos of the children. When she mentioned that she was thinking about revoking her consent to the adoption, staff of the Bielefeld Youth Office threatened to stop her contact with the children. A letter that the applicant wrote to the adoptive parents and handed over to the Bielefeld Youth Office was returned with the remark that the applicant should seek psychological treatment. The applicant based her claim for contact on Article 1666 and additionally on Article 1685 § 2 of the Civil Code (see “Relevant domestic law” below). Her claim for the right to receive information about the children was based on Article 1686 of the Civil Code. 32. On 2 July 2003 the adoptive parents were heard. They opposed the claim of the applicant and asked for it to be dismissed. They referred to the legal basis of adoption under the Civil Code, which only provided for anonymous adoption. According to the hearing record the adoptive parents declared that they still intended to inform the children about the adoption before they started primary school. They had planned to see the mother of the children together with the children in spring 2001. This meeting had been set up for the sole benefit of the applicant, as the children would not have benefited from it. They had had the intention of sending letters to the applicant with information about the children. Now, in view of the court proceedings, they felt insecure and preferred to wait for the court decisions. 33. In a decision of 21 July 2003 the Reinbek District Court dismissed the applicant’s request for contact with the children. According to the court Article 1684 of the Civil Code was not applicable to the applicant’s case as she had lost her legal status as a parent as a result of the adoption. An analogous application of the Article was, according to a decision of the Federal Constitutional Court of 9 April 2003 (no. 1 BvR 1493/96), not possible. Article 1685 of the Civil Code was applicable, but would not grant contact rights to the applicant as she did not fulfil the legal requirements. The applicant could not be considered as a person who had cared for the children for an extended period of time. In fact, she had only cared for them for two weeks. Even if the criteria of the Federal Constitutional Court in the above-mentioned decision – whether there was a social and family relationship – were applied, the applicant could not be granted contact, as she had not created a significant social and family relationship with the children. The time of pregnancy and the two weeks after the birth did not suffice. The Civil Code grants to the adoptive parents the sole right to establish, grant or deny contact with the children even in respect of the natural mother. Furthermore, the court argued that the children, who were only three years old, might be overwhelmed by the fact that they had two mothers. 34. On 28 July 2003 the court also dismissed the applicant’s claim in regard to the right to receive information about the children. Article 1686 of the Civil Code was not applicable, as the applicant was not a parent any more. Insofar as Article 1686 might be construed more widely, it would not apply to the applicant as her case did not fall under the scope of Article 1685 of the Civil Code. 35. On 11 August 2003 the applicant filed an appeal with the Schleswig Court of Appeal. She mainly complained that the Reinbek District Court had neither decided on Article 1666 of the Civil Code as a potential basis of her claim nor on whether a contractual agreement existed; furthermore, her petition for an expert opinion on the children’s best interests had been ignored. She further argued that the criteria of a “long duration”, when applied to parent-child relationships, had to be interpreted from the perspective of the child, whose concept of time differed from that of adults. The natural mother was always a “relevant person” in the sense of Article 1685 of the Civil Code, and this evaluation did not change even after the natural mother ceased to have legal responsibilities. Regarding the right to information, she argued that although she had consented to the adoption, she remained the natural mother and the constitutional protection of the family applied to her. Even the Federal Constitutional Court had acknowledged that during pregnancy a psycho-social relationship between mother and the foetus was established (judgment of 29 January 2003 – 1 BvL 20/99 and 1 BvR 933/01). Lastly, she complained about the length of the proceedings. 36. On 22 October 2003 the applicant was granted legal aid. 37. On 30 January 2004 the Schleswig Court of Appeal (10 UF 199/03 and 10 UF 222/03) dismissed the applicant’s appeal against the decisions of the Reinbek District Court of 21 and 28 July 2003. Two hearings, one on 15 December 2003 and the other on 30 January 2004, had taken place. Regarding the length of the proceedings before the district court, the Schleswig Court of Appeal found that that court had dealt adequately with the complex case within seven and a half months. Concerning the contact rights of the applicant, the court found that only Article 1685 Civil Code was applicable. Although the applicant was the children’s natural mother, she did not belong to the circle of people who had lived in “domestic community” with the child for a long period of time. According to the court, only foster parents are covered by this terminology. Furthermore, in order to determine “a long period of time” one had to establish whether a child had come to accept that his or her “relevant surroundings” (Bezugswelt) were with the individual in question. In the present case, the time of pregnancy was irrelevant, as an unborn child does not have a concept of its surroundings. Article 1685 Civil Code was in line with the constitutional protection of the family. The natural mother ceased to have contact or custody rights at the moment of adoption. The legal provisions regarding adoption were aimed at the undisturbed development of the child, and they served the best interests of the adopted child, who had to be fully integrated into the adoptive family; the biological family became irrelevant in accordance with the law. Even if the criteria of the judgment of the Federal Constitutional Court of 9 April 2003 regarding the natural father of a child born out of wedlock were applied, the natural mother would have to have lived with the children for a considerable time, which was not the case here. As the applicant knew, the right to contact on the basis of a contractual agreement could not be enforced by the family courts, as they were not empowered to regulate such matters. Article 1666 of the Civil Code did not give grounds for a different solution. 38. Having considered the claim for the right to receive information about the children under Article 1686 of the Civil Code, the court found that the applicant had ceased to be a parent at the moment of adoption. As the legal basis was unambiguous and the circle of people who had a right to such information was strictly limited to the parents, the court found no room for a different interpretation. 39. On 8 March 2004 the applicant raised a constitutional complaint regarding the denial of her rights to receive information about and have contact with the twin sisters after their adoption. 40. In a decision of 13 December 2007, served on the applicant’s representative on 19 December 2007, a panel of three constitutional judges refused to admit the constitutional complaint. 41. The applicant also commenced proceedings in June 2003 concerning the appointment of a guardian ad litem for the twin sisters, in order for the children to be able to raise a constitutional complaint against the adoption decision of the guardianship division of the Reinbek District Court of 21 June 2001 (no. 2 XVI 1/01). These proceedings are the issue of another complaint before this Court (application no. 30296/08). 42. The applicant divorced her husband and is now remarried. She had a child with her new husband in 2003. 43. By letter of 16 December 2011 this Court informed the applicant that on 3 December 2011 the Law on a remedy against lengthy court proceedings and criminal investigations (Federal Law Gazette Part I, 2011, page 2302 et seq.) had come into force in the Federal Republic of Germany. | 0 |
test | 001-184654 | ENG | MKD | CHAMBER | 2,018 | CASE OF MAKRADULI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo | 6. The applicant was born in 1965 and lives in Skopje. At the time of the events he was vice-president of the SDSM opposition party and a member of parliament. The present applications concern criminal libel proceedings brought against the applicant by Mr S.M., who at the time was a senior member of the then ruling political party and at the same time head of the Security and Counter Intelligence Agency (“the Agency”). According to the Internal Affairs Act (sections 24 and 25), the head of the Agency is appointed by the Government and is accountable to it and the competent Minister. The impugned proceedings concerned statements made by the applicant at press conferences held at his political party’s headquarters. 7. On 14 December 2007 the applicant held a press conference that was broadcast by the main news programme of the A1 television channel, which had national coverage and was the most popular channel at the time. The relevant part of the applicant’s statement at the press conference reads as follows: “In the year and a half he has formally been head of the Security and Counter Intelligence Agency and practically the head of the police, has M. (the plaintiff’s surname), abused his powers in order to influence the Macedonian Stock Exchange and have timely information to enable him to obtain a profit? Is there any truth in the rumours (гласини), which have become stronger, that police wiretapping equipment is being misused for trading on the Stock Exchange? ...” 8. The applicant submitted a transcript of the broadcast, which was also viewed at the trial (see paragraph 11 below). Besides the information described above, the transcript included a journalist suggesting that the applicant’s political party had asked the head of the Public Revenue Office whether Mr S.M. had paid taxes on his property, which had been assessed as being worth several million euros (EUR). The same programme also gave Mr S.M.’s reply, denying the allegations and stating that the money in question had been transferred to the respondent State from a foreign bank account. The transcript of the broadcast was published on the channel’s website on the same day under the headline: “SDSM: M. has wrongfully used wiretapping equipment”. 9. The applicant submitted articles published over the following days on the channel’s website, which described the subsequent exchange of comments and replies between the applicant and his political party, on the one hand, and various State institutions on the other. The articles stated that the applicant’s political party had asked the relevant institutions to investigate the origin of Mr S.M.’s assets and that the Ministry of the Interior had requested that it submit any evidence in support of its allegations. 10. On 1 February 2008 Mr S.M. brought private criminal proceedings accusing the applicant for libel, which was punishable at the time under Article 172 § 1 of the Criminal Code. He claimed that the applicant’s statement at the press conference (see paragraph 7 above) had contained defamatory allegations about him. The applicant did not submit any comments in reply. 11. The Skopje Court of First Instance (“the trial court”) scheduled twelve hearings. The applicant, who was legally represented, did not personally attend any of the scheduled hearings. Several hearings were adjourned owing to the applicant’s work in Parliament. At the trial, the court heard Mr S.M. and was provided with audio-and video-recordings of the programme on A1. The relevant part of the transcript of the hearing of 24 March 2009, when the court examined that material, reads as follows: “... The court views ... the video and audio-recording of the news programme broadcast on A1 television on 14 December 2007 on which ... there is a photo of the plaintiff S.M. and the voice of a journalist who states the following: ‘The (SDSM) ask(s) whether the head of the (Agency), S.M., earned hundreds of thousands of euros by misusing police wiretapping equipment for trading on the Stock Exchange. Their suspicions are based on a declaration of assets (анкетен лист), which S.M. submitted half a year ago, in which he specified that he possessed shares valued at EUR 300,000. SDSM ask(s) whether M. obtained any of that property during the nine months he has been in office, without submitting a declaration, and whether that was the reason for his failing to submit the declaration within the first nine months of his mandate’ The recording continues with a photograph of [the applicant] at a stand in front of the SDMS logo and states that [statement described in paragraph 7 above] ... The video material continues with a commentary by the journalist stating that: ‘S.M. replied to the allegations by SDSM by saying that the money in question was linked to a lawful business which he had abroad’ and the tape continues with the plaintiff’s statement ...” 12. The defence did not submit any evidence (including the evidence described in paragraphs 8 and 9 above). In the concluding remarks, the applicant’s lawyer stated that the applicant had made the impugned statement in an interrogatory form and as the vice-president of an opposition political party, which had the role of expressing concerns about and assessing the work of State officials. 13. On 3 November 2009 the trial court, sitting as a single-judge (Judge V.M.), found the applicant guilty of defamation and fined him EUR 1,500 with seventy-five days’ imprisonment in default. It also ordered him to pay court fees of EUR 30 and a further EUR 230 to cover Mr S.M.’s costs. The court further ruled that the operative part of the judgment should be published at the applicant’s expense via A1 television’s news programme. The relevant parts of the judgment read as follows: “... The accused is the vice-president of SDSM ... ... [the applicant] said [the words described in paragraph 7 above] from a podium which had the SDMS logo behind it ... ... a statement ... must contain certain facts and ... be false ... The fact of that which ... is expressed or disseminated being false constitutes the core of the criminal offence of libel. Consequently, a victim is not required to prove that a defamatory statement is false, rather the accused is obliged to prove (the veracity of) what was said ... ... based on the audio and video material to hand the court finds that [the applicant] made statements about [Mr S.M.] in a form capable of persuading an ordinary viewer ... that they are truthful ... ... the court does not deny that questions can be put to and answers sought from State officials ... It is true that every person, including a member of a political party, as is [the applicant], has the right to put questions of public interest, to criticise the work of the Government and to express concerns about someone who holds the highest office in the executive. This makes the victim a ‘legitimate target’ of constructive criticism and public debate, but not of statements and assertions that had no factual basis, as in the present case. ... the court cannot accept, as contrary to the evidence, [the applicant’s] defence that the allegations were made in an interrogatory form (in an attempt) to obtain an answer from the victim as a State official. (Given) the manner in which the applicant expressed his allegations and other circumstances, the court has found that the [applicant’s] allegations are false and (represent) an assertion made in an interrogatory form, which have had a considerable effect on the claimant’s reputation and dignity. The defence cannot rely on Article 176 of the Criminal Code and (claim) that the (impugned) expression should have been examined in the context of the position he held, namely vice-president of an opposition political party. Such a status does not entitle him to express or disseminate untruthful allegations which are detrimental to the reputation and dignity of a third party. ... the court considers that the fact that [the applicant] has already been convicted by a final judgment of the same offence is an aggravating factor ...” 14. On 11 May 2010 the Skopje Court of Appeal, sitting as a three-judge panel composed of Judges M.S., L.I.Sh. and S.K., upheld the trial court’s judgment, finding no grounds to depart from the established facts and the reasoning. 15. Based on legislative amendments of November 2012, on 12 February 2013 (see paragraph 36 below) the trial court stayed the execution (се запира постапката за извршување на санкција) of the sanction (a fine) imposed on the applicant. 16. The applicant paid Mr S.M.’s costs for the criminal proceedings. He did not pay the court fees and did not publish the trial court’s judgment via A1, which ceased to exist in 2011. 17. The applicant lodged a constitutional appeal with the Constitutional Court in which he complained that his conviction had violated his right to freedom of expression. He reiterated his arguments that he had been punished for a question that he had raised at a press conference that had been held on behalf of his political party. The question had been addressed to the public and had been based on information submitted to his political party about suspected irregularities in the work of a State official. The aim had been to stimulate public debate on whether the official had been diligent in performing his official duty. 18. By a decision of 23 February 2011 (served on the applicant on 30 March 2011), the Constitutional Court by a majority dismissed the applicant’s appeal. It noted that he had not attended any of the scheduled hearings and held that freedom of expression was not absolute and could be restricted in accordance with the law. In that connection, it referred to Article 172 of the Criminal Code, which punished the dissemination of untrue information that could affect the reputation and dignity of a third party. The court further held that: “The way in which [the applicant] expressed his opinion (мислење) in public concerning the performance of public duties by a public official (in an interrogatory form, as a member of an opposition political party, from a political party’s podium (говорница), the consequences of his public action ...), without trying to prove the veracity of his question or statement, taken as a whole, represents an action which only appears to fall within the ambit of the freedom of conviction, conscience, thought and public expression of thought, but in substance it affects the reputation and dignity of the citizen who holds that public office at the time and violates those values. Accordingly, the statement lost the attributes of the freedom (of thought and public expression of thought) and (represents) an abuse of (that freedom).” 19. In comments submitted in reply to the Government’s observations (November 2015), the applicant informed the Court that Mr S.M. had brought civil proceedings against him after his conviction, seeking compensation for non-pecuniary damage. The claim was examined at three levels of jurisdiction. By a final judgment of 9 April 2014 the applicant was ordered to pay 550,000 Macedonian denars (MKD) plus interest in respect of non-pecuniary damage and MKD 46,180 for the trial costs incurred by Mr S.M. in the compensation proceedings. 20. On 9 September 2007 the applicant held a press conference at SDSM’s offices regarding the public sale of State-owned building land in the central area of Skopje, where the construction of a hotel was planned. It was broadcast on local television news. According to a transcript of the entire press conference (evidence not submitted to the criminal courts), the applicant presented the events involved and information obtained from the State authorities regarding the sale in question. He further detailed the conclusions of research done by his political party, showing that the company that had been selected was incorporated in the respondent State at the same address as O. Holding (a local company) and was partly owned by a company which had business ties with O. Holding. In that connection, he alleged that a deal had been done so that “the land would be given to people who had close family or party ties” with the Prime Minister. As described in the trial court’s judgment (see below), the applicant stated that: “The attractive location behind the ‘Ramstor’ shopping mall planned for the construction of a hotel was granted to a company supported (зад која стои) by O. Holding ... After the revelation of this megascandal, the biggest dilemma is whether the Academy Award for the most corrupt politician should be given to the Prime Minister or his cousins? To those who created or to those who carried out the deal?” 21. By a press release of the same date (9 September 2007) sent “in relation to the press conference held by the political party SDSM and with a view to provide the public with objective and correct information” the Ministry of Transport and Communication informed the media about the procedure and the selected company. 22. In reply to a request for information, SDSM notified the public prosecutor on 1 October 2007 about the company that had been selected (it was registered at the same address as O. Holding and its manager was a former O. Holding employee), alleging that it had not met the requirements of the sale. It further requested that the public prosecutor investigate whether the transaction had been in conformity with the Anti-Corruption Act. 23. On 19 September 2007 Mr S.M. brought private criminal charges, accusing the applicant of making (see paragraph 20 above) defamatory allegations about him. He denied ever having had any connection, private or professional, with the public sale of the land. He had also not signed the sale contract with the company that had been chosen. The applicant did not submit any comments in reply. 24. The trial court scheduled seventeen hearings. The applicant was represented by a lawyer, but did not attend any of the scheduled hearings in person. Some of the scheduled hearings were adjourned because the court bailiff was unable to serve summonses on the applicant. At the trial, the court heard Mr S.M. and viewed audio and video material of television coverage of the applicant’s statement. The defence did not submit any evidence, not even the information submitted to the public prosecutor (see paragraph 22 above). 25. On 23 February 2011, after one remittal, the trial court, sitting as a single-judge (Judge D.G.I.), convicted the applicant of defamation. It fined him EUR 1,000 with one hundred days’ imprisonment in default, ordered him to pay a court fee of EUR 30 and a further EUR 375 to cover Mr S.M.’s trial costs. Relying on the latter’s testimony, the court held that the applicant’s allegations had concerned Mr S.M., regardless of the fact that he had not been identified by name. That was because the applicant had previously given false statements about Mr S.M. and had often referred to him as “the Prime Minister’s cousin”. Mr S.M. admitted that he had had contact with the managers of O. Holding, although that had been as friends. He had had no cooperation with them in business terms or been involved in any way in the construction of the hotel. 26. The relevant parts of the trial court’s judgment read as follows: “... the court considers ... that [the applicant’s] [statement described in paragraph 20 above] could have a considerable effect on the complainant’s reputation and dignity ... since he is the holder of a public office and (such) statements are disseminated quickly and aggressively in public. That the complainant was not identified by his full name by the [applicant] is irrelevant since the relevant circumstances clearly and unequivocally suggest that the matter concerned [Mr S.M.]. Furthermore, the news presenter identified the complainant by his surname. ... The [applicant’s] assertion, (which he made) as vice-president of a political party, contained untrue allegations about the complainant susceptible of violating his honour and reputation ... [The statement in question] was not substantiated with any evidence because the private complainant, as head of the Agency, does not have the competence to participate in the public sale of State-owned land and the accused did not present any evidence that [Mr S.M.] was privately involved in the sale transaction in question ...” 27. On 18 May 2011 a three-judge panel (Judges Z.N., L.I.Sh. and G.S.) of the Skopje Court of Appeal dismissed an appeal by the applicant in which he had complained, inter alia, that the complainant had not been identified in his statement, which had been made in an interrogatory form and in a political context and, accordingly, not punishable, as specified in Article 176 of the Criminal Code (see paragraph 34 below). The court upheld the trial court’s judgment, finding that the applicant had made a false assertion (тврдење со невистина содржина) about the complainant. It continued: “It is a statutory presumption that a statement of fact harmful to the honour and reputation of a third party is untrue. The burden of proof therefore rests with the accused to prove that the assertion is true. Accordingly, [the applicant] was required to prove that his statement was true, which is not the case ... The contents of the statement, the time, place and way in which it was given imply that it was serious and that it could objectively create a perception in the minds of third parties about certain facts. This court finds [the statement] defamatory since the factual assertion contained therein was able objectively to affect the reputation and dignity of the private complainant.” 28. On 12 February 2013 the trial court stayed the execution of the fine it had imposed (see paragraph 36 below). The applicant paid the court fees and the trial costs incurred by Mr S.M., who did not claim compensation for damage in respect of this criminal conviction for defamation. 29. The applicant lodged a constitutional appeal with the Constitutional Court in which he claimed that as a representative of a political party he had been required to bring to light information that had been brought to his attention. He had not made a factual statement but had raised a question regarding allegations of corruption. 30. By a decision of 12 September 2012 (served on the applicant on 1 October 2012) the Constitutional Court unanimously dismissed the applicant’s constitutional appeal for protection of the right to freedom of expression. The court held that: “In the concrete case, the court ... punished [the applicant] ... as a necessary measure for the protection of the reputation, dignity and authority of another person. That was because [the applicant], by relying on freedom of public expression, interfered with the protected right of another person, namely Mr S.M ... [The applicant] is a member of parliament and vice-President of the SDSM and he made the statement in SDSM’s headquarters (if the statement had been given in Parliament, he would have enjoyed immunity and private charges would not have been possible). Although freedom of expression is important for all, it is particularly important for representatives of the people ... Therefore, interference with a Member of Parliament’s freedom of expression calls for the closest scrutiny by the court. Analysis must be made ... of whether (the applicant’s) conviction and sanction represent a justified restriction of his rights and freedoms ... namely whether the courts struck a fair balance between the need to protect the reputation and dignity of the victim and [the applicant’s] freedom of public expression. The freedom of political debate is not of an absolute nature ... the court notes that the impugned statement concerns the public sale of State-owned building land ... and should be considered in the context of a debate concerning an issue of public interest, which in particular was of prime political interest ... The court considers that the veracity of the statement ... was of primary importance for the courts. Those courts ... established that [the applicant’s] statement was not true or that there was no evidence to prove the contrary. ... the court has the right and duty to assess whether the courts enabled [the applicant] to prove the veracity of (his) statement. In this connection the court finds that [the applicant] was able, during the entire proceedings, to present evidence as to the veracity of his statement. In the absence of proof to confirm the veracity (of the statement) or the existence of a strong basis for it to be regarded as truthful, the court must accept the courts’ findings that the statement was false. Despite the fact that the statement is part of a public debate, the question is whether (it) ... had any impact or was relevant for the public as a contribution to a better understanding of the issue subject to public debate ... The way in which the (applicant) expressed his opinion (мислење) in public concerning the performance of a public office by a public official (in an interrogatory form, as a member of an opposition party, from the podium (говорница) of the political party, the consequences of his public action ...) without trying to prove the veracity of his question or statement, taken as a whole, represents an action which only appears to fall within the ambit of the freedom of conviction, conscience, thought and public expression of thought, but in substance it affects the reputation and dignity of the citizen who holds the public office at the time and violates those values. Accordingly, the statement lost the attributes of the freedom (of thought and public expression of thought) and (represents) an abuse of (that freedom).” 31. By a judgment of 20 May 2008 the trial court, sitting as a singlejudge (Judge D.G.I.), had found the applicant guilty of making defamatory allegations about the then Minister for Transportation and Communications regarding the public sale of the same State-owned land subject to application no. 24133/13 above. The applicant was convicted and fined EUR 1,000 for the following statement, which was made at a press conference on 12 September 2007 at the offices of his political party: “... by selling land to a company that does not fulfil the (statutory) conditions, Minister J. obviously committed a criminal offence-abuse of office. We therefore expect that the public prosecutor will immediately lodge an indictment”. 32. As explained in the judgment, the court established that when the applicant had made the statement, the procedure for the public sale of the land was still ongoing, namely the relevant standing committee within the Ministry had not yet submitted its proposal to the Minister about the best bidder. The Minister had then granted the land to the best bidder in December 2007. Furthermore, several institutions, which had reviewed the work of the committee, had not found any irregularities. The court did not accept the applicant’s defence (he did not attend any of the scheduled hearings) that his statement had been an expression of a reasonable suspicion about the public sale of the land. The court refused the following defence applications: to examine a member of the standing committee; to admit committee minutes in evidence regarding the public sale; and to hear information from the public prosecutor about the committee’s work. It held that the proposed evidence concerned the committee’s work which was not the subject of the proceedings. A three-judge panel of the Skopje Court of Appeal (Judges M.S., L.I.Sh. and V.Dz.) upheld the lower court’s judgment. Both courts considered that the applicant had made the statement in his own name and not on behalf of his political party. | 1 |
test | 001-141626 | ENG | RUS | CHAMBER | 2,014 | CASE OF STAROKADOMSKIY v. RUSSIA (No. 2) | 3 | Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award | Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicant was born in 1971 and lives in Moscow. 6. On 31 January 1998 the applicant was arrested on suspicion of murder. On 6 February 1998 he was charged with aggravated murder. Subsequently, the applicant and a number of other individuals (see Salmanov v. Russia, no. 3522/04, 31 July 2008) were accused of other violent crimes. The proceedings in relation to all these offences were joined into one case, which was investigated by a group of investigators from the Moscow prosecutor’s office. The investigation was completed in December 1998. 7. The applicant studied the case file in June and July 1999 and requested a trial by a jury. 8. On 19 July 1999 the Moscow city prosecutor approved the indictment and the case was submitted to the City Court for trial. The applicant was committed to stand trial on charges relating to a number of offences including conspiracy to commit murder. Fifteen other co-defendants were committed to stand trial on similar charges. 9. On 5 August 1999 the City Court noted that the majority of the defendants had opted to exercise their constitutional right to a trial by jury. However, as there were no juries in the City Court, it decided to send an inquiry to the Supreme Court of the Russian Federation as to where the case should be tried. The Supreme Court referred the case to the Moscow Regional Court, where juries were available. 10. On an unspecified date a judge of the Regional Court sent a request to the Constitutional Court of the Russian Federation, inviting it to rule on the compatibility of the Supreme Court’s interpretation of the jurisdictional rules with the Russian Constitution. On 17 February 2000 she suspended the proceedings pending a decision by the Constitutional Court and held that the defendants were to remain in custody because of the dangerousness of the criminal offences they had been charged with, which were classified as serious or particularly serious. 11. On 13 April 2000 the Constitutional Court issued a decision to the effect that the decision on the change of venue had been incompatible with the Russian Constitution. 12. In accordance with that ruling, on 14 June 2000 the Regional Court returned the case file to the Supreme Court, which decided on 6 September 2000 that the City Court was competent to try the case. 13. On 29 September 2000 the City Court scheduled the first hearing for 13 October 2000 before a bench consisting of a professional judge and two lay judges, but it was adjourned on the day because the presiding judge was sitting in another case. 14. In 2001 and 2002 the presiding judge was replaced by other judges of the City Court. The lay judges were replaced several times. 15. On 24 December 2001 the applicant asked the judge for additional time to study the case file. His request was left without reply. 16. Numerous hearings were scheduled between 2001 and early 2003. They were adjourned for various reasons, mainly because the prosecutor, interpreter and some of the defence lawyers failed to appear, but also because the presiding judge was involved in other proceedings in May and October 2001 and May, September and October 2002. 17. It appears that consideration of the merits began in March 2003, but hearings scheduled for 4 March and 29 April 2003 were again adjourned, inter alia, because several of the lawyers failed to appear. 18. On 12 March 2003 the trial judge ordered that the applicant be removed from the courtroom “until the closure of the oral pleadings” for contempt of court during the reading out of the indictment. He was kept away from the hearings that followed on 17 to 19, 24 and 25 March 2003. 19. The applicant was taken to a hearing on 9 April 2003, where he asked to be provided with a list of people to be called as witnesses at the trial. His request was left without reply. 20. Hearings scheduled for 26 January and 2 February 2004 were also adjourned. From February 2004 onwards the trial hearings were held in remand centre no. 77/1, where the applicant was being detained. On 11 and 16 February 2004 the trial judge refused to deal with a request from the applicant to be given reasons for the change of venue and a copy of the relevant court order. 21. On 10 March 2004 the trial judge ordered bailiffs to summons the absent witnesses and victims to a hearing scheduled for 16 March 2004, but not all of them were summonsed. On a number of occasions between March and July 2004 the judge reiterated his request. 22. On 1 July 2004 the trial bench (presiding judge M. and lay judges O. and L.) extended the defendants’ detention until 1 October 2004. 23. On 12 August 2004 the court closed the trial and started deliberations. 24. In October 2004 the governor of remand centre no. 77/1 wrote to the Moscow City Court on several occasions to say that the detention order in respect of the applicant had expired on 1 October 2004, and that a new detention order was required without delay. 25. On 18 October 2004 the City Court replied that since the trial bench was deliberating, it could not issue decisions concerning the detention of any of the defendants, including the applicant. 26. On 27 October 2004 the trial bench found the applicant guilty of a number of offences including conspiracy to commit murder, and sentenced him to ten and a half years’ imprisonment. The court held that the time he had spent in detention since 31 January 1998 should be counted towards his sentence. 27. On 10 November 2004 the court concluded its delivery of the judgment. It appears from its operative part of the judgment (dated 27 October 2004) that the trial bench decided to keep the applicant in detention as a preventive measure until the conviction became final and enforceable. 28. The applicant and the other defendants lodged an appeal. On 15 November 2005 the Supreme Court upheld the conviction, but reduced the applicant’s sentence to ten years’ imprisonment. 29. The applicant instituted proceedings under Article 125 of the Code of Criminal Procedure (“the CCrP”), alleging inaction on the part of the governor of the remand centre in failing to release him on 1 October 2004. On 17 January 2005 the Preobrazhenskiy District Court of Moscow dismissed the complaint, holding that the inaction in question could not be made the subject of proceedings under Article 125 of the CCrP. On 5 April 2005 the Moscow City Court set aside that decision and ordered a re-examination of the case, holding that a complaint in respect of a governor of a remand centre could not be processed under Article 125 of the CCrP. 30. According to the Government, on 14 October 2005 the authorities dismissed the applicant’s complaint and refused to initiate criminal proceedings against the governor of the remand centre for lack of corpus delicti. 31. In the meantime, in separate proceedings under Article 125 of the CCrP, the applicant argued that the prosecutor responsible for supervising detention facilities had acted unlawfully by failing to deal with the complaint concerning his detention after 1 October 2004. By a judgment of 4 February 2005 the Zamoskvoretskiy District Court of Moscow dismissed his case. On 7 April 2005 the City Court upheld that judgment. 32. Subsequently, the applicant brought civil proceedings against the remand centre, arguing that its governor had failed to release him on 1 October 2004. By that time, the most recent detention order had expired and thus between 1 October 2004 and the trial judgment there had been no valid order authorising his continued detention pending trial. By a judgment of 12 July 2005, the Preobrazhenskiy District Court of Moscow rejected his claim. On 24 November 2005 the Moscow City Court upheld that judgment. 33. During a trial the court is empowered to order, vary or cancel a preventive measure in respect of the defendant (Article 255 § 1 of the CCrP). In particular, “the court dealing with the case” is empowered to order extensions of the defendant’s detention (Article 255 § 3). If after the trial judge has started deliberations in the criminal case the term of detention meanwhile expires, it is not against the requirements of the CCrP for another judge of the same court to order an extension of the detention (Appeal Section of the Supreme Court of Russia decision nos. 47-O09-13 of 16 March 2009 and 44-O09-90 of 14 January 2010). 34. Deliberations take place in the deliberations room (Article 298 § 1), where the trial bench reaches its judgment and decides on the preventive measure (Article 299 § 1). After signing the judgment, the trial bench returns to the courtroom so that the presiding judge can deliver the judgment (Article 310 § 1). If only the introductory and operative parts of the judgment are read out, the court should explain the procedure for becoming acquainted with its full terms (Article 310 § 2). 35. Section 50 of the Custody Act (Federal Law no. 103-FZ of 15 July 1995) required at the relevant time that the governor of a detention facility should release a detainee upon receipt of an order to this effect. The governor should notify the authority in charge of the case that the authorised period of detention expires within twenty-four hours. If no extension order is received by the time the authorised period of detention expires, the governor must release the detainee. 36. Article 241 of the CCrP provides that criminal cases should be heard in public. A court may issue an order for a hearing in camera (i) if a public hearing could result in the disclosure of State secrets or other sensitive data; (ii) in cases concerning defendants under sixteen years of age; (iii) if a public hearing could result in the disclosure of information relating to the private life of the trial participants; or (iv) to guarantee the safety of the trial participants or their next of kin. | 1 |
test | 001-166947 | ENG | ROU | COMMITTEE | 2,016 | CASE OF DRAGOMIR AND OTHERS v. ROMANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings. In some of the applications, the applicants also raised complaints under other provisions of the Convention. | 1 |
test | 001-152887 | ENG | HUN | COMMITTEE | 2,015 | CASE OF TÓTH v. HUNGARY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | András Sajó;Helen Keller;Robert Spano | 5. The applicant was born in 1951 and lives in Budakalász. 6. The applicant was employed with a State-owned gambling service provider for more than 20 years. 7. On 29 June 2010 the applicant’s employment was terminated by mutual agreement with effect from 30 June 2010. Under this agreement, the employer paid the applicant a gross amount of 21,573,086 Hungarian forints (HUF) (approximately 18,000 euros (EUR)), subject to payroll burdens. 8. Under new legislation (see paragraph 10 below) the severance payment was subsequently taxed at a 98% rate in its part exceeding HUF 3.5 million; the income tax and social security contributions already paid (see paragraph 7 above) were deducted from the tax payable. Thus, the applicant paid an additional HUF 10,756,341 (approximately EUR 34,000) in special tax on 3 May 2011. | 1 |
test | 001-173768 | ENG | ARM | CHAMBER | 2,017 | CASE OF AYVAZYAN v. ARMENIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No 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) | Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković | 5. The applicant was born in 1951 and lives in Rostov-on-Don, Russian Federation. She is the sister of Seyran Ayvazyan, who was born in 1961 and was killed by police officers on 6 March 2006. He had been suffering from a mental disorder (paranoid-type schizophrenia) and at the material time had been living alone in the village of Odzun, in the Lori Region of Armenia. 6. The circumstances of Seryan Ayvazyan’s fatal shooting, as established by the decision issued by the investigator on 3 October 2006 following the end of the investigation (see paragraph 30 below), are as follows. 7. On 6 March 2006 at around 11 a.m. Seyran Ayvazyan went to a local shop, where he took out a knife and, for no reason, stabbed H.Ch., a shop assistant, in the arm, and E.P., a customer entering the shop, in the cheek. He then went home. 8. Some time later, after a telephone call made from the Odzun Medical Centre to the police station of the nearby town of Tumanyan, four police officers, A.A., V.B., A.E. and M.V., arrived at Seyran Ayvazyan’s house. As they approached, Seyran Ayvazyan was in the garden and, having seen the police officers, ran towards the house. The police officers started chasing him. As Seyran Ayvazyan entered the house and was about to shut the door, police officer V.B. reached him and started to push the door open. At that moment Seyran Ayvazyan stabbed V.B. in the arm and cheek with the knife, through the half-open door, and managed to shut the door. V.B. was taken by car to hospital, while A.A. and A.E., who remained at the house, called Tumanyan police station and reported the incident. Then they tried to persuade Seyran Ayvazyan to come out, but the latter refused to do so, threatening to kill anybody who tried to approach the house and sharpening his knives in full view. They contacted one of Seyran Ayvazyan’s sisters, who lived in the same village, but she refused to come. Having received the call from A.A. and A.E, nine more police officers, including A.S., N.N., G.M., R.M., H.Gev., and H.Gri, led by Major A.B., the chief of Tumanyan police station, arrived at the house and surrounded it. The mayor of Odzun, an ambulance and the fire brigade were also called. Another attempt was made to have Seyran Ayvazyan’s relatives, who lived in the same village, come to the scene in order to persuade him to surrender, but they refused to come. Then for about five hours the police officers tried to persuade Seyran Ayvazyan to surrender, but he continued to display the same threatening behaviour as earlier. In the meantime, the police officers contacted the head of Vanadzor Psychiatric Hospital, who told them that it would only be possible to tranquillise Seyran Ayvazyan only in hospital. 9. At around 5 p.m. it was decided to neutralise and apprehend Seyran Ayvazyan by spraying him with water from the hose of a fire engine. After the fire hose had been turned on, six police officers, A.S., N.N., G.M., R.M., H.Gev. and A.A., upon an order from the chief of Tumanyan police station, pushed open the door and entered the house. H.Gev., who was the first to enter, held a small wooden table in front of him as a shield against a knife attack. After the police officers entered, they saw that the way from the corridor into the room had been barricaded with furniture. The police officers decided on the spot to leave the house and the entire group went out. Having seen that the police officers were leaving, Seyran Ayvazyan moved towards them with a knife in each hand, reached H.Gev. by the door to the porch, and stabbed him in the head with one of the knives. H.Gev. immediately fell as a result of the stabbing. As he was lying on the ground, Seyran Ayvazyan tried to stab him again, but at that moment another police officer, H.Gri., who was guarding the entrance, fired a warning shot in the air from his automatic rifle and, seeing that Seyran Ayvazyan was still trying to stab H.Gev., shot at Seyran Ayvazyan’s legs. At the same time, and independently of those actions, police officers A.S., A.A. and R.M., seeing that H.Gev. had fallen as a result of the assault and that Seyran Ayvazyan was trying to stab him again, started to shoot with their pistols at Seyran Ayvazyan’s legs. A.S. fired eight shots, while A.A. and R.M. fired three shots each. As a result of the shooting, Seyran Ayvazyan was wounded, fell and died. 10. During the subsequent on-site inspection, two knives were found in the porch, as well as a hand grenade and one more knife in the corridor. 11. During an inspection of Seyran Ayvazyan’s clothes, two more knives and a medical lancet were discovered. 12. As a result of being assaulted by Seyran Ayvazyan, civilians H.Ch. and E.P. and police officers V.B. and H.Gev. received injuries that were of minor or medium severity, but not life-threatening. 13. The applicant contested these facts and alleged that in reality Seyran Ayvazyan had not posed a threat to police officer H.Gev.’s life and that the police officers had simply executed him in retaliation for his having injured one of their colleagues. 14. On the date of the incident the Lori regional prosecutor’s office decided to institute criminal case no. 55200706 for attempted murder under Article 104, in conjunction with Article 34 of the Criminal Code (CC), on account of Seyran Ayvazyan’s actions, namely his armed assaults on civilians and police officers. 15. On the same date an inspection of the crime scene was conducted and a report produced, which included sketch maps. The house had two rooms, one behind the other, divided by a wall, with a passageway on the right. All along the front of the house there was a porch, which measured 3 by 1.8 metres. There were windows onto the porch on the left, and the main entrance was on the right, in front of the abovementioned passageway. The house also had windows on the right side. The sketch map also noted the positions of Seyran Ayvazyan and police officer H.Gev. at the time of the incident. Seyran Ayvazyan appears to have been on the porch just outside the main entrance and police officer H.Gev. appears to have been next to him. Police officers H.Gri. and R.M. were also on the porch to the left of the main entrance, while police officers A.S. and A.A. were outside the porch in front of the main entrance. 16. On 7 March 2006 an autopsy was conducted. According to the results, Seyran Ayvazyan had received wounds from ten bullets, nine of which had hit him in his calves and thighs and his left forearm and one of which had hit him in the chest. Six bullets had been shot at Seyran Ayvazyan from behind. The direct cause of Seyran Ayvazyan’s death had been severe internal bleeding resulting from a bullet wound to the chest, which had damaged the lower part of the heart and a lung. Death had occurred shortly after Seyran Ayvazyan being wounded. 17. On 11 April 2006 An.A., one of Seyran Ayvazyan’s four sisters, was granted victim status in the instituted criminal proceedings. This decision indicated that, as a result of a crime, physical damage, namely death, had been inflicted on Seyran Ayvazyan. 18. On 18 April 2006 a ballistic examination of cartridge cases and bullets retrieved after the incident was conducted. It was established that they had come from police ammunition. The weapons that had been used were three Makarov pistols and one Kalashnikov automatic rifle. 19. On 16 June 2006 a forensic examination concluded that the five knives and the medical lancet did not fall into the category of “bladed weapons”. All of the knives but one were homemade. 20. On 22 June 2006 a forensic examination report was released. According to the report, Seyran Ayvazyan’s clothes had been damaged by at least twelve bullets shot at close range. 21. On 10 August 2006 a medical expert produced his opinion regarding Seyran Ayvazyan’s mental health, according to which, Seyran Ayvazyan had suffered from a mental disorder – paranoid schizophrenia, and had received treatment for his condition in various mental health institutions since 1993. 22. The investigator took statements from five of the seven police officers involved in the arrest operation and the fatal shooting (A.S., H.Gev., H.Gri., N.N., A.A., G.M. and R.M.). Three of the four police officers who had fired shots, A.S., H.Gri. and A.A., were questioned on 6, 14 and 16 March 2006 respectively, while H.Gev. (who had been injured in the incident) and N.N. were questioned on 7 and 15 March 2006 respectively. The police officers were asked to provide an account of the incident. 23. Police officer A.S.’s account was as follows. Seyran Ayvazyan was in the second (rear) room when the six police officers entered the house. The door was barricaded with an armchair and a wardrobe. As they were entering, he proposed that Seyran Ayvazyan come out of the room but he held the knife as if he wanted to throw it and kept threatening to stab him. Realising that it was not possible to remove him from the room and that he could harm someone, A.S. told the other five police officers that they should all go outside and find another way to neutralise Seyran Ayvazyan. They left the house; the last one to leave was H.Gev., who was holding a table to protect himself in case a knife was thrown. A.S. went down from the porch and was already in the yard when those of his colleagues who had gathered there shouted “He has come out and attacked.” H.Gev. was holding a table, defending himself against Seyran Ayvazyan. A.S. ran towards them and saw Seyran Ayvazyan stab H.Gev. in the head, so he shot at Seyran Ayvazyan’s legs. Seyran Ayvazyan fell down and, while lying on the ground, he threw the same knife at H.Gev. Then he took out another knife and threw it at the police officers. A.S. fired again in his direction. Seyran Ayvazyan then took out a third knife, rolled over, while shouting, and tried to throw the knife in A.S.’s direction. A.S. fired again and Seyran Ayvazyan dropped the knife. The police officers approached and handcuffed him. 24. Police officer H.Gev.’s account was as follows. After the six police officers had entered the house, Seyran Ayvazyan threatened them and told them to leave. They left – that is to say he noticed that the others had already gone out. Realising that he was alone, he tried to leave the house while holding the table. He had not yet reached the door when suddenly Seyran Ayvazyan screamed and ran towards him with a knife in his hand. Seeing this, he tried to move faster towards the door. Seyran Ayvazyan reached him and stabbed him with the knife in the head. This happened in the doorway. Seyran Ayvazyan managed to stab him because he (that is to say Seyran Ayvazyan) was taller, although he (that is to say H.Gev) had managed to a certain extent to push Seyran Ayvazyan back with the table. He fell down on the porch. As he was lying on his side, facing the door and bleeding, he saw Seyran Ayvazyan trying to stab him a second time with the same knife, again in the head. Seyran Ayvazyan was still standing at a distance of one metre away while he (that is to say H.Gev) continued to use the table to defend himself. After Seyran Ayvazyan had tried to stab him for a second time, he heard a number of shots, but could not remember how many. He saw that the shots had hit Seyran Ayvazyan in the legs. Seyran Ayvazyan fell down, with his legs lying next to his own. Seyran Ayvazyan then took out another knife. Seyran Ayvazyan must have thrown the first knife either in his direction or in the direction of those who were behind him, but he could not tell how far away the knife had been thrown. Seyran Ayvazyan subsequently wanted to get up and stab him again, but then he heard other shots. Seyran Ayvazyan was screaming loudly, but while the shots were being fired the others dragged him away from Seyran Ayvazyan and transported him to the hospital. 25. Police officer H.Gri.’s account was as follows. Seyran Ayvazyan hid behind the wardrobe with a knife in his hand and made death threats when the six police officers tried to approach. At that time he was standing with his rifle next to the porch windows. Then he heard Seyran Ayvazyan screaming and saw the others come out of the house and Seyran Ayvazyan, with a knife in his hand, run towards and reach H.Gev. (who had been the last to leave) and stab him in the head. H.Gev. squatted and started bleeding. With the same knife Seyran Ayvazyan tried to stab H.Gev., who was at that time lying on the ground, one more time. He fired a warning shot in the air but seeing that Seyran Ayvazyan was trying to stab H.Gev. again he fired at Seyran Ayvazyan’s left leg, with the aim of neutralising him. Seyran Ayvazyan did not fall after his shot but stumbled back with a knife in his hand. One of the police officers at that moment managed to drag H.Gev. away from Seyran Ayvazyan, who then threw a knife at them and took out another knife to throw again. Seyran Ayvazyan was still standing. He heard a number of other shots but could not tell who had fired them, how many there had been and at which parts of Seyran Ayvazyan’s body the shots had been fired. He did not fire any other shots apart from the above-mentioned two. Then the other police officers managed to approach and disarm Seyran Ayvazyan, who was already on the ground. 26. Police officer N.N.’s account was as follows. Police officer H.Gev. was the first to enter the house, holding a table as a shield, since Seyran Ayvazyan was holding a knife by its blade and was threatening to throw it. He and the others following H.Gev. entered the first room. Seyran Ayvazyan retreated into the second room and barricaded the door with an armchair, which prevented them from entering the second room. Seyran Ayvazyan refused to give up and would not allow them to advance, threatening them with a knife. They were forced to leave the house. While they were still on the porch, he N.N. heard the others saying “He’s coming”. He turned around and saw that Seyran Ayvazyan, having left the house, in the doorway stabbed H.Gev. in the head with a knife. H.Gev. immediately started bleeding. He had tried to defend himself with a table, but Seyran Ayvazyan had managed to stretch his hand over it and stab H.Gev., who had fallen down. As far as N.N. could recall, Seyran Ayvazyan then fell; after falling he threw the knife at them. Then Seyran Ayvazyan took out another knife and wanted to stab H.Gev. again. At that moment N.N. heard shots but did not see who was firing. Then they managed to handcuff Seyran Ayvazyan. 27. Police officer A.A.’s account was as follows. Once the fire engine had started working, they broke down the door and entered the house. H.Gev. was the first to enter – or rather they all entered together, with a small table in front of them for protection. At that moment the fire engine was spraying water at Seyran Ayvazyan, who had barricaded himself in with a wardrobe and moved the wardrobe to protect himself from the water. Seyran Ayvazyan had also placed an armchair between the two rooms, so that they could not enter the second room. They tried to persuade him to throw down the knife, but he continued to threaten them. As Seyran Ayvazyan was not coming out and was refusing to calm down, A.A. received an order to leave the house in order that an alternative plan could be devised. As the six police officers were leaving, Seyran Ayvazyan unexpectedly ran towards them, screaming loudly. A.A. could not see whether Seyran Ayvazyan had a knife since he (that is to say A.A.) was facing the main entrance. He heard somebody outside say “Careful, he’s about to strike”. He then jumped out of the house and over the porch into the yard. Before rolling away, he heard two shots and saw H.Gev. lying in the porch on his back, facing the main entrance. Seyran Ayvazyan was squatting with a knife in his hand and was trying to stab H.Gev., who had already been injured. Thinking that the shots fired earlier had not touched Seyran Ayvazyan and that, if he did not shoot, Seyran Ayvazyan would strike again and kill H.Gev., he took out his weapon, took aim at Seyran Ayvazyan’s legs and fired three shots at them. While shooting, he heard other shots and saw Seyran Ayvazyan fall next to H.Gev. He then saw two knives in Seyran Ayvazyan’s hands. 28. The investigator posed between two to four questions to each of the police officers. A.S. was asked (a) whether it would have been possible to neutralise Seyran Ayvazyan without the use of firearms (answer: negative) and (b) how many firearms had been used for that purpose (three). H.Gev. was asked how much time had elapsed between their entering the house and the stabbing (three to four minutes). H.Gri. was asked who had been beside him at the time of the shooting (police officer A.S.) and how many knives Seyran Ayvazyan had had (at least three). N.N. and A.A. were asked whether they had received an order to shoot before they had entered the house (both: negative). A.A. was also asked (a) who had been beside him at the time of the shooting (he could not remember) and (b) to provide further details of the shooting incident. H.Gev., H.Gri., N.N. and A.A. were also asked whether they had noticed a grenade in Seyran Ayvazyan’s hands or whether he had made threats with a grenade (all four: negative). 29. Between 20 March and 30 July 2006 the investigator took statements from six other police officers who had been present at the scene. Police officers H.Grig. and L.K., who had witnessed the shooting incident, were asked to provide accounts. Police officer D.K. submitted, inter alia, that neighbours and other villagers had been present and had watched the entire incident; this was confirmed by H.Grig. Police officer S.A. submitted, inter alia, that there had been between ten and twenty police officers at the scene. All the above-mentioned police officers submitted that the fire brigade and an ambulance had been called to the scene. L.K. further submitted that he had seen another police officer, A.T., filming the incident but was not sure whether he had been filming during the shooting. A.T., when asked about the video, submitted that no material was available since he had been mistakenly filming without a tape in the camera, which he had discovered only later. 30. On 3 October 2006 an investigator of the Lori regional prosecutor’s office, decided to discontinue criminal case no. 55200706 in the light of the death of Seyran Ayvazyan. By the same decision the investigator refused to institute criminal proceedings against police officers A.S., A.A., R.M. and H.Gri. The wording of the decision first outlined the facts, as established by the investigation (see paragraphs 7-12 above), and concluded that the police officers had employed their service weapons in the light of the exigencies of the situation for the purpose of repelling a life-threatening attack on police officer H.Gev. Thus, their actions had been lawful, as they had been undertaken in compliance with the requirements of sections 32 § 2 and 33 of the Police Act. 31. On an unspecified date the applicant, together with An.A. and her two other sisters, lodged a complaint with the Lori regional prosecutor seeking to quash the part of the decision of 3 October 2006 relating to the refusal to institute criminal proceedings against the police officers. 32. On 16 November 2006 the Lori regional prosecutor informed them by letter that there were no legal grounds for quashing the decision of 3 October 2006 since it had been taken on the basis of an accurate 33. The applicant and her three sisters then lodged a similar complaint with the General Prosecutor’s Office of Armenia. 34. On 19 January 2007 the General Prosecutor’s Office informed them that there were no grounds for quashing the decision of 3 October 2006 since, following a thorough and objective investigation, the actions of the police officers had been determined to have been lawful. 35. On 27 June 2007 An.A. lodged a complaint in her capacity as a victim with the Lori Regional Court against the decision of 3 October 2006, seeking to have invalidated the part of the decision concerning the refusal to institute criminal proceedings against the police officers for killing her brother. In particular, she complained that, despite the fact that her brother had been deliberately killed by the police officers, no separate criminal proceedings had been instituted and no criminal investigation had been conducted into the fact of his killing. She also complained that the police officers had opened fire on Seyran Ayvazyan in a situation where there had been no threat to life or limb for any of them. As to the finding of a grenade in Seyran Ayvazyan’s house, An.A stated that this could not serve as justification for the police officers’ actions, since it had been discovered only after the fatal incident had taken place, and her brother had never threatened the policemen that he would use it. 36. On 29 June 2007 the Lori Regional Court admitted the complaint for examination as having been lodged in compliance with Articles 185 and 263 of the Code of Criminal Procedure (“the CCP”). 37. On 12 September 2007 the Lori Regional Court, relying on the facts, as established by the investigation, examined the complaint and decided to dismiss it, finding that the use of firearms by the police officers had been justified as they had opened fire to prevent, and protect themselves from, Seyran Ayvazyan’s unlawful violent actions. It concluded that the police officers had acted in necessary defence, as provided for by Article 42 of the CC, and also in compliance with sections 32 § 2 and 33 of the Police Act. The Regional Court moreover held that there was no need to institute separate criminal proceedings concerning Seyran Ayvazyan’s killing, since the investigation into that incident had been carried out within the framework of criminal proceedings instituted in relation to Seyran Ayvazyan’s unlawful actions. Separately, the Regional Court found that the complaint against the refusal to institute criminal proceedings had been lodged outside the one-month time-limit prescribed by Article 290 of the CCP. 38. On 27 September 2007 An.A. lodged an appeal against the decision of the Regional Court raising the same arguments as those contained in her original court complaint. She also alleged that she had lodged her complaint in compliance with the procedural rules since neither of the applicable Articles of the CCP, namely Articles 185 and 263 (as in force at the material time), had provided any time-limit for lodging a complaint. 39. On 23 October 2007 the Criminal Court of Appeal examined the merits of the appeal and dismissed it, upholding the findings of the Regional Court concerning the lawfulness of the police officers’ actions. It then also examined the question of the compliance of An.A.’s court complaint with the procedural rules and found that it had not been lodged in compliance with Article 290 of the CCP. 40. On 1 February 2008 An.A. lodged an appeal on points of law against the decision of the Court of Appeal, raising the same arguments regarding both the admissibility and the merits of her court complaint. 41. On 4 March 2008 the Court of Cassation declared the appeal admissible. 42. On 23 May 2008 the Court of Cassation examined the appeal. Turning to the question of compliance with domestic time-limits, it found that the appeal procedure pursued by An.A. was indeed governed by Article 263 § 2, which at the material time had not prescribed any time-limits for contesting the prosecutor’s refusal before the courts. However, the onemonth time-limit prescribed by Article 290 was applicable to her case. The appeal had only been lodged on 27 June 2007 – namely outside that one-month timelimit. Thus, both the Regional Court and the Court of Appeal had exceeded their temporal jurisdiction by examining the merits of An.A.’s complaint. This in itself was sufficient grounds for rejecting the appeal; however, the Court of Cassation found it necessary – taking into account the fact that (a) both courts had examined the merits of the case and had reached findings on the merits, and (b) it was called upon to ensure uniform application of the law – to express a number of legal positions on the matter, which could provide guidance to lower courts in similar cases. 43. The Court of Cassation first examined the question of whether any criminal proceedings had been instituted and any investigation carried out into the killing of Seyran Ayvazyan. Referring to Articles 27 § 1, 175 and 182 §§ 1 and 2 of the CCP, the Court of Cassation concluded that it was impossible to answer that question unequivocally. In particular, a number of factors suggested that criminal case no. 55200706 had been instituted on account of the acts committed by Seyran Ayvazyan rather than his killing. Firstly, the proceedings had been instituted only under Article 104 § 2 (1), in conjunction with Article 34 of the CC (namely in respect of attempted murder of two or more persons) and therefore could not legally be characterised as applying to his killing. Secondly, the wording of the decision to discontinue the proceedings also contained a refusal to institute criminal proceedings against the police officers implicated in his shooting, which confirmed that no criminal proceedings had been instituted on account of that incident. 44. On the other hand, a number of factors suggested that the proceedings instituted had also been based on the fact that he had been killed, and an investigation had been carried out in that connection. Thus, the descriptive part of the wording of the decision to institute proceedings had mentioned the fact that Seyran Ayvazyan had been taken to hospital and had died. Furthermore, Seyran Ayvazyan’s sister, An.A., had been granted victim status in the criminal case by decision of the investigator, moreover, that decision had stated that Seyran Ayvazyan had been deprived of his life “as a result of a crime”. Lastly, certain investigative measures taken in the course of the criminal proceedings had been aimed at obtaining evidence concerning the circumstances of Seyran Ayvazyan’s death, including the inspections of the crime scene, of Seyran Ayvazyan’s body and of his clothes, the autopsy, the forensic examination of his clothes and the interviews with the police officers who had shot at Seyran Ayvazyan or witnessed the shootings. This suggested that some investigation into his death had nevertheless been carried out. Having reached this conclusion, the Court of Cassation decided in any event to examine the question of whether the investigation had been adequate. 45. The Court of Cassation firstly noted that there had been no eyewitnesses to the shooting, other than the police officers. However, not all the police officers who had witnessed the shooting had been questioned. In particular, two of the six officers who had been present at the time of the shooting, namely G.M. and R.M, had not been questioned. Thus, the investigating authority had failed to secure all the evidence relating to the incident. As regards those officers who had been questioned, H.Gri. had been questioned eight days, N.N. nine days and A.A. ten days after the incident. No measures had been taken in the meantime to isolate them from each other. While there was no evidence to suggest that the police officers had colluded with each other, the fact that no steps had been taken to minimise such risk constituted a significant shortcoming in the investigation. Furthermore, no adequate assessment had been made of the direction of the bullets fired at Seyran Ayvazyan. In particular, no reasonable explanation had been determined by the investigation for the fact that six bullets had been fired at Seyran Ayvazyan from behind. 46. On the basis of those findings, the Court of Cassation concluded that the investigation into the killing of Seyran Ayvazyan had not been adequate. Nevertheless, the Court of Cassation decided to dismiss the appeal on points of law on the ground that neither the Lori Regional Court nor the Criminal Court of Appeal had had temporal competence to examine the complaint against the decision of 3 October 2006. 47. On an unspecified date Seyran Ayvazyan’s sister, An.A., died. | 1 |
test | 001-160623 | ENG | AUT | CHAMBER | 2,016 | CASE OF ÄRZTEKAMMER FÜR WIEN AND DORNER v. AUSTRIA | 3 | Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The first applicant organisation is the Vienna Chamber of Medical Doctors (Ärztekammer für Wien). The Chamber represents all medical practitioners in Vienna and also has its own website. The second applicant was the Chamber’s president at the time of the events. 6. On 18 January 2007 the second applicant published a letter on the first applicant organisation’s website, which was addressed to all members of the Chamber in Vienna and was also sent out to all of them via e-mail. The letter was titled “Locust funds want to take over medical practices” (“Heuschreckenfonds wollen Ordinationen übernehmen”). The second applicant went on to state that he had been forced to write to his colleagues for a serious reason, namely, because it had been reported in the media that the F. company planned to go into “the radiology business”. He added that share-bidding companies planned to offer medical services – initially in the area of radiology, but soon enough in other areas of the profession as well and that doctors risked becoming mere employees of such “locust” companies. If they would not act according to the companies’ wishes, they would be dismissed. The second applicant then explained the assumed legal and organisational basis of such a plan: radiology services which were currently being provided by medical practices could, in future, also be offered by limited companies. Shares of those companies could then be bought by the F. company, and the “locusts” would reach their goal, namely control of the medical profession. Giving an example of a risky development, the second applicant stated that in the last 20 years, colleagues had founded laboratories which had reciprocal agreements with certain health insurance boards. Today, almost all of those laboratories were owned by the F. group, which, in turn, was owned by insurance companies, investment funds and foundations, and which employed a large number of doctors. The second applicant ended his letter by stating that he could guarantee one thing: that the doctors’ professional representative body would make use of all legal and political means available to stop such a disastrous development from going ahead, to prevent that the quality of medical treatment being determined by “managers and controllers” and to ensure, inter alia, that existing medical practices were protected from the competition from “international locust funds” (“internationale Heuschreckenfonds”). 7. On 24 January 2007 the F. company lodged an action against the two applicants and an application for an injunction with the Vienna Commercial Court (Handelsgericht Wien). The applicants contested the application. 8. On 16 February 2007 the Vienna Commercial Court issued an injunction prohibiting the applicants (each of them individually) from repeating the statement that the F. company was ruthless towards third parties, in particular medical professionals. The injunction prevented the applicants from referring to the F. company as a “locust”, “locust company” or “locust fund”. The applicants were further prohibited from stating that the provision of services by the F. company, particularly services in the area of radiology, was a disastrous development. The court found that there was a competitive relationship between the F. company and the applicants, and found the statements made by the applicants to be defamatory under Article 1330 of the Civil Code and unethical under the Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb). 9. The applicants appealed against the injunction. On 30 October 2007 the Vienna Court of Appeal (Oberlandesgericht Wien) partly granted the appeal, and prohibited the applicants from alleging that the F. company was ruthless towards third parties and medical practitioners, and from calling it, inter alia, a “locust company”. However, it dismissed the F. company’s application to prohibit the applicants from calling its provision of services a “disastrous” development. The Court of Appeal found that the first applicant organisation had locus standi in the injunction proceedings. The Chamber of Medical Doctors held official authority status in relation to certain areas of its work (Bereich der Hoheitsverwaltung), in addition to representing the interests of its members; it was therefore considered a legal entity under the Official Liability Act (Amtshaftungsgesetz). However, when acting as a special interest group, it represented its members’ interests from a mainly economic perspective, rather than acting in its capacity as an official authority. According to the Court of Appeal, the letter in issue pursued the interests of the Chamber’s members, outside the Chamber’s official sphere of activity. 10. The Court of Appeal further established, referring inter alia to Wikipedia, that the term “locust company“ (“Heuschreckenunternehmen“) was introduced into the political discussion in German speaking countries in 2005 by Mr Franz Müntefering, a German politician, and is ever since used in political debates as a pejorative term for private-equity companies or other forms of capital funds with short-term or exaggerated return expectations – like hedge funds or „vulture“ funds, which also had negative connotations. The domestic court found that there was a need to balance the interests involved in the present debate, reiterating that extreme opinions were only unlawful if they were excessive. As a result of that balancing exercise, the Court of Appeal found that the “locust” statement had to be considered a lawful criticism in the context of a public debate, and that the F. company could therefore not base its claim on Article 1330 of the Civil Code. However, the Court of Appeal classified the applicants’ actions as competitive in nature. Statements of fact made in violation of the Unfair Competition Act could not be justified by the right to freedom of expression. The Court of Appeal found that Austrian law provided wideranging protection for commercial and economic interests. Those who published an opinion in an economically competitive context were obliged to exercise a higher level of diligence with regard to the facts and bases of their allegations than those who acted in the non-competitive context of a public debate of general interest. Therefore, the Court of Appeal upheld the injunction decision with regard to the statements about the “locust company”. 11. However, as regards the further statement, namely that provision of certain services by the F. company was a “disastrous development”, the Court of Appeal found that, read in context, the statement indicated a general assessment and did not refer to a particular service of the F. company. It was therefore to be considered a personal opinion, and thus a value judgment that was not defamatory under Article 1330 of the Civil Code. It also did not fall under section 7 of the Unfair Competition Act. 12. The applicants lodged an extraordinary appeal with the Supreme Court (Oberster Gerichtshof). On 22 January 2008 the Supreme Court dismissed the extraordinary appeal. It acknowledged the applicants’ argument that where a competitor, even for economic purposes, took part in a debate of public interest, freedom of expression had to hold more weight in the balancing test. However, the Supreme Court observed that the applicants had made their statement in the clearly economic context of competition between medical practitioners and companies which provided the same services. The applicants could have warned their members of the possible risks of cooperating with companies without overstepping the margin of acceptable criticism. However, the applicants had exceeded that limit and stated that the F. company was a “locust”. That statement was one of fact, and the applicants had not provided evidence of a factual basis for their allegations, and had therefore exceeded the permissible limitations of freedom of expression. 13. On 7 July 2008 the Commercial Court gave its judgment in the substantive proceedings and ordered the applicants to refrain from: repeating the statement that the F. company was ruthless towards third parties, in particular medical practitioners and patients; and stating that the F. company was a “locust company”, a “locust fund” or a “locust”. It further ordered the applicants to publish and display the operative part of the judgment on the first applicant organisation’s website for thirty days, and to publish it in the first applicant organisation’s print newsletter. 14. The Commercial Court made substantial reference to the Court of Appeal’s reasoning in the interim injunction proceedings. It followed the previous finding that the relevant statements did not constitute defamation pursuant to Article 1330 of the Civil Code. Examining the statements in relation to the provisions of the Unfair Competition Act, the Commercial Court found that the letter had been written by the Chamber of Medical Doctors in a commercial and not a political context. It had also had the advancement of independent medical practices as an objective, and had contained a warning regarding capital ventures which allegedly threatened doctors’ independence. The Commercial Court found the relevant comparisons with “locusts” to be statements of fact regarding both the F. company and its conduct in relation to third parties, doctors and patients. The statements were also likely to damage the F. company’s commercial interests, and had not been proved to be true. 15. The used language could also not be justified with a reference to the right to freedom of expression as the statement was uttered within the framework of a commercial competitive relationship. With reference to the Court’s case-law allowing for a wider margin of appreciation under Article 10 of the Convention with regard to commercial language, the Commercial Court observed that a competitor was required to be more diligent in the context of commercial communication among competitors. The term “locust” was almost exclusively loaded with negative meaning, which led to the unethical general vilification of a competitor. The applicants were therefore prohibited from using that statement in relation to the F. company, pursuant to the Unfair Competition Act. 16. On 19 September 2008 the applicants lodged an appeal against that judgment. On 12 December 2008 the Vienna Court of Appeal dismissed the appeal as unfounded. It referred to the extensive reasoning given in the interim injunction proceedings and added that, according to the case-law of the Supreme Court, the test used to verify whether a statement was covered by the right to freedom of expression required the assessment of whether a factual basis for such a statement existed; if a competitor participated in a public debate of general interest, freedom of expression had more weight with regard to the assessment of the statement than in the context of purely commercial communication. The greater the public interest in being properly informed and the less the statement related to commercial interests, the more the statement would be protected by Article 10 of the Convention. In the present case, there was no doubt that there was an ongoing public debate; however, the commercial interests of the applicants had very much been in the foreground of the communicated statement itself. 17. The applicants lodged an extraordinary appeal on points of law against that judgment, which was rejected by the Supreme Court on 14 July 2009. The Supreme Court found that the applicants had not only called the F. company a “locust”, but had also reproached this company for negative conduct, such as dominating doctors, dismissing doctors who did not act in accordance with company wishes, and focusing on economic factors rather than the welfare of patients (“Herrschaft über den ärztlichen Berufstand, Kündigung nicht “spurender” Ärzte, Orientierung an ökonomischen Erwägungen und damit nicht am Wohl der Patienten”). Therefore, the expression used had turned into a statement of fact, giving the reader the impression that the F. company had already demonstrated unethical conduct which threatened upon by the lower courts was justified. Even though the applicants had taken part in a debate of general public interest, an untrue and damaging statement of fact was not protected by freedom of expression. Furthermore, the issuing of warnings concerning the potential risks of the provision of medical services by companies was not, as such, prohibited by the decisions of the Austrian courts; the applicants had only been required to refrain from making untrue statements of fact in respect of their competitors. 18. The decision of the Supreme Court was served on the applicants’ counsel on 27 August 2009. | 0 |
test | 001-177428 | ENG | RUS | COMMITTEE | 2,017 | CASE OF CHIBOTAR AND OTHERS v. RUSSIA | 4 | 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 - Prohibition of torture;Degrading treatment) | 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 under Article 3 of the Convention of the inadequate conditions of their detention. They also raised other complaints under the provisions of the Convention. | 1 |
test | 001-153782 | ENG | HRV | ADMISSIBILITY | 2,015 | ČOKO v. CROATIA | 4 | Inadmissible | Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 1. The applicant, Ms Nada Čoko, is a Croatian national, who was born in 1969 and lives in Šibenik. She was represented before the Court by Mr Ž. Čogelja and Ms D. Čogelja, advocates practising in Šibenik. 2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 4 June 1997 the applicant was dismissed from her employment at company B. 5. On 8 July 1997 she brought a civil action in the Šibenik Municipal Court (Općinski sud u Šibeniku), seeking to have the company’s decision to dismiss her reversed. Company B. had two representatives in the proceedings, Ms B. and Mr K. 6. By a judgment of 17 September 1997 (hereafter “the principal judgment”) the Šibenik Municipal Court ruled for the applicant and ordered her reinstatement. 7. By a judgment of 15 June 1998 the Šibenik County Court (Županijski sud u Šibeniku) dismissed an appeal by the defendant company and upheld the principal judgment. The applicant’s representative was served with a copy of the second-instance judgment of the Šibenik County Court on 5 February 1999. Mr K. was served with a copy of it on 17 March 1999 and Ms B. on 25 February 2000. 8. On 7 March 2000 the Šibenik Municipal Court stamped the applicant’s copy of the principal judgment with certificates of finality and enforceability. Those certificates indicated that the judgment had become (a) final on 15 June 1998 and (b) enforceable on 7 March 2000. 9. On 6 March 2002 the defendant company applied to the Šibenik Municipal Court seeking to have the certificate of the enforceability of the principal judgment set aside. In so doing it argued that the certificate wrongly indicated that the judgment in question had become enforceable on 7 March 2000 whereas it had actually become enforceable earlier. That error was due to the fact that the Municipal Court, when determining the date of enforceability, had mistakenly taken into account the date on which judgment had been served on Ms B. instead of the date on which it had been served on Mr K. 10. On 29 May 2006 the Šibenik Municipal Court set aside the certificate of enforceability of 7 March 2000. The Municipal Court held that, as the principal judgment had been served on Mr K. on 17 March 1999, it had therefore already become enforceable on 26 March 1999, after the eight-day grace period for voluntary compliance had expired (see paragraphs 23-25 below). The relevant part of the decision reads as follows: “The certificate of enforceability of the [principal] judgment of the Šibenik Municipal Court... is hereby set aside. ... The judgment... became final on 15 June 1998, the date of the judgment of the Šibenik County Court..., by which the defendant’s appeal was dismissed. The judgment of the Šibenik County Court... was served on one of two representatives of the defendant on 17 March 1999, meaning that the eight-day time-limit for voluntary compliance with the final judgment began on 18 March 1999, after the expiry of which the judgment became enforceable. The fact that the second-instance judgment was served on the second defendant’s representative on 25 February 2000 has no significance for the enforceability of [that] judgment... Since this court has linked the issuance of the certificate of enforceability to the date of service on the defendant’s second representative... without bearing in mind that the defendant was duly served through the first representative... the certificate of enforceability is hereby set aside.” 11. On 26 July 2006 the applicant appealed against that decision, arguing that since 5 February 1999, the date on which the principal judgment had been served on her, she had made daily enquires about the enforceability of the judgment with the Municipal Court’s Registry, but had only been able to obtain a certificate of enforceability on 7 March 2000. The applicant also argued that this date should not be changed, even if only the date on which the principal judgment was served on the first of the defendant’s two representatives was taken into account, as the time-limit had been properly calculated from the date on which the acknowledgement of acceptance of service had been returned to the Municipal Court. 12. On 16 April 2007 the Šibenik County Court dismissed the applicant’s appeal and upheld the first-instance decision. It held that the principal judgment had indeed been served on Mr K. on 17 March 1999 and had become enforceable eight days later. 13. On 18 July 2007 the applicant lodged a constitutional complaint arguing that the decisions of the Šibenik Municipal Court and the Šibenik County Court had deprived her of the ability to have the final judgment entitling her to reinstatement enforced, as they had retroactively created a situation in which her application for enforcement had been lodged outside of the thirty-day statutory time-limit provided in section 238 of the Enforcement Act (see paragraph 28 below). The applicant complained about the significant gap between the date when the defendant’s first representative Mr K. had signed the acknowledgement of acceptance of service and the date when he had returned it to the Šibenik Municipal Court. 14. On 29 November 2007 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible because the contested decisions were not susceptible to constitutional review as they could not be regarded as decisions referred to in section 62(1) of the Constitutional Court Act (see paragraph 21 below) against which a constitutional complaint could be lodged. 15. Meanwhile, on 7 March 2000 the applicant applied for enforcement of the principal judgment to the Šibenik Municipal Court. She also sought payment of salary arrears in the period between 1 June 1997 and 11 February 1998. 16. By a decision of 23 May 2000 the Šibenik Municipal Court issued a writ of execution (rješenje o ovrsi) ordering the defendant company to reinstate the applicant within eight days. It however dismissed her claim for salary arrears. 17. Both the applicant and the defendant company appealed against that decision. In its appeal, the defendant company claimed that the applicant had failed to comply with the thirty-day statutory time-limit for seeking the enforcement set forth in section 238 of the Enforcement Act (see paragraph 28 below) because she had been served with the second-instance judgment of 15 June 1998 already on 5 February 1999 but had applied for enforcement only on 7 March 2000 (see paragraphs 7-8 and 15 above). 18. On 22 October 2001 the Šibenik County Court dismissed the defendant company’s appeal. It found that the applicant had applied for the enforcement of the principal judgment on the same day that judgment had become enforceable and thus complied with the statutory time-limit provided in section 238 of the Enforcement Act (see paragraphs 8 and 15 above and paragraph 28 below). At the same time, the court allowed the applicant’s appeal and quashed the part of the first-instance decision dismissing the applicant’s claim for salary arrears and remitted the case. 19. In the resumed enforcement proceedings, the Šibenik Municipal Court held hearings on 6 March and 3 April 2002. These hearings were adjourned after the defendant company asked the court to wait for a decision on its application to have the certificate of enforceability of the principal judgment set aside (see paragraph 9 above). Another hearing was held on 7 May 2002. It was adjourned due to the possibility of the parties reaching an out-of-court settlement. At a hearing held on 3 April 2003 the court decided to forward the entire case file to its President with a view to deciding on the defendant company’s application to set aside the certificate of enforceability. 20. By a decision of 22 August 2007 the Šibenik Municipal Court, relying on section 67(1) of the Enforcement Act (see paragraph 27 below) discontinued the enforcement proceedings because a certificate of enforceability had in the meantime been set aside (see paragraphs 10 and 12 above). The applicant did not appeal against that decision. 21. The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/99 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (“constitutional right”)... 2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.” 22. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/1991 with subsequent amendments), which has been in force since 1 July 1977, provides as follows: Section 138 “If a party has several legal representatives or agents, it shall be sufficient to serve a decision on one of them.” Section 333(1) “A judgment which can no longer be contested by an appeal shall become final where it decides on the plaintiff’s claim or on a counter-claim.” Section 334(2) “A judgment shall not take effect in respect of the parties until the day it is served on them.” 23. Section 328 provides for a time-limit within which a judgment debtor can voluntarily comply with (execute) the judgment (paricijski rok – “the grace period”). The lodging of an appeal suspends the running of the grace period. The provision reads as follows: “When a judgment debtor has been ordered to do something by the judgment, the court shall set a time-limit for performance. Unless special legislation provides otherwise, the time-limit for performance shall be fifteen days. However, if the performance does not entail payment of money the court may set a longer time-limit. ... The time-limit for performance shall start running on the first day after the service of a copy of the judgment on the judgment debtor.” 24. Section 436 provides that in employment disputes the grace period is eight days. 25. The relevant part of the Enforcement Act of 1996 (Ovršni zakon, Official Gazette of the Republic of Croatia, no. 57/96 with subsequent amendments), which was in force between 11 August 1996 and 14 October 2012, at the material time provided as follows: Enforceability of a [court] decision Section 23(1) “A court decision ordering [the judgment debtor] to give or do something shall be enforceable if it has become final and if the time-limit for voluntary performance [that is, the grace period – paricijski rok] has expired. The time-limit for voluntary performance runs from the date the decision is served on the enforcement debtor [the judgment debtor], unless the law provides otherwise.” Certificate of enforceability Section 33(1) and (2) “(1) If an application for enforcement is lodged with a court which did not decide on the claim at first instance, the application must be accompanied by the original or a copy of the enforcement title having the certificate of enforceability ... (2) A certificate of enforceability shall be issued by the court or [other] authority which adjudicated on the claim at first instance.” (3) Any certificate of enforceability that was issued without the necessary statutory requirements shall be set aside by the court or [other] authority by a decision, upon request or of its own motion.” 26. Section 37(5), as in force at the material time, provided that the enforcement court was not entitled to dismiss of its own motion an application for enforcement based on a court judgment which, by the time the application was being decided upon, had become final but had not yet become enforceable. Section 37(5) read as follows: “The court shall not of its own motion declare inadmissible an application for enforcement based on a final judicial decision [notably, a judgment], in-court settlement or notarial deed solely on the ground that those documents have not been stamped with a certificate of enforceability or because [they] have not become enforceable at the time the application for enforcement is being decided upon ...” 27. Section 67(1) of the Enforcement Act, as in force at the material time, stated grounds on the basis of which the enforcement court could discontinue the enforcement. That provision read as follows: “Unless this Act provides otherwise, the court shall of its own motion discontinue enforcement proceedings if the enforcement title was finally quashed, reversed, annulled, repealed or otherwise deprived of its effect, or if the certificate of enforceability was set aside.” 28. Chapter 21 of the Enforcement Act regulated the enforcement of judgments ordering the reinstatement of employees. The relevant provision of that Chapter read as follows: The time-limit for lodging an application for enforcement Section 238 “An application for enforcement [on the basis of an enforcement title ordering an employer to reinstate an employee ...] may be lodged within a time-limit of thirty days from the date the enforcement creditor acquires the right to lodge such application.” 29. Croatian legal scholars have expressed the opinion that setting aside the certificate of enforceability did not automatically lead to discontinuation of the enforcement proceedings, as the text of section 67(1) of the Enforcement Act (see paragraph 27 above) appeared to suggest. This was especially so in the situations such as the one referred to in section 37(5) of the same Act, namely, where the judgment sought to be enforced had become final but had not yet become enforceable (see paragraph 26 above). In such situations the enforcement court was not entitled to discontinue the enforcement proceedings. In particular (see Dika, Mihajlo: Građansko ovršno pravo [Civil Enforcement Law], Narodne novine, Zagreb, 2007, p. 416): “If the certificate of enforceability was set aside on the grounds which do not prevent [the enforcement creditor from] seeking enforcement without such certificate (section 37(5) [of the Enforcement Act]), the fact that the certificate of enforceability was set aside cannot be a ground for discontinuation of the [enforcement] proceedings.” 30. As regards the issue how the time-limit provided for in section 238 of the Enforcement Act (see paragraph 28 above) was to be calculated the same author expressed the following view (see Dika, Mihajlo: op.cit., p. 718): “The time-limit [in question] should in principle be calculated from the moment the enforcement title [for example, a judgment] becomes enforceable. However, given that the enforcement creditor has to exercise his or her right within that time-limit, the moment when that time-limit starts to run has to correspond to the moment when the enforcement creditor learns that [the judgment sought to be enforced] has become enforceable. One often has to wait some time to find out whether and [, if so] when the enforcement debtor [the judgment debtor] has received the first-instance [judgment] and whether he or she has appealed against it [, and if so] when the second-instance [judgment] dismissing the appeal and upholding the first-instance judgment was served on the enforcement debtor and when the grace period for voluntary compliance which started to run from the service of that [second-instance judgment] expired. Therefore, it should be understood that the thirty-day time-limit should start to run from the day the court was able to issue the certificate of enforceability. ... Given that the court is not entitled to declare inadmissible of its own motion an application for enforcement based on a final court judgment ... simply because [the judgment sought to be enforced] has not been stamped with a certificate of enforceability at the time the application for enforcement is being decided upon, or to dismiss such application because the judgment to be enforced has not become enforceable (section 37(5) [of the Enforcement Act], it should be understood that the employee would be entitled to apply for enforcement even before [the judgment sought to be enforced] became enforceable ...” | 0 |
test | 001-145229 | ENG | RUS | CHAMBER | 2,014 | CASE OF ANTAYEV AND OTHERS v. RUSSIA | 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);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation) | Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicants are: Dzhamula Antayev, born in 1953; Malket Antayeva, born in 1965; Ayub Antayev, born in 1982; Suleyman Antayev, born in 1987; Islam Antayev, born in 1992; Gelani Vashayev, born in 1936; Nura Eshiyeva, born in 1948; Ayub Vashayev, born in 1980; Akraman Vashayev, born in 1984; Maryan Vashayeva, born in 1978. 6. The applicants live in the Vargashinskiy District, Kurgan Region. They are members of two families originally from Chechnya: the first and second applicants are married and the third to fifth applicants are their children; the sixth to seventh applicants are married and the eighth to tenth applicants are their children. The Antayev family (the first to fifth applicants; the first applicant family) have lived in the Kurgan Region since 1979; the Vashayev family (the sixth to tenth applicants; the second applicant family) have lived in the Kurgan Region since 1998. 7. The applicants submitted that attitudes towards the Chechen minority had worsened after 2000, when the second armed conflict in Chechnya had started. 8. On 8 March 2006 the third and eighth applicants had a fight with Mr A.B. in the settlement of Prosekovo. The third applicant was injured in the hand and Mr A.B. took him to the hospital. On 27 March 2006 the Kurgan regional forensic bureau noted knife wounds on the third applicant’s hand, which were classified as passing damage to health. According to the applicants, both parties to the conflict decided not to contact the authorities in this regard. As is apparent from subsequent questioning, the Antayev family had asked Mr A.B. to pay them 50,000 roubles (RUB) by way of compensation for their expenses, while Mr A.B. offered RUB 10,000. 9. In March 2006 the Vargashinskiy District Department of the Interior (ROVD) questioned Mr A.B. about threats to his life by the third and eighth applicants and opened criminal investigation file no. 388644 under Article 119, paragraph 1 of the Criminal Code (threat to life or health). It does not appear that anyone was charged or found guilty within this set of proceedings. In May 2007 Mr A.B. submitted a statement to the Court alleging that the police had used threats to force him to lodge a complaint against the first applicant family. 10. On 24 March 2006 the investigator in charge of the case issued urgent search warrants at both applicants’ families’ homes, referring to the possible presence of firearms. On 25 March 2006 that decision was found lawful by the district court. 11. On 24 March 2006 the first applicant family were at home at 4 Zarechnaya Street, in the Verkhnesuyerskoye settlement in the Vargashinskiy District. At about 1 p.m. three vehicles – a Gazel minibus, a black Volga and a VAZ-99 – arrived at their house. According to the applicants, about 20 men from various law-enforcement agencies got out of the vehicles. Some of them were wearing military uniforms and masks, others were dressed in civilian clothes. The applicants later identified Mr E.K. and Mr V.G. from the Regional Police Department for Combating Organised Crime (RUBOP), Mr. A.K., deputy head of the Vargashinskiy ROVD, Mr. N.P. and Mr U. from the Vargashinskiy ROVD. The RUBOP servicemen carried automatic weapons and hand pistols. Mr N.P. was in charge of carrying out the search. 12. According to the applicants, no search warrant or other document was produced by the police. The fourth and fifth applicants were in the courtyard; the policemen beat them there and said “Why don’t you go to Chechnya, to fight us there?” 13. The servicemen wearing masks and Mr E.K. entered the house. Mr E.K. grabbed the second applicant by the hand and pushed her towards the sofa in order to handcuff her; she fell to the floor and felt severe pain in her back. The first applicant was also punched in his back and legs by Mr E.K. 14. The third applicant was in the house. He had his sweater pulled over his head and was handcuffed. The servicemen beat him inside the house, then pulled him to the yard and beat him there in front of his brothers and then took him to the barn. According to the applicants, the third applicant’s pants were removed and he was threatened that his genitals would be “pulled off with a wire”; he was then thrown into manure and beaten. 15. According to the applicants’ statements, the servicemen mocked the third, fourth and fifth applicants saying that they would not be able to “beget more Chechens”. They also forced them to shout humiliating comments. They referred to the events in the village of Chastoozerye, where in 2002 two local residents of Chechen origin had been injured by unidentified persons (see application no. 18114/06, Amadayev v. Russia). 16. The second applicant saw that the fourth applicant, who suffered from epilepsy, had been brought into the house and was lying on the floor; he was very pale. The second applicant was not allowed to give him medicine. 17. The search of the Antayevs’ house lasted for about two hours. At some point Mr E.K. announced that he had found a cartridge from a gun. The second applicant alleged that she had seen him taking it out of his pocket. 18. The search record of 24 March 2006 drawn up by the ROVD officers mentioned two attesting witnesses and bore their signatures, as well as signatures by the third applicant indicating that he had been informed of his rights and obligations prior to the search and after it had been completed. No remarks or objections were noted in the record. The record listed one 7.62 mm calibre cartridge for an automatic gun which had been found in a drawer in the kitchen, 36 videotapes and eight items of printed material in a foreign language. The copy of the record is partly illegible, but it appears that after the discovery of the cartridge the third applicant, in the presence of two witnesses, stated that he had no knowledge of it. 19. As is apparent from subsequent documents, in April 2006 eleven videotapes were returned to the first applicant. 20. After the search, the first and third applicants were taken by the police to the offices of the local administration, where they were questioned separately for about one hour in relation to the criminal investigation concerning threats to Mr A.B. They then returned home. 21. A relative of the Vashayevs’ arrived from Kurgan and took the second, third and fourth applicants to hospital. 22. According to the certificates issued by the Vargashinskiy district hospital in September 2007, the second applicant remained at the hospital from 24 March to 11 April 2006. She was diagnosed with “acute osteochondrosis [degenerative disc disease], two-sided lumbar-sacral radiculitis, post-traumatic coxalgia, hypertension of the second degree and stress”. The third applicant remained at the hospital from 24 March to 1 April 2006. He was diagnosed with “contusion of soft tissue in the thoracic-lumbar area”. The fourth applicant was examined on 24 March and left the hospital on 25 March 2006. He suffered from “contusion of soft tissue in the abdomen”. 23. The applicants argued that the extent of their injuries was more serious and that the first and fifth applicants had also suffered beatings. Further details of their injuries were recorded by the forensic experts in the course of the criminal investigation (see below). 24. According to the certificate issued by the Kurgan Medical Centre for spinal trauma correction, the second applicant was treated there between 15 June and 6 July 2006. She was diagnosed with a displaced fracture of the tail bone (coccyx), resulting from the fall on 24 March 2006. On 22 June 2006 the second applicant was successfully operated on her spine. 25. The applicants submitted their own statements to the Court dated August 2006 describing these events; they also referred to the documents submitted by them and collected during the criminal investigation. Gelani Vashayev’s son Mr Sh.V., who had taken the members of the first applicant family and then his own relatives to hospital on 24 and 25 March 2006, also submitted a statement dated May 2007. Two journalists, Mr A.D. and Ms G.P., the editor-in-chief of the district newspaper Mayak, submitted written statements dated April and May 2007, in which they described their futile attempts to obtain information from the police and the local hospital about the incident. 26. On 24 March 2006 at around 4 p.m., the eighth and ninth applicants were returning home. Outside their house situated at no. 102 Belovo settlement, they saw a Gazel minibus, a Volga and a grey VAZ 99. In the courtyard of their house they saw about five men, some of them wearing camouflage military uniform and masks and carrying automatic weapons. Other men were wearing civilian clothes and were armed with pistols. The men did not identify themselves or produce any papers. 27. The men ordered these two applicants to stand with their faces to the wall, pulled their caps over their eyes and beat them. According to the applicants, the men told them that they should go back to Chechnya and uttered other ethnically motivated insults. 28. The men entered the house, where the sixth, seventh and tenth applicants were waiting. The sixth applicant was handcuffed. The seventh applicant was told that she had given her sons a bad upbringing and that they should leave the village. 29. The search record of 24 March drawn up by the ROVD officers mentioned two attesting witnesses and bore their signatures, as well as signatures by the seventh applicant attesting that she had been informed of her rights and the reason for the search prior to its commencement and that she had no remarks or objections at the end of it. The record listed one hunting gun and seventeen cartridges. In relation to the gun and cartridges the seventh applicant explained that they belonged to her son Mr Sh.V., who had put them in his bedroom about five months earlier. In another bedroom an unloaded hand pistol was found. Two knives in cases, two penknives and two self-made knives were found amongst clothing. The seventh applicant offered no explanation regarding these items. Finally, fourteen videotapes were collected. 30. The eighth applicant was then put into the Gazel and taken to the Vargashinskiy ROVD. According to him, on the way there he was beaten in his groin with rifle butts and a rope was pulled around his neck. As a result of the strangulation attempt, the eighth applicant lost consciousness on several occasions. He was also insulted and told that he “would not be able to beget more Chechens”. 31. At the ROVD the eighth applicant was questioned and signed a statement about the events in Prosekovo (see paragraph 8 above), without access to medical or legal assistance. 32. He was released at around midnight. Mr Sh.V. took him to hospital (see below). 33. The applicants submitted written statements by the eighth and ninth applicants, produced in August 2006, and testimony by their neighbour Mrs Ye.L., who had witnessed the beatings and insults administered to the eighth and ninth applicants on 24 March 2006. They also referred to the statement by the sixth applicant’s son, Mr Sh.V., mentioned above (see paragraph 25). 34. On 28 March 2006 the applicants lodged seven individual complaints with the Vargashinskiy District Prosecutor’s Office (“the district prosecutor’s office”). They alleged, in particular, that the policemen had beaten and humiliated them on 24 March 2006. On 7 April 2006 the investigator of the district prosecutor’s office refused to bring any charges under Article 286, paragraph 2 (a) and (b) of the Criminal Code (abuse of authority), on account of lack of evidence of a criminal act. Referring to the results of the preliminary inquiry, the decision stated: “On 24 March 2006, further to the complaint lodged by Mr A.B., the Vargashinskiy ROVD opened a criminal investigation under Article 119 of the Criminal Code [threat of murder]. Mr A.B. pointed out [the third applicant] as the person who had committed the crime... Pursuant to the internal instructions, on the same day the commanding officers of the ROVD transmitted this information to the RUBOP of the Kurgan Region, because the suspect was of Chechen ethnic origin. In order to provide security during the investigative measures and for operative support, servicemen of the RUBOP and special police force of the Regional Department of the Interior were sent to the Vargashinskiy district. The servicemen’s personal data is at present classified. The commanding officers took immediate investigative measures in the Prosekovo settlement, at the scene of the crime. Immediately thereafter the investigator, with the agreement of the commanding officers of the ROVD, decided to proceed with the searches ... at the places of residence of [the third applicant] ... and [the eighth applicant]. ... the commanding officers and servicemen of the ROVD, RUBOP and special police forces went to carry out the searches ... Mr [N.P.] from the ROVD was in charge of the searches. During the search at the Antayevs’ house, after the policemen had shown them the search warrant and invited them to surrender unlawful items voluntarily, [the third and fourth applicants] mounted active resistance to the search and prevented examination of some pieces of furniture. For this reason, two servicemen of the special police force took them out into the courtyard and placed them near the VAZ 2101 car, together with [the fifth applicant]. The servicemen of the ROVD, special police force and attesting witnesses remained in the house and proceeded with the search, while the remaining special forces’ servicemen held positions around the house. No unlawful actions or acts of physical violence were perpetrated by the servicemen against any members of the Antayev family. Towards the end of the search all members of the family were moving around the house freely. All items collected during the search were duly noted and securely sealed. The search of the Vashayevs’ house in Belovo followed the same pattern, in line with the provisions of the Code of Criminal Procedure. [The sixth applicant], his wife [the seventh applicant] and daughter [the tenth applicant] were inside the house, while [the eighth and ninth applicants] were in the courtyard. ... No one from the Vashayev family was hurt by the police officers. ... The applicants’ arguments alleging abuse of power by the police are therefore refuted by the information collected. This follows from the written explanations produced by the servicemen of the Vargashinskiy ROVD, including senior officers, servicemen of the RUBOP and the special police force. The servicemen’s explanations are consistent and non-contradictory. Each of them was questioned in relation to the actions of his colleagues which he had witnessed. None mentioned any abuses of power by their colleagues, while stressing the absence of justification for the alleged wrongdoing. The witnesses who had been present during the searches also rebutted the applicants’ allegations about the abuse of power, including those who had stayed outside the Antayevs’ house. Both attesting witnesses had moved around the Antayevs’ house freely and, given the layout of the premises, must have seen and heard the events in the courtyard. However, as is apparent from the witnesses’ explanations, they did not notice any unlawful conduct by the policemen. [The conclusions of the forensic report issued by the expert of the Kurgan Regional Forensic Bureau] were overturned by a commission of the [same office] ... The commission described [the eighth applicant’s] injuries recorded on 25 March 2006 as ‘not entailing consequences for [the applicant’s] health’. Based on the above, and also on the explanations given by servicemen of the ROVD as to the absence on [the body of the eighth applicant] and other members of the Vashayev and Antayev families of injuries resulting from the policemen’s actions, the district prosecutor’s office looks critically upon the forensic reports ... about beatings recorded for [the first to fifth and eighth applicants]. The inquiry established with a sufficient degree of probability that the circumstances of these beatings were contradictory and no connection with the searches has been established.” 35. As a result of the applicants’ complaints against the above decision, on 5 May 2006 the deputy to the Kurgan Regional Prosecutor opened criminal investigation file no. 388743 under Article 286, paragraph 3 (a) of the Criminal Code (abuse of power committed with the use of violence or with a threat of use of violence). On the same date both applicant families were informed accordingly. 36. On 12 May 2006 the district prosecutor’s office was put in charge of the case. In response to a request from the Court, the Government submitted in July 2012 a copy of most of the documents from criminal investigation file no. 388743 (which comprised over 1,280 pages). The relevant documents may be summarised as follows. 37. It is apparent that in May 2006 eight applicants (the first to sixth, eighth and ninth applicants) were granted the status of victims in the proceedings. 38. In the course of the proceedings in 2006 and 2007 the applicants were questioned on numerous occasions, first as witnesses and then as victims. They confirmed their statements about the circumstances of the searches, the beatings and the humiliating treatment. In particular, the members of the Antayev family described that on 24 March 2006 a group of about ten men wearing civilian clothes and about six military men had arrived at their house. The “civilians” were armed with hand pistols, and the military men carried automatic guns and were wearing camouflage uniforms, bulletproof vests, helmets and masks. The men had ordered them to lie down on the floor, had handcuffed the men and had beaten and kicked them; the second applicant was pushed and fell backwards against a sofa; Mr N.P. had kicked the first applicant while the military men had taken the fourth and fifth applicants into the courtyard and beaten them there. 39. The members of the Vashayev family submitted that after 2 p.m. on 24 March 2006, the sixth, seventh and tenth applicants had been at home, while the eighth and ninth applicants were out foraging for hay. The members of the family who had stayed at home had been forced to lie on the floor by armed men wearing masks, but were then allowed to stand up by the men wearing civilian clothes who carried out the search. The sixth applicant had been handcuffed at first, but later his handcuffs were removed. The two sons of the sixth and seventh applicants, the eighth and ninth applicants, were stopped by armed men when they returned home and were made to stand with their legs and hands apart against the wall, with their hats pulled down over their eyes. Several “military men” wearing masks and civilian clothes had punched and kicked them and beaten them with their rifle butts. The sixth, seventh and tenth applicants went into the courtyard when the search in the house was over, and had witnessed the eighth and ninth applicants being beaten. Then the eighth applicant was put in a Gazel vehicle where he was again kicked and a rope placed around his neck and tightened, as a result of which he had lost consciousness. 40. The criminal investigation file contains several forensic expert reports issued by the Kurgan Regional Forensic expert bureau (“the forensic bureau”). The first one, expert report no. 2133 dated 25 March 2006, reported that the eighth applicant had suffered the following injuries: extensive bruising on the back of the head caused by a blunt object and not entailing consequences for the applicant’s health, and three circular bruises around the neck resulting from strangulation attempts. This had caused asphyxia resulting in temporary loss of consciousness and haemorrhages in the eyeballs, which constituted a serious injury. The report was issued upon the applicant’s request. 41. Other reports below were issued on 28 March 2006 in response to the investigator’s orders. They concluded that the injuries had been caused by blunt objects and did not entail lasting damage to the victims’ health. 42. Expert report no. 60 concluded that the fourth applicant had been hit in the abdomen, resulting in bruising. 43. Expert report no. 61 found that the third applicant had bruises over the lumbar area, on both sides. 44. Expert report no. 62 concluded that the eighth applicant had haematomas on the left side of his neck and the left side of the chest. 45. Expert report no. 63 described the second applicant’s injuries as bruising of the upper lip, right upper hand, left shoulder and left leg. 46. Expert report no. 64 found that the fifth applicant had contusions on the lower part of the left leg. 47. Expert report no. 65 noted that the first applicant had bruising over the left side of his chest. 48. In May 2006 the experts of the forensic bureau issued their formal conclusions that the injuries could have been received at the time and in the circumstances as alleged. 49. In addition, the experts examined the records of the Vargashinskiy district hospital. On the basis of the records, they concluded that the examination of the ninth applicant at the hospital on 24 March 2006 had not revealed any injuries (he had complained of pains in the chest area); the examination of the sixth applicant revealed bruises on the right side of his chest. As is apparent from the applicant’s signatures, they were made aware of these conclusions in January 2007. 50. In respect of the second applicant’s complaint about spinal trauma, on 15 November 2006 the experts also examined copies of her medical records from the hospitals. The documents showed that in May 2006 the second applicant had sought medical assistance in relation to a fracture of the tail bone (coccyx). She was operated upon in June 2006. The exact date of the fracture could not be established; this injury should be regarded as moderately serious. 51. By February 2007 the investigation had established the identities of the police officers who had taken part in the searches on 24 March 2006. According to the documents contained in the file, the group headed by Mr N.P. included three other Vargashinskiy ROVD officers, six officers from the Kurgan Regional RUBOP, including Mr E.K. and Mr V.G., and six officers from the regional special police force unit. 52. The case file contains five notes about the events of 24 March 2006 written by the special police force officers, in which they stated that, while providing assistance during the search of the Antayevs’ house in Verkhnesuyerskoye, they had had to physically restrain the inhabitants of the house, who had resisted the execution of the search and had refused to let the policemen enter and carry out their duties. Four men – the first, third, fourth and fifth applicants – had thus had to be restrained by force and handcuffs had had to be put on them. 53. All officers and servicemen who took part in the searches were questioned in the course of 2006. They denied that they had made the applicants lie on the floor, or pulled their clothes over their heads or beaten them. 54. In particular, Mr N.P. from the Vargashinskiy ROVD, who had been in charge of the searches, stated on 15 May 2006 that on 24 March 2006 Mr A.B. had lodged a complaint with the ROVD that the third and eighth applicants had threatened to murder him. On the same day, the criminal investigation under Article 119 of the Criminal Code had been opened. In response to internal instructions from the Ministry of the Interior, the local police had informed the Kurgan RUBOP about all criminal investigations involving ethnic Chechens. On the same day, officers from the Kurgan RUBOP arrived at the ROVD. They were accompanied by six members of the special police force, in order to ensure the safety and security of the search procedures. They had travelled together to Prosekovo, where the investigator issued two search orders, the first for the Antayevs’ family house in Verkhnesuyerskoye. During both searches, the members of the special police force had run into the house first. Mr N.P. had served the search order on the first applicant, who had signed and dated it. The first applicant’s wife and three sons had also been at home at the time. They were invited to surrender weapons and illegal objects, but they denied having any such items. Then the search had started, and the members of the family had tried to interfere. They shouted and prevented the police officers from entering the rooms. Because of this, the officers from the special police force had escorted the first and second applicants’ three sons – the third to fifth applicants – into the courtyard. No one had hit the applicants. The search ended with the finding of one cartridge for an automatic rifle, literature in a foreign language, and a number of videotapes. Mr N.P. had remained in the house the whole time and had thus not witnessed the events in the courtyard. The first and third applicants had then been taken by one of the police officers to meet the investigator at the village administration’s offices, while the rest of the group went to the Vashayevs’ family house. There Mr N.P. had shown the search order to the seventh applicant and invited her to surrender illegally stored items, such as weapons. When the applicants denied having any such things, the police had started the search. The proceedings were conducted in a correct and polite manner, and no one had been beaten or otherwise injured. The search resulted in the finding and seizure of a smoothbore rifle and cartridges for it, a handgun of foreign manufacture, home-made knives and knives with long blades, and fourteen pirated VHS tapes. During the search the witness had not seen the events in the courtyard, but when he walked out, no one had been using violence on the applicants. He also noted that during the searches both families had behaved emotionally, and had shouted and vowed to lodge complaints. 55. The head of the Vargashinskiy ROVD, Mr I.K., stated on 15 May 2006 that he had been informed on the evening of 24 March 2006 that both searches had taken place in a calm manner, without any problems. The head of the ROVD criminal department, Mr A.K., explained that he had participated in the search at the Antayevs’ house and had seen their three sons in the courtyard, guarded by the special police force near the police car. The servicemen explained that the sons had obstructed the execution of the search. The three had been put in handcuffs, which Mr. A.K. later removed, and he had remained with them outside. At some point the fourth applicant had felt unwell and the witness had asked Mr A.Sh. to take him into the house to get treatment. After that he had accompanied the first and third applicants to the offices of the local administration, where the questioning had taken place. The applicants had not displayed any signs of ill-treatment or beatings. 56. On 16 May 2006 the investigators questioned Mr A.Sh., a policeman with the Vargashinskiy ROVD. He stated that he had not participated in the search of the Antayevs’ house and had entered it only after one of the officers had told him to take the fourth applicant from the police Gazel vehicle into the house to treat him with medicine. Witness A.Sh. accompanied the fourth applicant into the house and then travelled by car to the offices of the local administration. About twenty minutes later he had returned to the Antayevs’ house and observed that the applicants were in good health, with no signs of ill-treatment. He had then accompanied the group to the Vashayevs’ house, which he likewise did not enter. He had remained by the fence, where he met the ninth applicant and talked to him until the search ended. The ninth applicant had appeared to be in good health and neither he nor any other family members had displayed signs of ill-treatment. 57. The police also questioned six officers from the Kurgan RUBOP, including Mr E.K. and Mr V.G. They stated that the searches had proceeded calmly, except when the first applicant’s two sons, the fourth and fifth applicants, had to be escorted out of the house because they objected to the search. 58. Six officers from the regional special police force confirmed their presence during the searches on 24 March 2006. Their involvement had been limited to ensuring the security of the investigative measures. At the Antayevs’ house they had escorted two young men, the first applicant’s sons, out of the house and put handcuffs on them because they had interfered with the search. At the Vashayevs’ family house they had not applied force to anyone, nor had they put handcuffs on anyone. Furthermore, they had not hit or used physical force on anyone, had not made anyone lie on the floor or covered anyone’s head with clothes or hats, and they had not noticed that any of the applicants had injuries. 59. On 16 May 2006 the attesting witness for both searches, Mrs O.P., stated that both had been initiated by a number of the special police force officers – who were wearing masks and were armed with automatic weapons – running into the houses. At the Vashayevs’ house the witness had seen one man being led out, with his pullover over his head, and being stood up against the police vehicle with his legs apart. When she had entered the house, the men of the house were lying on the floor face down, with their hands behind their heads, while the woman was sitting on the sofa. The men were then allowed to stand up; they walked around the house and, initially, they had voiced their objection to the search. The search at the Antayevs’ family home had proceeded in a similar manner. She had seen Mr A.Sh. and the ninth applicant talking by the fence; she had also seen the eighth applicant in the Gazel where he had been talking to a man dressed in civilian clothes. No one had been hit or hurt. 60. The other attesting witness, as well as several local residents questioned by the police, had not witnessed any ill-treatment of the applicants on 24 March 2006. 61. It is apparent from the list of documents in the criminal investigation file that in 2006, in the course of the investigation, over 30 face-to-face confrontations were conducted between the applicants and the officers of the Vargashinskiy ROVD and the RUBOP who had taken part in the searches. In addition, over a dozen identification sessions were carried out involving both the victims and the officers. 62. The case file contains records of the face-to-face confrontation on 5 June 2006 between the applicants and the police officers. On the one hand, the first, second, seventh and ninth applicants, and on the other hand Mr N.P. – who had been in charge of the operation – recounted their different and irreconcilable versions of events. The first applicant stated during the confrontation that Mr N.P. had kicked him once in the chest; the second applicant confirmed this statement. During another confrontation the first applicant insisted that Mr A.Sh. had beaten the fourth and the fifth applicants, while Mr. A.Sh. denied this. The fourth applicant also stated that he and his brother, the fifth applicant, had been beaten by Mr A.Sh. Other face-to-face confrontations with police officers contained similar statements. 63. On 9 August 2006 the first and fourth applicants identified one of the RUBOP officers, Mr A.O., as a person who had participated in the search in their house; the fourth applicant identified Mr V.G., also a RUBOP officer, as the person who had hit him during the searches. 64. Also on 9 August 2006, the first applicant stated, during questioning, that he disagreed with the way the face-to-face confrontations and identification parades had been carried out. The record of the questioning, which the first applicant refused to sign, contains his allegations that these events had been arranged so as to exclude the individuals who had beaten them, and that the members of both families refused to attend them in the future. The case file also contains the investigator’s reports of 9 August and 10 September 2006 and 24 April 2007 which record that the first applicant’s behaviour had been hostile and that he had stated his disagreement with the manner in which the investigation was being conducted. 65. On 15 August 2006 during a face-to-face confrontation, the fifth applicant identified Mr V.G. as the person who had beaten his brothers, the third and fourth applicants. Mr V.G. denied this. Also on 15 August 2006, the fourth applicant identified Mr E.K., a RUBOP officer, as the person who had hit him in the back and neck. 66. On 24 August 2006 during a face-to-face confrontation, the second applicant identified Mr E.K. as the person who had beaten her sons and husband and had pushed her onto the floor. Mr E.K. denied that he, or other officers, had used violence. He also denied that he had taken the gun cartridge out of his pocket, insisting that he had found it in a kitchen drawer. On 18 December 2006, after the confrontation with the second applicant, the applicants’ representative noted that the investigator had refused to put a number of questions to ROVD officer Mr U. and had failed to record in full the second applicant’s statements about her son’s beatings. 67. The applicants submitted that during the questioning they had been threatened by the investigators, openly or covertly. Moreover, the investigator had refused to record certain statements, especially ones relating to the ethnically motivated nature of the attacks. 68. On 5 July 2006 both applicant families wrote to the Kurgan Regional Prosecutor, seeking an update on the investigation into their complaints of racial insults and injuries. 69. On 17 August 2006 the first and second applicants complained to the Vargashinskiy prosecutor of bias on the part of the investigator. They referred to the threats made by him to the victims. They also argued that since the ROVD officers had been directly implicated in the alleged events, the victims were at risk of further abuse and asked for the suspects to be arrested. The first applicant stressed, in particular, that the investigator had refused to record the statements made during questioning about the ethnic insults directed at them, in particular at the third applicant and the eighth and ninth applicants, who had been told that they “would not be able to beget more Chechens”. 70. On 24 August 2006 the district prosecutor’s office dismissed a request by the applicants’ representative to obtain access to the criminal case file. 71. On 28 August 2006 the applicants’ complaint regarding the investigator was rejected by the district prosecutor. 72. On 6 November 2006 the applicants’ representative lodged a complaint with the Kurgan Regional Prosecutor concerning the failure to take the necessary steps to investigate the crime and to look into its ethnically motivated nature. The complaint stated that the face-to-face confrontations and the questioning of the victims had been used to exert pressure on the applicants and noted that the investigator had failed to react to the threats made to the victims by those conducting the search. On 23 November 2006 the district prosecutor’s office rejected this request as unfounded. 73. On 5 February 2007 the district prosecutor’s office suspended the investigation for the first time owing to the failure to identify the alleged perpetrators. The eleven-page document summarised the steps taken so far and indicated that all the men who had taken part in the searches had been identified and questioned. At least some of them had been identified by the victims as the persons who had hit them. The document nevertheless concluded that –while certain evidence supported the applicants’ allegation of ill-treatment – it appeared impossible to reconcile the inconsistencies in the witnesses’ statements with the results of the face-to-face confrontations and identification parades, which was necessary in order to identify the police officers to be charged. This decision was quashed on 6 April 2007, in response to a complaint by the applicants. 74. On 13 May 2007 the district prosecutor’s office again suspended the investigation owing to the failure to identify the alleged perpetrators. In this decision it was held that the applicants’ statements had been inconsistent and that they had refused to take part in additional identification parades and face-to-face confrontations. It concluded: “The criminal file contains sufficient evidence that [the first to fifth, sixth and eighth applicants] were injured by police officers during the searches. ... The results of the forensic expert reports and the victims’ statements could serve as evidence [as to] where, how many times, by what means and by which officers the victims were hit on 24 March 2006 during the searches. However, the victim statements submitted during the questioning and the confrontations are mutually contradictory in part, and in parts are refuted by other evidence collected. ... [T]his gives rise to a critical attitude to these testimonies and undermines trust in [the victims]. In addition, the [special police force] officers were wearing masks, making it impossible to determine which of them hit which victim, where exactly and how many times. The special police officers deny that they beat the victims. The above makes it impossible to determine levels of individual guilt and to bring charges against any members of the Vargashinskiy ROVD, the RUBOP or [the special police force].” 75. On 21 May 2007 that decision was set aside by the district prosecutor’s office in response to a complaint by the applicants. The investigation was resumed and several other police officers were questioned. On 28 June 2007 it was again suspended, for reasons similar to those quoted in the decision of 13 May 2007. The document concluded: “The file contains sufficient evidence that [the first to fifth, sixth and eighth applicants] were injured by police officers during the searches. However, given the inconsistencies in their later testimonies, it could not be established with certitude that the injuries were indeed caused by any particular officer and in the circumstances as described by the victims”. 76. According to the information submitted by the Government along with their observations in July 2012, in June 2012 that decision was quashed and the investigation was resumed by the Kurgan Regional Directorate of the Investigative Committee. No documents relating to this latest stage of proceedings have been submitted and it does not appear that it has produced any results. 77. On 19 December 2006, pursuant to Article 125 of the Code of Criminal Procedure, the applicants lodged a complaint concerning the actions of the district prosecutor’s office with the Vargashinskiy District Court. In their complaint the applicants alleged that the opening of the investigation had been delayed, that it had failed to take into account the ethnically motivated nature of the attack, despite the consistent testimonies to this effect, that the investigator had shown bias and threatened the victims, that their complaints to the district prosecutor’s office had been futile, that they had not been allowed access to most of the documents in the case file, that no one had been charged with any crime and that all servicemen implicated in the events had been questioned only as witnesses. The applicants requested that the prosecutor’s office be ordered to replace the investigator and to ensure proper supervision, in addition to reviewing the complaints about the ethnically motivated nature of the attack. 78. On 9 January 2007 the Vargashinskiy Distrct Court partly dismissed the applicants’ request and partly refused to consider it on the merits. In respect of the alleged failure to investigate the ethnically motivated nature of the crime and the investigator’s bias, the court found that these issues fell within the prosecutor’s professional discretion. The applicants appealed, referring in particular to the lack of investigation of the ethnically motivated nature of the crime. 79. On 27 March 2007 the Kurgan Regional Court upheld the decision of 9 January 2007. | 1 |
test | 001-152323 | ENG | ROU | ADMISSIBILITY | 2,015 | TOMOIAGĂ v. ROMANIA | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Ioan Tomoiagă, is a Romanian national, who was born in 1963 and lives in Pecica. He was represented before the Court by Mr A. Fanu Moca, a lawyer practising in Timişoara. 2. The Romanian Government (“the Government”) were represented by their Co-Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was placed in pre-trial detention on 26 March 2010 in the Arad Police detention facilities. On 19 July 2010 he was convicted of corruption committed in the exercise of his duty as a police officer and sentenced to three years’ imprisonment by the Arad County Court. 5. Between 26 March and 20 April 2010 the applicant was detained in the Arad Police detention facilities in a cell measuring 12 sq m together with two other prisoners. The window was very small and could not be opened from the inside. Access to the toilets was allowed twice per day. The mattress on his bed was worn out and the food was of very poor quality. 6. On 20 April 2010 the applicant was transferred to Arad Prison where he remained until 13 January 2011. He shared a cell measuring 16 sq m with four other prisoners and the food was of very poor quality and served in unhygienic conditions. The applicant also alleged that he had been transported to court hearings before the Arad County Court in old vans, in overcrowded and overheated conditions. 7. In the Arad Police detention facilities the applicant shared a cell measuring 12 sq m with two other prisoners who were also in pre-trial detention. The cell had two windows each measuring 86 cm by 55 cm which could be opened from the outside at the prisoners’ request or by the prisoners themselves by pushing the windows towards the exterior. The sanitary facilities and toilets were accessible twice per day for the morning and evening routine. In addition, access to the toilets was granted whenever necessary, upon request, between 6 a.m. and 10 p.m. For the rest of the time a night pot was available in the cell. The prisoners had the right to a sixty-minute daily walk. 8. In Arad Prison the applicant was detained in a cell measuring 15.37 sq m. For certain periods of time he shared the cell with one, two or three other prisoners. The cell had a hallway, a separate bathroom with toilet and shower and a sleeping area. In terms of furniture, the cell contained five beds and bedside tables, a table for eating, chairs, shelves and a wardrobe. The prison had central heating; the temperature in the cells during the winter ranged from 20 to 22oC. The applicant had the right to three hours’ walk a day and, during his stay in Arad Prison, he participated in two educational activities and two sports activities (such as football during the month of October 2011). The applicant had been transported to and from the courts in accordance with the relevant legal provisions. 9. The Government emphasised that the applicant had never complained before the prison authorities about his conditions of detention or transportation. 10. Excerpts from the relevant parts of the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”), as well as of the European Prison Rules adopted by the Committee of Ministers on 11 January 2006, are quoted in Iacov Stanciu v. Romania (no. 35972/05, §§ 121-24, 24 July 2012). | 0 |
test | 001-154106 | ENG | ROU | ADMISSIBILITY | 2,015 | STĂNCULESCU AND CHIŢAC v. ROMANIA | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant in application no. 22555/09, Mr Victor Atanase Stănculescu, is a Romanian national who was born in 1928 and lives in Bucharest. He was represented before the Court by Mr C. R. Dancu, a lawyer practising in Bucharest. 2. The applicant in application no. 42204/09, Mr Mihai Chiţac, was a Romanian national who was born in 1928 and lived in Bucharest. He died on 1 November 2010. His wife Naila Chiţac expressed the wish to continue these proceedings. In its decision of 3 July 2014, the Court granted locus standi to his heir. The Court will continue to refer to Mr Chiţac as “the applicant”. The applicant and subsequently his heir were represented before the Court by Mr S. Andon, a lawyer practising in Bucharest. 3. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 4. The facts of the cases, as submitted by the parties, may be summarised as follows. 5. The cases concern the events of 16-22 December 1989 in Timişoara, when a popular revolt that started in that city led eventually to the fall of the totalitarian regime in Romania. At the time in question, the applicants were high-ranking military officers who were sent to Timişoara to suppress the revolt. Orders were given by the then Head of State to kill the protesters. Seventy-two people were killed and two hundred and fifty sustained gunshot wounds. More details of these events are given in Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, 24 May 2011 and Şandru and Others v. Romania, no. 22465/03, 8 December 2009. 6. After the change of regime, the applicants took up appointments in the newly-formed government, since the general perception at that time was that during the December 1989 events they had played a significant role in bringing the army onto the side of the insurgents. They remained in power in the first few governments formed after the revolution. 7. On 14 February 1990 the Government established a truth commission in Timişoara ‒ consisting of military personnel, civil and military prosecutors, members of civil society and specialists (including lawyers and a doctor) ‒ with a view to investigating the events of 1989. On 6 March 1990 twenty-seven written statements about the events were gathered. Mr. Chiţac stated that R.B., a prosecutor and member of the truth commission, had assembled in one room all the army conscripts who had participated in the events and had ordered them to describe the nature of the applicant’s participation in the repression. He claimed that later on, in 1996, R.B. had used these extra-judicial declarations in the criminal proceedings against the applicants. 8. In the same year, the truth commission recommended that criminal investigations be opened in respect of several high-ranking officers, including the applicants, in order to establish the extent of their responsibility for the repression of the revolution in Timişoara. 9. On 12 January 1990, the military prosecutor’s office opened investigations in respect of several officers identified by the commission, as well as various other suspects. Some high-ranking officers of the former regime were convicted over the course of time for their role in the repression and some servicemen were found guilty of having killed or injured individual victims. 10. On an unspecified date, criminal proceedings were instituted against the applicants. On 29 March 1996 the Military Prosecutor’s Office decided not to bring criminal proceedings against a number of high-ranking officers of the former regime, including the applicants, for alleged crimes committed during the 1989 events in Timişoara. On 28 October 1997 that decision was quashed and the prosecution continued. 11. On 30 December 1997 the applicants were informed of the accusations against them and were given access to the prosecution file. On the same day they were committed for trial by the Military Prosecutor’s Office on charges of aggravated murder in the context of the repression of the popular revolt of December 1989. The bill of indictment was some fifty pages long and the prosecution file consisted of several volumes of several hundred pages each, comprising witness testimonies and documents from the time of the revolt – shorthand records of meetings, military logs and medical certificates. Thirty witnesses were summoned by the prosecutor and sixty-five civil parties joined the proceedings. 12. The trial took place before the Supreme Court of Justice, first before the Military Section and then before the Criminal Section, which gave judgment in the case. Mr Stănculescu complained about alleged irregularities in the proceedings, but his requests were dismissed by the court on 29 April 1998. The Supreme Court examined the prosecution file and heard testimonies from several witnesses for both the prosecution and the defence. The applicants also made statements before the court. 13. On 14 June 1998 the defence lodged a constitutional complaint alleging an interference with the applicants’ right to two levels of jurisdiction; on the same day it was rejected by the Supreme Court, which then proceeded with its examination of the merits. 14. On 15 July 1999 the Supreme Court of Justice, sitting as a threejudge bench, convicted the applicants of aggravated murder and attempted aggravated murder and sentenced each of them to fifteen years’ imprisonment, restriction of the exercise of certain civil rights, and demotion. It also ordered the applicants, together with the Ministry of Defence, to pay damages to 217 victims who had suffered injuries while the two applicants were in command of the military forces. 15. On 25 February 2000 the Supreme Court of Justice dismissed appeals that had been lodged by the applicants, the Ministry of Defence and some of the civil parties. The judgment thus became final. 16. The Ministry of Defence paid the compensation to the victims. The two applicants were imprisoned. 17. On 7 August 2001 the Procurator General lodged an extraordinary appeal, seeking to have the previous decisions set aside (recurs în anulare), on four grounds: (i) that the courts had failed to order a psychiatric evaluation of Mr Stănculescu to be conducted, even though that requirement was mandatory for murder trials; (ii) that the first-instance court had dismissed the constitutional complaint raised by the defence instead of allowing the Constitutional Court to examine its merits; (iii) that Mr Stănculescu’s right to be assisted by counsel had been infringed by the appeal court; and (iv) that the acts committed by the applicants had not constituted crimes. 18. On 22 March 2004 the extraordinary appeal was allowed by the two Chambers of the Supreme Court of Justice sitting together. The Supreme Court also nullified the execution of the sentences. The applicants were thus released from prison. 19. A three-judge bench of the High Court of Cassation and Justice (formerly the Supreme Court of Justice) took over the case. On 18 January 2005 it also referred to the Constitutional Court the constitutional complaint which Mr Stănculescu had reiterated before it. The Constitutional Court dismissed it on 7 June 2005. The High Court granted requests for new evidence made by the applicants, in particular requests to adduce documents and to summon fourteen witnesses; it heard statements from the applicants and some of the witnesses and re-examined the whole body of evidence administered during the criminal prosecution and in the first set of proceedings. 20. Mr Stănculescu complained of alleged irregularities in the prosecution proceedings. On 15 February 2006 his complaints were dismissed in a thoroughly reasoned interlocutory judgment. With regard to the merits of the case, the applicants denied committing the crimes of which they had been accused. 21. In a judgment of 3 April 2007 the High Court found the applicants guilty of aggravated murder and attempted aggravated murder and imposed a final sentence of fifteen years’ imprisonment each, together with an additional penalty restricting the exercise of certain civil rights, and demotion. It also granted the compensation claims on the same terms as in the judgment of 15 July 1999 (see paragraph 14 above). It noted that the Ministry of Defence had already paid those damages. 22. The applicants appealed and in a final decision of 15 October 2008 a nine-judge bench of the High Court dismissed the appeal and upheld the judgment delivered by the three-judge bench. 23. The applicants were imprisoned once again in execution of their sentence. | 0 |
test | 001-152595 | ENG | RUS | CHAMBER | 2,015 | CASE OF YEVGENIY BOGDANOV v. RUSSIA | 4 | Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;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);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicant was born in 1983 and lives in the town of Akhtubinsk, in the Astrakhan Region. 6. Since 2002 the applicant has been infected with hepatitis C. 7. On 20 December 2002 the applicant was arrested on suspicion of knifepoint rape with an accomplice. 8. On 22 December 2002 the Astrakhan Region Akhtubinsk Town Court (“the Town Court”) remanded him in custody pending trial. The court noted that the applicant was suspected of a serious criminal offence, and held that if he remained at large he might abscond from the investigation and the court and continue his criminal activity. 9. On 19 February 2003 the Town Court extended the applicant’s detention until 20 March 2003. 10. On 20 March 2003 the Town Court held that the preventive measure should remain unchanged and should be extended until 20 April 2003. The court reiterated that the applicant had been charged with a serious criminal offence and that gave grounds to believe that if released he might continue his criminal activity. In addition the court noted that he should not be released, because this might prevent the investigator from performing certain investigative actions. 11. On 18 April 2003 the Town Court ordered the extension of the applicant’s detention until 20 May 2003. It endorsed the reasons for the extension of his detention which had been given before. It also noted that the investigating authorities needed time to perform certain investigative actions, to draft a bill of indictment, and to provide him with an opportunity to study his case file. It further observed that the applicant’s neighbours had given negative references regarding his character. 12. On 12 May 2003 the Town Court granted the investigator’s request to extend the applicant’s detention. The request was based on the arguments that the applicant was suspected of a serious crime, and that if released he might abscond. The investigator also noted that he had to perform certain investigative actions and ensure that the applicant had the opportunity to acquaint himself with the case file. The applicant argued that he was a student who had a stable place of residence, and that he could not abscond as he required in-patient medical treatment for his hepatitis C. He also provided some positive references concerning his character. The court accepted the investigator’s arguments, and extended the detention until 20 June 2003. 13. The applicant appealed against the order of 12 May 2003, complaining that insufficient reasoning had been given for that decision. He also noted that his arguments had not been addressed by the Town Court, and that the investigating authorities had unnecessarily extended the period for his familiarisation with the case file. 14. On 23 June 2003 the Astrakhan Regional Court (“the Regional Court”) dismissed the applicant’s claim. It held that his arguments could not constitute grounds for the overturning of the impugned order on appeal. 15. On 20 June 2003 the investigator applied for an extension of the applicant’s detention for two months to give the applicant an opportunity to study the case file. In response to the applicant’s arguments, the Town Court noted: “... The circumstances cited by the investigator [concerning the need to ensure the applicant’s familiarisation with the case file] were already [sufficient] grounds for the detention orders of 18 April and 12 May 2003. The case file contains the order of 16 June 2003, which provides that [the applicant] had until 30 June 2003 to study the case file. Accordingly, the extension of his detention for two months is an excessive measure. During the hearing the investigator and the prosecutor referred to their busy schedule, which prevented the authorities from ensuring [the applicant’s] familiarisation with his 400-page file on a daily basis. The study of the file required the applicant to be transported from a temporary detention facility to a court building. However, those arguments cannot be accepted by the court, as they are not compatible with the requirements of Article 5 § 3 of the Convention, which provides that everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” The court finds that the investigating authorities unnecessarily extended the investigation. Accordingly, the request in question should be partly dismissed ...” Taking into account the above, the court extended the applicant’s detention for one month, until 20 July 2003. 16. On 11 July 2003 the Regional Court quashed the decision of 20 June 2003 on procedural grounds, finding that the Town Court only had power either to uphold the investigator’s request or to reject it. The Code of Criminal Procedure of Russia did not allow such requests to be granted in part. 17. On 18 July 2003 the Town Court extended the applicant’s detention until 20 August 2003. This decision referred to the fact that the applicant was accused of a serious offence and that there was a need to perform “certain investigative actions”. 18. On 8 August 2003 the Regional Court upheld the decision of 18 July 2003 on appeal. It rejected the applicant’’s character and the necessity to perform “some investigative actions”. 19. On 2 July 2003 the applicant’s case file was remitted to the Town Court for examination on the merits. 20. By virtue of a decision of 14 July 2003 the Town Court ordered a preliminary court hearing in the applicant’s criminal case. In the descriptive part of this decision the court mentioned, among other things, that the measure of restraint which had been applied to the applicant must remain unchanged. The judge set no time-limits for the applicant’s detention. No separate court order with regard to the applicant’s detention was issued until 26 December 2003. 21. On 26 December 2003 the prosecution applied to the court for an extension of the applicant’s detention until 30 March 2004. It noted that the applicant was suspected of a serious criminal offence, and held that if released he might abscond from the investigation and the court and obstruct the establishment of the truth in the case. The applicant applied for release on bail, stating that he was suffering from hepatitis C and that there were no circumstances which would be capable of justifying the excessive length of his detention. The court refused his application. It held that the grounds for his detention remained unchanged and that he could receive medical treatment for hepatitis C in a detention facility. The applicant’s detention was extended until 30 March 2004. 22. On 18 March 2004 the Town Court extended the applicant’s detention until 30 June 2004. The court once again relied on the seriousness of the charges against the applicant. No other grounds for his detention were provided by the court. 23. On 15 June 2004 the Town Court extended the detention until 30 September 2004. This time the court referred to the seriousness of the charges and to the risk that if at liberty he could hamper the establishment of the truth in the case. 24. On 16 June 2004 the applicant appealed against the decision of 15 June 2004. His claim was received by the appeal court on 16 July 2004. 25. On 12 August 2004 the Regional Court upheld the impugned decision of 15 June 2004 on appeal. The appeal court added a new argument. It stated that the parties had significantly contributed to the length of the trial proceedings. This was due in particular to the fact that the last court hearing was adjourned owing to the absence of the defence lawyer, who was unwell. Taking into account the above and the information on the applicant’s character, the Regional Court found that his detention should not be lifted. By virtue of a decision of 14 January 2005 the higher court refused to review the applicant’s detention. 26. On 29 September 2004 the Regional Court examined a new application by the prosecuting party for an extension of the detention. Relying on the seriousness of the charges and the risk of absconding, the court extended the applicant’s detention until 30 December 2004. 27. On 12 October 2004, referring to the progress of his hepatitis C, the applicant asked the court to change his detention to house arrest. The Town Court refused, observing that he had been offered medical treatment but had refused to undergo such treatment in the detention facility; he had thereby deliberately damaged his own health. 28. On 28 December 2004 the Town Court examined the investigator’s application for an extension of the applicant’s detention and the defence’s request for a change to the measure of restraint. The court restated its earlier reasoning, and approved the extension of the detention until 30 March 2005. 29. On 12 January 2005 the Town Court ordered a psychiatric examination of the applicant. On 3 March 2005 he was transferred from the remand prison to a psychiatric hospital. 30. On 30 March 2005, after the psychiatric examination, the applicant was returned to a temporary detention facility. 31. On 30 March 2005 the Town Court once again extended his detention and dismissed his request for the release on bail. It repeated that the grounds for the applicant’s detention remained unchanged, that the applicant was accused of a serious offence, and that if released he could obstruct the criminal investigation. The detention was extended until 30 June 2005. 32. The applicant’s pre-trial detention ended on the day of his conviction, 30 May 2005. 33. On 8 July 2003 the prosecution case file was received by the Town Court. 34. On 30 May 2005 the Town Court convicted the applicant of knifepoint rape and sentenced him to eight years’ imprisonment. 35. On an unspecified date in 2005 the Regional Court upheld the sentence on appeal. 36. After the applicant’s arrest of 20 December 2002 he was placed in the temporary detention facility of the Akhtubinsk Department of the Interior of the Astrakhan Region (“the Akhtubinsk IVS”) and then remand prison IZ-30/1. He was detained in these two facilities intermittently during two years, nine months and two days, up to 25 October 2005. It appears that the principal location of his detention during this period was IZ-30/1 and that he was held in the Akhtubinsk IVS or transported there on several occasions to enable him to take part in the investigation, acquaint himself with the criminal case file, attend hearings concerning the extension of his detention (on 22 December 2002, 20 March, 18 April, 12 May, 20 June, 18 July, 26 December 2003, 18 March, 15 June, 12 August, 29 September, 12 October and 28 December 2004 and 30 March 2005) and hearings of his criminal case (as a minimum 28 July, 7 and 22 August and 30 September 2003, 14 April, 5 and 17 May, 15 June, 29 September, 30 November and 1 and 16 December 2004, and 26 April and 30 May 2005). 37. According to the applicant, his cell measured approximately 13.3 square metres and housed twelve to twenty persons, some of whom were suffering from tuberculosis. It was not equipped with individual sleeping places. The detainees had to sleep on a forty-centimetre podium which provided sleeping places for eight or nine of them. The interior walls were covered with rough cement. The cell was infested with rats, lice, ants, flies and other insects. It was filled with tobacco smoke, because the access of fresh air was blocked. The ventilation system did not work and the only window in the cell was covered by a metal sheet. The cell had only one 100watt lamp, which was on day and night. During the summer the temperature in the cell was around 40 degrees Celsius. In the winter the detainees suffered from “terrible cold”. They could not leave the cell without authorisation and were not allowed to move freely around the facility. Two or three times a day they were escorted to toilet facilities in groups of three to five. The cell was not equipped with a lavatory pan or running water. Inmates were provided with a single bucket for both waste and lavatory purposes. The bucket serving as a lavatory was not separated from the rest of the cell, and thus offered no privacy. The applicant and his cellmates had two meals a day of very poor quality at 2 p.m. and 6 p.m. All of them ate from one four-litre pan using five spoons. 38. The applicant also submitted a formal warning of 15 June 2004 no. 16-43-2004, issued by the Akhtubinsk Prosecutor’s Office (“the Prosecutor’s Office”) and addressed to the Head of the Akhtubinsk IVS. It reads as follows: “The inspection report indicates that Akhtubinsk IVS does not satisfy the requirements of domestic legislation applicable to detention facilities. It is not equipped with medical staff. Accordingly, prophylactic and anti-epidemic measures are not performed. The detainees’ clothes and bedding are not disinfected on a regular basis. The register of medical examinations, the sanitary register and the register of disinfection are not properly completed. The detainees are not examined on admission by a medical professional. The authorities do not ensure a weekly shower. The above leads to the detention of persons with various infections, sexually transmitted diseases, skin diseases, mental disorders and other diseases alongside healthy inmates. This causes the spread of diseases among the detainees ... and the staff members of the Akhtubinsk IVS. It has been stated that the Akhtubinsk Department of the Interior, Astrakhan Region, has a medical assistant who carries out superficial inspections of the Akhtubinsk IVS, and assesses whether the domestic standards are complied with. This is not so. This person cannot be considered an employee of the Akhtubinsk IVS, because he does not carry out the entirety of the duties of such a post. The Prosecutor’s Office has already warned the detention facility’s management about the inappropriate sanitary conditions in the Akhtubinsk IVS, but no effective action has been taken by the authorities. In view of the above, and the provisions of section 24 of the Federal Law pertaining to the Prosecutor’s Office (“the Prosecutor’s Office Act”)” I prescribe: 1. An internal investigation to determine whether a disciplinary punishment should be applied to the responsible officials. 2. Effective measures to prevent and put right violations of the Federal Law pertaining to detention of suspects and accused persons (“the Suspects and Accused Persons (Detention) Act”. 3. Action to comply with this warning without delay: the Prosecutor’s Office to be informed within one month of the action that has been taken.” 39. The Government argued that applicant’s cell was disinfected on a regular basis and that he was provided with meals in line with the expected standards. They agreed that overall the conditions of his detention in the Akhtubinsk IVS were incompatible with the requirements of Article 3 of the Convention. 40. The applicant stated that the conditions of his detention in IZ-30/1 had been appalling. 41. The Government noted that the applicant was held in IZ-30/1 on many occasions between 23 January 2003 and 25 October 2005. Their submissions as regards the conditions of detention in IZ-30/1 may be summarised as follows: 42. According to the Government, the applicant was at all times provided with an individual bed and bedding, even though the personal space afforded to him was, on certain occasions, less than the statutory 4 sq. m per person. The applicant was provided with three meals per day. The quality of the food was subject to the requisite quality control. 43. Every cell in the remand prison where the applicant was detained was equipped with powered ventilation. The ventilation system was in working order. Natural ventilation was achieved by means of trickle vents in the windows. The temperature in the cells was between 18 and 25 degrees Celsius. The heating and water supply were in compliance with the applicable standards. There were no metal bars on the windows. Accordingly, access to daylight was not blocked. The artificial lighting was in compliance with the applicable specifications; there were two lamps, of 100 watts and 60 watts, which were on from 6 a.m. to 10 p.m. and from 10 p.m. to 6 a.m. respectively. 44. The toilet was separated from the living area of the cell by a two metre high brick or metal screen ensuring privacy. The cells were regularly cleaned and disinfected. 45. Detainees were permitted to take a shower at least once a week for not less than fifteen minutes. 46. The Government lastly submitted that the detention facility had had a fully equipped medical station. 47. The applicant submitted that he had been frequently transported between the Akhtubinsk IVS and IZ-30/1 during his detention in these two facilities and that the conditions of his transportation had been appalling. First, he was deprived of the opportunity to sleep, because he was taken out of his cell at 11 p.m. and returned there at 3 a.m. Secondly, on the days of transportation the applicant did not receive any food (including travel rations) or water and on every occasion the prison vans were severely overcrowded. Lastly, during the transfers the detainees had to use a bottle or a plastic bag to wash themselves. There was also no possibility to use the toilet. 48. The Government provided the Court with the date of the applicant’s transfers (see paragraph 36 above), but did not submit any other information about the conditions of the applicant’s transportation. 49. The applicant stated that before his arrest he had contracted hepatitis C. During pre-trial detention he was placed in a cell with other detainees who were infected with tuberculosis, leading to his contracting that disease. He further stated that during the detention he suffered from dermatosis and dental problems. According to the applicant, he was neither provided with adequate medical treatment nor with an appropriate diet. 50. In accordance with a medical report of an unspecified date, submitted by the Government, during the applicant’s detention he was provided with adequate medical treatment. The report reads as follows: “Retrospective analysis of the submitted medical records confirm that [the applicant] had been suffering from hepatitis C since 2002. During his detention [the applicant] underwent several medical examinations and received medical treatment. The last [in-patient] treatment was provided in August 2008 in the hospital of IZ-2. The results of his medical examination indicate that [the applicant] had chronic hepatitis C of low activity. In connection with this he underwent basic treatment and antivirus treatment. He was provided with hepatoprotectors and vitamins. At the present time [the applicant] continues to receive pathogenetic and aetiological treatment. On 23 January 2003 at admission to IZ-30/1 he underwent an X-ray examination, [which indicated no pathology] of the lungs. In 2003 and 2004 [the applicant] had two such examinations. During his stay in IZ-30/1 he was often transported to the Akhtubinsk IVS to take part in court hearings or investigative actions. In 2004 he complained of weakness, pain in the right part of his stomach and a bitter taste in his mouth. Owing to these complaints he was diagnosed with hepatitis and on 4 March 2004 he was sent to a regional hospital, were he underwent a complex medical examination. This examination indicated that he had infiltrative tuberculosis in the lower part of his right lung, pneumonia and hepatitis C. After anti-inflammation and anti-bacterial treatment the aforementioned diagnosis was confirmed. [The applicant] was transferred to [a special hospital] where he received specific complex anti-tuberculosis treatment from 30 March to 29 April 2004. Later, the patient refused further in-patient treatment and was transported to IZ30/1. On 14 May 2004 an expert panel of the regional anti-tuberculosis clinic confirmed the diagnosis and concluded that his treatment had been prompt and adequate and had led to a positive health outcome. On 14 February 2005 the expert panel stated that the [applicant] had recovered from tuberculosis. Only some insignificant traces of the disease remained in his lungs. Until the patient’s departure for a penal colony on 25 October 2005, he received anti-relapse treatment. [The applicant’s] disease was apparently caused by his frequent transportation to the IVS, chronic stress, hepatitis C, his anti-social behaviour and smoking. The patient’s disease was promptly diagnosed by means of an X-ray examination, and efficiently treated in line with the relevant standards.” 51. The Government also submitted the applicant’s voluminous medical records, covering the period from 2003 to 2008. They show that during his detention the applicant underwent ten X-ray examinations, several HIV tests, and a variety of other medical examinations, including blood tests. Besides the history of his tuberculosis and hepatitis treatment, the medical records contain information about the treatment of his skin diseases. Thus, in January 2004 following his complaints regarding itching, the applicant was examined by a doctor, diagnosed with streptodermosis and provided with an ointment. In February 2004 he was diagnosed with a recent dermatitis and was also provided with ointments and other medicines. From 2005 to 2008 he did not complain about skin problems. On one occasion in June 2004 the applicant complained of headache. In connection with this, he was examined by a psychiatrist, who confirmed that he had no mental disorders and prescribed him nootropil and vitamins. 52. On 17 September 2004 the applicant applied to the Prosecutor’s Office for criminal proceedings to be instituted against the management of the Akhtubinsk IVS, who had put him in the same cell as infected detainees and failed to ensure the compatibility of the conditions of his detention with the minimum standards set forth by domestic law, and had failed to provide him with adequate medical assistance. 53. On 27 September 2004 the applicant’s complaint was dismissed. The Prosecutor’s Office agreed that the conditions of the applicant’s detention did not fully satisfy the requirements of domestic law and that there were some omissions on the part of the management. However, it concluded that the management’s actions did not amount to a criminal offence. The Prosecutor’s Office did not specify the established omissions of the prison authorities. 54. On 12 December 2004 the applicant challenged the aforementioned decision in court under Article 125 of the Russian Code of Criminal Procedure. 55. On 13 January 2004 the Town Court allowed the applicant’s claim and quashed the impugned decision, because the Prosecutor’s Office had not provided details of the management’s omissions. 56. No further decisions concerning the outcome of the examination of the applicant’s complaints were submitted by the parties. 57. There is no information about the examination of the applicant’s subsequent complaints of 16, 17, 19, 25, 26 and 27 July 2005, which were sent to the Prosecutor’s Office. 58. On 7 and 14 September 2005 the applicant lodged two claims with the Town Court, seeking compensation for damage to his health and for non-pecuniary damage, which he alleged had been caused by the inadequate conditions of his detention in the Akhtubinsk IVS and remand prison IZ30/1. 59. By decisions of 14 and 17 September 2005 the Town Court left the claims pending the awaited rectification of their procedural defects. The applicant was invited to clarify the list of the defendants and the factual circumstances of the alleged violations of his rights. 60. Later the applicant’s claims were returned unexamined on the merits, as the Town Court concluded that he had failed to comply with the court’s recommendations. 61. The applicant did not challenge the Town Court’s decisions on appeal. | 1 |
test | 001-147038 | ENG | RUS | CHAMBER | 2,014 | CASE OF MOSTIPAN v. RUSSIA | 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);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1973 and is currently serving a prison sentence in Bozoy, Irkutsk Region. 6. According to the applicant, and not contested by the Government, at approximately 11 p.m. on 5 April 2007 she was arrested on suspicion of abducting, raping and murdering S. According to the arrest record, she was arrested at 3.30 a.m. on 6 April 2007. 7. Following the arrest, the applicant was taken to a police station where she was questioned by an investigator in the presence of a lawyer. Prior to the questioning, she wrote a statement admitting to S.’s abduction. According to her, police officers threatened to beat her if she refused to make a written statement. She did not explain whether she had been denied access to a lawyer prior to writing the statement. 8. According to the applicant, on the morning of 6 April 2007 she was taken to the town prosecutor’s office. She was taken to an office where policemen started beating her and urging her to confess to S.’s murder. They hit her on the head and threatened to rape her, and then handcuffed her and pushed her to the floor. They put a hat on her head and pulled it down over her eyes. They also threw a coat over her. They punched her in the solar plexus and the stomach, and pulled her by the legs. They attached a wire to her right leg and placed a metal object between her shoulders, then subjected her to electrocution while gagging her mouth to muffle her screams. 9. On the same day the applicant was questioned by the investigator and confessed to S.’s abduction. She was later taken to the location where she had last seen S. alive and was questioned again afterwards. The applicant’s lawyer was present during the questioning. 10. Later that day the applicant was taken to a temporary detention centre, where an officer conducted a medical examination and noted numerous bruises on her belly and scratches below the right clavicle. It appears that the administration of the detention facility informed the investigator from the town prosecutor’s office accordingly, who ordered that the applicant undergo a forensic medical examination. 11. At approximately 5 or 6 p.m. that evening the applicant underwent a forensic medical examination which, in addition to the injuries noted before, revealed two bruised areas on her chest, possibly caused by blunt solid objects one to two days before the examination. At the time, the applicant did not offer any explanation as to the cause of the injuries. 12. On 13 April 2007 the investigator questioned the applicant again the in the presence of her lawyer. She denied having any intent to kill S. According to her, it was two other co-defendants who had decided to do so. 13. On 10 May 2007 a local newspaper published an article about S.’s murder and the opening of the investigation. The names of the alleged perpetrators were not disclosed. 14. On 28 June 2007 the town prosecutor’s office received a complaint from the applicant alleging that she had been ill-treated. 15. On 10 March 2008 investigator T. from the town prosecutor’s office refused to open a criminal investigation into the applicant’s and her codefendants’ allegations of ill-treatment in police custody. The investigator noted as follows: “In the course of the investigation, [the applicant and three other defendants] alleged that their initial statements had been coerced by police officers and the prosecutor’s office and were false. In addition, the medical examination conducted revealed that they had sustained injuries. However, in the course of the investigation ... the [defendants’] statements were obtained in accordance with the rules of criminal procedure. The [defendants’] allegations should be considered with criticism. They are charged with serious offences. They have not pleaded guilty and wish to evade criminal liability. Accordingly, no objective information has been found that would confirm the defendants’ allegations that they sustained injuries while in [custody].” 16. It appears that the applicant’s allegations of ill-treatment in police custody were subject to additional pre-investigative inquiry. On 10 September 2008 investigator M. from the regional prosecutor’s office refused to open criminal proceedings against the alleged perpetrators. He took into account the fact that the applicant had been convicted as charged (see paragraph 22 below). He further relied on statements made by the police officers involved in the applicant’s arrest and questioning, who denied having beaten or tortured her. He summarised his findings as follows: “The analysis of the collected material shows that the [applicant’s] allegations of illtreatment are not confirmed by objective information and are refuted by the explanations provided by the police officers and investigators from the town prosecutor’s office. [The applicant] complained of ill-treatment after a considerable length of time, and only when she was charged with serious offences, even though nothing had precluded her from communicating her complaint to the investigator who had questioned her in the presence of a lawyer or during the inspection of the crime scene or subsequent questionings, etc. Furthermore, when admitted to the temporary detention facility, [the applicant] did not complain of her injuries allegedly inflicted by police officers. In the absence of a forensic medical examination, it is impossible to determine that [the applicant] sustained the injuries, the degree of their severity, the time of their infliction, or their cause. Regard being had to the above, it should be concluded that the [applicant’s] allegations of ill-treatment should be considered with criticism and viewed as an attempt by [the applicant] to avoid criminal liability for the serious crimes committed. Such a conclusion is substantiated by the [applicant’s] conviction by the Irkutsk Regional Court ... [Her] allegations of ill-treatment were subject to verification by the court, which ruled [that there was] no case to answer against the police officers and investigators from the prosecutor’s office, who had not abused their powers or infringed the [applicant’s] rights in contravention of the law.” 17. On 18 June 2009 investigator T. refused to institute criminal proceedings against the police officers who had allegedly subjected the defendants to ill-treatment following their arrest. The parties did not provide a copy of this decision. 18. On 26 October 2009 the Irkutsk Regional Court, within the framework of the trial, issued a separate ruling concerning the applicant’s and other defendants’ allegations of ill-treatment in police custody, advising the regional prosecutor that an additional inquiry should be conducted. In the ruling, the court considered that the inquiry conducted in response to the defendants’ complaints had been incomplete. In particular, the court stated as follows: “In the course of the trial, each of the defendants alleged that they had been subjected to physical and psychological pressure by law-enforcement officers ... who demanded that they confess to [the crimes] ... As it transpires from the material in the case file, during the preliminary investigation in the present case each of the defendants lodged complaints with the [town] and [regional] prosecutors’ offices alleging an abuse of power and the use of force by law-enforcement officers ... Following the inquiry in response to the [applicant’s] complaint, on 10 September 2008 [senior investigator M. from the investigating committee of the regional prosecutor’s office] refused to institute criminal proceedings on [the grounds that] no offence had been committed. ... The court cannot subscribe to [M.’s] finding that it was impossible to establish objectively that [the applicant] had bodily injuries because [allegedly] she had not undergone a forensic medical examination ... [T]he material in the case file ... contains information showing that all the defendants had sustained bodily injuries ... For instance, witness Sh., who saw [the applicant] immediately prior to [her] arrest ... and witness Shin., [one of the police officers] who had taken [the applicant] to [the police station] on the night of 6 April 2007 testified that [she] did not have any visible injuries and ... did not complain about her health to Sh. ... The records on the initial examination and registration of provision of medical aid to detainees admitted to [the temporary detention centre] ... contain the following entries ... On 6 April 2007 [the applicant] had bruises on her body ... On 7 April 2007 [she] had bruises on the abdomen and scratches on the right clavicle. The findings of the forensic medical experts are as follows ... [The applicant] had bruises on the abdomen and two areas of subcutaneous haemorrhage on the right side of the chest which were caused by the impact of blunt solid objects approximately one to two days ago and could not cause damage to her health. The origin of the injuries was not indicated. [The applicant] did not inform the forensic medical expert as to the origin of the bodily injuries. In 2008, when conducting an inquiry in response to the [applicant’s] complaint, investigator M. did not examine the findings of the forensic medical expert ... at all. ... Regard being had to the above, the court considers that ... investigator M. ... did not conduct a comprehensive and objective inquiry in response to the [applicant’s] allegations of [ill-treatment]. The investigator’s decision ... does not contain an answer as to how and when [the applicant] sustained bodily injuries. In accordance with the [statutory] rules of criminal [procedure], no party to the proceedings can be subjected to abuse, torture or other inhuman or degrading treatment. Accordingly, the court draws the prosecutor’s attention to the fact that a comprehensive and thorough examination is necessary in order to verify the defendants’ allegations of ill-treatment.” 19. On 26 November 2009 the investigating committee of the regional prosecutor’s office informed the Irkutsk Regional Court, in response to the decision of 26 October 2009 (see paragraph 18 above), that investigators M. and T. had been subjected to a disciplinary warning and reprimand respectively for failing to properly discharge their duties. According to the first deputy head of the investigating committee, the decision of 18 June 2009 had been reversed and the committee had conducted an additional preinvestigative inquiry into the defendants’ allegations of ill-treatment. The Government did not submit a copy of this decision or state whether its content had been communicated to the applicant. 20. According to the Government, on 6 December 2009 the investigating committee refused to open a criminal investigation into the applicant’s allegations. The Government did not submit a copy of this decision or state whether its content had been communicated to the applicant. 21. On an unspecified date the investigation against the applicant and the three other co-accused was completed and the case was transferred to the Irkutsk Regional Court for trial. 22. On 29 August 2008 the court found the applicant guilty as charged and sentenced her to twenty years’ imprisonment. 23. On 31 March 2009 the Supreme Court of the Russian Federation quashed the applicant’s conviction on appeal. The court noted that the trial court had failed to ensure the defendants’ right to an adequate defence and had held hearings in the absence of defence counsel. 24. During the new trial, the applicant admitted that she had participated in S.’s abduction and battery but denied any involvement in organising S.’s rape and murder. She further claimed that she had been subjected to illtreatment while in police custody and forced to confess. 25. In response to the applicant’s allegations of ill-treatment by police officers, the trial court questioned forensic expert R., who had examined the applicant on 6 April 2007. R. confirmed his earlier findings and stated that the applicant might have sustained the injuries at least twenty hours prior to the examination. He also considered it impossible, given the nature of the applicant’s injuries, that she had been subjected to electrocution. 26. On 26 October 2009 the Regional Court found the applicant guilty as charged and sentenced her to sixteen years’ imprisonment. The court relied, inter alia, on her statements of 6 and 13 April 2007. As regards the written statement made prior to her first questioning by the investigator (see paragraph 7 above), the court considered it admissible in so far as she had informed the investigator about S.’s abduction. The court also considered admissible the record of the applicant’s questioning by the investigator. In this connection, it noted that prior to the questioning the applicant had been advised of her rights, and had been assisted by a lawyer throughout. The applicant appealed. 27. On 17 March 2010 the Supreme Court reclassified the charges against the applicant to bring them in line with amendments to the Russian Criminal Code and reduced her sentence by two years. The court also upheld on appeal the Regional Court’s findings concerning the inadequacy of the inquiry in response to the defendants’ allegations of ill-treatment. | 1 |
test | 001-142737 | ENG | BEL | CHAMBER | 2,014 | CASE OF PAPOSHVILI v. BELGIUM | 3 | Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Georgia);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Georgia);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Georgia) | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Mark Villiger;Paul Lemmens | 6. The applicant was born in 1958 and lives in Brussels. 7. He arrived in Belgium via Italy on 25 November 1998, accompanied by his wife and the latter’s six-year-old child. The couple had a child together in August 1999 and another in July 2006. 8. On 29 December 1998 the applicant was arrested and taken into custody in connection with an offence of theft. On 14 April 1999 he was sentenced to seven months’ imprisonment, which was suspended except for the period of pre-trial detention. 9. In 1999 and 2000 the applicant and his wife were arrested on several occasions in connection with theft offences. 10. On 28 April 2000 the applicant’s wife was sentenced to four months’ imprisonment for theft. 11. On 18 December 2001 the applicant was convicted of a number of offences including robbery with violence and threats, and was sentenced to fourteen months’ imprisonment, which was suspended except for the period of pre-trial detention. 12. On 9 November 2005 the applicant was sentenced by the Ghent Court of Appeal to three years’ imprisonment for involvement in a criminal organisation with a view to securing pecuniary advantage using intimidation, deception and corruption. 13. Having already spent time in pre-trial detention, he was subsequently detained in Forest Prison and then in Merksplas Prison, where he continued to serve his sentence until August 2007. 14. On 26 November 1998, the day after their arrival, the applicant and his wife lodged an asylum application. 15. When interviewed in connection with her asylum claim, the applicant’s wife stated that she had travelled through Germany. 16. A request to take back the applicant and his family was sent to the German authorities under the Dublin Convention of 15 June 1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (“the Dublin Convention”). 17. After the German authorities refused the request, it transpired that the applicant and his family were in possession of a Schengen visa issued by the Italian authorities. A request to take charge of them was therefore sent to the Italian authorities and was accepted on 4 June 1999. 18. On 22 September 1999 the applicant lodged a further asylum application, using a false identity. It was immediately rejected after his fingerprints were checked. 19. On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the proceedings concerning the asylum application of 26 November 1998 had been concluded on 11 June 1999 with the refusal of the application. 20. On 20 March 2000 the applicant lodged a first request for regularisation for a period exceeding three months, on the basis of section 9(3) (current section 9bis) of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”). In support of his request, the applicant stated that he and his wife had a daughter born in 1999 and that his wife already had a daughter born in Georgia from a previous relationship. 21. On 30 March 2004 the Aliens Office declared the request devoid of purpose as the applicant had left the country and been intercepted in Germany. It found that the request was in any case unfounded in view of the fact that the applicant’s medical treatment for tuberculosis had ended (see paragraphs 59 and 60 below). The Aliens Office also referred to the applicant’s lack of integration in Belgium and the numerous breaches of public order he had committed. 22. On 28 April 2004 the applicant lodged a second request for regularisation of his residence status on the basis of section 9(3) of the Aliens Act. He cited as exceptional circumstances in support of his request the duration of his residence in Belgium and his integration into Belgian society, the risks that a return to Georgia would entail for his children’s schooling, the fact that he had been the victim of persecution and his state of health. 23. The Aliens Office rejected the regularisation request on 5 April 2007 on the ground that the evidence adduced did not amount to exceptional circumstances for the purposes of section 9(3) of the Act such as to warrant the lodging of the request in Belgium rather than with the competent diplomatic mission or consulate, as was the rule. The Aliens Office noted that the applicant had been allowed to remain in the country for the sole purpose of the asylum proceedings, which had been concluded by a final decision. It also cited as reasons the lack of any need for medical treatment, the applicant’s precarious and unlawful residence status, the absence of a risk of persecution in Georgia and the possibility for the children to continue their schooling in that country. 24. In a judgment of 29 February 2008 the Aliens Appeals Board rejected the application to set aside the Aliens Office’s decision. The Board noted that since the decision in question had not been accompanied as such by an expulsion order, it could not give rise to a risk of violation of Article 3 of the Convention. 25. On 10 September 2007, relying on Articles 3 and 8 of the Convention and alleging, in particular, that he would be unable to obtain treatment for his leukaemia (see paragraphs 62 and 63 below) if he were deported to Georgia, the applicant lodged a first request for regularisation on medical grounds on the basis of section 9ter of the Aliens Act. 26. On 26 September 2007 the Aliens Office refused the request on the ground that, under section 55/4 of the Act, the applicant was excluded from its scope of application on account of the serious crimes which had given rise in the meantime to a ministerial deportation order issued on 16 August 2007 (see paragraph 43 below). 27. On 17 December 2007 the applicant lodged a request under the ordinary procedure for a stay of execution of that decision together with an application to set aside. He alleged in particular that the Aliens Office had referred exclusively to the ministerial deportation order in finding that section 9ter of the Aliens Act was not applicable in his case, without investigating his state of health or the risk he ran of being subjected to treatment contrary to Article 3 of the Convention, and without weighing up the interests at stake as required by Article 8 of the Convention. 28. In a judgment of 20 August 2008 the Aliens Appeals Board dismissed the applicant’s claims in the following terms: “It is clear from the wording of [section 9ter] that there is nothing to prevent the administrative authority, when dealing with a request for leave to remain on the basis of the above-mentioned section 9ter, from ruling immediately on the exclusion of the person concerned from the scope of application of the said section 9ter without first taking a decision on the medical evidence submitted to it, if it considers at the outset that there are substantial grounds for believing that the person concerned has committed any of the acts referred to in section 55/4, cited above. The examination of that evidence would be superfluous in such a situation since the person responsible for taking the decision has in any event already decided that section 9ter should not apply. ... As regards the alleged violation of Article 3 of the Convention, it should be observed that the decision complained of in the present application is not accompanied by any expulsion order, with the result that the alleged risk of discontinuation of treatment in the event of the applicant’s deportation to Georgia is hypothetical.” 29. The Aliens Appeals Board also dismissed the complaint under Article 8 of the Convention in view of the fact that the impugned decision was not accompanied by any expulsion order. 30. On 10 September 2007, relying on the same grounds as those invoked under section 9ter of the Aliens Act (see paragraph 27 above) and on his family situation, the applicant lodged a request for regularisation on grounds of exceptional circumstances under section 9bis of the Aliens Act. 31. On 7 July 2010 the Aliens Office refused the request for regularisation, taking the view that the protection of the State’s best interests took precedence over the applicant’s social and family interests and that by committing serious punishable acts the applicant himself had placed his family’s unity in jeopardy. That decision was served on the applicant on 11 July 2010. 32. On 26 July 2010 the applicant lodged a request with the Aliens Appeals Board under the ordinary procedure for a stay of execution of the refusal decision of 7 July 2010, together with an application to have the decision set aside (Aliens Appeals Board case no. 57.444). In so far as necessary, the application also related to the order to leave the country issued on the same date (see paragraphs 48 to 51 below). The applicant alleged a violation of Articles 2 and 3 of the Convention and argued that his serious health problems amounted to exceptional humanitarian circumstances as defined by the Court in D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997III), that he would not have access to treatment in Georgia and that the withdrawal of treatment would lead to his premature death. He further alleged an infringement of Article 8 of the Convention and of the International Convention on the Rights of the Child, on the ground that if he were deported to Georgia he would be separated from his family permanently. 33. A hearing was held on 16 November 2010. On 31 May 2011 the Aliens Appeals Board ordered a fresh hearing to enable the parties to update the factual and legal evidence in the case. A hearing was scheduled for 17 November 2011 but was cancelled on 10 November 2011. 34. According to the information in the case file these proceedings are still pending before the Aliens Appeals Board. 35. In the meantime, on 2 April 2008, the applicant had lodged a second request for regularisation on medical grounds on the basis of section 9ter of the Aliens Act. In addition to his various medical problems he referred to the fact that he had been continuously resident in Belgium for eleven years and had lasting social ties in that country, and to his family situation. He also argued that if he was sent back he would be left to fend for himself while ill in a country in which he no longer had family ties and where the medical facilities were unsuitable and expensive. 36. The request was refused by the Aliens Office on 4 June 2008 for the same reason it had cited previously (see paragraph 26 above). 37. On 16 July 2008 the applicant lodged an application with the Aliens Appeal Board to have that decision set aside (Aliens Appeals Board case no. 29.316). 38. According to the information in the file those proceedings are currently pending. 39. On 10 June 1999, on the grounds that the Belgian authorities did not have responsibility under the Dublin Convention for examining the asylum application, the Aliens Office issued an order for the applicant and his wife to leave the country with a view to their transfer to Italy. However, their departure was postponed because the applicant’s wife was pregnant. 40. After the birth, the family was granted leave to remain until 14 October 1999 because the new-born baby was in hospital. Their leave to remain was subsequently extended until 15 March 2000 on the ground that the child needed regular supervision by a paediatric gastroenterologist. 41. The time-limit for enforcement of the order to leave the country was extended several times during the first half of 2000 because of the need to treat the applicant’s tuberculosis (see paragraphs 59 and 60 below) and the six-month course of anti-tubercular treatment required by the whole family. 42. On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the time-limit had been extended until the applicant and his child had made a full recovery. 43. On 16 August 2007, in a deportation order issued under section 20 of the Aliens Act, the Minister of the Interior directed the applicant to leave the country and barred him from re-entering Belgium for ten years. The order referred to the applicant’s extensive criminal record, allied to the fact that “the pecuniary nature of the offences demonstrate[d] the serious and ongoing risk of further breaches of public order”. 44. The order became enforceable on the date of the applicant’s release but was not in fact enforced because the applicant was undergoing medical treatment at the time (see paragraph 63 below). 45. The applicant, who was in hospital, did not contact his lawyer in order to lodge an application to have the ministerial order set aside. However, on 15 November 2007 the lawyer lodged an application on his own initiative. 46. In a judgment of 27 February 2008 the Aliens Appeals Board rejected the application as being out of time. 47. In the meantime, as the applicant was about to finish serving the prison sentence imposed in 2005, he had been transferred on 14 August 2007 to Bruges Prison with a view to enforcement of the ministerial deportation order. He remained there until 27 March 2010, when he was transferred to Merksplas Prison. 48. In parallel with its decision of 7 July 2010 refusing the applicant’s request for regularisation on grounds of exceptional circumstances (see paragraph 31 above), the Aliens Office on 7 July 2010 issued an order for him to leave the country, together with an order for his detention. These were served on the applicant on 11 July 2010. 49. Also on 7 July 2010 it was decided that the applicant should be transferred on 11 July to the Merksplas closed facility for illegal aliens with a view to his expulsion to Georgia. 50. On 16 July 2010 the Georgian embassy in Brussels issued a travel document valid until 16 August 2010. 51. As stated above (paragraph 32), the applicant lodged a request with the Aliens Appeals Board on 26 July 2010 under the ordinary procedure for a stay of execution of the refusal decision of 7 July 2010, together with an application to have the decision set aside. In so far as necessary, the application also related to the order to leave the country issued on the same date (Aliens Appeals Board case no. 57.444). According to the information in the file those proceedings are still pending (see paragraph 34 above). On the same day the applicant also lodged a request under the ordinary procedure for a stay of execution and an application to set aside, directed specifically against the aforementioned order to leave the country dated 7 July 2010 (Aliens Appeals Board case no. 57.447). Those proceedings are likewise still pending. 52. On 30 July 2010, two days after the indication by the Court of an interim measure (see paragraph 57 below), an order was made for the applicant’s release and he was given until 30 August 2010 to leave the country voluntarily. 53. In a letter dated 30 August 2010 the applicant’s lawyer applied for an extension of the time-limit for enforcement of the order to leave the country. The time-limit was extended initially until 13 November 2010 and was subsequently extended several times until 28 February 2011. 54. The applicant continued to make regular requests for extension but received no reply. 55. On 18 February 2012 the Aliens Office issued an order to leave the country “with immediate effect” on the basis of the ministerial deportation order of 16 August 2007. 56. On 23 July 2010 the applicant applied to the Court for an interim measure under Rule 39 of the Rules of Court. Relying on Articles 2, 3 and 8 of the Convention, he alleged that if he were expelled to Georgia he would no longer have access to the health care he required and that, in view of his very short life expectancy, he would die within an even shorter period of time, far removed from his family. 57. On 28 July 2010 the Court indicated to the Belgian Government that it was desirable, in the interests of the parties and the proper conduct of the proceedings before the Court, to suspend enforcement of the order for the applicant to leave the country issued on 7 July 2010 “pending the outcome of the proceedings before the Aliens Appeals Board”. 58. In August 1999 the applicant’s wife gave birth to a child. 59. In 2000 the applicant was diagnosed with “active pulmonary tuberculosis responding to antibiotic treatment”. 60. The applicant continued to be treated for his tuberculosis and received emergency medical assistance and social welfare assistance for that purpose. 61. In July 2006 the applicant’s wife gave birth to their second child. 62. In 2006, while the applicant was in prison (see paragraphs 12 and 13 above), he was diagnosed with hepatitis C and chronic lymphocytic leukaemia (CLL) in Binet stage B, with a very high level of CD38 expression (a marker associated with a poor prognosis and a risk of progression of the disease). No treatment was commenced. 63. As his health had deteriorated, the applicant was admitted to the Bruges prison hospital complex from 14 August to 23 October 2007 in order to receive a course of treatment based on Leukeran (Chlorambucil). 64. During his time in Bruges Prison from 14 August 2007 to 27 March 2010 (see paragraph 47 above) the applicant received visits on an almost daily basis from his wife and/or his children. Merksplas Prison, to which he was subsequently transferred and where he remained until 11 July 2010 (see paragraphs 47 and 49 above), informed the applicant that they did not have a record of the number of visits he had received. 65. A report prepared on 11 February 2008 by Antwerp University Hospital, where the applicant was being treated, stated that his condition was life-threatening and that, on the basis of the averages observed in 2007, his life expectancy was between three and five years. The report stated that, following treatment, his white blood cell count had fallen from 110,300/mm3 with 97 % lymphocytes in August 2007 to 28,900/mm3 with 83 % lymphocytes in January 2008. 66. During 2008 the applicant’s tuberculosis was found to have become active again. 67. From 8 to 14 May 2010 the applicant was confined to hospital in Turnhout with respiratory problems. The medical report concerning his stay prescribed antibiotics and bronchodilators. It also noted an increase in his white blood cell count to 72,440 mm3, with 85% lymphocytes, and the progression of the applicant’s other conditions. It recommended that the applicant be treated as an outpatient by a lung specialist and a haematologist. This treatment did not materialise on his return to Merksplas Prison, where he was being held. 68. On 22 July 2010 a doctor from Antwerp University Hospital visited the applicant in the Merksplas closed facility, to which he had been transferred in the meantime, in order to carry out a full medical check-up. The doctor’s report noted that the treatment administered for the applicant’s lung disease was insufficient. It went on to note that the applicant had not received adequate medical care for his leukaemia, which was progressing rapidly towards Binet stage C, and that his treatment needed to be switched to chemotherapy combining Fludarabine and Cyclophosphamide. Lastly, the doctor observed that no medical examination had been carried out in connection with the applicant’s hepatitis C. He recommended that the applicant be admitted to hospital for urgent tests and treatment. The report was forwarded to the Aliens Office. 69. In a fax dated 28 July 2010 the doctor attached to the Merksplas facility for illegal aliens expressed the view that the applicant required specialised treatment which could not be provided within the closed facility. The doctor therefore recommended that he be released on medical grounds. 70. On 30 July 2010 the applicant was released (see paragraph 52 above). 71. On 12 September 2012 a doctor from the haematology department of St Pierre University Hospital in Brussels (“the University Hospital”), where the applicant was being treated following his release, drew up a certificate which stated as follows: “... D. Possible complications if treatment is discontinued. Failure to treat the liver and lung disease could result in organ damage and ensuing disorders (respiratory insufficiency, cirrhosis and/or liver cancer). Without treatment, the CLL could lead to the patient’s death as a result of the disease itself or the effects of serious infections. A return to Georgia would expose the patient to inhuman and degrading treatment. E. Progression and prognosis Chronic lymphocytic leukaemia (CLL): good if treated, but the risk of relapse is real so that close monitoring is required even during remission. Chronic obstructive pulmonary disease (COPD): stabilisation if treated. Hepatitis C: good prognosis if patient responds to treatment. ... F. Specific needs Regular biological and radiological monitoring in a specialised facility. Chemotherapy centre.” 72. The applicant was requested to report to the Aliens Office’s medical service on 24 September 2012 for a medical check-up and to enable the Belgian authorities to “reply to the Court’s questions”. 73. The report prepared by the medical adviser on that occasion listed the consultations held and the treatment, in particular chemotherapy, undertaken since the applicant’s release in July 2010. It stated that the leukaemia had stabilised after several cycles of chemotherapy and was being monitored closely, that the applicant was receiving medical care for his lung disease and that his treatment consisted of Zovirax to prevent herpes, Pantomed to prevent gastric problems and Flixotide, an antiinflammatory corticosteroid. 74. Referring to the Court’s judgment in the case of N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008), the report concluded as follows: “On the basis of this medical file it cannot ... be said that the threshold of severity required by Article 3 of the Convention, as interpreted by the Court, has been reached .... It appears from the file that the diseases to which the medical certificates refer ... are not directly life-threatening. The conditions from which the applicant suffers are serious and potentially fatal but are currently under control. None of the patient’s vital organs is in a condition that presents a direct threat to his life. His hepatitis C is not currently causing any cirrhosis. The pulmonary disease is controlled by the treatment, consisting solely of an inhaled corticosteroid. The patient’s haematological disorder is currently stable. The lymph nodes are no longer swollen and the patient’s haemolytic anaemia is resolved. Chemotherapy has been discontinued for the time being. ... Neither monitoring of the patient’s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient’s survival. The disease cannot be considered at present to be in the terminal stages. ... The patient is close to Binet stage A at present. His chronic obstructive pulmonary disease is also currently under control.” 75. On 5 November 2009 the applicant’s wife lodged a request for regularisation on the basis of section 9bis of the Aliens Act (exceptional circumstances), relying on her family situation and the length of her residence in Belgium. 76. On 29 July 2010 she and her three children were granted indefinite leave to remain. | 0 |
test | 001-179557 | ENG | UKR | CHAMBER | 2,017 | CASE OF FELDMAN AND SLOVYANSKYY BANK v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Sergiy Goncharenko;Yonko Grozev | 5. The first applicant was born in 1958 and lives in Dnipro, Ukraine. The applicant bank was a commercial joint-stock bank based in Ukraine with its registered office in Zaporizhzhya. Its banking licence was revoked on 11 January 2001 (see paragraph 12 below). Subsequently, the applicant bank was liquidated (see paragraph 19 below). 6. The first applicant was the vice-president, founder and majority shareholder of the applicant bank. 7. In February and March 2000 the domestic authorities instituted two sets of criminal proceedings for tax evasion and abuse of office by the management of the applicant bank. 8. In March 2000 the first applicant was arrested as part of the criminal proceedings (for more details see Feldman v. Ukraine, nos. 76556/01 and 38779/04, 8 April 2010). In April 2000 the Ukrainian news agency UNIAN reported on a session of the Coordination Committee on Combating Corruption and Organised Crime. The relevant extract reads: “‘It is a matter of honour for the General Prosecutor’s Office and the State Tax Administration to bring the story of Slovyanskyy Bank to its logical conclusion,’ said the President of Ukraine during his speech at the session ... He stated that the chairs of the bank had turned it into a source of uncontrolled personal income. ‘Such moneymakers have powerful patrons, and there is great pressure on the investigation,’ stated the President.” 9. On 29 June 2000 the National Bank of Ukraine (“the NBU”) suspended the applicant bank’s licence for some of its operations, considering that its financial position had deteriorated sharply and that it had been performing risky operations which threatened its solvency. 10. In July 2000 an investigator from the tax police of the State Tax Administration, acting in the course of the criminal proceedings, ordered an attachment of the applicant bank’s securities. 11. On 18 September 2000 the NBU put the applicant bank under temporary administration, which involved suspending the functions of some of the bank’s managers. 12. On 11 January 2001 the NBU issued a resolution “On the Liquidation of Slovyanskyy Commercial Joint-Stock Bank” by which, among other things, (1) the applicant bank’s operating licence was revoked in full; (2) the powers of the board, the council and the general shareholders’ meetings were terminated; and (3) the applicant bank was ordered to be liquidated. By the same resolution the NBU approved the composition of a liquidation commission for the bank, consisting of eleven officials from the regional departments of the NBU and two members of staff from the local tax office. 13. On 5 March 2001 the first applicant, who was in detention at the time, brought a claim under the rules of Chapter 31-A of the Code of Civil Procedure of 1963 with the Pechersky District Court of Kyiv, challenging the NBU’s decision. He maintained that the impugned resolution was unlawful and that the NBU had decided to liquidate the applicant bank owing to its failure to fulfil its financial obligations, whereas that failure had been caused by the NBU itself and the tax authorities. The first applicant emphasised that after the resolution had been adopted, the applicant bank had not been able to protect its rights and interests on its own. He added that the resolution had been detrimental to the interests of the applicant bank’s shareholders, including himself. 14. On 26 June 2001 the court found that the first applicant could bring a claim, however, it had to be dismissed. The court held that the NBU had been competent to adopt the impugned resolution, that the measures taken had been lawful and that they had been made necessary by gross violations of banking legislation by the applicant bank and its difficult financial position. 15. The first applicant appealed against that decision. 16. On 5 July 2002 the Kyiv City Court of Appeal upheld the decision of 26 June 2001 in part, but changed its reasoning. It held that the NBU’s resolution of 11 January 2001 had not concerned the first applicant and it had not been established during the determination of the claim that his rights and freedoms had been violated. For those reasons the court of appeal dismissed the claim. 17. The first applicant appealed on points of law. 18. On 21 April 2005 the Supreme Court of Ukraine quashed the decisions of 26 June 2001 and 5 July 2002 and terminated the proceedings, considering that the claim was inadmissible. It found as follows: “... The first and second-instance courts have established that Mr B.M. Feldman brought a claim as a shareholder of Slovyanskyy Bank, however he did not request the protection of his own rights and freedoms but, in fact, acted in the interests of Slovyanskyy Bank, without being duly authorised [bold text in the original]. According to Articles 1 and 12 of the Code of Commercial Proceedings, disputes between a subject of entrepreneurial activities and enterprises, institutions and organisations concerning the protection of their rights and freedoms, and their disputes concerning the declaration of legal acts as invalid, should be examined by the commercial courts. Given that a shareholder is not entitled to apply to a court for the examination of such a dispute and that this case is not to be examined in accordance with civil procedure, the decisions adopted in this case should be quashed and the proceedings should be terminated, in accordance with Article 136 § 2 (1) and Article 227 § 1 of the Code of Civil Procedure ...” 19. The liquidation process of the applicant bank was completed on 30 November 2012. The bank was removed from the legal entities official database on 4 August 2014. | 1 |
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